Citizens Against Toxic Sprays, Inc. v. Bergland

No. 76-438 (D. Or. April 18, 1978)

The court dissolves an injunction against aerial spraying of phenoxy herbicides including 2,4,5-T in the Siuslaw National Forest after determining that the Forest Service's new environmental impact statement (EIS) for the project remedies the defects in the earlier EIS. Although the new impact statement gives greater emphasis to studies that show little or no danger from phenoxy herbicides, it adequately treats the hazards to human health presented by the herbicide and contains an improved discussion of alternatives. Voicing misgivings about the acceptability of the unknown risks from spraying given its few benefits as compared to other types of vegetation management, the court nonetheless rules that the limited scope of its reviewing authority does not extend to reversing the agency decision to proceed with spraying.

Counsel for Plaintiffs
Larry N. Sokol
Franklin, Bennett, Ofelt & Jolles
3232 First Nat'l Bank Tower, 1300 S.W. Fifth Ave., Portland OR 97201
(503) 225-0870

Counsel for Defendants
Sidney I. Lezak, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
P.O. Box 71, Portland OR 97207
(503) 221-2101

Counsel for Defendant-Intervenor Industrial Forestry Ass'n
Phillip D. Chadsey
Davies, Biggs, Strayer, Stoel & Boley
900 S.W. Fifth Ave., Portland OR 97204
(503) 224-3380

[8 ELR 20350]

Skopil, J.:

This case involves the adequacy of the United States Forest Service's environmental impact statement (EIS) for Vegetation Management with Herbicides. In an opinion dated March 7, 1977, Citizens Against Toxic Sprays v. Bergland, 428 F. Supp. 908 [7 ELR 20325] (1977), I held that the 1976-77 EIS did not comply with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. The Forest Service filed a new EIS on March 6, 1978. Defendants contend that the new EIS remedies the defects of the earlier EIS. The plaintiffs have filed motions for a temporary restraining order and preliminary injunction to prevent renewed spraying of herbicides in the Siuslaw National Forest. My review of the new EIS has been limited to whether it remedies the defects which were listed in the prior opinion. For purposes of this supplemental opinion, I did not undertake a review of any other issues.

There were two broad areas in which I found the prior EIS deficient. One was the failure of the EIS to adequately discuss the potential for harm to human health. The other area was the failure of the EIS to adequately consider alternatives to the aerial spraying of phenoxy herbicides.

Human Health Hazard

There were five major deficiencies and four minor deficiencies listed in the prior opinion. I will discuss each of these in turn.

1. Toxicity of TCDD

The prior opinion states:

The 1976-77 EIS nowhere acknowledges the extreme toxicity of TCDD or the opinions held by eminent scientists about its hazards.

428 F. Supp. at 927 [7 ELR 20325, 20333]. The new EIS does indicate that TCDD "is a highly toxic material and has been characterized as the most toxic small organic molecule ever synthesized." EIS p. 83. The EIS also indicates that there is a broad range of scientific opinion on the possibility of an adverse effect on human health from field use of chemicals containing TCDD (primarily 2,4,5-T and 2,4,5-TP [Silvex]). E.g., EIS pp. 80, 119-20.

2. History of EPA Administrative Proceedings

The prior opinion states:

One obvious deficiency is the failure of the EIS to discuss, or even to mention, the history of the EPA administrative proceedings directed at 2,4,5-T and other herbicides containing TCDD.

428 F. Supp. at 929 [7 ELR 20325, 20334]. Page 2 of the new EIS contains a summary of the EPA procedure in registering herbicides. This issue is discussed at page 120 of the new EIS. Appendix H of the EIS contains a copy of the draft position document prepared by the Dioxin Working Group of the EPA. This EPA document contains a summary of prior litigation on the use of 2,4,5-T. It also contains summaries of problems with prior measuring methodology and plans for further monitoring of TCDD contamination.

[8 ELR 20351]

3. EPA's Ongoing TCDD Residue Monitoring Program

The prior opinion states:

A related deficiency in the 1976-77 EIS is its lack of any significant discussion of the ongoing TCDD residue monitoring program being conducted by the EPA.

428 F. Supp. at 929 [7 ELR 20325, 20334]. This is discussed at page 120 of the new EIS. The EPA's draft Dioxin position document in Appendix H of the new EIS covers this area in greater detail.

4. TCDD Residue in Animal Tissues

The prior opinion states:

The trial in this case brought to light the fact that TCDD residues had been found by the EPA in samples of animal tissue taken in 1973-74 from areas in the Siuslaw National Forest which had recently been sprayed with 2,4,5-T. This fact is never mentioned in the 1976-77 EIS. . . .

428 F. Supp. at 930 [7 ELR 20325, 20334]. The new EIS adequately discusses these findings, specifically as they relate to bioaccumulation of TCDD. E.g., EIS pp. 106-08, H80-H88. The EIS concludes:

The results of these various tests indicate that, if TCDD is present in the environment in a form which is available to organisms, then bioaccumulation would occur if organisms are exposed.

EIS p. 107.

5. Agent Orange in Vietnam

The prior opinion states:

A final example of the inadequacy of the 1976-77 EIS in its discussion of the potential effect of phenoxy herbicides is its complete omission of any reference to the controversy over the effect of Agent Orange in Vietnam.

428 F. Supp. at 931 [7 ELR 20325, 20335]. The new EIS acknowledges that there were reports of fetal malformation in Vietnam following the use of 2,4,5-T as a military defoliant. EIS p. 88. In Appendix G, the EIS discusses the scientific studies and reports in greater detail. EIS pp. G1-4.

6. Other Prior EIS Deficiencies

The prior opinion lists four other deficiencies of the 1976-77 EIS: (a) failure to acknowledge the physical effects which have been observed in industrial workers exposed to 2,4,5-T; (b) failure to mention recent research indicating that 2,4,5-T itself, not just the TCDD contained in it, may be teratogenic; (c) failure to adequately discuss the possibility that 2,4,5-T may be converted to TCDD when treated vegetation is burned; (d) incorrectly stating that the level of TCDD herbicides is restricted by law, when it is actually controlled only by voluntary agreement among the manufacturers. 428 F. Supp. at 932, n.67 [7 ELR 20325, 20335, n.67]. These deficiencies have been corrected in the new EIS.

Physical effects on workers and others who have been directly exposed to phenoxy herbicides and TCDD are discussed at various places in the EIS, including pages 86, 87, 89, and 97 through 99.

Teratogenic effects of 2,4,5-T are discussed primarily at page 88. This topic is also discussed in Appendix G.

The possibility of conversion of 2,4,5-T to TCDD upon burning of vegetation is discussed at pages 102-103. The text of a report on thermal conversion of 2,4,5-T is found in Appendix H, at pages H73-H79.

The current EIS makes it clear that the maximum level of TCDD contamination of 2,4,5-T and Silvex is the result of manufacturers' agreement. It is not mandated by law. EIS pp. 83, G12-G17.

Discussion of Alternatives

The new EIS is vastly improved in its discussion of alternatives to the use of herbicides in controlling vegetation in the national forests. This EIS specifically discusses four alternatives to the use of 2,4,5-T and Silvex, each of which differs in the methods of vegetation control and the forest service investment levels for carrying out each alternative (pages 139 through 150). The primary thrust of the sections discussing the alternatives is to analyze the costs and benefits of the various alternatives, other than the effect on human health (pages 151 through 185). However, the possible human health issue is also adequately disclosed, in light of the specific discussion of the herbicides toxicity (pages 80 through 137).

The Court's Role

It is clear from the affidavits filed in this case, as well as from the prior trial, that the potential danger from spraying herbicides in national forests is an emotional and controversial issue. Therefore, I think it is very important to state what the limited role of the court is in this dispute. I have concluded that the 1977-78 EIS adequately deals with the defects found in the 1976-77 EIS. This supplemental opinion is intended to end my consideration of this case. I previously retained jurisdiction solely to settle further disputes, including the determination of whether the new EIS remedies the deficiencies found in the 1976-77 EIS. The plaintiffs have asked for temporary relief pending determination of the adequacy of the new EIS (plaintiffs' renewed motion for temporary restraining order, Docket #170). This case has already proceeded through final judgment, and is now on appeal. I am compelled to limit my review to the issues and deficiencies ruled upon in my prior opinion. If the plaintiffs desire to raise new issues and deficiencies, it must be done in a new proceedings.

My decision that the new EIS adequately deals with the defects found in the prior EIS does not mean that the disclosure was as complete as it could have been. The Forest Service has chosen to give greater emphasis to studies that find little or no danger from these herbicides. Adverse information is not as prominently discussed as information which favors use of phenoxyherbicides. The choice of language for describing certain studies and reports of illness and injury seems to downplay the importance of this information.¹

Despite these problems, the EIS does draw the following conclusion:

A "safe" human dosage level for TCDD has not been established. The human hazard from TCDD has been estimated by extrapolating from the toxic dose for laboratory animals and applying a safety factor. There is disagreement among scientists as to what the safety factor for humans should be, and as to whether or not TCDD contaminated pesticides should be used without establishment of these levels.

EIS p. 97. This succinct statement does present to the decision maker the basic issue involved.

The EIS discloses that there are unanswered questions about the potential harm from a chemical that is acknowledged to be one of the most toxic substances known to mankind. If I were the person responsible for making the decision of whether herbicides containing this substance should be broadcast sprayed from helicopters over our national forests, I would be extremely reluctant to allow it. There are simply too many unanswered questions, and too few benefits compared to other methods of vegetation management, to justify the unknown risk.

I am not, however, a person who has authority to make that determination. As I stated in my prior opinion:

The role of the court is not to substitute its judgment for that of the agency as to the environmental consequences of its actions, but to determine whether the agency has taken a "hard look" at those consequences.

Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F. Supp. at 922 [7 ELR 20325, 20330]. The Supreme Court recently stated:

NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially [8 ELR 20352] procedural. [Citations omitted.] It is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decision making unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute, . . . not simply because the court is unhappy with the result reached.

Vermont Yankee Nuclear Power Corp. v. NRDC, Inc., __ U.S. , 46 U.S.L.W. 4289, 4311 [8 ELR 20288, 20297] (Apr. 3, 1978). I do not have the authority to reverse the agency's decision. The orderly functioning of our government requires that the judiciary not intrude into the decision-making function of administrative agencies.

At the hearing held on April 13, 1978, the plaintiffs presented the information that the EPA just filed an "RPAR" (rebuttable presumption against registration) relating to the use of 2,4,5-T. 40 C.F.R. § 162.11. Also, plaintiffs presented a recent Bureau of Land Management study which indicates that significant amounts of herbicides are found in waterways after broadcast spraying. On the other hand, defendant-intervenor Industrial Forestry Association filed a final report from the California Department of Food and Health that concluded that there is no significant danger to human health from the aerial application of phenoxy herbicides.

I cannot consider any of these recent reports in deciding whether or not the Forest Service's EIS is adequate. The Forest Service cannot be expected to disclose actions taken after preparation of the EIS. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549 [8 ELR 20065] (9th Cir. 1977).

In addition to the recent EPA action and the recent publication of additional studies, the EPA is conducting continuing Dioxin monitoring. Further studies and agency actions will continue to be released. I am sincerely concerned about the effect of the use of herbicides upon the health of human beings and our environment. I sincerely hope that the Forest Service will review all new information and will reevaluate its decision. This is especially important with the new EPA action, which is based on the agency's reason to believe that there is a human health hazard from the use of 2,4,5-T. 40 C.F.R. § 162.11(a). Although EPA's action does not result in an immediate suspension of the registration, it is indicative of the substantial dispute about the safety of this chemical.

This supplemental opinion shall constitute findings of fact and conclusions of law in accordance with Rule 52(a), FED. R. CIV. P.

A separate order shall be entered dissolving the injunction issued on March 7, 1977.

1. These shortcomings have made this a difficult case to decide. Although I have decided in favor of the Forest Service in this case, the Forest Service should understand that materially misleading statements and conclusions can be just as fatal to an EIS as omissions and false statements. Also, perhaps the public outcry against the use of these herbicides would actually be reduced if the Forest Service were more candid about adverse information in the EIS.