Southern Oregon Citizens Against Toxic Sprays v. Watt

No. 79-1098 FR (D. Or. October 20, 1982)

The court denies defendants' motion for reconsideration of its ruling, 13 ELR 20174, which held that a "worst case analysis" of the health effects of herbicide spraying must be included in the 1982 environmental assessment (EA) updating a forest vegetation control programmatic environmental impact statement (EIS). The court rejects defendants' contention that a Council on Environmental Quality regulation governing the evaluation of incomplete information does not apply to the EA. The court holds first that the EA and accompanying finding of no significant impact should be viewed as part of the initial EIS. The yearly EAs are tiers in an integrated environmental review and the purpose of the tiering procedure and the annual EA is to address new information that becomes available during the 10-year spraying program. The court also rules that the probability of adverse effects actually occurring is irrelevant to a determination of whether a worst case analysis must be prepared. Because there is uncertainty about the human health effects of herbicide spraying, the uncertainty must be revealed to the public and discussed in a worst case analysis. Finally, the court clarifies that the human health effects of all herbicides salated for use by the defendants, not just 2,4-D, are covered by the court's order.

Counsel are listed at 13 ELR 20174.

[13 ELR 20177]

Frye, J.:

Order

This matter is before the court on defendants' motion for reconsideration or in the alternative for clarification of the court's Opinion and Order entered herein on September 9, 1982.

Motion for Reconsideration

A motion for reconsideration of a court's decision is the equivalent of a motion for a new trial or for rehearing under FED. R. CIV. P. 59(a)(2). McDonald v. General Mills, Inc., 387 F. Supp. 24, 32 (E.D. Cal. 1974). It may be granted upon three grounds: (1) manifest error of law; (2) manifest error of fact; and (3) newly discovered evidence. Brown v. Wright, 588 F.2d 708, 710 (9th Cir. 1978).

Defendants contend that the court made two errors of law in its ruling on this case: (1) in holding that 40 C.F.R. § 1502.22 is applicable to an Environmental Assessment (EA), and (2) a Worst Case Analysis (WCA) is required only for those significant impacts for which there is a probability of occurrence.

Defendants argue that § 1502.22, by its own terms can only be applied when "evaluating significant adverse effects on the human environment in an environmental impact statement." (Emphasis added).

It is this court's opinion, however, that an EA and a Finding of No Significant Impact (FONSI) issued, as in this case, pursuant to and under the umbrella of a programmatic Environmental Impact Statement (EIS) should be considered as part of the EIS. Section 1502.20 makes it clear that the documents prepared at different "tiers" in an environmental analysis must be viewed as integrated parts of the whole environmental review. Furthermore, the language of § 1506.12 indicates that § 1502.22 should be given a more inclusive ratherthan a less inclusive interpretation:

(a) These regulations shall apply to the fullest extent practicable to ongoing activities and environmental documents begun before the effective date. . . .

In the present case, uncertainties about certain herbicides came to the fore after the programmatic EIS was filed. The EIS was to be in effect for ten years. It disscusses potential adverse human health effects of one herbicide, but of no others. If the defendants' argument were followed, no new information developed in ten years time which might create doubt or uncertainty as to the safety of any of the herbicides in use would have to be addressed in the form of a WCA in any of the annual or semiannual EA's contemplated by the original EIS. This seems clearly contrary to the purpose of the tiering procedure, as well as to the purpose of an EA.

Next, defendants reiterate their position that a WCA need only be made when the adverse impact is likely to occur. The plain meaning of § 1502.22, however, is that where uncertainty exists it must be exposed, and the likelihood or probability of adverse effects actually occurring must be addressed as a final and separate matter.

It is known that some human exposure to various herbicides will result from the spraying. The court has determined that there is some uncertainty about the human health effects of this exposure. The "worst case" that could happen has not been disclosed or discussed in the environmental documents. This must be done.

IT IS ORDERED THAT defendants' motion for reconsideration is DENIED.

Motion for Clarification

Defendants ask the court to clarify its order as to whether it intended the order to apply only to the use of 2,4-D or to the use of all named herbicides.

The court's opinion addresses "2,4-D and other herbicides" in Sec. 3, [13 ELR 20175] dealing with the issue of whether the EIS should have evaluated the human health effects of the herbicides. In Sec. 4, however, where the order requires the preparation of a WCA, only 2,4-D is mentioned.The other herbicides slated for use by defendants are not mentioned in the opinion.

Plaintiff was most concerned about 2,4-D, and most of the controversy centered around it. Plaintiff did present some evidence on other herbicides, however: the first affidavit of Ruth Whisler Shearer contains some discussion of Picloram and Tordon 101, Roundup, Krenite, and Garlon. On page 12 of her supplementary affidavit, Dr. Shearer states that data gaps exist with regard to all herbicides used by BLM. Dr. Reuber also implicates Picloram as well as 2,4-D and other herbicides as potential carcinogens.

IT IS ORDERED that defendants' motion for clarification is GRANTED. The Opinion and Order heretofore entered on September 9, 1982, applies to all herbicides to be used in the Medford district.