CITIZENS AGAINST TOXIC HERBICIDES 2737 25A STREET CLARKSTON, WASHINGTON 99403 (509)758 -5796 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CITIZENS AGAINST TOXIC SPRAYS, OREGON.ENVIRCNMENTAL COUNCIL, INC.: HOEDADS, INC., Plaintiffs, v. BOB BERGLAND, Secretary, United States Department of Agriculture; JOHN Chief, United States Forest Service, United States Department of Agriculture;) THEODORE A. SCHLAPFER, Regional Foresten) Pacific Northwest Region, United States Forest Service; LARRY A. FELLOWS, Forest} Supervisor, Siuslaw National Forest; PHILLIP WICKHAM, District Ranger, Mapleton District, Siuslaw National Forest; FRANK RASMUSSEN, District Ranqen) Alsea District, Siuslaw National Forest;} JOSEPH ASTLEFORD, District Ranger, Hebe District, Siuslaw National Forest; and ROBERT BARTUOLOMEW, District Ranger, Waldport District, Siuslaw NatJUnal Forest, in their official capacities and individually,- Defendants, - INDUSTRIAL FORESTRY ASSOCIATION, 1 Defendant-Intervenor. I - OPINJON Civil No. 76?438 OPINION 7?1} 2?5-75?17524?003 21d stom- I Bruce H. Anderson Coons, Cole Anderson 101 E. Broadway Eugene, Oregon 97401 Of Attorneys for Plaintiffs Sidney I. Lezak United States Attorney William B. Borgeson Thomas C. Lee Assistant United States Attorneys District of Oregon P. 0. Box 71 Portland, Oregon 97207 Of Attorneys for Defendants Manley B. Strayer James P. Rogers Davies, Biggs, Strayer, Steel and Boley 900 S.W. Fifth Avenue Portland, Oregon 97204 Of Attorneys for Defendant?Intervenor la - OPINION . SKOPIL, JudgeThe plaintiffs in this action seek declaratory and 3 a injunctive relief prohibiting the use of phenoxy herbicides 4 by the United States Forest Service (Forest Service) in the 5 Siuslaw National Forest. After abandoning other claims 6 . asserted earlier in this proceeding,1 the plaintiffs now 7 i rely solely upon the National Environmental Policy Act of 8 i 1969 (NEPA), 42 U.S.C. 4321 et seq., and upon the Act for 9 the Protection of Bald and Golden Eagles (Eagles Act), 16 10 U.S.C. 668 92 seg. 11 The NEPA claim primarily attacks the adequacy of the 12 Environmental Impact Statement (EIS) prepared by the Forest 13 Service on its vegetation management program in the Siuslaw 14 15 National Forest. Specifically, the plaintiffs contend that 6 the discussion of the environmental effects of phenoxy 1 . herbicides and the consideration of alternatives to their 17 use do not satisfy the requirements of 42 U.S.C. 18 . and :he most serious allegation is that the EIS fails 19 -.- i to address adequately the substantial scientific controversy 20 - ?r over the health hazards posed by these herbicides. A 21 _n secondary NEPA issue is whether the Forest Service followed 22 ?23 1. Two of plaintiffs' claims were abandoned in their trial brief. One was based upon the Federal Insecticide, Fungicida, 24 and Rodenticide Act (FIFRA), as amended by the Federal Environmental Pesticide Control Act of 1972, 7 U.S.C. 25 l36j(a)(2)(G). The other was based upon alleged violations of state water pollution control regulations, as made 25 applicable to the defendants through the Federal Water Pollution Control Act, 33 U.S.C. 1323. The amended 27 i complaint also referred to the Multiple?Use Sustained-Yield Act of 1960, 16 U.S.C. SS 528 93 seg., but the plaintiffs 23 elected not to pursue any claim under this Act. 3? 2. For the text of these statutes, see page 21 infra. The j; amended complaint erroneously refers to subsection (G) 30 . instead of subsection (H), which now contains the provision on which the plaintiffs rely. Act of Aug. 9, 1975, Pub. L. 31 No. 94-83, 89 Stat. 424. 32 Mfang?Ono tam-??403 2 OP IN -2-5-75?17551?003 the statutory procedures for obtaining and considering the comments of other government agencies and of the public on the proposed BIS. The claim under the Eagles Act is based on the theory that the use of phenoxy herbicides where eagles feed and nest tends to molest or disturb them and thus constitutes a prohibited "taking" of these birds.3 Although the Eagles Act does not expressly confer a right of action upon private. citizens, the plaintiffs ask this court to recognize an implied civil remedy for members of the public under the 9 standards set forth in Cort v. Ash, 422 U.S. 66 (1975). PROCEDURAL STATUS OF THE CASE 2 Plaintiffs' motion for a temporary restraining order was denied on May 21, 1976. Before trial, the Industrial Forestry Association (IFA) was permitted to intervene as a i party defendant. The trial on the merits, which was combined with a hearing on plaintiffs' motion for a preliminary injunction, took place in two segments during June and August, 1976. An amended complaint was filed on July 14, 1976. The case has been under advisement since the completici of post-trial briefing. Most of the testimony was submitted in the form of written witness statements,4 with live testimony almost entirely limited to cross?examination and rebuttal. In addition to the testimony and the attachments to the written statements, I have considered as evidence the depositions of four defense witnesses,5 the responses to the plaintiffs' 3. The relevant portions of the Eagles Act are quoted in footnotes 96 and 97, page 55, infra. 4. All of the written statements considered are listed in Appendix A attached to this opinion. 5. Kendall N. Covert, John O. Hoffman, Dr. Logan A. Norris, and Thomas C. Turpin. 3 - OPINION 2-545?17131?363 three requests for admission,6 Plaintiffs? Exhibits 1?14, and (except as otherwise indicated below) Defendants' . ?upen? Exhibits A through Q.7 A ruling has been reserved on defendants' motion for summary judgment (which is treated as directed at the amended complaint). This motion is now denied. A number of genuine issues of material fact exist. Ruling has also been reserved (Tr. 235) on plaintiffs' objections to Defendants? Exhibits A, C, and P, as expressed in Mr? Anderson's letter of June 29, 1976. Defendants elected not to respond to those objections and did not attempt to authenticate these exhibits or establish their relevancy or materiality during the trial. The plaintiffs? objections to the admission of Defendants' Exhibits A, C, and are therefore sustained. THE PARTIES The plaintiffs are two environmental groups--Citizens Against Toxic Sprays,.Inc. (CATS) and the Oregon Environmental Council, Inc. (OEC)--and a cooperative organizat; of forest workers called Hoedads, Inc. The testimony of Stevens Van Strum, Larry Williams, and Gerald Mackie establishes that members of each of the three plaintiffs are I affected by the spraying of phenoxy herbicides because they live in or near the Siuslaw National Forest, work in the i Forest, or use the Forest for recreational and other activities. The plaintiffs clearly have standing to sue under NEPA. See Cady v. Morton, 527 F.2d 786, 791 (9th Cir. 1975). 6. The responses may be found in the trial transcript for August 11, 1976. Tr. 235?237, 240?241. 7. ?Defendants' Exhibits A through were submitted initially with defendants' memorandum in opposition to plaintiffs' motion for a temporary restraining order. 4 'FIE?Sandstone :3 . a; . xv} The defendants are the Secretary of the Enited States Department of Agriculture8 and various officials of the Forest Service, ranging from the Chief Forester down through the District Rangers in the Siuslaw National Forest. The intervenor, IPA, is a nonprofit corporation whose member are engaged in the forest products industry within the Pacific Northwest. Many IFA members purchase timber from the Siuslaw National Forest. FACTUAL BACKGROUND THE PHENOXY HERBICIDESQ The phenoxy herbicides are a group of selective herbicides widely used in crop production and in the management of forests, rangelands, aquatic habitats, and industrial and urban sites. These herbicides, which are related to naturally-occurring plant growth regulators, kill plants by causing malfunctions in growth processes: They are useful primarily because of their selectivity: broad-leaved plants are generally susceptible, while most grasses, coniferous trees, and certain legumes are relatively resistant. The phenoxy acids form a family of compounds having similar chemical and biological properties but differing in details that affect their activity on individual plants, their cost, and other characteristics. The ones presently 8. The amended complaint named as a defendant Earl Butz. With the change in Presidential administrations, Bob Bergland has been substituted as a party defendant pursuant to Fed. R. Civ. P. 9. The chief sources of factual information contained in this section are the so?called Report" issued in February, 1975, by the Council for Agricultural Science and Technology (attached to the statement of Professor Boysie E. Day); the Federal Register; and the testimony, with attachments, of Dr. Warren B. Crummett, John Davidson, Dr. Ralph T. Ross, and Dr. Theodor D. Sterling. I 5 - OPINION 1 3 in use as herbicides in the United States include 3 2 2,4-dichlorophenoxyacetic acid 2,4,5?trichlor0phe- 3 noxyacetic acid 4 propionic acid or?silvex), or dichloroprop,: 5 mecoprop, erbon, MCPA, and MCPB. Of the 6 phenoxy herbicides, and silvex are used the i 7 most extensively. The amounts produced in the United States: _8 in 1971 were, respectively, 45 million, 6 million, and 3 I 9 million pounds, representing over 90 percent of all phenoxy I .10 production. 11 All herbicides derived from 2,4,5?trichlorophenol?- 12 including and silvex (but not a 13 chemical contaminant formed in the manufacturing process l? known as (TCDD). TCDD 15 I is one of the most toxic chemicals known to man. Its 16 presence and significance in phenoxy herbicides have become 17 known only in recent years, although the herbicides themselves 18 have been in use since the late 1940s. TCDD cannot be 5 19 eliminated entirely from the products of 2,4,5?trichlorophenoi. 20 However, refinements in production methods have succeeded in 21 reducing the level of TCDD from up to 80 parts per million 5 22 (ppm) to less than 0.1 ppm. 23 The phenoxy herbicides have been the subject of 24 scientific research for many years. From time to time 3 attention has been focused on them because of outbreaks of 28 skin eruptions known as chloracne among workers involved in 27 their production. 'One such outbreak occurred in a Dow 28 Chemical plant in 1964. 0 ?9 The concern over TCDD and the phenoxy herbicides has a 30 reached its current level, however, only since the late 31 19608. Two significant events took place at that time. 3 32? I seafarers 6 OPINION I 'EFL-Sandstone 2-5-75?1mu?em First, a mixture of and known as Agent Orange i has used extensively in South Vietnam as a defoliant. Charges 1 of resulting damage to human, animal, and plant life lead to 5 a number of scientific studies of the effects of Agent Orange.' Second, a study by the Bionetics Research Laboratorie reported that caused teratogenic effects (birth 2 defects) in mice and rats. In late 1969 President Nixon's Science Advisor I announced the Bionetics findings and reported that government; actions would be taken to restrict the use of Early the next year, hearings on the effects of on man and the environment commenced before the Subcommittee on Energy, Natural Resources, and the Environment of the - United States Senate. On April 15, 1970, the Secretaries of Agriculture, Interior, and Health, Education, and Welfare announced suspension of the registration of for (1) all aquatic uses and (2) liquid formulations for home and recreational use. This announcement was followed on May 1, 1970, by a notice of cancellation of the registration of for (3) granular formulations for home and recreational use and (4) all uses on food crops intended for human consumption.lo 10. Under the FIFRA statutory scheme in effect at the time, suspension of registration was a more drastic step than cancellation. Suspension was permitted upon a finding of imminent hazard to the public and could occur without advance notice to the registrant. Cancellation, on the other hand, became effective only thirty days after service of notice and= could be delayed by a request for public hearing or referral to an advisory committee. If such a request was made, I cancellation could not become final until after the hearing o? the report of the advisory committee. 7 U.S.C. 135b(c), asf amended'by Act of May 12, 1964, Pub. L. No. 88-305, 3, 78 Stat. 190. The FIFRA scheme has since been replaced by the procedures set out in the Federal Environmental Pesticide COntrol Act of 1972, 7 U.S.C. 136 et_seg., Pub. L. No. 92-516, 86 Stat. 975, as amended by Act of Dec. 28, 1973, Pub. L. No. 93-205, 87 Stat. 903: and Act of Nov. 28, 1975, Pub. L. No. 94?140, 89 Stat. 754. . I . 7 - OPINION 1 Following these actions, Dow Chemical Co. and other 2 registrants exercised their statutory rights by challenging 'i . 3 I the cancellation of registration as to rice (one of the 4 major food crops treated with and requesting 5 referral to an advisory committee. While that committee was 5 studying the problem, the regulation of pesticides was 7 transferred from the United States Department Agriculture (USDA) to the EnVironmental Protection Agency 1971, the nine?member adVisory committee 11 . . . . submitted its report to the Administrator of the EPA. After 12 . . . . evaluating the available information on and TCDD, 13 I . the committee 14 ?found that the data concerning the effects on human 15 beings in exposed areas was inconclusive. It was thus necessary to extrapolate the animal data to man. 16 "Within this framework, the committee concluded 17 that 'Current patterns of usage of and its known fate in various compartments in the environment, 18 including the plant and animal foods of man, are such that any accumulation might constitute a hazard to any 19 aspect of human health is highly unlikely.? This conclusion, however, was accompanied by a caveat that 20 the toxic contaminant TCDD could pose a problem to . human health, although a level of 0.1 parts per million 21 of TCDD in would probably be acceptable." 36 Fed. Reg. 14777 (1971). . 22 The committee report recommended that use of be 23 . permitted on forests, rangelands, and rights-of-way under 24 certain conditions, provided that a limit of 0.1 be set 25 on TCDD contamination of that be applied no 25 . more often than once a year at any one Site, and that 27 . . be applied with proper caution to aVOid human 03 . contact. The committee a lso recommended another 29 33 ll. Reorg. Plan No. 3 of 19?6, eff. Dec. 2, i 1970, 35 Fed. Reg. 15623, 84 Stat. 2086. 31 12. Witnesses testifying in this case included three "2 committee members: Professor Frank N. Dost, Professor Ted A. Loomis, and Dr. Theodor D. Sterling. i 8 OPINION 1 1 following further specific research on the bioaccumulation 2 of TCDD. One committee member13 dissented from the I 3 committee's conclusions. 4 On August 6, 1971, after considering the report of the 5 advisory committee, the Administrator of the EPA issued an 6 order continuing the cancellation of for use on food 7 . crops until completion of the public hearing process. 36 8 Fed. Reg. 1477? (1971). In response to Dow's objections to - this order, the Administrator issued a further order on 3 1o - November 4, 1971, reaffirming the earlier order and stating 11 1 that his action was mandated by the following facts: 1 12 I A contaminant of 2,4,5-T--tetrachlorodibenzo- 5 13 paradioxin (TCDD, or dioxin)-? is one of the most teratogenic chemicals known. The registrants have not i .14 established that 1 part per million of this contaminant-4 or even 0.1 ppm-?in does not pose a danger to 15 . the public health and safety. 5 16 There is a substantial possibility that even 'pure' is itself a hazard to man and the a 17 environment. i 13 The dose-response curves for and dioxin have not been determined, and the possibility of 13 'no effect' levels for these chemicals is only a matter of conjecture at this time. 20 . As with another well?known teratcgen, 21 thalidomide, the possibility exists that dioxin may be many times more potent in humans than in test animals 22 (thalidomide was 60 times more dangerous to humans than a to mice, and 700 times more dangerous than to hamsters; 23 the usual margin of safety for humans is set at one?tenth the,teratogenic level in test animals). . 24 The registrants have not established that 25 dioxin and do not accumulate in body tissues. If one or both does accumulate, even small doses could 23 build up to dangerous levels within man and animals,and possibly in the food chain as well. 27 The question of whether there are other 23 sources of dioxin in the environment has not been fully 5 explored. Such other sources, when added to the amount K) of dioxin from could result in a substantial . total body burden for certain segments of the 30 population. 31 13. .Dr. Theodor D. Sterling. 32 I'M?Sandstone 2-5-13-?1?5M?oa3 9 OPINION The registrants have not established that there is no danger from dioxins other than TCDD, such as the hexa? and hepta?dioxin isomers, which also can be present in and which are known to be teratogenic. There is evidence that the in may decompose intotdioxin when exposed to high temperatures, such as might occur with incineration or even in the cooking of food. - Studies of medical records in Vietnam hospitals and clinics below the district capital level suggest a correlation between the spraying of defoliant and the incidence of birth defects. #10. The registrants have not established the need for in light of the above?mentioned risks. . Benefits from should be determined at a public i hearing, but tentative studies by this agency have. shown little necessity for those uses of which are now at issue." Dow Chemical Company v. Ruckelshaus, 477 F.2d 1317, 1320-1321 n.14 (8th Cir. 1973). . Dow then filed an action in the United States District Court for the Eastern District of Arkansas seeking injunctiVe: and other relief against the Administrator's decision: At the suggestion of the court, the Administrator entered a further order?on April 13, 1972, continuing the cancellation of registration and reiterating his earlier findings of fact.; E- The district court, concluding that the Administrator had not followed the procedures mandated by FIFRA, then enjoined further EPA proceedings against until entry of an Order complying with FIFRA. Ed. at 1321?1322. On appeal, the Eighth Circuit reversed on the ground that the Administrator had not yet entered a final order subject to judicial review. Ed. at 1326. . I With the Dow litigation terminated, the EPA resumed its administrative proceedings against On July 19, 1973, the Administrator issued a notice of intent to order a consolidated public hearing on all registered uses of (including use for rice) in April, 1974. 38 Fed. Reg. 10 - 19860 (1973). He further ordered that the following issues (in addition to the ten issues delineated in his Opinion FPI?Eandstona orders of November 4, 1971, and April 13, 1972) be addressed I by the hearing: i A. The health hazards to man and other animals which may be caused by and TCDDI with emphasis on teratogenicity, other advermereprgductive effects, mutagenicity, 4 carcinogenicity,19 sub?lethal chronic health effects, and delayed lethality from chronic, low-level exposure. 1 B. The extent of the health risk posed by and - TCDD, including thermal generation of additional TCDD in the environment, persistence and bioaccumulation of and TCDD, avenues of human and animal exposure (sUch as aerial drift and water transport), accumulation of residues in the . human food supply and in human and animal tissue, presence in of contaminants other than TCDD, other environmental sources of dioxins, current levels of dioxins in products, and current . methods of manufacture of C. The necessity for the continuation of the registered. uses of 1 38 Fed. Reg. 19859-19860 (1973). i The start of the hearing was to be delayed to permit the; EPA to complete an environmental and human monitoring project on the presence of TCDD in and the extent to which TCDD may adversely affect human and animal health. 38 Fed. Reg. 19860 (1973). Early in 1973 two Harvard researchers, Professor Matthew S. Meselson and Dr. Robert Baughman, had reported the development of a method for achieving accuracy in detecting TCDD inathe part per.tri11ion (ppt) range. The EPA monitoring program was intended to employ this refined I analytical method. Although difficulties with the'technique had become apparent by early 1974, an Administrative Law Judge refused a request by the EPA to delay the hearing beyond May, 1974. On May 10, 1974, however, the Administrator issued an order postponing the consolidated l4. Tendency to induce genetic mutations. 15. Tendency to produce cancer; I ll OPINEON -5-7 5?1 75 31?963 hearing until November 1, 1974, to permit the hearing to be expanded to all registered herbicides derived from 2,4,5?trichlorophenol, including silvex and erbon.- 39 Fed. Reg. 17466 (1974). The methodological problems in monitOring TCDD residues continued. EPA researchers found that their results were by no means conclusive, and only partly suggestive, because of various interferences. They concluded that solutions to these problems would be obtained "only after a long involved period of basic . . . . . . . . 1" research investigation and idealization of I As a result of these difficulties, on June 24, 1974, the 3 1 Administrator withdrew the notices of intent to hold hearing} i derived from 2,4,5-trichlorophenol and further withdrew the i on all registered uses of and other herbicides order of cancellation insofar as it related to rice only. i 39 Fed. eeg. 24049 (1974). The order left in effect the 5 suspension of registration of for (1) all aquatic uses and (2) liquid formulations recreational i use and the cancellation of registration of for (3) granular formulations for home and recreational use and (4) all uses on food crops intended for human consumption except rice. Ed.? The stated reason for discontinuing I administrative proceedings was the scientific unavailability of evidence which would largely determine their outcome. The? Administrator reported that no date could be given for completion of the EPA's TCDD residue monitoring project and that, in fact, completion of the project might be two or more years away. 39 Fed. Reg. 24050 (1974). 16. Memorandum of June 3, 1974, from Dr. Edward O. Oswald to Carroll Collier, attached to the Supplemental Statement of Dr. Ralph T. Ross. . . I 12 - OPINION 215-75m175h1?003 Since the order of June 24, 1974, the EPA's monitoring project has continued. A Dioxin Planning Conference was -held in July, 1974, with a final Dioxin Implementation Plan17 issued in February, 1975. The Plan contemplated that emphasis would be placed initially upon refinement of analytical methodology, including modifications of existing cleanup procedures to eliminate interferences, and upon monitoring of TCDD in beef samples from cattle grazing in areas of use. The monitoring was to be conducted under the aegis of a Ad Hoc Task Force .. consisting of representatives of EPA, USDA, the Environmental Defense Fund, and Dow Chemical. Although the monitoring program has not proceeded as quickly as was hoped, preliminarf results have been announced by the participating laboratories at Harvard University, Wright State University, Dow Chemical, the University of Utah, and EPA's Research Triangle Park Laboratory.18 Apparently,EPA has not yet initiated proceedings for the reregistration of phenoxy herbicides under the new procedures established by the Federal Environmental Pesticide. d,19 Control Act of 1972, as amende and the regulations promulgated thereunder.20 Proceedings will undoubtedly be 21 commenced in the near future. In the meantime, renewed 17. A copy of the Plan is attached to the Preliminary Statement of Expected Testimony of Dr. Ralph T. Ross. 18. See Dr. Rose's memoranda of August 5, 1975 (attached to Statement of Dr. Theodor D. Sterling), and June 18, 1976 (attached to Preliminary Statement of Expected Testimony of Dr. Ralph T. Ross). 19. 7 U.S.C. 136 et seq., Pub. L. No. 92-516, 86 Stat. 975, as amended by Act of Dec. 28, 1973, Pub. L. No. 93?205, 87 Stat. 903; and Act of Nov. 28, 1975, Pub. L. No. 94?140, 89 Stat. 754. 20. .40 C.F.R. Part 162 (1975). 21. ,7 U.S.C. 136d(a)(1) requires the EPA Administrator to cancel the registration of any pesticide after five years 1- - OPINION -I'm-Sandstone 2?5-15?17521?003 interest in TCDD and the phenoxy herbicides has been sparked by lawsuits such as this one22 and by such events as the evacuation last year of an area in northern Italy following a chemical plant explosion which released a cloud of 2,4,5? trichlorophenol23 and the recent discovery that a small amount of TCDD had been stored in eastern Oregon. 2 FOREST MANAGEMENT PRACTICES IN THE SIUSLAW NATIONAL About four-fifths of the total amount of phenoxy herbicides used in the United States is applied to cropland and rangeland. However, the phenoxy herbicides??principa11y and silvex--have also played a vital role in the management of the nation's forests over the past twenty years. In 1972 approximately 278,905 acres of forest land were treated with 189,517 acres with 14,907 acres with and in combination with each other, several thousand acres with or in combination with other herbicides, and 1,073 acres with silvex. 21. (continued) unless the registrant requests that the registration be continued in effect. The Administrator may reregister the pesticide only if he determines that it will not cause unreasonable adverse effects on the environment. 7 U.S.C. i 136a(c)(5). The five?year renewal requirement has been suspended, however, pending reregistration and classification of all pesticide products registered by the EPA prior to October 21, 1974. 40 C.F.R. (1975). Although reregistration was initially to be accomplished by October 21, 1976, id., the deadline has since been extended by a year. Act. of N55. 28, 1975, Pub. L. No. 94?140, 4, 89 Stat. 754. In any case, reregistration applications are to be submitted in the interim only upon the' request of the EPA. 40 C.F.R. (1975). - 22. See, Kelley v. Butz, 404 F. Supp. 925 (W.D. Mich. 1975); State of Wisconsin v. Butz, 389 F. Supp. 1065 (E.D. Wis. 1975). . 23. See Attachment to Brief of Defendant IFA. 24. The facts contained in this section are derived primarily from the CAST Report; Defendants' Exhibits F, G, H, K, and and the testimony, with attachments, of Dr. William H. Lawrence, Dr. Ronald E. Stewart, and Thomas C. Turpin. l4 - OPINION n?u. m' The use of phenoxy herbicides in forestry, as elsewhere,i is to discriminate between desired and undesired plants. The most important uses are in preparation of sites for reforestation and in release of young conifers from competing brush and weed trees. Because the competing woody plants are more susceptible to the phenoxy herbicides at certain times than are the conifers, properly timed applications affect the undesired Species without harming the conifers. For site preparation, a high degree of control is needed and the herbicides used must kill most of the competing woody vegetation, with a minimum of resprouting. Often, spraying is followed by broadcast burning. The site can then be stocked with conifers. After two to three years a second application of herbicides may be required to release the young conifers from competing vegetation. The objective is not to kill all competitive vegetation, but to increase the amount of light reaching young conifers in the understory and decrease brush competition for soil moisture and nutrients. Given three to five years of improved light and moisture, young conifers on most sites will outgrow the- herbicide-damaged brush and be permanently released. .Usually,only one or two herbicide treatments are needed on any site over a 30? to 95-year forest rotation cycle. Phenoxy herbicides are most frequently applied to forest lands in the form of aerial broadcast sprays, using helicopters. They may also be applied by fixed-wing aircraft- I by ground sprays, or by individual plant treatment. Fermulations used in the forest may be esters, emulsifiable acids, water- or oil?soluble amines, or wettable powders, but low volatile esters are by far the most widely used. 25. :Low volatile esters are used on at least 80 to 90 percent of all forest and range improvement spray projects. 15 OPINION I i 1 The basic formulation is further diluted for application as 2 i a liquid spray by a carrier such as oil, water, or oil-water 3 emulsion. Rates of herbicide application for both aerial 4 and ground broadcast treatments generally range from one?half 5 to four pounds acid equivalent (as) per acre, the most 5 common rate being two Pounds ae per acre. The volume of . 7 aerial spray required is dependent upon height and density 8 I of brush species and weed trees but has been standardized a . in most cases at ten gallons per acre. The speCiric phenoxy 10 3 herbicides employed and the time and rate of application vary I 11 with the forest management needs of the particular forest to '1 1? be treated. 13 In forests of the Pacific Northwest, and 4 14 are used on approximately 75 percent of the acreage treated with herbiCides each year. The chOice of herbiCidal 16 . . . . treatment for a particular Slte is usually dictated four speCies that are predominant in the brushfieid. 3 . . . 1 Often and are combined in a 1:1 "brushkiller" 19 mixture where a half dozen or more Species are abundant in 20 the plant community to be treated. For purposes of site 21 preparation, the most effective treatment is during the early 22 . . . . foliar period in the late spring when shrubs and weed trees 23 reach their maximum susceptibility to herbicides. For 24 release of young conifers, application is usually during the budbreak or late foliar periods when conifers are less 26 . . . susceptible than the competing vegetation. 27 . . . . The Siuslaw National Forest (the Forest) is located Region 6 of the United States Forest SerVice, which includes 29 30 ?4 26. Late winter or early spring, up to the time new growth 1 on conifers reaches one inch in length. Oil is the 31 preferred carrier at this time. 99 27. Mid-July to early August, after cessation of growth on conifers. Water or oil-in?water emulsions are generally use; as the carrier. ?Z??E?mcd?mno i 16 OPINION FPI?Ean??nnc 2-545?133?4053 National Forests within Oregon, Washington, and two counties in northern California. The Forest is in the Central Oregon Coast Range within an area south of Tillamook, north of Reedsport, and west of Corvallis and Eugene. It includes portions of Benton, Coos, Douglas, Lane, Lincoln, Polk, Tillamook, and Yamhill Counties, totalling approximately 620,000 acres. The land ownership pattern is a mixture of public and private, with river valley bottoms usually owned by local residents. The forest types are characteristic of Sitka spruce and western hemlock vegetation zones, with Douglas-fir predominant. The Forest includes four Ranger Districts: Hebo in the north, Waldport in the west central and Alsea in the east central area, and Mapleton in the south. A combination of high rainfall, mild temperatures, relatively long growing season, and deep fertile soil within the Siuslaw National Forest permit development of some of the most productive forests in the world.28 However, these same conditions are also conducive to development of an aggressive woody shrub and weed tree community. Successional patterns after fire or logging tend toward dense shrub communities, including such species as salmonberry, thimbleberry, vine maple, elderberry, and ceanothus, which re eventually overtopped by red alder or shade-tolerant conifers. I For at least twenty years, phenoxy herbicides have been used in the Forest for site preparation and release of Douglas-firs and, to a lesser extent, for minor control of noxious or poisonous plants and for maintenance of 28._ The Forest yields about 2.4% of the timber produced each year from National Forests in Region 6 and about 11% of the timber from National Forests in Oregon. 17 'WI?Sandr-tona 2 Ibrushkiller mixture of one pound ae and one pound ae improvements. Two formulations are most frequently used: a per acre and a formulation of alone, usually at three pounds as per acre. More_acreage is treated with than with any other herbicide. Since 1974 the projected annual acreage to be sprayed by helicopter with and for site preparation and conifer release has been approximately one to two percent of the total Forest acreage.29 The average size of units contracted 5 out for spraying during 1976 was 30 acres, with a range in siee from 2 to 174 acres. Silvex is not used in the Forest at the present time. 36 THE EISS FOR THE VEGETATION MANAGEMENT PROGRAM IN THE FOREST Three EISs covering the vegetation management program in the Siuslaw National Forest have been admitted into evidence as exhibits: the first covering the period from January 1, 1974, to July 1, 1975 (1974-75 BIS), the second covering the period from July 1, 1975, to June 30, 1976 (1975?76 BIS), and the third covering the period from July 1, 1976, to September 30, 1977 (1976-77 EIS). The 1976?77 EIS is now in force within the Forest, and its adequacy is the subject of plaintiffs} NEPA claim.? The following paragraphs describe the manner in which each of the three EISS was developed and issued by the Forest Service. 29. The respective EISs give the following projected figures: Total Acres Sprayed Date - 1/1/74?7/1/75 6,900 (1974) 4,300 (1974) 500 (1974) 6,500 (1975) 1,250 (1975) 400 (1975). 7/1/75?6/30/76 9,100 4,300 7/1/76?9/30/77 7,800 5,000 400 - Several hundred additional acres are sprayed by helicopter with and/or in combination with other herbicidev The use of phenoxy herbicides in ground spraying and individual plant treatment is much more limited. 30. 'Facts recited in this section are derived from Defendant; Exhibits B, F, G, and and from the testimony of David A. Graham, Layell O. Stanger, and Thomas C. Turpin. 18 OPINION F'I?I??andstono 2?5-Tfr?173M?903 In preparing for the 1974-75 EIS, a Regional Pesticide?Use Coordinating Committee (RPUCC) was appointed for Region 6. The RPUCC divided Region 6 into six zones for purposes of preparing separate EISs, with the Siskiyou, Siuslaw, and Umpqua National Forests designated as Zone V1.31 Within Zone VI a zone team was organized to prepare a draft ?18 for review by the RPUCC. Following this review, a draft EIS was made available to the Council on Environmental Quality (CEO) and the public on October 12, 1973. A final EIS was issued on February 20, 1974, after receipt of comments from public agencies and other interested parties. The EIS consisted of the environmental statement itself and a separate supplement entitled "Herbicide Background Information--Vegetative Management Environmental Statement" EEfendants' Exhibit K). The Regional Forester approved the final EIS on April 9, 1974. The 1975?76 EIS was prepared in the form of an addendum to the 1974?75 EIS and its supplement and was also directed at the Siskiyou, Siuslaw, and Umpqua National Forests. The new information included in the addendum related primarily to the control of drift and to and TCDD. The draft 1975-76 EIS was issued to CEO and the public on January 10, 1975, and the final EIS on May 8, 1975. The Regional Forester approved the final EIS on June 18, 1975. At the same time that it was decided that addenda to the prior EISs would be issued for 1975-76, it was also decided that a new approach would be adopted within Region 6 for EISs on the vegetation management programs from 1976-77 on. Instead of annual zone-wide EISs, a single region?wide 31. The Siskiyou National Forest includes portions of Coos, Curry, and Josephine Counties in Oregon and Siskiyou and Del Norte Counties in northern California. The Umpqua National Forest is located within Douglas, Jackson, and Lane Counties in Oregon. 19 - OPINION no?year BIS would be prepared, with addenda to be issued I i 2 thereafter containing only such specific additional I 3 information as might be needed. A special Task Force was 4 appointed to supervise the drafting of the region-wide BIS. 5 A preliminary draft EIS was circulated to all National 6 .Forests on March 14, 1975, a final draft EIS was made 7 available to CEO and the public on September 16, 1975, and 8 the final EIS was issued on February 13, 1976. On April 9 12, 1976, the Regional Forester approved the final BIS. 10 The 1976-77 EIS did not incorporate by reference the 11 background supplement which had been used with the two 12 previous 3158, although much of the same information was 13 included in the EIS itself. 14 Each of the three EISs contains a description of 15 projects planned within each National Forest for the period 16 covered by the EIS, including acreages, chemicals, 17 application rates, formulations, and maps. The final 18 decision to treat a particular area is made, however, only 19 after an on?the-ground examination by Ranger District 20 personnel. This examination generally takes place some four 21 to five months before Spraying. A contract proposal is .22 then prepared and advertised for bids. The actual spray 23 program may vary somewhat in location and extent from that 24 described in the E18. 25 THE NEPA CLAIM 28 4 The plaintiffs allege that the current EIS on the 27 Siuslaw National Forest's vegetation management program does 28 not satisfy the requirements of NEPA insofar as phenoxy 29 herbicides are concerned. The plaintiffs rely upon two on provisions of NEPA, 42 U.S.C. and 31 I These sections provide as follows: 32 i . 20 Opinion 2-545?17531?303 If! "The Congress authorizes and directs that, to the fullest extent possible: . . . (2) all agencies of the; Federal Government shall?- - include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on?? the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented,. alternatives to the proposed action, the relationship between local short-tern uses of man's environment and the maintenance and enhancement of long?term productivity, and any irreversible and irretrievable 1 commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; initiate and utilize ecological information in the planning?and development of resource-oriented projects". i Although the amended complaint alleges violations of both subsections (C) and (H), the plaintiffs have drawn no distinctions between these subsections either in the evidence presented or in the briefs submitted to the court. The NEPA claim will therefore be treated as presenting a single question: is the 1976?77 EIS for the Siuslaw National Forest adequate with respect to phenoxy herbicides? I 21 OPINION 20 to hastens 2-5-13?17531?903 . The plaintiffs attack the adequacy of the ?18 on several grounds- Their allegations may be categorized as claims (1) that the discussion of the environmental effects of phenoxy herbicides is inadequate, (2) that the consideration of alternatives to their use is inadequate,. and (3) that the Forest Service failed to follow the statutory procedures for obtaining and considering the comments of other government agencies and of the public on the proposed EIS. The most substantial_of these claims is the first. The federal courts have developed a large body of case law on the standards to be applied in determining whether a federal agency has complied with the requirements of NEPA. The Ninth Circuit has declared that NEPA is essentially a procedural statute:' its purpose is to assure that, by following the procedures that it prescribes, agencies will be fully aware of the impact of their decisions when they make them. ?The question, then, is whether an agency has observed the procedures required by law. Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. l9?4) (en banc). The prescribed procedures must be faithfully followedzx . igrudging, pro forma compliance will not_do. Ed. I An EIS is adequate only if it serves substantially the two basic purposes for which it was designed. That is, it complies with NEPA only when . "its form, content, and preparation substantially (1) provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public, information of the proposed project's environmental impact and encourage public participation in the development of that information." Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). 22 . The guidelines for the preparation of ?155 which-have been I 3 promulgated by the C3032 and by the Forest Service33 provile: 3 more specific guidance for determining the adequacy of an I 4 I EIS. See id. at 1282 n.7. The adequacy of any particular 5 EIS necessarily depends, however, upon the facts and 6 -circumstances surrounding the proposed federal action to 7 which it is directed. Sierra Club v. Froehlke, 534 F.2d 1239, .8 1299 (8th Cir. 1976); Trout Unlimited, supra, 509 F.2d at 9 1282?1283. 10 i A. ADEQUACY OF THE DISCUSSION OF ENVIRONMENTAL EFFECTS 11 The adequacy of an EIS must be determined through use 12 of a rule of reason. Thus, a "reasonably thorough discussion 13 of the significant aspects of the probable environmental 1 14 consequences" is all that is required. 1d. at 1283. In . 15 other words, the role of the court is not to substitute its 16 judgment for that of the agency as to the environmental 17 consequences of its actions but to determine whether the 18 agency has taken a ?hard look" at those consequences. 19 Kleppe v. Sierra Club, 96 2718, 2731 n.21 (1976). 20 An BIS is not inadequate when it fails to discuss remote; 21 and highly speculative consequences. Trout Unlimited, 22 supra, 509 F.2d at 1283. Nor will disagreement among 23 experts about environmental consequences serve to invalidate 24 an BIS. Life of the Land v. Brinegar, 485 F.2d 460, 472 25 I (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974). 26 Further, it is not necessary that all environmental effects 27 I of the proposed action be known. Cady v. Morton, 527 F.2d 28 786, 796 (9th Cir. 1975). 29 30 I 32. 4o C.F.R. Part 1500 (1976). 31 I 33. 39 Fed. Reg. 38244 (1974). 32 . m?ng?wn 23 OPINJON Wit?Sandstone 2-5-73?17551?903 It is necessary, however, that the EIS indicate the Mn? extent to which environmental effects are uncertain or unknown. Sierra Club v. Froehlke, supra, 534 F.2d at 1296; Scientists' Institute for Public Information, Inc. v. ABC, 481 F.2d 1079, 1092, 1093 en.c. Cir. 1973); Jicarilla Apache Tribe of Indians v. Norton, 471 F.2d 1275, 1280 n.11 (9th Cir. 1973). Where scientists