Southern Oregon Citizens Against Toxic Sprays v. Watt

No. 79-1098 FR (D. Or. September 9, 1982)

The court holds that the Bureau of Land Management (BLM) was not required under the National Environmental Policy Act (NEPA) to supplement a programmatic environmental impact statement (EIS) when it substituted herbicide sprays used in a forest vegetation management program in Oregon but that BLM must include a "worst case analysis" in a subsequent annual environmental assessment of the program. The court holds that the substitution in 1982 of 2,4-D and other herbicides for Silvex did not constitute a major federal action of substantial programmatic change requiring the preparation of a supplemental EIS because the substituted herbicides are less harmful to human health than Silvex and all are mentioned in the programmatic EIS. The court also holds that the 1982 spraying program for the Medford, Oregon district is not a major federal action because the program does not involve significant impacts beyond those already analyzed in the programmatic EIS. In addition, the court finds that the 1978 programmatic EIS did not violate NEPA in only discussing the human health effects of Silvex, because the EIS did discuss the probable environmental consequences known at the time.

The court notes that theCouncil on Environmental Quality (CEQ) regulations apply to environmental documents filed after the effective date of the regulations. It rules that BLM violated the CEQ regulations by failing to include a worst case analysis in the 1982 supplemental environmental assessment and finding of no significant impact since scientific uncertainty exists as to the effect of 2,4-D on human health.

Counsel for Plaintiff
Michael Jewett
Jacobson & Jewett
P.O. Box 518, Ashland OR 97520
(503) 482-4753

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 SW Main St., Portland OR 97205
(503) 221-2101

[13 ELR 20174]

Frye, J.:

Opinion and Order

Plaintiff challenges the adequacy of the Environmental Impact Statement (EIS) and the subsequent Supplemental Environmental Assessment (SEA) and Finding of No Significant Impact (FONSI) prepared by defendants in support of their herbicide spraying program in Jackson and Josephine counties of Oregon (Medford District). Plaintiff seeks to enjoin defendants from further spraying until adequate documents have been prepared. Both parties have moved for summary judgment.

Facts

Plaintiff is Southern Oregon Citizens Against Toxic Sprays, Inc., a non-profit corporation whose members live in Jackson and Josephine counties and use the public forests for recreation, food gathering, and employment. Many live near sites designated for herbicide spraying. Defendants spray the public forest lands annually in the Medford District with various herbicides as part of their program of vegetation management. The purpose of spraying with herbicides is to reduce the quantity of vegetation that is competing with the more desirable conifers, mainly Douglas fir. The spraying is intended to prepare sites for reforestation and to allow existing conifers to grow above competing vegetation.

In 1978 the United States Department of Interior, Bureau of Land Management (BLM), filed an EIS entitled Vegetation Management with Herbicides: Western Oregon, 1978 through 1987. This is a "program" EIS explained on page 1-1 of the EIS as follows:

The herbicide program described herein typifies the projected annual herbicide program. Therefore it is used as the basis for analyzing the environmental impacts that may be incurred during the 10-year period. This environmental statement is considered applicable for a 10-year period unless it is determined through the Bureau's annual review process that it does not adequately describe the environmental effects. The annual review process is accomplished by assessing the site specific environmental impacts of each districts [sic] herbicide program proposals. This assessment is described in a supplement to this Environmental Statement.

This program contemplated using the herbicide Silvex as well as 13 other herbicides including 2,4-D. The EIS devotes 15 pages to the human health effects of Silvex, but does not address the human health effects of the other herbicides, except to conclude, "Except for Silvex, no potential long-term human health effects are known to result from the proposed action." The use of Silvex was thereafter suspended by the Environmental Protection Agency (EPA). The BLM has continued its herbicide program using the other herbicides, including 2,4-D.

This court is not to decide whether or not 2,4-D and the other herbicides are safe for use. The only issue before this court is whether defendants have complied with the procedural requirements of the National Environmental [Policy] Act (NEPA), 42 U.S.C. § 4321, et seq., in determining whether to use, 2,4-D and the other herbicides.

Legal Issues¹

Plaintiff makes four arguments:²

[13 ELR 20175]

1. The shift from Silvex to other herbicides is a major federal action significantly affecting the environment, thus necessitating the preparation of an EIS under 42 U.S.C. 4332(2)(C).

2. Each yearly spray proposal, and in particular the 1982 proposal for the Medford District described in SEA&OR-110-82-75, is a major federal action, thus necessitating the preparation of an EIS under 42 U.S.C. 4332(2)(C).

3. The defendants violated NEPA and regulations thereunder by failing to evaluate the human health effects of 2,4-D and other herbicides in the EIS.

4. Defendants violated 40 C.F.R. § 1502.22 by failing to include a "worst case analysis" in the Supplemental Environmental Assessment.

1. Does the shift from Silvex to other herbicides constitute a major federal action?

Plaintiff characterizes the shift from Silvex to other herbicides when Silvex was suspended by the EPA as "the equivalent, for NEPA purposes, of a brand new proposal to spray thousands of acres annually with 2,4-D, Picloram, Atrazine and other chemicals." Plaintiff argues that this change necessitates preparation of a new or a supplemental EIS, under 40 C.F.R. § 1502.9(C)(1).

Changes in a proposed government project may be so substantial as to require an additional or supplemental environmental impact statement. Environmental Defense Fund v. Marsh, 651 F.2d 983 [11 ELR 21012] (5th Cir. 1981). However, the defendants are not using any herbicides not mentioned in the final EIS. They have simply eliminated the one considered potentially harmful to human health. The herbicides used to replace Silvex are discussed in the EIS. Their properties remain the same whether they are used over 1,000 or 10,000 acres. The substitution of other herbicides for Silvex was considered as an alternative in the original proposal. This court concludes that this is not a substantial deviation such as the court found in Marsh, supra. The change from Silvex to other herbicides is not a major federal action or a substantial change requiring preparation of a new or supplemental EIS.

2. Is the 1982 spray proposal for the Medford District a major federal action?

The 1978 EIS is a program EIS, designed to be applicable for ten years unless it is determined through an annual review process that it no longer adequately describes the environmental effects. Program EIS's are specifically provided for in NEPA's implementing regulation, 40 C.F.R. § 1500.4(i). The District Manager has made a finding that the proposed 1982 herbicide program for the Medford District does not involve significant impacts beyond those already analyzed in the EIS.

The spray proposal for 1982 for the Medford District is not a major federal action and therefore does not require preparation of a new or supplemental EIS.

3. Did defendants violate NEPA by failing to evaluate the human health effects of 2,4-D and other herbicides in the EIS?

The 1978 EIS only discusses the human health effects of Silvex. The EIS concludes, "Except for Silvex, no potential longterm health effects are known to result from the proposed action." EIS p. 6-3. Defendants contend that the concern of both the public and other agencies at that time was TCDD, a contaminant of Silvex, and no significant concern was expressed about the possible health risks of herbicides not containing TCDD.

An EIS need not discuss all possible environmental consequences of a given action. A reasonably thorough discussion of the significant aspects of the probable environmental consequences known at the time is all that is required by an EIS. Trout Unlimited v. Morton, 509 F.2d 1276, 1283 [5 ELR 20151] (9th Cir. 1974). Since the EIS states that no long-term health effects are known to result from the use of other herbicides, and since the defendants' duty is only to discuss probable effects known at the time, the failure to specifically deal with human health effects of 2,4-D and the other herbicides, while troublesome in retrospect, is not a violation of NEPA.

4. Did the defendants violate 40 C.F.R. § 1502.22 by failing to include a "worst case analysis" in the Supplemental Environmental Assessment?

Plaintiff argues that scientific uncertainty exists as to the human health effects of 2,4-D, therefore, pursuant to 40 C.F.R. § 1502.22, defendants had a duty to expose that uncertainty and to include a "worst case analysis" in the supplemental environmental documents, i.e., in the documents prepared after the EIS.

40 C.F.R. § 1502.22 provides:

§ 1502.22 Incomplete or unavailable information.

When an agency is evaluating significant adverse effects on the human environment in an environmental impact statement and there are gaps in relevant information or scientific uncertainty, the agency shall always make clear that such information is lacking or that uncertainty exists.

(a) If the information relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the environmental impactstatement.

(b) If (1) the information relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall costs of obtaining it are exorbitant or (2) the information relevant to adverse impacts is important to the decision and the means to obtain it are not known (e.g. the means for obtaining it are beyond the state of the art) the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the action to proceed in the face of uncertainty. If the agency proceeds, it shall include a worst case analysis and an indication of the probability or improbability of its occurence.

This regulation became effective July 30, 1979. 40 C.F.R. § 1506.12 provides:

(a) These regulations shall apply to the fullest extent practicable to ongoing actiities and environmental documents begun before the effective date. These regulations do not apply to an environmental impact statement or supplement if the draft statement was filed before the effective date of these regulations. No completed environmental documents need be redone by reason of these regulations . . . . However, nothing shall prevent an agency from proceeding under these regulations at an earlier time.

Defendants challenge the application of these regulations to any of the documents prepared in the herbicide program, since the draft EIS was prepared and filed prior to July 30, 1979.

This issue was addressed in National Indian Youth Council v. Andrus, 501 F. Supp. 649 [11 ELR 20107] (D.N. Mex. 1980). The court held that the two EIS's filed before July 30, 1979 were exempt from the 1979 regulations, but that the regulations applied to a FONSI and an EA prepared after July 30, 1979. The court stated:

The first sentence of Part 1506.12 clearly states that the 1979 regulations are to be applied to "the fullest extent practicable to ongoing activities and environmental documents begun before the effective date." Both the FONSI and the EA are "environmental documents" within the meaning o 40 C.F.R. Part 1508.10 (1979).

501 F. Supp. at 655. The 1982 SEA and FONSI in this case were filed after July 30, 1979. The regulations apply to them. Thus it is necessary to determine whether a "worst case analysis" should have been included in the suplemental documents.

The first part of 40 C.F.R. § 1502.22 provides that "When an agency is evaluating significant adverse effects on the human environment in an environmental impact statement . . ." (emphasis added) certain steps must be taken by the agency. This court concludes that any potential harmful effect upon human health caused by herbicide spraying must be considered a significant adverse effect on the human environment. Therefore, the first part of § 1502.22 applies to this case.

[13 ELR 20176]

The second part of 40 C.F.R. § 1502.22 provides ". . . and there are gaps in relevant information or scientific uncertainty, the agency shall always make clear that such information is lacking or that uncertainty exists." In other words, an agency must make the public aware when it is contemplating action which may result in significant adverse effects on the human environment (in this case, human health) and either 1) there are gaps in the relevant information about the effects on the human environment of the action contemplated, or 2) there is scientific uncertainty about the effects on the human environment of the action contemplated. Furthermore, when there are informational gaps or uncertainties, the agency must either close those gaps or clear up those uncertainties or make a "worst case analysis" so that the agency can weigh the need to proceed against the risks of possible adverse environmental impacts.

This court must now determine from the affidavits and exhibits before it whether there are gaps in the information about the effects of 2,4-D or whether scientific uncertainties exist in the information about the effects of 2,4-D. The parties have agreed to this procedure.

Plaintiff contends that at any dosage level there are or may be adverse health effects caused by the use of the herbicide 2,4-D. Plaintiff also contends that there are gaps in the current literature about and studies of 2,4-D and that scientific uncertainty exists as to the effects of even small dosages. Defendants contend that the effects of 2.4-D upon human health depends on the level of dosage used. Defendants concede that there would be toxicity with high dosages, but that at the dosages used by the Forest Service there are no probable harmful effects of 2.4-D. Defendants stress that the Forest Service need address only the probable environmental consequences and not slim possibilites or suspicions. Trout Unlimited v. Morton, supra. Defendants say that scientific uncertainty will nearly always exist to some degree.

Plaintiff has submitted the affidavits of two experts, Ruth Whisler Shearer and Melvin D. Reuber. Defendants have submitted the affidavits of four experts, Frank N. Dost, Logan A. Norris, Sheldon L. Wagner, and Harold Kalter. Both sides have submitted exhibits. Multiple affidavits have been submitted by both Dr. Shearer and Dr. Dost. Each challenges the other's conclusions and attempts to impeach the other's scientific credibility.

From reading the affidavits the court is convinced that there is scientific uncertainty or that gaps exist as to the effects of even small dosages of 2,4-D. Dr. Dost states in an article entitled "Toxic Hazards Associated with Use of Herbicides in Forestry," that:

There is presently valid scientific disagreement on the applicability of the threshold concept in assessing the dose necessary to initiate cancer. The reason is that cancer is a proliferative disease, and it is argued by some that any dose of a carcinogen, no matter how minute, has some finite probability of causing cancer. Evidence that this is not the case in higher animals is now in the process of publication . . . .

"Toxic Hazards," p. 3. (See also, affidavit of Dr. Shearer, pp. 4-6.) In his Reply Affidavit, Dr. Dost states, at p. 2:

I have not taken a position that a real threshold exists. My position in that particular regard is that the experimental evidence is not yet adequate to conclude that thresholds do or do not exist, and that point is made on page 5, lines 5-7 of my prior affidavit. The real scientific issue is whether, for chemicals of weak or questionable genetic activity, practical thresholds can be established at which the risk is so low as to be indistinguishable from zero.

In the same paper on Toxic Hazards, Dr. Dost states at p. 9:

2,4-D was registered long before such testing [for carcinogenic potential] was required, however, and studies of its carcinogenic potential were done much later. Those studies have evoked some dispute. The two experiments considered most useful . . . are less comprehensive than current research standards dictate. Although they resulted in negative conclusions about the ability of 2,4-D to cause cancer, there has been an argument that re-examination of the pathology does show an increased incidence of tumors. These arguments have revolved principally around the contention of a single pathologist that his re-examination of the tissues does show evidence of carcinogenic change. Further examination by other consulting pathologists has not supported that opinion.

The "single pathologist" referred to is Dr. Reuber, one of plaintiff's two expert witnesses. Dr. Reuber discusses his review of the Federal Drug Administration rat study on 2,4-D. He disputes the conclusions of its authors that a carcinogenic effect of 2, 4-D is not shown. While defendants have attempted to impeach Dr. Reuber's scientific credentials (see, defendants' exhibits 8 and 9), Dr. Dost's own statements indicate that there is some question in the scientific community as to the carcinogenicity of 2,4-D. On pp. 9-10 of his paper on Toxic Hazards, Dr. Dost notes that questions have been raised by a Russian study (though the methodology is considered deficient) and by Swedish studies.

In 1980, EPA reviewed the health effects studies of 2,4-D, concluding that "significant information gaps exist on the effects of 2,4-D, preventing a definite conclusion on the safety of the herbicide," and requesting manufacturers to provide additional information. See attachment to Supplementary Affidavit of Dr. Shearer. After that announcement was made, a review of possible data gaps with 2,4-D was made by the Scientific Advisory Panel to EPA to determine test-requirements needed to support continued registration of the substance.³ The Panel's report is Appendix III to Dr. Dost's Reply Affidavit. It shows that the Panel concurred in the EPA's determination that certain tests be carried out including tests for "oncogenicity," (tumor promotion) as the information from existing studies is either insufficient or is disputed by Dr. Reuber.

The court concludes that there is scientific uncertainty about the carcinogenic and mutagenic potential of 2,4-D and there is uncertainty about what is the safe level of dosage — or if there is one. The degree of scientific uncertainty is sufficient since herbicide spraying may have a direct impact on human health to require a "worst case analysis" to be made. The probability of the "worst case" actually happening can then be assessed and risks evaluated if the Forest Service determines to proceed in spite of the uncertainty.

IT IS ORDERED that plaintiff's motion for summary judgment is GRANTED. Defendants are enjoined from further spraying until they have fully complied with 40 C.F.R. § 1502.22.

1. Defendants contend that during the time for public comment on the EIS, plaintiff failed to present any comments as to the nature of 2,4-D similar to the allegations in its complaint and that plaintiff should be estopped to raise these allegations now. However, defendants admit that plaintiff has in a timely fashion exhausted its administrative remedies. Plaintiff therefore aptly characterizes defendants' contention as a type of laches defense. Plaintiff argues that its members have raised these same concerns over 2,4-D at every opportunity and point to plaintiff's exhibits F and G showing lists of comments at the administrative level. Further, laches is not a favored defense in environmental cases. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 779 [11 ELR 20053] (9th Cir. 1980). Defendants defense of laches has no merit and will not be addressed further.

2. Plaintiff also seeks a declaration of standing. Defendants do not dispute plaintiff's standing; therefore it is not an issue in this case.

3. In their final Reply Memo defendants argue that BLM is entitled to rely on the research and findings of EPA in its administrative proceedings regarding registration of herbicides and need not duplicate EPA's statutory function of determining the environmental safety of an herbicide. In opposition, plaintiff cites the case of Citizens Against Toxic Sprays v. Bergland, 428 F. Supp. 908 [7 ELR 20325] (D. Ore. 1977) in which Judge Skopil stated:

Nor can the Forest Service avoid its obligations under NEPA by arguing that any necessary scientific inquiry must be conducted by the EPA. NEPA mandates a case-by-case balancing judgement on the part of federal agencies. The only agency in a position to make such a judgment in a particular case is "the agency with overall responsibility for the proposed federal action — the agency to which NEPA is specifically directed." . . . The responsible agency may not attempt to abdicate to any other agency merely because that agency is authorized to develop and enforce environmental standards. . . . Thus, the mere fact that a program involves use of substances registered under FIFRA does not exempt the program from the requirements of NEPA . . . . [citations omitted]

428 F. Supp. at 927. Defendants' argument has no merit.