Opposition Brief — Clark v. Southern Oregon Citizens Against Toxic Sprays, Inc.

_

US.

Office Supreme Court,

FILED

No. 84-267 ALEXANDER L STEVAS,

In The

Supreme Court of the United States

October Term, 1984

sy.

Vv

WILLIAM P. CLARK, et al.,

Petitioners,

vs.

SOUTHERN OREGON CITIZENS AGAINST

TOXIC SPRAYS, INC.,

Respondent.

fy

Vv

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ra’

vu

MicHarL JEWETT

Counsel of Record for Respondent

JacoBson, JEwETT & THIEROLF

P.O. Box 518

850 Siskiyou Boulevard, Suite 7

Ashland, Oregon 97520

(503) 482-4753

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTION PRESENTED

Whether the Bureau of Land Management, in connec-

tion with its herbicide program, may disregard certain

requirements of the National Environmental Policy Act

of 1969 merely because the herbicides involved enjoy pro

forma registration under the Federal Insecticide, Fungi-

cide, and Rodenticide Act.

TABLE OF CONTENTS

Pages

Question Presented i

Table of Authorities — ii

Statement of the Case 1

Reasons for Denying Certiorari and 2

Summary of Arguments — 2

Conclusion ... 11

Appendix A weasel aa App. 1

Appendix B App. 2

Appendix C App. 3

Appendix D es — |

TABLE OF AUTHORITIES

CASES:

Alaska v. Andrus, 580 F.2d 465 (D.C. Cir.), vacated

in non-pertinent part sub nom. Western Oil & Gas

Assn. v. Alaska, 439 U.S. 922 (1978) 6

Andrus v. Sierra Club, 442 U.S. 347, 358 (1979) 5, 0.

Baltimore Gas & Electric Co. v. NRDC, — US. —,

76 L. Ed. 2d 437 (1983) 7

Kleppe v. Sterra Club, 427 U.S. 390 (1976) 10

Merrell v. Block, 20 E.R.C. 1607, 1613 (9th Cir. 1984)

9, n. 4

Scientists’ Institute for Public Information, Inc. v.

Atomic Energy Commission, 481 F.2d 1079 (D.C.

Cir. 1973) et 8

Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983) 3, 4, 5

ce

ili

TABLE OF AUTHORITIES—Continued

Pages

Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir.

1974) 7

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519 (1978) 7

STATUTES:

Federal Insecticide, Fungicide, and Rodenticide

Act, 7 U.S.C. $136 (1984)

7 U.S.C. § 136a(5)

7 U.S.C. § 136(bb) 9

National Environmental Policy Act of 1969, 42

U.S.C. §§ 4321-4370 (1984) passim

REGULATIONS:

40 C.F.R. § 1502.22 passim

40 C.F.R. § 1502.22(a) 7

40 C.F.R. § 1502.22(b) (1) 7

40 C.F.R. § 1502.22(b) (2) 7

MISCELLANEOUS:

Forty Most Asked Questions Concerning CEQ’s

NEPA Regulations, 46 Fed. Reg. 18026,

18032 (1981) 5, n. 3

No. 84-267

In The

Supreme Court of the United States

October Term, 1984

fy

Vv

WILLIAM P. CLARK, et al.,

Petitioners,

Vs.

SOUTHERN OREGON CITIZENS AGAINST

TOXIC SPRAYS, INC.,

Respondent.

ty

7

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

fy

Vv

STATEMENT OF THE CASE

Respondent and Plaintiff below, Southern Oregon

Citizens Against Toxic Sprays, Inc. (““SSOCATS’’) accepts

the Statement of the Case (Petition, pp. 2-8), filed by

Petitioners (‘‘BLM’’). The following augments that

statement.

2

In its programmatic EIS the BLM admitted that

wood-cutters, fishermen, hunters, hikers, and other users

of the forest are expected to enter areas that have been

sprayed with herbicides (App. 1). BLM further ad-

mitted that the herbicides can enter water supplies (App.

1). Numerous BLM records introduced in the trial court

also showed that exposure of humans to herbicides can

occur in unintended ways. Despite the ‘‘mitigation mea-

sures’’ envisioned by BLM, human exposure to herbicides

in some dosage will occur.

In the district court, lengthy and detailed affidavits

of SOCATS’ toxicologists stated that it is now unknown

whether there is a safe dosage of exposure to herbicides.

Based on currently accepted data, science is unable to say

that any threshold of human exposure exists below which

genetic damage (e.g. cancer, mutations) does not occur.

BLM purported to disagree and to believe that low

dosages of herbicides were safe. However, SOCATS

learned BLM’s chief affiant, Dr. Frank Dost. D.V.M., had

himself earlier acknowledged that the existence of a safe

threshold of exposure is uncertain. Based on the record

before it, the district court thus made a finding that there

is genuine scientific uncertainty about the health effects of

herbicides and about the existence of a safe level of ex-

posure (see Petitioner’s App. 20a-24a). The BLM has

not challenged that finding on appeal.

ra’

Vv

REASONS FOR DENYING CERTIORARI

SUMMARY OF ARGUMENTS.

The Court should not grant certiorari. The circuit

courts are correct and in agreement about how to treat

important scientific uncertainty under NEPA and how to

interpret 40 C.F.R. § 1502.22. The circuit courts agree

that the unlikelihood of the worst case occurring does not

relieve an agency from disclosing scientific uncertainty,

nor from analyzing the potential worst case.

40 C.F.R. § 1502.22, a binding CEQ regulation, does

not exceed the mandate of NEPA. The plain wording of

the regulation is fully consistent with prior constructions

of NEPA by this Court and others.

The mere registration of particular herbicides by

EPA, as contemplated by FIFRA, does not alter BLM’s

obligations under NEPA and 40 C.F.R. § 1502.22.

I. The Circuit Courts of Appeal Are Not in Conflict.

The Circuit Courts are in agreement about the mean-

ing of 40 C.F.R. § 1502.22.

Aside from the Ninth, only the Fifth Cireuit has con-

strued this regulation, and that circuit agrees with the

Ninth. In Sierra Club v. Sigler, 695 F.2d 957 (5th Cir.

1983), the Army Corps of Engineers proposed to build an

offshore oil terminal. A catastrophic oil spill was pos-

sible. Scientists were uncertain of the effects of such a

spill and resolution of that uncertainty was beyond the

state of the art. The Corps argued it had no duty to

comply with 40 C.F.R. § 1502.22 merely because it believed__

that a catastrophic spill was unlikely, that its probability

was remote.’

1. To paraphrase BLM’s basic argument in this case: ‘We

feel that herbicides are probably safe in low dosages. There-

fore, we need not reveal scientific uncertainty on that issue

nor analyze the potential worst case that could occur if we

are wrong. We do not have to comply with 40 C.F.R. 1502.22.”

ll ——————

4

In rejecting the Corps’ argument, the Fifth Circuit

said:

[T]he fact that the possibility of a total cargo loss by

a supertanker is remote does not obviate the require-

ment of a worst case analysis... [The Corps’ inter-

pretation] of the regulation and the Plaintiff’s bur-

den under it reads the regulation out of existence.

. .. Remoteness does not bar a worst case analysis so

founded and should instead be weighed by the Corps

when it applies the worst case analsis in its decision

making process.

Sigler, at 974.

The Ninth Circuit agreed in the instant case, and it

expressly followed the rule of Sigler. It repeatedly cited

the Sigler decision and Fifth Cireuit’s interpretation of 40

C.F.R. § 1502.22 as the controlling authority.

BLM asserts that the Sigler decision required

SOCATS to ‘‘prove” a ‘‘real possibility of the oceur-

rence”’ to trigger the duty of 40 C.F.R. § 1502.22. This

argument by BLM distorts the Sigler decision, and migap-

plies that decision to the facts of this case. In Sigler, the

proposal was to build an oil terminal; in this case, to spray

herbicides. In Sigler, a foreseeable result was a major oil

spill; in this case, an admitted result is human contact

with the herbicides. In Sigler, the effects of a major spill

were irresolvably uncertain; in this case, the effects on

humans of herbicide exposure are likewise uncertain. The

two cases are factually similar.

, “Sierra Club v. Sigler . . . [supports] the district court's

decision here” (See Petitioner's App. 5a); “The district court

holding here accords with [Sigler]’’ (See Petitioner’s App. 6a);

“After the decision in Sigler, the BLM had notice that its read-

ing of 1502.22 was untenable” (See Petitioner’s App. 11a).

5

To be sure, in both cases, the plaintiffs must and did

‘‘prove” something. In Sigler, the plaintiffs proved that

oil spills were to be expected. In this case, the plaintiff

proved that the public would be exposed to herbicides.

SOCATS does not seek discussion of frivolous possi-

bilities, such as whether herbicides could harm the Big-

foot, if that creature exists. Such a meaningless discus-

sion adds a second layer of uncertainty and is clearly be-

yond the ambit of NEPA. In this case, however, it is

agreed and ‘‘proved’’ that herbicides will contact the pub-

lic. The only uncertainty is about what might happen

next, and about whether there is a safe threshold dosage

of exposure.

As in Sigler, science is unable to answer this import-

ant question. Therefore, the BLM must acknowledge the

scientific uncertainty and analyze the worst case, just as

the Army Corps had to do in Sigler.

This is the obvious and plain meaning of 40 C.F.R.

§ 1502.22 To somehow require either plaintiff to

“prove’’ that the worst case will occur is to pervert the

elear intent of the regulation. Neither the occurrence

nor the non-occurrence of the worst case is provable; if it

were, 40 C.F.R. § 1502.22 would not be triggered. This

was the reasoning of the Fifth Cireuit in Sigler and the

3. The CEQ’s own explanation of 40 C.F.R. § 1502.22 sup-

ports the Circuit Court, and refutes the BLM’s interpretation.

The CEQ has made it clear that § 1502.22 applies to low prob-

ability/catastrophic impact possibilities. Forty Most Asked

Questions Concerning CEQ’s NEPA Regulations, 46 Fed. Reg.

18026, 18032 (1981).

CEQ’s interpretation of NEPA deserves “substantial def-

erence” from tiie’ courts. Andrus v. Sierra Club, 442 U.S. 347,

358 (1979).

6

Ninth Circuit in the instant case. The decisions are in

harmony and correct. Thus, though BLM would portray a

conflict in the Circuits, that conflict is illusory and needs

no resolution by this Court.

II. The Circuit Court’s Interpretation of 40 C.F.R. § 1502.-

22 Is Consistent With NEPA.

The regulation at issue, 40 C.F.R. § 1502.22 merely

codifies a long and solid chain of case law. NEPA has

always required that agencies discuss and evaluate im-

portant uncertainty.

As early as the decision in Scientists’ Institute for

Public Information, Inc. v. Atomic Energy Commission,

481 F.2d 1079 (D.C. Cir. 1973), it was held that:

[OJne of the functions of a NEPA statement is to

indicate the extent to which environmental effects are

essentially unknown. It must be remembered that the

basic thrust of an agency’s responsibilities under

NEPA is to predict the environmental! effects of pro-

posed action before the action is taken and those ef-

fects fully known. Reasonable forecasting and spec-

ulation is thus implicit in NEPA, and we must reject

any attempt by agencies to shirk their responsibilities

under NEPA by labeling any and all discussion of

future environmental effects as “crystal ball inquiry.”

Id. at 1092.

In Alaska v. Andrus, 580 F.2d 465 (D.C. Cir.) va-

cated im non-pertinent part sub nom. Western Oil & Gas

Assn. v. Alaska, 439 U.S. 922 (1978), the circuit court

stated, “One of the costs that must be weighed by decision-

makers is the cost of uncertainty—i.e., the costs of pro-

ceeding without more and better information.” Id. at 473.

40 C.F.R. § 1502.22 is merely an efficient mechanism to

accomplish that weighing.

7

In Baltimore Gas € Electric Co. v. NRDC, — US.

—, 76 L.Ed. 2d 437 (1983), the Nuclear Regulatory Com-

mission had exhaustively studied the uncertain effects of

the permanent underground storage of nuclear wastes.

It had acknowledged this uncertainty, described the po-

tential worst case (water seepage into bedded-salt reposi-

tories) and assessed the chances of the worst case occur-

ring; in short, the agency had done precisely what 40

C.F.R. 4 1502.22 requires. Though this Court properly de-

clined to disagree with the NRC’s substantive decision to

proceed, it did hold that this underlying procedure of

“consideration and disclosure [was] required by NEPA.”

id. 76 L.Ed. 2d at 447. It is therefore clear that 40 C.F.R.

§ 1502.22 merely implements what NEPA contemplates

and does not exceed the mandate of NEPA. Thus, BLM’s

desire to remain silent as to potential effects it deems

unlikely violates both NEPA and 40 C.F.R. § 1502.22.

Plaintiff freely admits that NEPA does not require

discussion of all potential impacts, no matter how remote

or frivolous. Vermont Yankee Nuclear Power Corp. v.

NRDC, 435 U.S. 519 (1978); Trout Unlimited v. Morton,

509 F.2d 1276 (9th Cir. 1974). However, as written and

as interpreted below, neither does 40 C.F.R. § 1502.22 re-

quire such exercises in imagination. The regulation is

self-limiting in that respect. Only scientific uncertainty

which is “relevant” requires disclosure. 40 C.F.R. § 1502.-

22. Only if unobtainable information is ‘‘essential to a

reasoned choice,” 40 C.F.R. §§ 1502.22(a) and 1502.22(b)

(1), or is ‘‘important to the decision,” must the agency

publish a worst case analysis. 40 C.F.R. § 1502.22(b) (2).

The plain wording of the regulation thus places its

effect squarely in the mainstream of NEPA. Frivolous

concerns may be disregarded, but important and relevant

8

potential impacts must be scrutinized. It can scarcely be

argued that cancer and mutations are not relevant or im-

portant.

Contrary to the BLM’s assertion (Petition p. 22) this

regulation will not require each agency to “develop and

maintain a scientific staff” to do origina! animal test re-

search on the effects of herbicides. One must remember

that SOCATS does -not ask BLM to solve the riddle of

the safety of herbicides, but merely to acknowledge un-

certainty and to describe the potential worst case. This

requires no extra scientific staff, but merely the publica-

tion of a document and the exercise of candor.

The issue here is not the ultimate substantive ques-

tion of the safety of herbicides, nor even the question

of whether to use those herbicides, but rather the strict

procedural compliance which NEPA has always demanded.

The regulation provides an efficient and streamlined

mechanism for the consideration of scientific uncertainty,

one that could actually decrease the burden on federal

agencies devoid of a particular scientific expertise. An

agency is given the option of publishing a worst case an-

alysis. For this reason the only burden imposed by the

regulation in the instant case is self-imposed. If BLM

had merely complied with the plainly worded regulation

and issued an adequate worst case analysis, it need not

have missed a single day of spraying, regardless of the

ultimate safety or hazard of herbicides.

III. The Registration of Herbicides Under FIFRA Is Ir-

relevant To This Case.

The BLM suggests that the fact that herbicides were

registered by the Environmental Protection Agency under

9

the Federal Insecticide, Fungicide and Rodenticide Act,

7 U.S.C. §136 (“FIFRA”) somehow negates NEPA, in

whole or in part.‘ This is incorrect for several reasons.

First, as BLM admits (Petition, p.15), “EPA’s reg-

istration of an herbicide is not a guarantee of safety to

either man or the environment.” FIFRA’s standards for

registration of chemicals are different and less primarily

concerned with hazard to human health than is NEPA.

A chemical may be registered under FIFRA merely if

the benefits of its intended use outweigh its costs (in-

cluding environmental costs). 7 U.S.C. §$§136a(5) and

136(bb).

Since FIFRA calls for this balancing of costs and

benefits before registration, it is possible that a regis-

tered chemical is highly hazardous to humans, but very

efficient in its commercial use. It is likewise possible that

the particular chemical was registered because it is of

marginal benefit but is toxicologically benign.

Thus, at best, the mere fact of registration under

FIFRA simply does not tell us much about the safety of

a given chemical, since KPA’s decision to register that

4. In its Petition, BLM would characterize its attitude to-

ward FIFRA registration as something less than complete re-

liance. (“We are not contending that FIFRA absolves the pro-

posing agency, here the BLM, from conducting a thorough

examination of the probable environmental impacts of its spe-

cific spraying proposal.”) (Petition, p.16) However, the rec-

ord in a related case shows that BLM’s actual attitude is

total reliance on FIFRA registration: “Simply stated, our posi-

tion is: that so long as herbicides are registered and approved

for forestry use by EPA, BLM may appropriately use such chem-

icals within specified procedural safeguards.” Merrell v. Block,

20 E.R.C. 1607, 1613, footnote 8 (9th Cir. 1984) (citing BLM’s

Field Guide to Policies and Procedures Required for Vegetation

Management with Herbicides in Western Oregon) (emphasis

in original).

10

chemical embraces many other concerns than safety. Even

if FIFRA worked as Congress intended, it would fail to

provide the “hard look” demanded by NEPA. Kleppe v.

Sierra Club, 427 U.S. 390 (1976).

Second, and even more troubling, is the EPA’s ap-

parent failure to meet its duties under FIFRA as shown

by unchallenged evidence in both the trial court and ad-

ministrative records.

While this suit was in the district court, a special

review of 2,4-D was completed by EPA. It showed “sig-

nificant information gaps” on the effects of 2,4-D (a reg-

istered herbicide) “preventing a definite conclusion on the

safety of the herbicide.” (App. 2).

Further, a 1980 report trom the General Accounting

Office concluded that EPA’s program of reregistration

and reassessment of the safety of registered chemicals

was then already hopelessly inundated with 35,000 regis-

trations, which EPA had inherited from other agencies

(App. 3-4). EPA was then behind schedule and could

only “rubber stamp” existing registrations (App. 5-6).

To further aggravate the problem, in 1982, the Rea-

gan administration began to cut drastically the EPA

budget for FIFRA-related programs, including the reg-

istration review process (App. 7). BLM presented no

evidence that the situation has improved.

Plaintiff’s members repeatedly brought all this in-

formation to BLM’s attention, but BLM continued to look

no further than the mere fact of EPA registration.

Regardless of the nature of EPA’s duties under

FIFRA, EPA has not met those duties. Therefore, BLM’s

11

reliance on EPA is misplaced and cavalier. EPA’s prac-

tical problems of politics and budget simply prevent any

conclusion that “registration means safety.” The mere

fact of pro forma registration of a particular herbicide

does not remove uncertainty as to health effects when

humans are exposed to that chemical. Existing registra-

tion, therefore, does not affect the strictly procedural

obligations of 40 C.F.R. § 1502.22, nor cure BLM’s fail-

ures to comply with that regulation and with NEPA.

CONCLUSION

For the reasons given above, respondent Southern

Oregon Citizens Against Toxic Sprays, Inc.’ asks that the

Court deny the BLM’s Petition for Writ of Certiorari.

Respectfully submitted,

MICHAEL JEWETT

Counsel of Record for Respondent

Jerry A. Jacopson

Ricuarp B. Tuieroir, Jr.

5. SOCATS is a non-profit Oregon corporation. It has no

parent companies or subsidiaries. SOCATS is a member cf

the Southern Oregon Regional Council of the Northwest Coali-

tion for Alternatives to Pesticides, Inc., an Oregon non-profit

corporation.

This listing is provided under Supreme Court Rule 28.1.

App. 1

APPENDIX A

(Excerpts from BLM’s final EIS, Vegetation Manage-

ment with Herbicides, Western Oregon, 1978; a complete

copy has been lodged with the Court by BLM).

from p. 3-93

WATER

Herbicides may get into water supplies by direct ap-

plication to previously undetected areas of free wa-

ter, drift from adjacent areas, leaching in shallow

soils, and movement of herbicides to streams by mass

overland flow resulting from periods of intense pre-

cipitation occurring shortly after application. These

sources could introduce low levels of herbicides for

short periods of time leading to a brief exposure of

aquatic organizms (sic) or other water users in the

immediate area. However, no measurable adverse im-

pacts to organisms from these low levels have been

identified.

from p. 5-3

The possibility exists that wood cutters, hunters,

fishermen, hikers and berry pickers will cross through

or be in areas proposed for herbicide treatment or

treated with herbicides.

App. 2

APPENDIX B

(Excerpt from an EPA news release, April 21, 1980. This

news release is part of the trial court record.)

Barbara Blum, Deputy Administrator of the

U.S. Environmental Protection Agency, announced

today that the Agency is requesting additional in-

formation from manufacturers to determine whether

2,4-D, a widely used herbicide, is safe for humans

and the environment. ‘‘We have made this decision

following a review of health effects studies of 2,4-D,”

Blum said. “The review showed that significant in-

formation gaps exist on the effects of 2,4-D, prevent-

ing a definite conclusion on the safety of the herbi-

cide.”

App. 3

APPENDIX C

(Excerpts from a report by the Comptroller General of

the United States entitled: Delays and Unresolved Issues

Plague New Pesticide Protection Programs, February 15,

1980. This report is part of the trial court record.)

from p. 2

On September 28, 1978, the Chairman, Subcom-

mitte on Health and Scientific Research, Senate Com-

mittee on Labor and Human Resources, asked us to

review several pesticide regulatory programs. The

review was made because of his interest in the status

of EPA’s efforts to protect the public from peten-

tially hazardous pesticides. The Chairman was con-

cerned because our 1975 report on Federal pesticide

registration ... and a report of the Sub-committee

on Administrative Practice and Procedure, Senate

Committee on the Judiciary, disclosed that EPA

needed to significantly upgrade its pesticide pro-

grams before they could be relied on to protect the

public and the environment from exposure to haz-

ardous pesticides.

As agreed with the Chairman’s office, our review

concentrated on two fairly new pesticide programs—

registration standards and rebuttable presumption

against registration (RPAR). The former was de-

signed to thoroughly reevaluate the safety of the esti-

mated 35,000 pesticide products which the Government

had registered during the last three decades. The

latter, EPA designed to identify certain high-risk

pesticides and, after public and industry input, to un-

dertake risk/benefit analyses to determine whether

the pesticides identified should be canceled, placed

under restricted use, or left alone.

from p. 4

After several false starts, dating back to 1975,

EPA finally began in 1978, a registration standards

App. 4

program to reassess the safety of the 35,000 pesticide

products and their accompanying tolerances which the

Government had registered (or approved) over the

past three decades. The task is not easy. Registra-

tion standards will be a long and costly program

spanning up to 15 years, involving hundreds of EPA

and contractor personnel, and costing as much as $200

million. Although it is too early to predict the pro-

gram’s chances of success, the program is already 5

months behind EPA’s schedule and has many other

problems which must be corrected if it is to be effec-

tive in assuring that only reasonably safe pesticides

are used in this country.

from p. 5

In a related matter, EPA has not finished exam-

ing the adequacy of its tolerance-setting procedures—

something it first promised back in 1975. Until it

thoroughly completes this task and tolerance reevalu-

ations under registration standards, EPA cannot as-

sure the public that tolerance levels are reasonably

safe.

from p. 5

The registration standards program evolved from

EPA’s early failure to conduct an effective pesticide

reregistration program. Under the 1972 FIFRA

amendments, EPA was required to reregister, by

October 21, 1976, the 35,000 pesticides previously

registered by the Department of Agriculture (prior

to December 1970) and EPA. Amendments in 1978

reaffirmed the need for the expeditious reregistration

of pesticides but deleted the deadline requirement.

During 1975, two EPA officials started reviewing

Agency files to determine whether required safety

data was present. In May 1976, EPA formally estab-

lished a task force to continue this reregistration ef-

fort. However, EPA officials mistakenly assumed

that most of the data was scientifically valid. Ac-

cordingly, reviewers skimmed through the files to de-

App. 5

termine whether data existed but generally did not

review the data’s quality.

An EPA official told us that this early attempt

was a “‘rubber stamp’’ approach to reregistration.

He also told us that EPA took this approach because

of statutory time constraints and because EPA did

not have sufficient resources to conduct a thorough

reregistration program.

In August 1976, EPA, because of the criticism it

was generating, halted its reregistration program

without reregistering any pesticides. A summary of

this criticism appeared in a March 1977 EPA report

entitled, ‘‘FIF RA: Impact on the Industry”’

««* * * Senate hearings, discussions with GAO

and FDA concerning the reliability of certain data

submitted to FDA, and a subsequent preliminary re-

port of an independent toxicologist on a sample of

pesticide data raised serious doubts about (1) the

adequacy of the testing [data] in EPA files, and (2)

the completeness of the Agency’s own review and

follow-up. Since then, in December 1976, the staff of

the Senate Subcommittee on Administrative Practice

and Procedure has issued a report stating that the

Agency has, in fact, been negligent in its public duty

by not reviewing all data in depth prior to reregistra-

tion.”’

EPA officials met several times in August 1976 to

discuss the need for a more comprehensive reregis-

tration program to overcome the deficiencies of the

one just terminated. In September 1976, several offi-

cials proposed a plan to establish such a program and

suggested that a permanent staff of about 60 scien-

tists and program managers have responsibility for

it. EPA management endorsed the program but

failed to provide the staff to operate it.

In February 1977, pesticide officials presented

another reregistration plan to EPA management to be

carried out by a staff of about 90 people. This plan

App. 6

was also not implemented, and the reregistration task

force operated with a small staff until its demise in

July 1978.

EPA began planning for what is now known as

the registration standards program in 1977. EPA

realized it needed to change its narrowly focused

strategy toward reregistration and decided to (1)

thoroughly reevaluate all health and safety data in its

files and all published literature relating to a pesti-

cide’s uses, (2) restructure its reregistration program

to concentrate on the estimated 514 active chemical

ingredients in pesticides, instead of considering the

merits of each of the 35,000 pesticide products sepa-

rately, and (3) reassess the safety of the estimated

6,000 tolerances on food and feed products which the

Government had approved over the last 30 years.

from p. 8

According to EPA officials, important health and

safety studies for many of the registration standards

pesticides are missing, precluding EPA from develop-

ing final registration standards and from uncondi-

tionally reregistering all pesticides. Therefore, EPA

plans to issue interim registration standards on many

pesticides and plans to direct the applicable pesticide

firms to fill data gaps by locating or performing re-

quired studies and submitting them to EPA for re-

view.

from p. 9

As of September 1979, EPA was already 5 months

behind schedule in developing the first group of regis-

tration standards. Delays cost money and prevent

EPA from reaching timely conclusions on the safety

of previously registered pesticides. As a result, the

public may be exposed to hazardous pesticides longer

than necessary.

App. 7

APPENDIX D

(Excerpts from Article, Toxic Substances, Pesticides, and

Hazardous Materials Highlights of President Reagan’s

Proposed Fiscal 1983 Budget, Chem. Reg. Rep., February

12, 1982 (B.N.A.) This article is part of the trial court

record.)

A 12 percent cut in Environmental Protection

Agency staffing and funding for fiscal 1983 was pro-

posed Feb. 6 as the Reagan Administration sent to

Congress a budget request termed “tighter and more

efficient” by an EPA official.

The $961.3 million operating budget requested by

the President would be about $1.25 million, or 12 per-

cent, lower than EP4A’s fiscal 1982 operating budget

and $336 million, or 29 percent, less than the fiscal

1981 operating level.

The budget proposed cutting the toxic substances

program by $8.8 million to $68.6 million, the pesticides

program by $2.5 million to $50.8 million, and research

and development activities by $62 million to $216 mil-

lion.

The agency’s full-time personnel level for fiscal

1983 would be 8,645, down 1,176 from fiscal 1982, with

the toxics program losing 79 full-time employees, the

pesticides program 84 employees, and research and

development 251 employees. .. .

The fiscal 1983 budget proposal would signifi-

cantly reduce funding for pesticide programs, bring-

ing a fourth straight year of declining staffing levels

for those programs. Staff levels in this area would

be cut to 661 full-time positions—less than two-thirds

of the 1,017 positions authorized in 1980. Funding

would decline to $50.8 million, a 21 percent drop from

1980 levels.

App. 8

For 1983, the major cuts come from:

The state grant programs. The Administration

proposes to cut $1.8 million from enforcement grants

and $500 million from certification and training grants.

The enforcement cut would be offset by improvements

in state priority setting that will “direct available re-

sources to aspects of pesticides use that do the great-

est harm,” the agency said. States will be encouraged

to impose fees to offset the cuts in certification and

training funds.

The registration review process, where $558,000

and 35 staff positions would be cut. The EPA budget

summary said the review process would be “stream-

lined to obtain strict adherence to legislative and ad-

ministrative deadlines.”

The registration standards development program,

which would lose another 10 positions, but increase its

efficiency, concentrating on “classes of pesticides with

high exposure and potential hazard,” the agency stated.