.r

    

 

m?lQUI-?Page

II.



3

MEMORANDUH IN SUPPORT OF
PLAINTIFF PAUL E. 
MOTION FOR SWRY JUDGMENT
UNDER FEDERAL RULE 56

We:

STATEMENT OF THE CASE . . . . . . . . . . . . . . . .. page
STATEMENT OF FACTS . . . . . page
POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . page
A. Standards of Judicial Review page

3. There must be an administrative record 

1. FIFRA requires a decision document

.. page

which examines environmental impacts page

2. NEPA requires a decision document
which examines environmental impacts 

a. The "functional equivalence" doctrine
is inapplicable in this litigation 

b. The tests for "functional equivalence" 

C. Defendant agencies must coordinate
pesticide use and regulation . . . . 

1. As a matter of law, the agencies must coordinate
pesticide use and regulation 

2. As a matter of fact, the agencies do coordinate

.. page

Page

Page

. page

. page

in some areas and not in others page

a. ELM abdicates responsibility to the
Forest Service 

b. Forest Service abdicates responsibility to EPA .

c. Both Forest Service and BLH abdicate
responsibility to EPA in the administrative
proceedings 

d. EPA abdicates responsibility to
the Forest Service and ELM 

e. Meanwhile, the agencies study the effects of

their program on human health and the environment

f. EPA abdicates to outside contractors

3. The agencies may not arbitrarily choose to obey or

to ignore a requirement at their own convenience 

- TABLE OF CONTENTS -- MEMORANDUM

page

.. page



page

. page

page

. page

page

  

 

1

conquer-Jaw?




Page



Table of Contents, continued:

 

D. Granting the injunction is in the public interest .. page 28
Iv.    
EXHIBITS:

Exhibit 1: July 17, 1979 letter from residents of Five Rivers.
including attached table. (2 pp.)

Exhibit 2: August 1h, 1979 letter from residents of Five Rivers
to Hr. Doug Costle (2 pp.)

Exhibit 3: August 29, 1979 letter from Dr. Barbara A. Wood to
Lincoln County Commissioners. (2 pp.)

Exhibit 6: August 30. 1979 letter from Lincoln County Commissioners
to Bureau of Land Management, Siuslaw National Forest,
and Oregon State Forestry. (l 

Exhibit 5: September A, 1979 letter from Larry Fellows to Albert
R. Strand, Lincoln County Cummissioners. (1 

Exhibit 6: October A, 1979 status report, Five Rivers, Oregon (3 

Exhibit 7: February 25, 1980 "Update of Five Rivers Study" with cover-
ing letter and attachments. (30 pp.)

Exhibit 3: November 2I 1919 letter from Edwin L. Johnson to Helyce
Connelly, with attachments. (30 pp.)

Exhibit 9: September 4, 1979 Siuslaw National Forest news release.

(1 

Exhibit 10: August 29. 1980 USEPA FIFRA notices to 2,5-d
registrants, with cover letter to NCAP. (15 pp.)

Exhibit 11: Fact Sheet, April 22, 1980. (8 pp.)

Exhibit 12: January 2, 1980 letter from Wendell Lorio to Dr Aubruy
Dupuy with attached "List of Vertebrates," page two
from a health questionnaire, March 10, 1930 memorandum
from Bill Wheeler to Mike Dellarco. (5 pp.)

Exhibit 13: December, 19?6. staff report to the Subcommittee on
Administrative Practice and Procedure, Committee on the
Judiciary, 0.5. Senate, "The Environmental Protection
Agency and the Regulation of Pesticides." (53 pp.)

Exhibit 14: August 25. 1977 EPA press release. "Deficiencies in Pesticide
Safety Tests Reported by EPA: Audit Requested," with attached
list of pesticides. (T pp.) 

Exhibit 15: February 15. 1980. "Delays and Unresolved Issues Plague New
Pesticide Protection Programs," GAO No. CED-80-32 (95 pp,)

Exhibit 16: October 19, 1981 News Release, Health and Welfare Canada. 1
"Current Recommendations on IBT Pesticides." (17 pp.)

-- TABLE 01-? CONTENTS -- MEMORANDUH
 



 Exhibits, continued:
2
3 Exhibit 17: Proposed testimony of Paul E. Herrell (32 pp.)
Exhibit 18: April 17, 1981 GAO Report, "Better Data Needed to
Determine the Extent to which Herbicides Should be
5 Used on Forest Lands." No. (23 pp.)
Exhibit 19: March 5, 1981 letter from Max Peterson to Christine
5 Bauman (l 
7 Exhibit 19A: Proposed testimony of Carol Scott Herrell (16 pp.)
8 Exhibit 20: 1981, Field Guide to Policies and Procedures Required
for Vegetation Management with Herbicides in Western
?2 Oregon," U.S. Bureau of Land Management, Oregon State
10 Office, excerpts. (5 pp.)
11 Exhibit 21: April 1981 Forest Service Pesticide-Use Advisory
Memorandum No. 288. (6 pp.)
12 Exhibit 22: April 16, 1931 letter from 3.3. Worthington to Paul E.
Merrell (2 .
13 PP 
4 Exhibit 23: April 9, 1981 letter from Donald P. Dubois to Paul E.
1 Merrell, (2 pp.)
15 Exhibit 24: December 3, 1981 letter from Ruth Hoodruff to Georgia
16 Hoglund, with enclosures, including Quarterly Report on
Activities of the IBT Program, 3rd Quarter, (22 pp.)
17 Exhibit 25: Undeted Memorandum of concern regarding the regulatory
18 follow?up of the IBT audit at Decatur, from Edwin L. Johnson
to A. B. Conroy, II. (2 ppP886 -- TABLE OF CONTENTS -- MEMORANDUM









. 

it HERRELL
Routezz. Box 190
Ti?iwdter, Oregon 97390
Telephone: 503?528?7151

Plaintiff, pro 53

IN THE UNITED STATES DISTRICT COURT



FOR THE DISTRICT OF OREGON




PAUL E. MERRELL,




CIVIL N0. 
Plaintiff,




HEMORANDUH IN SUPPORT OF
PLAINTIFF PAUL E. 
MOTION FOR SUMMARY JUDGHENT
UNDER FEDERAL RULE 56

V.


to

J. R. BLOCK, et al.,


#5


Defendants.

o-nH
GUI

1. STATEMENT OF THE CHE:




1. This is a lawsuit against the named federal defendants of three


on

federal agencies, the U.S. Department of Agriculture, the U.S. Department of


0

Interior, and the U.S. Environmental Protection Agency for their failure to




implement the procedural requirements of the National Environmental Policy Act

.0


of 1969. Defendants, even though jointly conducting study required under the




Act, have failed to Jointly prepare an environmental statement and have committed

a:
to

their respective agencies to major federal action significantly affecting the




human environment before determining the likely effect of their actions.

00
0 

2. This case centers on the public disclosure and interagency coordi?

a:


nation requirements of NEPA, the Federal Insecticide  Fungicide Rodenticide Act,




and the Freedom of Information Act. Defendants filed a motion for summary judgment


on

in their favor on November 9, 1981. In a motion filed concurrently with this

to
'0

memorandum of points and authorities, plaintiff has moved for summary judgment




in his favor. The matter is before the Court on cross-motions for summary judgment.

(A.


II. STATEMENT OF FACTS:

32 3. Plaintiff believes that the factual statements contained in this

Pace 1 MEMORANDUM

 

 

?memorandum, its exhibits, and his previous pleadings and exhibits in this case
are not genuinely in dispute. Plaintiff believes that where agency documents
are exhibited, quoted, or incorporated by reference, they contain the defendant
agencies' statements of fact, application of law to fact, and conclusions of law.
4. The Siuslaw forest, in the Oregon Coastal Range is composed largely
of checkerboard landholdings, with alternating Sections of private and federal
ownership predominating. The population is dispersed largely in a few towns

around the edges of the forest, and in the riparian zone along the rivers and

their tributaries which feed into the Pacific Ocean. Historically. the checker?

board ownership pattern has led to many conflicts between owners and residents
who perceive various uses as conflicting.

5. Residents of the Siuslaw National Forest, including plaintiff's wife
Carol Scott Harrell, formed an organization known as Citizens Against Toxic Sprays,
brought suit against the USDA Forest Service in 1976 because of their concerns
about the public health impacts of herbicides, and in 1977, were granted injunctive
relief from further use of the herbicides and silvex until an environmental
statement was prepared which adequately addressed issues raised in that proceeding.
v. Bergland, USDC Oregon, Civil No. 76-438, Opinion of March 7. 1977.] In
the spring of 1978, Regional Forester defendant Richard E. Worthington issued a
new final environmental statement, and it was approved by the Court on the basis

that it adequately addressed issues raised in the prior proceeding. ibidI

Supplemental Opinion of April 18, 1973.]
6. At about the same time that the Forest Service circulated their new
environmental statement, the U.S. Environmental Protection Agency issued a

"Rebuttable Presumption Against Registration and Continued Registration of

Pesticide Products Containing [43 FR 78 at 17116.] Approximately a

year later, the EPA announced that uses (including forestry uses) of and
siIVex were the subject of an emergency suspension by the agency, a decision

largely based upon an epidemiologic study of the co-incidence of human "spontaneous

abortions" and use of those pesticides in a study area that included the Siuslaw

National Forest. adjacent Bureau of Land Management lands. and private lands

including plaintiff's present residence.

Pace 2 MEMORANDUM

r. 

I 
1 7. Following that suspension. the Forest Servicc and BLH increased
2 the use of other chemicals, notably and picloram, as well as other
3 chemicals such as Round-up, Krenite, and Asulam. The predominant herbicides
4 used in the spring of 1979 were and picloram.
5 8. Soon after the Forest Service sprayed herbicides in the Five Rivers
5 valley in the spring of 1979, plaintiff's wife and other residents of the valley
7 wrote to thee Administrator of EPA Douglas H. Costle, informing him that "the
a health of the population of our valley has undergone profound and disturbing
9 changes since the spring spraying of herbicides. They asked that EPA
10 take action to prevent further spraying of herbicides "until their safety
11 has been unequivocally established, and that the miscarriages and the health
12 of the population be studied immediately." [Exhibit ApprOXimately a
13 month later, the residents again wrote to Mr. Costle, requesting relief from
14 imminent spraying by the Forest Service in the Five Rivers Valley:
15 We appreciate the fact that EPA is now actively
engaged in studying retrospectively the health
15 effects of and ailvex. This is a necas?
sary and important task. But we are experiencing
17 effects from other registered chemicals, and
cannot wait another five years for EPA to protect
13 us from these. EPA must act now to ensure that
any chemical applied to public land is uneguivo?
19 cally safe to the present and future health of
humans and animals, including the unborn, before
20 registering it for sale and application anywhere.
EPA must act immediately to protect us from
21 currently registered chemicals uhich pose unknown
risks to our own and future generations. [Exhibit
22 2L emphases in original.]
23 It is admitted that:
24 by mid-August, 1979, a health study was
cammenced in an attempt to ascertain if there
25 was an association between residence in the Five
Rivers Valley and exposure to certain_pesticides
26 {OJrganizations uho worked on or supplied
information in this health study included the
27 U.S.D.A. Forest Service, the U.S.E.P.A., the
Oregon State Department of Health, the Lincoln
28 County Oregon Health Department, and the Colorado
Epidemiologic Pesticide Study Center[,] 
29 Operating under a cooperative agreement with the
U.S.E.P.A. defendants' October 23, 1981
30 response to plaintiff's first request for admis-
sions, page 
31 
9. Documents have been received from defendant Forest Supervisor Larry
32

Page 3 -- MEMORANDUM

 

 



Fellows in response to a Freedom of Information Act request [Exhibits 3. 4, and 
a
which, if genuine,

relate the following facts. On August 29, 1979, Dr. Barbara

?and, Lincoln County, Oregon, Health Officer, wrote to the Lincoln County Board
of Commissioners, asking that they request the U.S. Forest Service to delay
the scheduled fall aerial spraying of the herbicides Roundup and Krenite in the

Five Rivers Valley, and gave as her basis, preliminary results of the Five Rivers

Health Study:

Preliminary review indicates there is evidence
based upon the health histories obtained [that]
there was a definite increase in respiratory
and gastro-intestinal problems, as well as an
increase in vaginal bleeding. with three mis-
carriages reported, following the spraying of
2.4-0 in the latter part of May. [Exhibit 

The Lincoln County Commissioners acted on Dr. Hood's request the next day and
wrote to Mr. Fellows and to the BLM state office, requesting that they delay

fall spraying in the Five Rivers area and enclosing Dr. Hood's letter to them.

[Exhibit On September 4, 1979, Mr. Fellows wrote back to the commissioners,

denying their request:

The delay does not appear apprOpriate at this
time. Dr. Wood's studies have been with the
phenoxy herbicides and the fall spray program
does not include 2,4-0 or the phenoxies.

The last paragraph of Dr. Hood's letter indis
cates that you should request us to initiate a
plan to study the incidence and effects of
herbicide use. I emphasize that such a study
is not our prerogative or responsibility, but
rather is that of the Environmental Protection
Agency. Our use conforms to application
specifications approved by EPA in their regis-
tration of the chemicals for use. [Exhibit 

10. It is admitted that the Colorado Epidemiologic Pesticide Study

Center:

planned to continue work with these agencies

by assisting in the administration of the

second health questionnaire in November, 1979
after the end of the current spray season and
would specifically be looking for the occurrence
of pregnancies and spontaneous abortions. as
well as the onset of health effects as may

 

The Forest Service failed to answer a portion of a request for admissions which
asked them to admit that Exhibits 3, 4, and 5 were genuine.

Page A -- 

 

 











develop. .

Defendants admit that the Colorado Epidemiologic
Pesticides Study Center obtained raw data from
Lincoln County Health Department questionnaires
and performed computerized statistical analyses
of that data. Defendants admit that the goal
of these analyses was to attempt to determine

if there was an assOciation between residency

in the Five Rivers Valley and exposure to pesti?
cides sprayed in that area. res onse to
request for admissions, page 5.

Defendants admit that [a genuine document written
by defendant Edwin L. Johnson] does refer to the
Five Rivers study as being an ongoing study. [Ibid,
page 

It is admitted that a document is genuine [Exhibit which is titled "Status

Report - Five Rivers, Oregon," dated October h, 1979, and which states in part:

Contact has been made with all hospitals in the
Alsea II Study and their cooperation has been
obtained regarding abstracting and submitting
information on hospitalized spontaneous abor-
tions for the year 1978. The State Health Depart?
ment has supplied a computer tape of all live
births in the state for 19?8. The computer

tape contains the same data as the previous
computer tape for 1972?1917. This latter
information is presently undergoing programming

to obtain the desired data for the areas previously
studied. A post-card survey of the physicians
serving the study and control areas is being
prepared for administration by the Oregon State
Health Department to obtain an estimate of the
number of spontaneOus abortioaa which the physi-
cians see and treat in their offices as campared
with the number of hospitalized spontaneous
abortions.

It is admitted that another document is genuine [Exhibit which is titled

"Update of PiVe Rivers Study," dated February 25, 1980. and which states in part:

Animal and [human] conception samples submitted

for pathological and residue analyses included a
deformed kitten, four ducklinga, one chick, and

one [human] product of conception. The product
of conception from a confirmed [human] pregnancy and
additional samples from a severely deformed [human]
fetus born near the Five Rivers area are also
awaiting residue analysis in Bay St. Louis, Hissis?
sippi.

29 It is admitted that a letter from defendant Edwin L. Johnson to a local resident

30 is genuine which states in part:

31
32

Page 5

Through this study of the health problems you
have alerted us to in the Five Rivers area, we
hepe to learn whether routine, seemingly lawful
pesticide use is resulting in hazardous expOSure

.- PEMORANDUM

 

1 of local residents to pesticides. [Exhibit 
2 11. It is admitted that Mr. Fellows distributed a press release dated
3 September 1979 to the media which states in part:
4 The Siuslaw National Forest is cooperating with
the Institute of Rural and Environmental Health,
5 a Colorado group under contract with the Environ-
mental Protection Agency, in their request to
5 review and monitor the fall application program.
Fellows invited Dr. wood to participate with the
7 study group in monitoring the program. [Exhibit 
8 12. In Exhibit 8, defendant Johnson told the Five Rivers resident that
9

and picloram are presently undergoing preliminary reviews to determine

10 whether a more intensive examination is necessary." and that:

 

11 EPA is also planning to accomplish a compre-
hensive review of forest use pesticides in the
12 next year, so that the Agency will be able to
make regulatory decisions in this area which
13 take into account not only risks and benefits
of individual products, but also comparative
14 risks and benefits of the different pesticides
used in forestry management.
15
13. EPA mailed notices to the companies which hold pesticide registrations
16
for the herbicide 2,4-0 on August 29, 1980, which stated in part:
17
EPA has determined that significant data gaps
18 exist in the data base for pesticides contain-
ing compounds. In order to make further
19 determinations concerning potential health
. effects of the Agency has determined
20 that data from the studies liSted below are
required to support the continued registration
21 of all products containing the various forms
of [Exhibit 10.}
22
The notice stated that the data gaps were for: oncogenicity (tumor formation)
23
studies, (2). reproductive studies, (3). taratogenicity studies, (4). neurotoxicity
24
5 studies, (5), metabolism studies, and (6), acute oral and dermal toxicity studies.
2
A few months before, the Agency had released a fact sheet in anticipation of
- 26
the notices to the registrants, which stated in part:
27
In addition to requiring several important
28 studies of the manufacturers on 2,4?0, EPA
will also: Continue its ongoing review
29 of forest pest control practices. This
review will evaluate all chemical and non-
30 chemical controls to identify the most
environmentally protective ways to control
31 forest pests. The agency believes that 
32 piecemeal approach to forest chemical regu-

lation only leads to confusion, both to the

 

P888 6 - MEMORANDUM

 

 

industry and to the

 

 

 

 

 

 

 

 

1 public. Unless we review the whole range of

possible controls, examining one chemical at

2 a time only gives rise to questions about the

chemicals which would be used to replace those

3 examined and prohibited from use.

4 No epidemiological studies of human health.

effects from 2,h-D exposure have been completed.

5 However, EPA is currently investigating_reports

about alleged adverse effects from potential

5 chemical exposure in several parts of the counth.

EPA will be looking at the results of those

7 studies and will decide in the near future about

additional field work. [Exhibit 11, emphases

3 provided.]

9 Again, it is admitted that a genuine document written by defendant Johnson refers
10 to the Five Rivers Health Study as being an ongoing study, supra, page 5, lines 7-9.
11 It is admitted that documents are genuine which give an accurate accounting of
12 samples taken for chemical analyses from Five Rivers residents. including the
13 human samples discussed supraI and water samples, sediment samples, and wildlife
14 trapped near residents' domestic water supplies. {Exhibit 12.]

15 1h. It was reported by U.S. Senate staff in 1976:

15 The EPA has misled the Congress, the General
Accounting Office, and the public regarding

17 its pesticide programs. The EPA through
public statements and other means fostered

18 the impression that it was thoroughly review-
ing all pesticide testing data submitted by

19 the pesticide testing data submitted by the
pesticide industry to determine whether the

20 use of any of the 50,000 pesticide products
already on the market cause "unreasonable

21 adverse effects" on human health and on the

22 environment. 
"Review and validation" consisted in most

23 instances of little more than the clerical
function of checking for the presence of

24 data in the Agency's files. Despite several
indications that data submitted by the pesti-

25 cide industry could not be relied upon without
a thorough review and analysis, the EPA

25 neglected to subject data to anything approach-
ing scientific scrutiny.

27 Nevertheless, the EPA on many occasions gave
.the impression to those outside the agency

23 that was being conducted in a

29 thorough manner. [Exhibit 13, page 93 .1

30 The report examined the adequacy of pesticide testing in some detail, and also

31 squarely addressed problems in EPA's regulatory program:

32 When [former Administrator Russell] Train

finally did focus on these problems, the infor?
Page 7 MEMORANDUM

 

1 nation he received [from EPA staff] was in
many respects quite accurate. He was candidly
2 informed that the original assumptions under?
pinning EPA's regulatory efforts in the pesti-
3 tide area were simply invalid.
4 EPA had assumed that pesticide safety testing
had been properly performed, that test data
5 had been reviewed according to current and
valid scientific standards, and that even
5 those problems with the data which had been
identified by previous reviewers had been
7 resolved or corrected.
The facts, of course, were far different from
8 the assumptions The problem, however, was
that the facts were presented as something
9 entirely new and surprising, when they had
actually been known [since 1969]. [Exhibit
10 13I page 3? .l
11 15. Eight months after the Senate Staff Report was printed, on August
12 25, 1977, EPA issued a press release which announced:
13 The Environmental Protection Agency has found
"deficiencies" in some of the pesticide safety
1? tests of a major laboratory that has done several
thousand studies for pesticide manufacturers on
15 whether their products cause ill effects such as
cancer, birth defects, nerve damage or metabolic
16 problems. 
17 "The discovery of these deficiencies in pesticide
safety tests is a serious matter," [former EPA
13 Administrator Douglas Costle said. 
is dependent on receiving accurate test data in
19 its registration of pesticides. If that data is
deficient, there can be no assurance that the
20 public health and the environment is being
properly protected." [Exhibit 14.]
21
16. EPA (and their predecessor agency in regulating pesticides, the
22
USDA) had been in the habit of accepting only summaries of data to support pesti-
23
cide registrations requested by manufacturers. On November 9, 1979, one week
24
after his letter to the Five Rivers resident [Exhibit Edwin Johnson circulated
25
an internal agency report to EPA's Hazard Evaluation Division which summarized
26
results of audits on 70 laboratories which test the effects of pesticides. [Plain-
27
tiff's December 4, 1981 motion to compel production, Exhibit According to
28
the summaries, 22 laboratories had destroyed or were missing raw data, 16 were
29
described as having "major" discrepancies between summaries submitted and raw
30
data, data produced by 12 laboratories was presumed invalid unless audited and
31
certified valid by the sponsors of the studies, 12 were described as being subject
32
to a referral to EPA's Program Management for audit of any study found,
Page

8 -- MEMORANDUM





Page

one was described as having had their officers indicted for falsifying research

reports to EPA. and several laboratories refused inspection. Industrial Bio?Test

is not mentioned in any of those categories other than the presumption of invalid

data.

17. The Genfal Accounting Office looked at the situation again in 1980,

and reported to Congress:

The Environmental Protection Agency has
several new programs to better regulate
pesticides chemicals which provide great
benefits but which can threaten man and the
environment. The most recent is a 10 to 15-
year program to reassess the safety of 35,000
federally registered pesticide products. How?
ever. the programI which started in October,
1978, is already behind schedule and has many
unresolved policy and procedural issues which
jeopardize its success.

The program is progressing slewly. Also,
EPA has not resolved many basic policy and
procedural issues which, if not done soon,
will jeopardize the program's chance of suc-
cess. EPA has not (1) developed operating
procedures, (2) set priorities on which
pesticides to examine first, and (3) developed
sound administrative controls for budgeting
and program monitoring.

[Exhibit 15I cover
pageI pp. 1-11.]

18. The largest of the laboratories that tested pesticide effects was

the now bankrupt Industrial Bio-Test Laboratories, Inc.. of Illinois.
IBT conducted roughly 4,300 health effects tests on pesticides for pesticide
producers.

[Exhibit 16.] Operating under a cosperative agreement with Health

Protection Branch, Canada, EPA has begun to evaluate IBT studies on approximately
200 pesticides. Approximately 1,000 studies are involved in this first phase of
review. EPA has provided plaintiff with a list of the first phase chemicals.

{Reprinted in NCAP News article exhibited to affidavit of Paul E. Harrell in support

of April 15, 1981 plaintiff's motion for temporary restraining order.) Still

unaccounted for by the agency are the identification of over 200 other chemical

pesticides and over 3,000 studies. To plaintiff's knowledge and belief. EPA has
released results of individual study evaluations on only one chemical pesticide,

the insecticide Captan, which only occurred after the registrant had agreed to the

disclosure.

9 -- MEMORANDUM



119. Health Protection Branch, Canada, recently released summary results
of their evaluations of several IBT pesticides. Covering documents and summaries
of review on picloram and Roundup are exhibited to this memorandum as Exhibit 16.
The data is overwhelmingly invalid on these two chemicals. Plaintiff has repeatedly
attempted to obtain copies of relevant study evaluations and related information
from the defendants, both under the Freedom of Information Act and through discovery

in this action. [Affidavit of Paul E. Herrell in support of this motion, Exhibit



Plaintiff has never reteived the key documents he sought.

I

20. In 1931, the General Accounting Office took a look at Forest Service

and Bureau of Land Management use of herbicides and their alternatives. and

concluded:

Serious information gaps exist relating to the
costs of vegetation management methods and their
relative effectiveness. Host foests CAO visited
had some success with alternatives to herbicides;
site-specific data was not available to identify
why methods had succeeded in one area but not in
another. [Exhibit 18, cover page.)

The agencies do not know the total costs for the
various methods used to carry out site preparation
and release work and cannot, therefore, reliably
use cost as the major determinant for selecting
among alternative methods.

Aerial spraying has generally been regarded as

the least expensive alternative. Even though

the data gathered does not permit a thorough

evaluation of the relative costs for each vegeta-

tion management practice, the data does indicate

that aerial spraying may not have as much of an

economic advantage over other methods as is

generally thought. [Exhibit 18I page 51.]

21. On February 1981, plaintiff petitioned the EPA, the Forest

Service, and the Bureau of Land Management, requesting that a lead agency be
designated to oversee the preparation of a joint environmental impact statement
concerning the data gap problem. In that petition, plaintiff suggested that EPA
might be an appropriate agency to be designated for the lead. EPA denied that
petition on grounds of lack of statutory authority to take such action and that
the Forest Service and ELM were the lead agencies of their own preposed actions.
The Council on Environmental Quality was vacant at the time. No determination was

ever received from the Forest Service or the BLH.

22. Defendant Chief Forester Max Peterson wrote to a Five Rivers resident

P880210 -- MEMORANDUM

 

March of 1981:

The Forest Service has been aware of the testing
deficiencies at Industrial Biotest Laboratory (IBT)
since they were first announced in 1917, by the U.S.
Environmental Protection Agency (EPA).

We have forwarded your correspondence to EPA request-

ing them to further respond to your concerns about

IBT test data. He must stress that the Forest Service
relies on EPA for decisions regarding the toxicology

and safety of pesticides. If they had decided that

the testing deficiencies were such to warrant pesticide
use restrictions, we would have abided by those decisions
immediately.

We hope this information addressed your concerns.
19.]

[Exhibit

23. On April 15, 1981, plaintiff filed a complaint and motion for
temporary restraining order. commencing this action. On April 21, following oral
argument, Judge Belloni denied the motion for a temporary restraining order.

24. On June 2, 1981. defendant R. E. Worthington issued a "methods of
managing competing vegetation" programmatic environmental statement, a document
in which it states that it "is not intended to be a Vegetation Management with
Herbicides Program." On November 9. 1981, defendants filed a motion for summary
judgment in their favor, dismissing this action. In their nation. defendants
alleged that the Forest Service regional office had prepared an environmental
statement concerning the use of herbicides in 1981, a fact not previously in
evidence in this proceeding. That environmental statement incorporates by reference
vast amounts of manufacturer-supplied toxicological data. including IBT-generated
data, which is not available for public review. [Exhibit 11.]

25. On June 22, 1981, the Justice Department filed indictments against
four former IBT officials. Each of the four men was charged with three counts of
mail fraud, one count of wire fraud and four counts of submitting false documents
to the government. One of the four men, Paul L. wright, is identified in the
indictment as having left IBT in September, 1972, at which time he became manager
of toxicology for the Department of Medicine 5 Environmental Health at Monsanto
Corporation. v. Joseph C. Calandra, et a1., USDC N.D. Illinois, Eastern Div.,
Special October 1980 grand jury indictment of June 22, 1981, page Monsanto
Corporation is the registrant of the herbicide Roundup.

26. Other than the few pesticides which have been through the cancellation

Page 11 4- Pmunrr's usuonmnm

l.

 







a

process such as DDT, Chlordane and Heptachlor, no pesticide on the market in the
U.S. has been reregistered as required by the Federal Insecticide, Fungicide a
Rodenticide Act, 7 U.S.C. 136 et sequitor, I3(s).

27. Since this action was commenced, plaintiff?s wife experienced two
involuntary "spontaneous abortions." On May 12. 1981, the first human live birth
in the Five Rivers Valley since before the Forest Service sprayed herbicides in
the spring of 1979 occurred when Ryan Dillon was born to Daniel and Carol Dillon.

Er {Hf 19-4.}

28. There is no genuine issue as to any material fact. All of the acts
have been performed and all of the conditions precedent exist for every violation
of statute and regulation alleged in plaintiff's amended complaint. Plaintiff
is entitled to summary judgment as a matter of law under Federal Rules of Civil
Procedure 556.

POINTS AND AUTHORITIES:

29. This matter is before the Court on cross motions for summary
judgment. Defendants have argued in their motion for summary judgment ["defendants'
motion"] that "as a matter of law, NEPA does not require preparation of a joint
515 by the federal agencies that use herbicides and the EPA. which registers
the herbicides." Their argument is broken into five parts: (1). The defendant
federal agencies have no joint program, plan or proposal regarding the use of
herbicides because their statutory responsibilities are legally distinct: (2).
the statutory scheme of FIFRA limits EPA's authority to the registration of
pesticide chemicals and does not provide a role for the agency in use decisions
regarding pesticides; (3). EPA has not violated any provision of FIFRA by
granting conditional registration for a number of the herbicides named in the
complaint; (4). EPA has fulfilled its statutory obligation with regard to
registration decisions for the herbicides named in the complaint; and (5). reliance
on an EPA registration in appropriate situations may satisfy the requirement of
NEPA with regard to the issue of possible health and environmental effects.

30. Defendants' motion for summary judgment fails to state a claim upon
which their requested relief can be granted. There is no genuine issue as to

material facts. Plaintiff is entitled to Judgment as a matter of law.

P389 12 rmnownuu

 

ONHOMJIUNH


:Standards of Judicial Review:
31. NEPA claims involving pesticide use in the Ninth Circuit are decided

on the question of "whether [or not] an agency has observed the procedures required

by law." 951; v. Bergland (USDC Oregon, 1976), Civil No. 76-438, Opinion of March
7, 1977 at 22, with citation to Lathgn v. Brinegar, 506 F.2d 617, 693 (9th Cir.
1974) (en bane). It is no: enough for a plaintiff to present strong evidence
casting daubt on the advisability of continuing a project because a plaintiff has

a burden under NEPA of showing failure to comply with EIS requirements. Conserva-
tion Council of North Carolina v. Froehlke, 3&0 F.Supp. 222 (D.C. North Carolina,
1972). When challenging an agency decision not to file an EIS on the grounds that
the project would have no significant impact on the environment, the initial burden
of proof rests on the plaintiff to make a ?ring Essie showing of failure to adhere
to NEPA, following which the burden then shifts to the federal agency to support

its decision with a preponderance of evidence. Simmans v. ?5255, 370 F.Supp. 5
(D.C. Texas, 1974). Where injunctive relief as a remedy for noncompliance with
NEPA is an issue, the burden of proof should be upon those urging that noncompliance
should be excused. I-29l Why? Association v. Burns, 372 F.5upp. 223 (D.C. Connecti?
cut, 1974); affirmed on bases of lower court decision, 51? F.2d. 1077 (CA2 Conn.)

At the very least, a clear and substantial violation of a statute will lessen

the need to balance other factors in determining the propriety of injunctive relief.
National Wildlife Federation v. Andrus, 440 F.Supp. 1245, 1256; with citation to
Essex County Preservation Ass'n. v. Campbell, 536 P.2d 956, 962?63 (1st Cir. 1976).
In deciding questions as to the availability to the public of NEPA 5102 statements,
the comments received, and any underlying documents, Congress has mandated that

the provisions of the amended Freedom of Information Act, 5 0.5.6. 55552 et sequitor,
govern. National Environmental Policy Act of 1969, 62 U.S.C. $54321 et sequitor,
As will be developed, by claiming that EPA's pesticide program is,
inter alia, the functional equivalent of a NEPA 102 Statement, defendants have
brought registration data which underlies that program under the provisions of

the Freedom of Information Act. The burden is on the agencies to sustain their

actions in withholding those documents. 5 U.S.C. $552a(6)(B).



Page 13 HEEORANDUH

ag-

 

conquer-40M!-




32

3. There must be an administrative record:

32. The defendants cannot plead that the Environmental Protection

Agency's pesticide regulatory program is, inter alia, the functional equivalent

of a detailed NEPA Section 102 Statement. The clear statutory language of both

NEPA and FIFRA require that there must be a document justifying the EPA Adminis-

trator's decision to register a pesticide. That document must examine the probable

environmental impacts in the manner alleged in plaintiff?s complaint. The burden

of bringing such environmental documents into the record in this action is on the

defendants. Defendants have not done so because no such environmental documents

exist.

1. PIFRA requires a decision document
which examines environmental impacts:

33. The Federal Insecticide, Fungicide Rodenticide Act, 7 U.S.C. 55136

et sequitor, requires the Administrator of EPA to find, in each instance in which
she registers a pesticide, that the registered uses will not cause "unreasonable

adVerse effects on the environment." FIFRA The statute defines the

phrase "unreasonable adverse effects on the environment"as:

any unreasonable risk to man or the environment,

taking into accOunt the economic, social, and

environmental costs and benefits of the use of

any pesticide. FIFRA [EmphESiS PfOVided-l
In each avenue to registration, the applicants for registration must submit a
registration statement which includes "a full description of the tests made and

the results thereof upon which the claims are based, or a citation to data

that appear in the public literature or previously submitted." FIFRA 

(There is a narrow exemption under section for the "me-too" formulators

who market products purchased from a company which has already received a registra?

tion.) At the culmination of the process, the Administrator is required to go

through a weighing process, and:

within 30 days after the Administrator registers a
pesticide under this Act he shall make available to
the public the data called for in the registration
statement together with such other scientific infor-
mation as he deems relevant to his decision. FIFRA
[Emphasis provided.]

To plaintiff's knowledge and belief, no court has ever been asked to find that the

Page 14 MEMORANDUM

 






that the Secrion 102 duties "must be complied with to the fullest extent, unless
there is a clear conflict of statutory authority." Calvert Cliffs', ibid. However,
later decisions have properly tempered this viewpoint somewhat, and a representative

decision has stated:

if this requirement is not rubber, neither is it iron,
and the statute must be construed in the light of
reason, and so long as the officials and agencies
have taken the "hard look" at environmental conse-
quences mandated by Congress, the court does not seek
to interject itself within the area of discretion

of the executive as to the choice of the action to be
taken." Brooks v. Volpe, 350 F.5upp. 269 (D.C. Wash?
ington, 1972), other cases collected at 17 ALR
Fed. 33 512.

Thus, a "rule of reason" came to soften the Congressional mandate to strictly
comply "unless there is a clear conflict of statutory authority." But the burden
was clearly on the agency to sustain its position when seeking exemption from the
strict requirements of the Act. Texas Committee on Natural Resources v. Bergland,
573 F.2d. 201 (5th Cir. 1978); Simmans v. Grant, ibid; I-29l Why? Association v.

Burns, ibid.

a. The "functional equivalence" doctrine
is inapplicable in this litigation:

35. This case apparently marks the first time that EPA has ever attempted
to claim per se exemption from the strict requirements of NEPA other than the several
cases cited in the defendants' motion involving programs for which Congress had
expressly exempted EPA from the strict requirements of NEPA It is true
that the courts have allowed EPA to proceed in "functional compliance" without
preparation of a NEPA 5102 E15, but the grant has been extremely narrow and always
limited to the particular agency action then subject to review:

we are not formulating a broad exemption from
NEPA for all environmental agencies nor even

all environmentally protective regulatory
actions of such agencies. Instead, we deline-
ate a narrow exemption from the literal require-
ments for those actions which are undertaken
pursuant to sufficient safeguards so that the
purpose and policies behind NEPA will be ful?
filled. The EPA action here meets this standard,
and hence this challenge to the EPA action is
rejected. E.D.F., 125. v. ?35, ?89 F.2d. 1247,
1257, (D.C. Cir. 1973).

Page 16 - MEMORANDUM

 

?Thus, the E.D.F. Court rejected a chemical company's claim that EPA could not
2 go through with the cancellation of DDT registrations without first preparing
3 an environmental impact statement. The Court concluded:
4 that where an agency is engaged primarily in an
examination of environmental questions, where
5 substantive and procedural standards ensure
full and adequate consideration of environmental
6 questions, then formal compliance with NEPA is
not necessary, but functional compliance is
7 sufficient. E.D.F., ibid.
8 Following the DDT decision in E.D.F., the Tenth CirCuit could and did prOperly
9 find that "[t]he question whether the EPA is forever and under all circumstances
10 exempt from filing an environmental impact statement is not here being decided,"
11 after the Administrator was able to produce a hearing record, order, findings,
12 conclusions, and a report "which itself was very similar in objectives and in
13 content to an environmental impact statement," and substantially complied with
a
14 NEPA Thus EPA rebuffed a user group challenge to the emergency
15 suspension of registrations of coyote poisons sodium fluoroacetate
16 (Poison 1080), and sodium cyanide. Wyoming v. Hathawaz, 525 F.2d 66, 72 (10th
17 cm, 1975).
18
b. The tests for "functional equivalence:"
19
36. The facts that EPA has never been granted a blanket right to use
20
the "functional equivalence" doctrine defense except where exempted by statute
21
and that the courts have always limited their reliance on the doctrine to the
22
instant case implies that the courts would retain the jurisdiction and right to
23
decide the matter anew in each instance the agency's actions or inactions are
24
5 subjected to judicial scrutiny. The test suggested in E.D.F., supra page 16,
2
then lies in the answer to these questions:
26
1. Is action being undertaken pursuant to sufficient
37 safeguards so that the purpose and policies behind
28 NEPA i102(2)(c) will be fulfilled?
2. Is the agency action which is the subject of this
29 litigation primarily that of examining environmental
questions?
30

31 But note the dissent of Seth Circuit Judge, at page 73 on the question of whether
32 or not the Cain Committee Report was the "equivalent" of an impact statement, with

data "not from carefully designed research directed to pertinent questions."

Pate 1? -- mnownun



the agency's procedural and substantive

standards ensure full and adequate considera-

tion of environmental issues under NEPA 5102


As the facts show, and as will be further deve10ped inter alia, the agencies
cannot meet these tests. Without a record, plaintiff is entitled to Judgment
on the question of functional equivalence doctrine applicability by default. The
defendants have asked this Court to find that EPA's pesticide regulatory program
is inter alia exempt from strict NEPA requirements on the basis of their mere
assertions that they are exempt per se. There must be a record. There must be
documents. FIFRA requires a record, and NEPA requires a record. If defendants
can not produce such a record, complete with its underlying documents, then plain-
tiff is entitled to judgment by default.*

37. The burden is on the agency. NEPA 5 U.S.C. 55528(b)(B),

#0 CFR 

C. Defendant agencies must coordinate
pesticide use and regulation:

38. No amount of interagency buck-passing can substitute for the require-
ments of NEPA and PIFRA: (1). As a matter of law, defendant agencies must coordi-
nate pesticide use and regulation, (2). IAs a matter of fact. the agencies do
coordinate in some areas and not in others, (3). As a matter of law, the agencies
may not arbitrarily choose to obey or to ignore a requirement at their own conveni-
ence. If, as defendants have argued, the FIPRA pesticide regulatory program is
"the functional equivalence of and the Forest Service and BLH rely on that
program to fulfill their NEPA 5102 requirements (as will be demonstrated), then
?g?_ipg? loguitor, there is multi-agency action and functional interdependence

in the agencies' NEPA processes, as plaintiff alleged in his complaint. The

 

a .
Plaintiff notes that his first request for production of documents included a
request for "all environmental impact statements or environmental assess-
ments covering and justifying EPA's handling of the Industrial Bio-Test
Laboratories and related suspect laboratories matter." [Plaintiff?s April 15.
1931 request for production, 1 'Plaintiff has not been able to identify,
among those Jumbled documents received. documents which are responsive to that
request. Perhaps they are among those which the agency claimed were subject
to the requirement for an affirmation of multinational status, privileged on
grounds of trade secrecy, or documents in the administrative deliberative
process' or irrelevant to the subject of this action.

Page 13 - MEMORANDUM

 

.. 



 

 

 

1 Forest Service and BLH, by arguing that it is permissible to rely upon the
'2 EPA registration process, argue in effect that no agency is required to take a
3 hard look at the consequences of its actions, that the substantial equivalence
.doctrine extends to other agencies. that it is not their duty to study the
5 effects of their own actions before implementing their programs, and that if
6 EPA has not studied the effects of pesticide use, then no agency need examine
7 such effects. The public cannot be so easily robbed of its right to an adequate
8 environmental statement.
9
1. As a matter of law, the agencies must coordinate
10 pesticide use and regulation:
11 39. The agencies claim that their statutory duties are separate, that
12 there is no requirement of coordination, that they have no joint programs or
13 projects. Congress has directed that the EPA Administrator:
14 shall coordinate and cooperate with the
Secretary of Agriculture's research and imple-
15 mentation programs to develop and improve the
safe use and effectiveness of chemical, biologi-
15 cal, and alternative methods to combat and con-
trol pests FIFRA 528
17 [and]
18 shall undertake research, including research
by grant or contract with other Federal agencies,
19 universities, or others as may be neCessary to
carry out the purposes of this Act, and he shall
20 conduct research into integrated pest management
in coordination with the Secretary of Agriculture.
21 FIFRA 
22 The Conference Committee noted in their explanation of the latter section that
23 "integrated pest management" was defined as:
24 the balanced nae of such measures, cultural,
biological, and chemical, as are most appropriate
25 to a particular situation in the light of careful
study of all the factors involved. Conference
26 Report, House Report 95~1560, 95th Congress, 2d.
session, at 49.
27
Under FIFRA the Administrator of the EPA is required to undertake such
28
9 monitoring activities as may be necessary for the implementation of this
2
30 Act in cooperatiOn with orher Federal, State and local agencies."* In short,
31 The Secretary of Agriculture's role in RPAR and cancellation proceedings under
FIFRA 56 should not be overlooked, and hardly could have been, considering the
32 department is even now involved in the and silvex proceedings. USEPA
FIFRA Docket No's. 415, et al.
Page

19 MEMORANDUM

. 



 

 

1 the EVA Administrator and the Secretary of Agriculture are required to coordinate
2 and cooperate in research and implementation programs down to the use level to

3 deve10p and improve the safe use and effectiveness of methods to combat and control
4 pests; and that requirement extends down to the use in "a particular situatiOn."

5 The Administrator of the EPA is further directed to conduct research by grant or

5 contract "as may be necessary to carry out the purposes of the Act" with other

7 Federal agencies. Plaintiff submits that one of the purposes of the Act is for

8 the Administrator to determine whether or not her registered pesticides have caused.
9 are causing or will cause "unreasonable adverse effects in a particular situa-
10 tion" in Five Rivers Valley, Oregon.

11

2. As a matter of fact, the agencies do coordinate

12 in some areas and not in others:

13 40. Defendants have claimed that there is no joint program, plan or

14 proposal regarding the use of herbicides because their statutory responsibilities
15 are legally distinct. It is true, that is what the Kleppe Court said was necessary
16 for the Court to interject itself into a matter that was more properly left to

17 the informed discretion of the responsible federal agencies. [Kleppe v. Sierra

18 w, 427 0.5. 390. 96 2718, 49 2d 576 (1976).] But we have just seen
19 that there are joint statutory responsibilities. Hr. Fellows issued a press
20 release saying that the Siuslaw National Forest was "c00perating" [Facts 1 6] in
21 "looking for the occurrence of pregnancies and spontaneous abortions, as well as
22 the onset of health effects as may develop." [Facts 10.] There is more than

23 a mere appearance of joint action in this effort "to learn whether routine,
24 Seemingly lawful pesticide use is resalting in hazardous exposure of local
25 residents to pesticides." [Facts 1 10.] At law, the same statutory authority
26 that allowed the Administrator to monitor for human "exposure" in Five Rivers
27 commands her to do so "in cooperation with other Federal, State and local

28 agencies." FIFRA 520(c).

29 41. There is other evidence of joint agency action. Defendants have
30 claimed "It]he review of these products [which are used by the defendant agencies
31 in the area affected by this litigation] to bring the data base up to the current
32 standard is being carried Out in an orderly and consistent manner to assure that
Page 20 -- MEMORANDUM

 

 

 

 

 

 

 

1 the use of these products continues to meet the statutory standard for registration."
2 [Defendants' motion, page 10I emphases provided.] Plaintiff will grant that the
3 review has been consistent, but contests the conclusion of law that it is orderly.
4 As will discussed later, the proper order under NEPA is for review to precede use
5 by federal agencies. There is a consistent pattern of abuse of the NEPA, FIFRA,
and FOIA requirements to reveal information. That abuse has extended into discovery
7 and pleadings in this case, as the agencies plead on the one hand that they are
8 exempt from strict NEPA requirements on grounds that EPA is exempted under the
9 functional equivalent doctrine, that the other agencies may rely on that functional
10 equivalent doctrine to avoid their own study requirements, that this new version
11 of the functional equivalence doctrine does not require any firmer underpinnings
12 than a claim that it exists. and that the public can be denied access to essential
13 health and safety information by an endless round of bureaucratic buck-passing
14 while the agencies study the impacts of the pesticides on local citizens. Although
15 the courts have stated that the user agency may not abdicate responsibility to a
15 regulatory agency merely because that agency is authorized to develop and enforce
17 environmental standards Opinion, ibid, at 33], the agencies have discharged
18 that duty in the following fashion:
19 a. ELM abdicates responsibility to the Forest Service:
20 Environmental assessments will reflect available
data about environmental impacts and the toxicology
21 of each pesticide proposed for use. For herbicides
addressed therein, this may be accomplished through
22 incorporating by reference the Herbicide Background
Statements (USDA, Forest Service Pacific Northwest
23 Region, 1981) in each district EA. Field Guide to
Policies and Procedures Renoired for Vegetation
24 Management with Herbicides in Western Oregon, U.S.
Bureau of Land Management. Oregon State Office. 1981,
25 page 8, Exhibit 20.
26 b. Forest Service abdicates responsibility to EPA:
27 Lack of Data on Chemicals. Much criticism was
received on lack of data on chemicals to be used
23 and their effects on the environment and particularly
9 human health.
2
Answer. The EIS was expanded to explain how herbi-
30 cide background statements will be used EPA makes
determinations on Human Health and FS analyses [sic]
31 risk to the environment. 1981 Forest Service Methods
of Managing Competing Vegetation final 315, page
32 XII-74.
P883 21 -- MEMORANDUM

?1

 

 

 

 

 

 

 

 


1. 

1 It is not the responsibility of the Siuslaw

National Forest to suspend or cancel the use
2 of legitimately registered herbicides nor is

it their responsibility to determine the
3 legitimaticy [sic] of tests conducted for

and by the EPA. Siuslaw National Forest
4 Vegetation Management Environmental Assess?
5 ment, April, 1981, page 5.

We must stress that the Forest Service relies
6 on EPA for decisions regarding the toxicology

and safety of pesticides. Defendant Max Peters
7 son letter to Christine Bauman, Exhibit 19.
8

c. Both Forest Service and ELM abdicate responsibility

9 to EPA in the administrative proceedings:
10 At the administrative level preceding this action, plaintiff properly petitioned
11 the heads of the agencies to designate a lead agency to address the data gap
12 problem. A lead agency designation apparently was made. The decision made was
13 to fragment the project for purposes of NEPA ?102 approval:
14 He recently sat down with EPA and the Bureau

of Land Management to discuss the increased
15 public concern about the IBT studies and the

status of the registrations for chemicals
16 used in forestry. The enclosed position

statement, signed by the three agencies, was
17 the result of those discussions. Although

the review of the studies is the responsi-
18 bility of EPA, we felt the inclusion of signa-
9 tures from the Bureau of Land Management and
I the Forest Service would show a common concern

for the safe use of these pesticides. Forest
20 Service Pesticide?Use Advisory Memorandum No.
21 283, Exhibit 21. [Emphasis provided.]
22 A recent triagency position statement that

supports our position is enclosed for your
23 information. The IBT test data issue has

been considered and there is no supportive
24 reason to stay implementation of the Siuslaw

vegetation management program.
25 Since you have not provided any substantive

reasons to the contrary, I, therefore, deny
26 your request for stay. Defendant Uorthington

April 16, 1931 letter to plaintiff, Exhibit
27 AL-
28 d. EPA abdicates responsibility to
29 the Forest Service and ELM:
30 On April 13, 1981, plaintiff received his lead agency determination from the

31 U.S. Environmental

32
the

Protection Agency:

[Tlhe U.S. Forest Service or Bureau of Land
Management clearly have lead responsibility

22 -- MEMORANDUM





where is the "hard look? at the consequences of the actionPage



responsibility for NEPA compliance in decisions
by chase agencies as to the use of registered.
pesticides on lands under their jurisdiction.

I have been assured by EPA headquarters' pesricide
Registration office that any Federal agency with a
specific need to know may request from that office
information on the adequacy of the tests which
underlie'the registration of a pesticide. This
would include information on tests performed by
Industrial Bio-Test Laboratories, Inc., if
requested by the Forest Service for use in NEPA
analysis. Donald P. Dubois April 91 1981 letter
to_plaintiff, Exhibit 23.

42.

There is an appearance of joint agency action in all of this. But

Where is the "careful

consideration of environmental factors?"

e. Meanwhile, the agencies study the effects

of their program on human health and the environment:

The National Agriculture Pesticide Impact Assessment
Program (NAPIAP) is the Department of Agriculture's
primary effort in the RPAR process. The main purpose
of this program is to provide benefit, usa, and
exposure data to EPA in a coordinated effort. The
administrative mechanism is supported by an 
Memorandum of Understanding. Forest Service Manual
52158.6, lOI79/Amend.10.

The day-to-day activities of NAPIAP are accomplished
through the Technical Advisory Group (TAG). Assess-
ment teams are formed by TAG on each pesticide that has
been and on those that EPA has identified as
likely RPAR candidates in the near future. 
effort does include information on exposure to
humans as a result of actual application practices.
Chief has designated the Washington Office-
Forest Insect and Disease Management Staff as the
Forest Service lead staff unit for RPAR activities.
Forest Service Manual, ibid.

53. Defendants have stated in their motion for summary judgment that

"in the case of the pesticide products named in the complaint . the agency is

currently reviewing the data base for certain of these [page 12.]

and give a citation to an Agency priority list for chemical reviews. [b5 FR 75488,

November 1980.] On that list appears a "cluster" of chemicals knewn as the

Forest Use Chemicals. At the present rate of review (8 chemicals per year), and

the delays inherent in cancellation proceedings, E.P.A. may come to a decision

on these chemicals sometime in the next 15 years. as the GAO says is likely.



Plaintiff recalls the phrase "need to know
with military intelligence personnel in th

23 -- PEMORANDUH

from his days Spent in cooperation
Vietnam conflict.

A

?Qua-?ung

(In. 
. I,



This is what the Forest Service, ELM, and EPA claim is the functional equivalent
of a detailed NEPA statement -- a project that may be completed in 15

years.

f. EPA abdicates to outside contractors:
44. The Forest Use Chemical Project (FUCP) is long overdue. At law,
it should have been done before the chemicals were ever registered, or at any

rate, within a very short time after NEPA was enacted. In a departure from

previous practices, EPA chose to go outside the agency to private contractors such
as the aerospace consulting firm, TRH Associates, and Clement Associates, the prime
contractor for the IET reviews. Although defendant Johnson told a Five Rivers
resident in November of 19?9 that the project would be completed in a year, not

even a draft has been issued yet. [Exhibit But if it is ever completed, it

may be the first comprehensiVe look at the forest chemicals ever done:

In this project, we will attempt to focus on the
impact of exposure to humans, wildlife, and non-
target plant species as a result of direct or
indirect contact with chemical, non-chemical,

and biological pest control treatments that are
used in timber management. He plan to examine
direct exposure which occurs mainly from pesticide
application, and spray drift away from the target
site. He will attempt to evaluate eXposure from
chemical residues in edible fish and game taken
from a sprayed forest, chemical residues in drink?
ing water supplies from watershed run-off, and re-
entry into a tract of land after treatment with

a chemical for pest control.

we plan to acquire these data from available
studies that have been conducted in the past,

but will make recommendations for future studies,
when we identify data gaps for these timber manage-
ment pest control treatments. In the event that
our review provides an indication that there may

be a substantial hazard to humans associated with
the use of one or more of these treatments, we are
prepared to conduct a human exposure study, so that
we will be able to develop a quantitative risk
assessment. He will develop a protocol and submit
it to peer review prior to initiating the study.
Plaintiff's December 4, 1981 motion to compel
production, exhibit 5, page 24. [Emphasis provided.]

Defendants can tell this Court and the plaintiff that "in cases where virtually

the entire data base is invalid and there is a strong possibility of substantial

health risk, EPA will consider that the Section 3(c) requirement to provide an

adequate basis for the registration of the chemical is unfilled by the registrant."

P888 24 -- resowmm





Page

?x


[Defendants' memorandum, page 12.] But the Agency says that the data base is

invalid for 2.4-0 [Exhibit 10]. Health Protection Branch Canada says the data

base is invalid for Roundup [Exhibit 16]. The facts are that the agency is

willing. even if the data base is invalid, to leave the product on the market
and study the effects an humans as they are doing in Five Rivers Valley, and
as they plan to do in the FUCP, if in fact those are not the same health studies.

He gill review data available at the v.5.
Environmental Protection Agency, U.S.
Department of Agriculture, Bureau of Land
management, state forestry commissions, and
timber companies. we will seek advice
about application, exposure, fate, and
efficacy from researchers who have years
of experience in forestry 

EPA Forest Use Chenical Project Status
Report. plaintiff's December 6, 1981
motion to compel production. page 24,
exhibit 5.

This is the "functional equivalent" of a completed environmental impact statement,

according to the defendants' pleadings.

45. The agencies have told the Court that EPA has "discretionary authority
to conditionally register pesticide products in certain situations even though
certain data required under section have not been generated." [Defendants'
memorandum, page But perhaps the Agency is forgetting that they have raised
the "functional equivalence" doctrine themselves. Authority which is discretionary
under one Act is not necessarily discretionary under another, and the Administrator

has received a mandate from Congress to consider environmental values in her

decision-making "to the fullest extent possible." Calvert Cliffs', ibid.

3. The agencies may not arbitrarily choose to obey or
to ignore a requirement at their own convenience:

46. The agencies' conduct must be viewed in light of the fact that we
are nearly three years away now from the announcement that EPA had suspended all
forestry, rights-of?uay, and pasture uses of and silvex because of animal
studies an an epidemiologic study that strongly suggested that the use of those
pesticides in the area affected by this litigation had caused human spontaneous

abortions. The previous decisions by the agencies and by the courts which reviewed

those decisions had not been enough. The examination of the "probable environmental

25 EEHDRANDUH

?44

announce-nu"



Page

consequences" had not been of sufficent scope. Trout Unlimited v. Horton, 509

 

F.2d 1276, 1283 (9th Cir. 1974). The "hard look" at those consequences had not

been "hard enough." Kleppe?v. Sierra Club, 96 2718, 2731 n.21 (1976).

This is largely because the agencies have viewed pesticide environmental statements
as a paperwork exercise, a compilation of available information, but:

the Act requires an agency to undertake
research during the planning of its programs
that is adequate to expose the potential
environmental impact, and to disclose the
results of this research to other interested
agencies, with the details of such research
and disclosure requirements, as set out in
the 5102 of the Act. Environmental Defense
Fund v. Hardin (D. D.C. 1971], 17 ALE Fed 33,
54, page 82; 325 F.5upp. 1601. [Emphases
provided.]

what is important here is that EPA has determined that certain data are pivotal

to an understanding of whether or not a pesticide will cause adverse effects on
the environment [the pivotal, or core minimum data, 43 FR 37336, August 22, 1978],
and if "that data is deficient, there can be no assurance that the public health

and the environment is being properly protected." [Exhibit 14.] Plaintiff submits

that if that data does not exist, as in the case of the conditionally-registered
pesticides, then there is a similar lack of assurance:

Certainly the most compelling data are, of
course, human epidemiological data
demonstrating that an adverse effect indeed
occurs in humans. However, prudent public
administration does not, indeed cannot,

wait until an effect is observed in a human
population. As [former EPA Administrator]

Russ Train once remarked, "We must put
chemicals to the test, not people." This

does not mean of course that we never have
evidence of human effects, but where we

do it must be considered a measure of

program failure, not program anecess, since

we should have dealt with the issues before
they became widely evident i[n] a human
population. This is particularly true

because humans are exposed to a broad

range of stresses, chemical and other, which
can result in illness, disease, and death,

and it is only the most significant of these
that we can hope to ferret out by studying
general human populations. Thus we rely as a
first defense on animal studies designed to show
us the relations exposure and toxico-
logical effects. [Edwin L. Johnson enclosure to
Five Rivers resident, Exhibit 8, pagej[5_]

26 -- MEMORANDUM

The courts have stated that the National Environmental Policy Act section 102:

makes the completion of an adequate research
program a prerequisite to agency action. and
the adequacy of the research should be
judged in light of the scope of the proposed
program and the extent to which existing
knowledge raised the possibility of potential
adverse effects. E.D.F. v. Hardin, ibid.

There are no genuine issues as to material facts here:

Thus looming behind these benefits, which

we all enjoy directly or indirectly, is the
disquieting knOUledge, the nagging uncertainty
that we do not have a good understanding of

the potential health effects and other
consequences of many of these pesticides and
indeed have positive test evidence of unexamined
risk in the case of some pesticides whose

use contributes significantly to that annual
environmental burden. [Edwin L. Johnson enclosure,
ibid, Exhibit 8, page 3.17]

Even the so?called "valid" IBT studies and their "valid" replacement studies may

be of no value. Health Protection Branch Canada has told us:
"Valid" does not necessarily indicate that
the study meets present-day standards of
toxicological methodology and interpretation.
In the event of seriOus scientific deficiencies,
registrants may be required to repeat some studies
classified "valid." [Exhibit 16, pagg_8.]

Throughout the defendants' motion, they speak of this "valid" data. But the

courts have also spoken on the subject:

NEPA requires a diligent research effort,
undertaken in good faith, which utilizes effect-
ive methods and reflects the current state of
the art of relevant scientific discipline.
E.D.F. v. Hardin, ibid.

The agencies have tied this Court's hands on the decision that must be made.

47. Perhaps what is most at issue in this case other than the public

disclosure requirements is the distinction between the agencies' roles in regulatory

and use decisions. It is clear that under FIFRA, the Administrator has latitude

in the regulatory protess; but as discussed supra, that latitude is limited by

NEPA. But what is at issue here are the use decisions. The Forest Service and

ELM can only use pesticides if those products are first registered by EPA:

A pesticide registration is, in effect, a license
for use of the pesticide in accordance with the
terms and conditions specified by the Agency.
[Defendants' motion, page 

27 MEMORANDUM





Page



it




Given that the data base for those registrations was never in fact evaluated
by the Agency as required by FIFRA and NEPA, what is at issue here is the use

decisions. Plaintiff has not argued, as defendants claim in their Facts, that

EPA has to be the lead agency. Plaintiff believes that EPA is the apprOpriate

lead agency, but that is a matter that need not be decided here. Uhat plaintiff

argues here is that in making their use decisions, the study required by both

NEPA and FIFRA must precede the use by federal agencies, because Federal agencies

have a higher duty under NEPA than private users of pesticides. Given that

the agencies are required to be coordinated in the study of the impacts of
potential use, as discussed before, and are in fact coordinated in that study
through the Forest Use Chemical Project with EPA as the lead agency (discussed

supra), then that "license for use of the pesticide" under review which is:

divided into segments for purposes of
federal approval cannot be so divided
for purposes of an environmental

impact Named Individual
Members of San Antonio Conservation
Society v. Texas Highway Dept., G46
F.2d. 1013 (CA5 Texas, 1971); cert.
denied, ?06 U.S. 933, 32 L.Ed.2d 136,

92 1775; and later app. 496 F.2d.
1017 (CA5 Texas); cert. denied, 420 U.S.
926, 43 2d. 396, 95 1123;
Indian Lookout Alliance v. Volpe, 365
F.8upp. 1167 (D.C. Iowa, 1972) remanded
on other grounds, 484 F.2d 11 (CAB, Iowa).

 

The responsible agency may not attempt to abdicate to any other agency merely
because that agency is authorized to develop and enforce environmental standards.
Eggs v. Bergland, Opinion of March 7, 1977, at 33, ibid. The mere fact that a
program involves use of substances registered under FIFRA does not exempt the
program from the requirements of NEPA. g?gg, ibid. The statutory term "major
federal action" must be assessed with a view to the overall, cumulative impact
of the action proposed, related federal actions and projects in the area, and
further actions contouplated. Sierra Club v. Horton, 51d F.2d. 56 (D.C. Cir., 1975).
The proper timing for preparation of an environmental statement is at the proposal
stage so that environmental factors are taken into account throughout the decision-
making process; a piecemeal approach will not suffice.

National Wildlife Federation

v. Andrus, 440 F.5upp. 1245 (D. D.C., 1977), V5 1252, 18 1253, ?14, 1256 and cases

27 rmHonmnus

wmPage



collected there; and cases collected at 1? ALR Pad 33 516(b).

D. Granting the injunction is in the public interest:

48. "No subject to be covered by an EIS can be more important than the
potential effects of a federal program upon the health of human beings." E?zg
Opinion of March 7, 19?? at 33-34. This is no trivial matter involved in this
litigation. what is at issue is precisely whether or not the agencies have
taken that "hard look" at the consequences demanded by NEPA. A careful reading
of defendants' motion will show that nowhere do they claim that this hard look
has actually occurred only that they are studying, or they will study. Nowhere
in their pleadings can there be found evidence of study completed, other than the
claim that environmental statements have been written by the Forest Service and
BLH. As a practical matter, the Forest Service and BLH may have little choice
other than to rely on EPA registrations if they determine to use pesticides. But
that reliance is placed on study not yet completed, never done, studies never
evaluated, missing data, fraudulent data. There is a claim that certain findings
have been made, as though findings could stand on their own two feet without basis
in fact or law, without the procedure required by law. Without disclosure of
whatever it is that defendants call the "substantial equivalence" of a detailed
NEPA statement, they have no defense, no case. The burden is on the agencies to
justify their withholding of relevant environmental documents and their underlying
documents from the plaintiff and from the Court.

59. The relief sought by the plaintiff in this action is not complex.

If the Bill of Rights contains no guarantee that a

citizen shall be secure against lethal poisons dis-

tributed either by private individuals or by public

officials, it is surely only because our forefathers,

despite their considerable wisdom and foresight, could

conceive of no such problem. Silent Spring, Rachel

Carson, Fawcett Crest, New York, 1962, page 22.
Perhaps we have not as a society reached that enlightened state where informed
consent must be obtained before a public official distributes the hidden power
of inadequately?tested poisons amongst us. But at law, we have reached the point
where that official must have a reasonable certainty in the consequences of his
actions.

He must be informed. Plaintiff's requested relief then, is not unuSual

28 -- MEMORANDUH






Page

in NEPA cases. It is not asked that the Court order that the registrations of

pesticides be set aside and products pulled from the market. It is not asked
that the Court designate any particular agency as the lead agency to prepare an
environmental statement. The Kleppe Court has told us that this is more properly
left to the discretion of an informed executive.* (Indeed, if the actions here
under review demand punishment, leaving the agencies to decide the lead agency
question is punishment enough.) What plaintiff has asked is that the agencies
be barred from further use of pesticides in the area of his residence until such
time that the agencies have jointly prepared an adequate environmental statement.
No more, no less. The requested relief calls for no massive reorganization in
the agencies nationally, unless the agencies want to continue spraying pesticides
(not just herbicides, all pesticides) in the area of his home. Plaintiff believes
that should the agencies decide to prepare such an EIS, they might well decide

to include other agencies in the effort as well. This is a matter that the
agencies should at least have an Opportunity to resolve themselves before the
Court interjects itself. Such an environmental statement would not be issued in
draft form until at least the core minimum data were available, publicly examined,
and at least the broad strokes of the likely effects could be painted. Since the
affected area includes vast amounts of public forestlands, the wildlife and
environmental fate studies should also be similarly available. Such relief does
not seem unreasonable under the circumstances, since these are all studies required
by law.

50. Such relief is clearly in the public interest. There is a very
real possibility, perhaps even a likelihood that severe environmental and human
health effects have already occurred. Because previous herbicide use by the
agencies have been held by the EPA Administrator to be the likely cause of a wave
of "spontaneous" abortions in the affected area, the residents of the Siuslaw

Forest should at least be entitled to a rebuttable presumption that such effects

 

But plaintiff notes that CEQ regulations, ?0 CPR 551500-1508, were published
after the Kleppe decision [43 FR 55978-56007, November 29, 1978], and are now
"applicable to and binding on El; Federal agencies," including {1501.5. 2.0.
11514, Harch 5, 1970, as amended by 3.0. 11991, May 21., 1977, 40 CFR
I1500.3. The informed Executive has set its own enforceable standard.

29 -- MEMORANDUM

5&3;



did in fact occur. There is an appearance that such injuries may have occurred

2 again in 1979, and may still be occurring. There is no evidence in this record
3 of mitigation measures taken by the defendants to ensure that they had accurately
4 pinpointed the sole source of the problem, unless perhaps it is the apparently-
5 suppressed Five Rivers Health Study. There needs to be a "hard look" at the
5 probable environmental consequenCes. That would be in the public interest.
7 51. There is a strong need for an end to decisions which tend to
3 determine subsequent decisions without examining the impacts, such as the decision
9 in the Siuslaw National Forest's 1979 ten-year timber management plan:
10 The availability of the use of herbicides and
prescribed burning is assumed with each alter-
11 native. Final EIS, Siuslaw National Forest,
Ten?year-timber resource plan, USDA 
12 approved'by Richard Worthington,
February 12, 1979. .n'i
13 f?
Plaintiff believes there is no genuine issue to the fact that if he poked about
14
15 in discovery long enough, he would find similar information in each of the resource
5 agency's files, not to the fact that the level of allowable harvest of timber is
1
7 programmed at least ten years in advance on the mere assumption that herbicides
1
will be used. The public is then left to attempt to change the land manager's
13
19 mind when he is already bound by contract in timber sales that leave him no choice
0 but to use the management method selected in the timber resource plan. This type
2
21 of practice must end. It is precisely the type of decision with the blinders on
22 that NEPA prohibits. The Forest Service and the BLM do have herbicide programs.
23 It is a sham for them to attempt to tell the Court otherwise.
"For this reason, the discussion of alternatives
24 must be undertaken in good faith; it is not to be
employed to justify a decision already reached."
25 cars, ibid, Opinion of March 7, 1977, at 45.
25 Although I have decided in favor of the Forest Service
in this case. the Forest Service should understand that
27 materially misleading statements and conclusions can
be just as fatal to an EIS as omissions and false
28 statements. CATS, ibid, Supplemental Opinion of April
15, 1978there is to be a new EISI it should clearly lay out the evidence
31 of fraud in the preparation of the health and safety studies. The public should
32 be advised which companies' data may need more scrutiny because of prior behavior.

Page 30 -- MEMORANDUM

woos-slowness?



Page



evidence is accumulating which suggests

the prior knowledge of these practices by the
sponsor(s) of the studies. I know that you
share my deep concern regarding the seriousness
of the regulatory ramifications of these recent
findings of falsification of data upon which
national and international regulatory decisions
have been based. Undeted memorandum of concern
regarding the regulatory follow-up of the IBT
audit at Decatur, Edwin L. Johnson to A.E. Con-
roy, II. [Exhibit 24.]

There must be a clean breast of things, so that society may reassess and take

needed action.

53. There is a motion to compel production of documents before the Court.

[Plaintiff's December 4, 1981 motion.1 It seeks access to documents regarding the

Forest-Use Chemical Project, the Five Rivers Health Study, evaluations of toxico-
logical and exposure data, prior statements on issues of confidentiality. If
defendants now file a motion for a protective order, there can be no claim of
substantial equivalence of an environmental statement. If defendants file a
motion for protective order with claims stated in their reply to plaintiff, their
claim of examption for documents in the administrative deliberative process will
prove that the study required by has never been performed, that they are
still deliberating. If they claim trade secrecy. they will prove plaintiff's

claim that data is not available to support this "functional equivalence" of an

environmental statement. They will prove that there is no BIS, no underlying

documents which must be made available to the public. They will prove that there
is nothing there for the Forest Service and ELM to rely upon.
54. If defendants file their motion for their protective order, all of

plaintiff's facts alleged in his complaint will be proved and judgment should be

entered for default. If defendants to file that motion. they will tell this Court,

this plaintiff, and the American public that there is no public right to know the

particulars about this:

INVALID IBT DATA -- UPDATE [Exhibit 25.]

June, 1980 No. invalid/total reviewed
Chronic Rodent [studies] 1002 34/36
Carcinogenicity 9d 17/18
Teratology 18 42/54
Reproduction 76 22/29
Chronic Dog 62 13/21

31 MEMORANDUM

 

\quou-?ENMH



Page

Subacute 99/134
Neurotoxicity 61 11/18
Hutagenicity ?8 13/27
Cholinesterase 67 20f30
Fish wildlife 76 123/162
Acutes 32 156/481
Residue 29 15/51

This, from one laboratory alone. There is still no explanation for what happened
to over 3,000 studies that EPA originally said it had received which had been
performed by IBT on pesticides. There is no explanation for what has happened
with other suspect laboratories? data. Other than the information released in
Canada and the reviews on one pesticide, Captan, in the 0.8.. there has been
no disclosure of which studies are invalid for which pesticides. Perhaps even
more importantly, the evaluations of those studies and the raw data itself has

not been released.

55. At law, there can be no claim that defendants Worthington and
Peterson did not know their environmental statsnent contained trade secret or
proprietary information. They were advised in the ?g?g v. Worthington appeal
[Exhibit 17, pp. that the literature review written by Mr. Sandquist on
the herbicide Roundup was based on data not available for public review because
it was claimed trade secret by Monsanto Corporation. Plaintiff believes there
is no genuine issue that the same information in the 1981 Herbicide Background
Documents is derived from the invalid IBT studies. Hr. Worthington was also
advised in 595; that the information on atrazine in the Winema environmental
assessment was written by a chemical campany euployee and based on trade secret
data. Plaintiff believes there is no genuine issue that much of the same infor-
mation appears in the 1981 environmental statement and the background documents.
At law, Mr. Uorthington and Mr. Peterson were required to consider the information
in the Egg: appeal under the applicable administrative review regulations, 36 CFR
5211.19. There can be no defense for this. Plaintiff believes there is no
genuine issue to the fact that much of the toxicological data in the background
documents is cited to the Herbicide Handbook of the weed Science Societ1_of
angriga, is plagiarized from that book verbatim, and can be tracked no further

than the statements that the sources of the information are the various chemical

 

A February, 1971, Forest Service Region 6 publication "The Forest Service and

Herbicides,"lists the first edition of this work as a joint industry/USDA
publication in its bibliography.

32 -- MEMORANDUM

companies. There can be no argument at law that Mr. Worthington and Chief

 

Peterson have not been advised of this trade secret issue.

56. There must be a beginning to repairing the damage caused by this
whole data gap matter. Use decisions are being made on the basis of this invalid
data on a daily basis throughout the U.S., indeed throughout the western world,
that is not genuinely at issue. It is also not genuinely at issue that doctors
treat their patients on the basis of this information which is relayed through

the poison information network.



51. This is no polite scholarly or lawyerly matter. There is a strong




probability that at least one among all these "economic poisons" is at this very
11 moment causing irreparable injury. The Court needs no expert to say that. An
1: expert could say little without access to good data which apparently does not

13 exist. It takes no expert to know that poisons are poisons. If the defendants
14 file a motion for a protectiVe order, all of plaintiff's needed facts will be

15 proved. But more tragically, what defendants would in effect be telling the

15 Court, the plaintiff, and the American public is that there is no public right
17 to know how a massive bureaucracy established expressly to protect the public

13 and the environment has failed. It is in the public interest for that knowledge

 

19 to be acquired, discussed, acted upon. That right to know is a vital matter of
20 public interest. But the Court need not take plaintiff's word for it:
21 Limiting access to pesticide data summaries
could be viewed by some as an attempt to
22 limit public scrutiny of the decision?making
process. If peeple are to accept the risk/
23 benefit approach which is fundamental to the
regulation of pesticides, the public must
24 know what information is available and under?
stand the decision-making process and its
25 complexities. Such understanding and accept?
ance can only be deve10ped if information
26 about pesticide health effects is open to
public scrutiny. Testimony of John H. Her-
27 nandez, Deputy Administrator, USEPA, before
the Subcommittee on Operations. Research, 5
28 Foreign Agriculture, U.S. House, July 22, 1981
29 There is a strong public interest to be served by granting the requested
30 injunccion. Let the agencies choose between disclosure and use of the pesticides.

31 That is the relief requested.
32 

Page 33 -- MEMORANDUM

  




Page

 

IV. CONCLUSION:

58. For the foregoing reasons, plaintiff Paul E. Harrell respectfully
requests that his motion for sumary Judgment be granted in its entirety and the
relief requested in his April 15, 1981 complaint be granted.

I CERTIFY, by signing below, that I have read this pleading; that to the
best of my knowledge, information and belief there is good ground to support it;

and that it is not interposed for the purpose of delay.

Respectfully submitted 0K, 2 3/ 



PAUL E. HERRELL

Route 2, Box 190
Tidewater, Oregon 97390
Telephone: 503-528?7151

Plaintiff, Bro 

34 MEMORANDUM