Smith & Lowney, p.l.l.c.
2317 East John Street
Seattle, Washington 98112
(206) 860-2883, Fax (206) 860-4187

April 28, 2000

William E. Brookreson, Deputy Director
Washington State Department of Agriculture
P.O. Box 42560
Olympia, WA 98504-2560

Re: WSDA's Proposed Aerial Application of Pesticides in Ballard and Magnolia

Dear Mr. Brookreson:

On behalf of No Spray Zone, Waste Action Project, and the Washington Toxics Coalition, thank you for providing such a thoughtful response to our questions, concerns, and request that the WSDA pursue alternatives to the proposed aerial application of pesticides in Ballard and Magnolia. The following is our response to some of the key points you raised in your memo dated April 24, 2000.

As you noted, we share concerns about protecting the environment from invasive insect species. Clearly it is not in anyone's interest to have the gypsy moth damage Northwest forests and agriculture. Likewise, we think you'd agree that it makes no sense to risk uncertain public health impacts and use limited public resources to apply pesticides where no infestation has been shown to exist. Apart from the obvious cost concerns, the misuse and overuse of pesticides ultimately reduces their effectiveness and ability to control targeted species.

We also agree with the selection of "eradication" that is, preventing the establishment of isolated infestations of gypsy moth as an appropriate management objective. However, we strongly disagree with WSDA's contention that the aerial application of pesticides in Ballard and Magnolia is an acceptable or appropriate treatment method in this instance. As discussed further below, the USDA's 1995 FEIS plainly states:

"Mass trapping is a commonly used eradication treatment."

1995 Final Environmental Impact Statement (EIS) on Gypsy Moth Management, Vol. II at A-7. WSDA has provided no compelling reason why this available, effective, and safe treatment method has been rejected in favor of an invasive, intrusive, and controversial application of pesticides under the facts presented (and discussed further below).

While we continue to believe that WSDA has failed to meet its basic burden of proof here, we also want to emphasize our unresolved concerns about important public health issues, and the relative effectiveness of the treatment alternative proposed by the agency. But make no mistake, we are not saying that WSDA should take "no action" to eradicate any gypsy moths that are shown to exist. Rather, we are saying that WSDA has completely failed to establish the existence of an actual not theoretical emergency justifying the aerial application of pesticides in a residential community. As a result, the proposed spray is both unacceptable and unauthorized by law.

Before addressing some of the key unresolved issues, we would like to remind you of the breadth and depth of the opposition that your agency now faces with regard to the proposed spray. This opposition listed at the end of this letter has developed in a mere six-week period and continues to mushroom each day as more and more people learn about this issue. We have every reason to believe that active public opposition would multiply greatly if an initial spray were to take place.

The opposition has two fundamental, common-sense aspects: widespread refusal to accept WSDA's assertion that spraying a densely-populated residential community is an appropriate response to the capture of a single moth; and continuing outrage at the way your agency has conducted what was supposed to be a public process on a "proposed spray". On the latter point, there was neither a public process nor a "proposed spray." What we experienced was WSDA coming into a community, using scare tactics and withholding critical information so it could carry out a program without question or critique from the public. This unfortunately is the truth and it is an unacceptable way of carrying out a taxpayer-funded program directly affecting many thousands of people.

Key Unresolved Issues

1. The Asserted Need for the Spray There Is No Demonstrated "Infestation" of Ballard

   We continue to challenge the asserted need for this urban use of pesticides. The actual facts respecting the alleged "infestation" of Ballard are crucial. The basic facts are simple: one egg mass and one genetically-unrelated moth were found and destroyed.

   More specifically, the egg mass was found on a Russian fishing boat in Salmon Bay in March, 1999. The vessel was searched for additional egg masses and caterpillars and none were found. The boat was then fumigated. In addition, an adult male moth was later trapped near the Chittenden Locks in the summer of 1999, after which WSDA conducted a search for egg masses and caterpillars and none were found. All speculation, hypotheticals, and worst-case-scenarios aside, there is no scientific evidence that any gypsy moths "life stages", Asian or otherwise, continue to exist in Ballard or Magnolia.

   Your memo asserts (page 3, paragraph 2) there were "two life states and two different points of introduction" "requiring action" under some unidentified "criteria for assessing introductions[.]" However, the egg mass cannot be considered an "introduction" because it was confined to the ship and was never ^Ñintroduced" to Ballard. Perhaps "two life stages" were located in the area, but one of them never left the ship. And although WSDA assumes an additional egg mass was introduced into Ballard to justify the proposed spray, WSDA has provided neither evidence nor scientific support for its speculation. To reiterate, there simply is no evidence that any Asian gypsy moths continue to exist in Ballard. Without additional facts to support its position, WSDA's decision to interpret the solitary male moth as justification for the proposed spray program is arbitrary and capricious.

   Obviously, we could spin out lots of alternative scenarios and discuss the resulting "what ifs" at length. The simple truth is, we and that includes both WSDA and the spray opponents simply don't know. But we never know, because even the absence of a captured moth does not disprove their existence in the area. In any event, uncertainty does not constitute an emergency warranting the aerial application of pesticides in a residential community.

2. WSDA's Evaluation of Alternatives is Skewed by the Erroneous Assumption that B.t.k. is 100% Effective in Eradicating the Asian Gypsy Moth.

   WSDA's analysis assumes B.t.k. will be 100% effective. However, the USDA's 1995 Final EIS on Gypsy Moth Management states that B.t.k. is not always reliable in reducing gypsy moth populations into the next year. In 1989 and 1990, for example, treatment with B.t.k. met population reduction objectives only 60% of the time. FEIS Vol. II, App. A at A-8. B.t.k. has multiple failure paths: timing of the spray may be less than ideal; larvae may not come in to contact with the bacillus; larvae may not consume a lethal dose; etc. Obviously, B.t.k. is no "silver bullet."

   WSDA's analytic error is compounded by the agency's unfounded dismissal of the pheromone trap as a mere "detection tool." This agency bias ignores the USDA's endorsement of trapping as a widely-accepted means of eradication. Yet in the USDA's words, "Mass trapping is a commonly used eradication treatment that targets the adult male gypsy moth." 1995 FEIS Vol. II, App. A at A-7. The traps function as an effective erradicant by permanently removing male moths from the population. Since all moths die each year, the key to eradication is preventing reproduction and this can be accomplished by trapping male moths. The FEIS indicates that mass trapping was used as a primary treatment method on more than 20 per cent of the eradication projects considered. Further, "the [mass trapping] treatment is best used when there are less than 10 egg masses per acre." 1995 FEIS Vol. II, App. A at A-8. This is precisely the situation we are dealing with, since there is no evidence that there are any AGM egg masses in Ballard.

   WSDA's files include a March 15, 2000 memo from Clinton Campbell (entomologist for the WSDA gypsy moth program) to WSDA Director Jim Jesernig deducing the number of Asian moths that may have been in Ballard last summer if another egg mass existed. The memo states:

   "Based on GM life table (i.e. survival ) studies . . . the number that survived to adults [from a single egg mass] ranged from 1.3 to 16. In our case, if we assume that only about 2% of 750 eggs (an average size egg mass if conditions are optimum) reached the adult stage, we'd have had 15 moths out last summer in Ballard. It's hard to say how many would have been males because GM sex ratios can apparently vary widely."

   Plainly, a small, isolated cluster of moths including males in such low numbers could readily be "eradicated" by trapping. The criticism that "pheromone traps do not assure that the female has not been fertilized" (your memo at 5) applies equally to B.t.k. Neither treatment method is "guaranteed." For that reason, WSDA's rejection of mass trapping as an appropriate eradication method and its insistence that aerial application of pesticides is the only available means of eradication is arbitrary and capricious.

3. Continuing Health Concerns Given the undeniable uncertainties about potential health impacts and the complete lack of information about long-term effects, WSDA cannot hide behind the statement that B.t.k. has a "Proven track record" and "minimal risk." This is speculation. WSDA has demonstrated it self to be all too willing to disregard any and all reported health effects to say nothing of others which are undoubtedly unknown and thus unreported. Furthermore, WSDA has not carried out, and is not proposing to carry out any studies that could show a correlation between the proposed spray and human health effects. It is a case of "if we don't look, we won't find anything." In fact, the 1993 Health Surveillance Activities Report of the 1992 Asian Gypsy moth spray program stated numerous times that fully investigating whether the 279 individuals reporting health complaints were related to the spray of Foray 48B "would require a regional multidisciplinary study, including sufficient clinical and laboratory support." This study did not exist then and it does not exist now, yet WSDA continues to claim the safety of B.t.k.

   The report also stated that there is a particular need for developing the capacity to identify individuals with sensitivity reactions to inert materials in the formulation since several people in Washington state reported allergic skin reactions consistent with environmental exposures. Again, there have been no efforts to address this for the current spray program. This is particularly disturbing since there are numerous individuals in the spray zone with Multiple Chemical Sensitivity (MCS) who will be directly affected by the spray. It is completely appalling that very week declared by Governor Locke as MCS Awareness Week (May 7th) may become the very week that WSDA's proposed spray takes place.

4. Ongoing Legal Concerns We continue to have substantial concerns with the legality of the proposed spray program. These are addressed in turn.
   • Clean Water Act and Water Quality Concerns Apart from stating an unsupported conclusion, you have not responded to our argument that the proposed spray would be illegal because (1) WSDA does not have a NPDES permit under the Clean Water Act; (2) the proposal does not establish buffer zones along Salmon Bay as required under state law and local law (see, e.g., WAC 222-38-020(5)(a) and the Tri-County Integrated Pest and Vegetation Management Guidelines, adopted August 12, 1999); and (3) the proposal does not limit aerial applications to wind speeds of less than 7 m.p.h. (Forest Practices Board Manual) or 5 m.p.h. (Tri-County Integrated Pest and Vegetation Management Guidelines). That (as you assert) "[a]ny drift [of pesticides] into water will be incidental" is legally irrelevant particularly where the agency has failed to use best management practices or take other reasonable precautions as needed to assure that pesticides are not discharged to surface waters. The agency's reckless approach to water quality is particularly jarring, given the recent publication of the National Marine Fisheries Service's Final Rule designating Salmon Bay as critical habitat for Chinook salmon. See, 65 Fed. Reg. 7764 (Feb. 16, 2000). By all appearances, WSDA did not bring this listing to the attention of the Department of Ecology during the review of WSDA's application for a permit temporarily modifying water quality standards in Salmon Bay.

   • Endangered Species Act We are very concerned about the message that WSDA is sending by announcing its intent to begin pesticide treatments almost immediately (see, WSDA Notice dated April 17, 2000), even though salmon experts in the National Marine Fisheries Service have not yet stated their conclusions as to whether the proposed spray "may affect" listed, threatened Chinook salmon. Indeed, the U.S. Fish and Wildlife Service was not able to state that there would be "no effect" on endangered Bald Eagles and bull trout populations. Given the high visibility and importance of ongoing efforts to secure public support for making the difficult policy decisions that will be necessary to facilitate the survival of endangered species, the agency's posture here is deplorable. We emphasize that any agency decision to proceed with the proposed spray in the absence of a "no effect" determination from NMFS would be illegal and outrageous.

   • Disclosure of Inert Ingredients During our meeting on April 21, we discussed the agency's legal authority to disclose the identity of the secret, "inert" ingredients in Foray 48B the pesticide formulation WSDA proposes to use in Ballard and Magnolia. We cited directly relevant authority: Northwest Coalition for Alternatives to Pesticides v. Browner, 941 F. Supp. 197, 27 ELR 20388, (D.D.C. 1996) ("NCAP"). WSDA professes to read the case differently, but we are at a loss to understand how this is possible. After noting that "[m]ore than two thousand inert ingredients are used in pesticides . . . and most of them have not been tested by EPA or evaluated for toxicity[,]" the court flatly rejected the defendants' claimed "trade secret" and "confidential commercial information" defenses and ordered the disclosure of information identifying the inert ingredients. See, NCAP, 941 F. Supp 197, 27 ELR at 20388-90. WSDA's decision to protect the perceived needs of industry instead of satisfying the public's legitimate need for information is most disturbing.

   That said, we appreciate the opportunity to discuss these matters, and continue to hope that your agency will reconsider both the need for and the legality of the proposed spray program. Before closing, we would like to renew our offer of community volunteers to help reduce the costs of selecting the mass trapping alternative. Please contact us at your convenience to discuss this offer further.

   Finally, Those who join us in opposing the proposed spray include:

   • Over 1400 Ballard and Magnolia residents who have signed petitions.

   • Statewide, local and regional organizations with memberships reaching nearly 30,000, including the Washington Toxics Coalition, Sierra Club Cascade Chapter, Audubon Society of Seattle, Interbay P-Patch, Seattle Tilth, Green Party, Fremont Neighborhood Council, North Puget Multiple Chemical Sensitivity Support Group.

   • Local Businesses including: Walt's Organic Fertilizer Co., Ample Technology, PowerTap, Inc., Dutch Treat , Emerald Marine Products Corp. , LovePlanet Kitchen n' Things , Emerald Medical, Taco del Mar of Ballard , Promotion Consultants Int'l, Taylor Landscape Design , J & K Enterprises, Me & Mom's consignment, The Velvet Paw, and, Whitesavage and Lyle.

   • Medical professionals, including Dr. John Sparks, MD, Dr. Cathy Brinton, ND Dr. Vivian Ledesma, DC, Dr. David Musnick, MD

   • All three legislators from the 36th district; Senator Jeanne Kohl-Welles, Representative Mary Lou Dickerson, and Representative Helen Sommers.

   • Seattle City Council members Nick Licata and Heidi Wills.

   Very truly yours,

   Smith & Lowney, p.l.l.c.

   By: __________________________

   Richard A. Poulin

   c: Senator Jeanne Kohl-Welles
   Representative Mary Lou Dickerson
   Representative Helen Sommers
   Sue Crystal, Director, Executive Policy, OFM
   Carol Jolly, OFM Policy Staff
   Joe Dear, Chief of Staff, Office of the Governor