• TABLE OF CONTENTS
HIDE
 Cover
 Title Page
 Acknowledgement
 Executive summary
 Table of Contents
 Introduction
 Federal regulatory framework: Federal...
 Federal regulatory framework: Federal...
 Florida Toxic Substances C ontrol...
 Federal regulatory framework: Federal...
 Florida regulatory framework:...
 Florida regulatory framework: Florida's...
 Florida regulatory framework:...
 Florida regulatory framework: Research...
 Florida regulatory framework:...
 Findings and recommendations
 Appendix A. Figures
 Appendix B: Mosquito control pesticides...
 Appendix C. Mosquito control pesticide...
 Appendix D. Mosquito control pesticide...
 Appendix E. Label precautions for...
 Appendix F. Chapter 388. Florida...
 Appendix G. Flroida Department...
 Appendix H. Florida Department...






Group Title: Technical paper - Florida Sea Grant College Program ; no. 66
Title: Legal and policy options to minimize adverse effects of mosquito control pesticides on Florida's saltwater fisheries
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 Material Information
Title: Legal and policy options to minimize adverse effects of mosquito control pesticides on Florida's saltwater fisheries
Series Title: Technical paper
Physical Description: v, 85, 18 p. : ill. ; 28 cm.
Language: English
Creator: Tucker, John C
Publisher: Florida Sea Grant College Program, University of Florida
Place of Publication: Gainesville FL
Publication Date: 1992
 Subjects
Subject: Pesticides -- Government policy -- Florida   ( lcsh )
Mosquitoes -- Control -- Florida   ( lcsh )
Pesticides -- Environmental aspects -- Florida   ( lcsh )
Pesticides -- Law and legislation -- Florida   ( lcsh )
Fishes -- Effect of water pollution on -- Florida   ( lcsh )
Genre: government publication (state, provincial, terriorial, dependent)   ( marcgt )
bibliography   ( marcgt )
non-fiction   ( marcgt )
 Notes
Bibliography: Includes bibliographical references.
Statement of Responsibility: by John Tucker.
General Note: "September 1992."
General Note: "Florida Department of Natural Resources, Project Number R/FDNR- 3A, Contract Number C-6476."
Funding: This collection includes items related to Florida’s environments, ecosystems, and species. It includes the subcollections of Florida Cooperative Fish and Wildlife Research Unit project documents, the Florida Sea Grant technical series, the Florida Geological Survey series, the Howard T. Odum Center for Wetland technical reports, and other entities devoted to the study and preservation of Florida's natural resources.
 Record Information
Bibliographic ID: UF00076615
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved, Board of Trustees of the University of Florida
Resource Identifier: oclc - 29860776

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Table of Contents
    Cover
        Cover
    Title Page
        Title Page
    Acknowledgement
        Acknowledgement
    Executive summary
        Unnumbered ( 4 )
        Unnumbered ( 5 )
        Unnumbered ( 6 )
    Table of Contents
        Table of Contents 1
        Table of Contents 2
    Introduction
        Page 1
        Page 2
        Page 3
        Page 4
    Federal regulatory framework: Federal Insecticide, Fungicide, and Rodenticide Act
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
    Federal regulatory framework: Federal Clean Water Act
        Page 37
    Florida Toxic Substances C ontrol Act
        Page 37
        Page 38
    Federal regulatory framework: Federal Endandered Species Act
        Page 38
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
        Page 45
        Page 46
        Page 47
        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
    Florida regulatory framework: Overview
        Page 53
        Page 54
        Page 55
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
        Page 61
        Page 62
    Florida regulatory framework: Florida's mosquito control regulations and estuarine non-target species
        Page 63
        Page 64
        Page 65
        Page 66
        Page 67
        Page 68
        Page 62
    Florida regulatory framework: Enforcement
        Page 69
        Page 70
        Page 68
    Florida regulatory framework: Research and support
        Page 71
        Page 72
    Florida regulatory framework: Summary
        Page 72
        Page 73
    Findings and recommendations
        Page 74
        Page 75
        Page 76
        Page 77
        Page 78
        Page 79
        Page 80
        Page 81
        Page 82
        Page 83
        Page 84
        Page 85
        Page 86
    Appendix A. Figures
        A 1
        A 2
        A 3
    Appendix B: Mosquito control pesticides in Florida
        B 1
        B 2
        B 3
        B 4
        B 5
    Appendix C. Mosquito control pesticide labels with conflicting language
        C 1
    Appendix D. Mosquito control pesticide labels which allow subjective interpretation by the applicator
        D 1
    Appendix E. Label precautions for mosquito control pesticides qualifying for application to waters
        E 1
    Appendix F. Chapter 388. Florida Statutes (Mosquito control)
        F 1
        F 2
        F 3
        F 4
        F 5
        F 6
        F 7
        F 8
        F 9
        F 10
        F 11
    Appendix G. Flroida Department of Health and Rehabilitative Services Mosquito Control Rule
        G 1
        G 2
        G 3
        G 4
        G 5
        G 6
        G 7
        G 8
        G 9
        G 10
        G 11
        G 12
    Appendix H. Florida Department of Health and Rehabilitative Services Monthly Reporting Forms
        H 1
        H 2
        H 3
        H 4
Full Text
l/ o


C ,

Technical Paper No. 66



Legal and Policy Options to Minimize

Adverse Effects of Mosquito Control

Pesticides on Florida's

Saltwater Fisheries




John Tucker








Department of Natural Resources



L R
Florida Sea Grant College Program

SLORIN -

COuLLtC PROORAVI
Funded by Florida Saltwater Fishing License Fee Revenues












Legal and Policy Options to Minimize Adverse Effects
of Mosquito Control Pesticides on

Florida's Saltwater Fisheries





by

John Tucker
Center for Governmental Responsibility
University of Florida College of Law


Florida Sea Grant College Program
P.O. Box 110409
Building 803
University of Florida
Gainesville, FL 32611-0409
904-392-2801



Florida Department of Natural Resources
Project Number R/FDNR-3A
Contract Number C-6476





$2.00



Technical Paper No. 66


September 1992












ACKNOWLEDGEMENTS


I would like to thank Dr. John A. Mulrennan and William R. Opp, Florida Department of Health
and Rehabilitative Services, for their assistance during this research project. I would also like to
thank Richard Hamann, University of Florida College of Law for his contributions to parts of
this report. Finally, I would like to thank Dan Doyle, who contributed research and writing
assistance, and Dolores Chasteen, who provided invaluable assistance in word processing.










EXECUTIVE SUMMARY


Its reputation as a fishing mecca is one of the most important images that Florida
projects. Commercial and recreational fisheries represent a significant component of the state's
revenues. Over the period -of 1953-1982. total commercial marine landings in Florida ranged
from 163 million to 215 million pounds annually. A 1982 study calculated that saltwater sport
fishing alone contributes approximately $2 billion per year to the economy. However, despite
continuing increases in the numbers of commercial fishing trips, and the establishment of many
fish hatcheries, total harvests of fish and shellfish have been generally declining since the mid-
1960s. As a result, the state's well deserved image may be in jeopardy. One factor in this
decline has been the loss or degradation of estuarine fishery habitat.
Estuaries play a critical role in the maintenance of fishery populations. Approximately
95% of Florida's commercial fisheries species and most of the recreational species depend on
estuaries during one or more life stages. Among other functions, estuaries provide important
habitat for the juveniles of many fishery species, as well as for the prey base supporting those
species. Studies suggest that shallow seagrass beds, tidal creeks, emergent marsh vegetation, and
mangrove prop roots serve as primary juvenile habitat for many species.
Several fishery species, including clams and oysters, spend their entire life cycles within
estuarine systems. Others. such as shrimp, migrate as larvae from offshore areas to estuarine
nursery habitat, developing into sub-adults before returning to deeper waters to complete their life
cycles. Some of Florida's best known estuarine-dependent species include spotted seatrout.
striped mullet, striped bass, red drum, snook, mangrove snapper, and tarpon. Spawning occurs
offshore for many of these, with larvae or early juveniles moving into estuaries to feed and
mature. Tampa Bay alone provides important nursery habitat for approximately twenty major
offshore commercial species.
Though there are several factors responsible for the observed declines in Florida's
fisheries, some of the most significant involve human impacts on estuaries. Estuarine habitat is
being degraded in many ways. including the effects of pollution, bulkheading, construction
activity, and dredging and filling. One suspected source of adverse impacts involves the use of
pesticides for mosquito control. Mosquito control programs have played an important role in the
development of Florida and are responsible for the eradication of malaria, yellow fever, and










dengue from the state. Today, mosquito control programs continue to play an important role by
controlling diseases which are transmitted by mosquitoes, and by enhancing the quality of life by
eliminating nuisance mosquitoes. Unfortunately, mosquito control pesticides are suspected of
adversely affecting certain non-target organisms. The effects of mosquito control pesticides on
estuarine and marine organisms are of particular concern, since spraying operations often occur
in or near estuarine environments. Although there is disagreement in the scientific community as
to the severity of the problem, there is some evidence indicating that these pesticides may harm a
variety of estuarine organisms which are important to the survival of popular game fish.
including red drum, snook, and spotted sea trout.
This report examines the regulation of mosquito control activities in Florida and makes
legal and institutional recommendations to improve protection of non-target estuarine and marine
organisms. The primary federal laws affecting the use of pesticides are the Federal Insecticide.
Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). FIFRA
governs the registration, manufacture, distribution, and use of pesticides in the United States and
is implemented by the Environmental Protection Agency (EPA). As part of the registration
process, EPA conducts cost benefit analyses on pesticide uses, including assessment of
environmental risk. FIFRA also provides for reclassification, suspension, or cancellation of
existing pesticide registrations through the Special Review process.
FIFRA depends largely on pesticide labels to guide users in environmentally safe use of
pesticides. Unfortunately, many mosquito control pesticide labels contain ambiguous language.
thereby providing inadequate guidance to pesticide applicators. Although EPA requires elaborate
data to be presented during the registration process, there is evidence that the environmental risks
of many pesticides have not been adequately assessed. EPA is currently re-registering all
pesticides registered before 1984 because the agency has determined its risk assessment was
inadequate for these pesticides. Furthermore, scientists indicate that current EPA risk assessment
models may severely underestimate risk to non-target species.
The Endangered Species Act prohibits actions which harm endangered or threatened
species, and is also implemented by the EPA. The spraying of mosquito control pesticides which
causes harm to endangered or threatened species would probably be a violation of the ESA. The
ESA contains a citizen's suit provision which could be used to enjoin the use of mosquito control
pesticides which harm endangered or threatened species. The Act also establishes a regulatory









program, the Endangered Species Protection Program, to ensure that endangered and threatened
species are considered in the registration and use of pesticides.
At the state level, Chapter 388, Florida Statutes, and Rule 10D-54, Florida
Administrative Code, establish a variety of regulations which address the consideration and
protection of non-target species. State oversight of mosquito control is provided by the
Department of Health and Rehabilitative Services. Mosquito control programs are required to
conduct pre- and post-spray surveillance of mosquito population levels and are required to assess
post-spray non-target effects of aerial adulticides. While there is an elaborate regulatory system
in place, effective protection of non-target marine organisms is hindered by a pervasive lack of
enforcement at the local, state, and federal level.
Some of the more important recommendations for modification of mosquito control in
Florida include: clarification of ambiguous mosquito control pesticide labels; strengthening of
surveillance and reporting requirements; strengthening of enforcement efforts and authority;
increased use of Integrated Pest Management techniques; development of alternatives to
pesticides; increased research to assess the effects of pesticides on non-target organisms;
increased funding, particularly for public education, research, and enforcement; utilization of
administrative and judicial remedies if warranted; and public education.
This report was researched and written under Project Number R/FDNR-3A with the
Florida Department of Natural Resources and Florida Sea Grant College.





















iii


0










TABLE OF CONTENTS


INTRODUCTION ......... ..................................... 1

FEDERAL REGULATORY FRAMEWORK .............................. 5
I. The Federal Insecticide, Fungicide, and Rodenticide Act ............... 5
A. General Statutory Scheme .............. ... ............. 5
B. Cost Benefit Analysis Under FIFRA ................. ... 10
1. Probable Issues Concerning the Use of Pesticides in Florida
for Mosquito Control .......................... 10
2. Statutory Guidelines for Cost Benefit Analyses .......... 11
3. Regulatory Guidelines for Cost Benefit Analyses ......... 13
4. Administrative Interpretations . . . .... 16
C. Potential Legal Remedies Under FIFRA . . . ..... 26
1. Administrative Remedies . . . . 26
a. General ....... .................... 26
b. Petition for Special Review . . . ..... 27
2. Judicial Remedies ............................ 30
a. Jurisdiction and Standards of Review . . ... 30


.II.
III.
IV.


b. Causes of Action and Standing to Restrain
Violations of FIFRA .................. ... .32
Federal Clean Water.Act ...... ....................... 37
Federal Toxic Substances Control Act . . . ... 37
Endangered Species Act ... . ..... . . ... 38
General Statutory Scheme ............................ 38
Endangered Species Protection Program. . . . 42
Opportunities for Judicial Review . . . ..... . 49
Conclusions ....... .. ........................ 51


FLORIDA REGULATORY FRAMEWORK ..............
I. O verview . . . .. .. .. . . . . . ...
A. Statutory Authority. Charge. and Organization of Mosquito Control
Programs ......................................
B. State Assistance to Mosquito Control Programs ...............
C. HRS Responsibilities Under Chapter 388, Florida Statutes ........
1. General .. ......... .. .. .
2. Licensing ... ... ...... ..... ...........
3. Inspections and Enforcement . . . ........
D. HRS Declaration of a Threat to Public Health .......


II









II. Florida's Mosquito Control Regulations and Estuarine Non-Target Species
A. FIFRA and the Endangered Species Act ................
B. Surveillance of Mosquito Populations ..................
C. Aerial Applications .............................
D. Use Requirements and Natural Resources ...............
E. Mosquito Control on Public Lands . . . . .
F. Chapter 403 Alternative Permitting Process for Application of
Pesticides to W aters ............................
III. Enforcem ent ..... .. ... ..... ..... .. .. .. .. .... .
IV. Research and Support ..............................
V Sum m ary ...................................... ..

FINDINGS AND RECOMMENDATIONS .. ..........................


TABLES


Table 1. Potential Causes of Action under FIFRA for an Injunction to Prohibit
Unlaw ful Pesticide Use ..................................
Table 2. Criteria to Determine Whether to Spray Adulticides ................... .
Table 3. Aerial Applications of Adulticides . . . . .
Table 4. Mosquito Control Adulticides Which May Be Applied Aerially to
Environmentally Sensitive and Biologically Highly Productive Public Lands .....
Table 5. Section 403.088. Florida Statutes. Alternative Permitting Process for
Application of Mosquito Control Pesticides to Waters . . . ......
Table 6. HRS Enforcement Authority .................................


APPENDICES


Appendix
Appendix
Appendix
Appendix


Appendix E.


Appendix
Appendix


Appendix H.


Figures ...........................................
Mosquito Control Pesticides in Florida ..... . ...........
Mosquito Control Pesticide Labels With Conflicting Language ........
Mosquito Control Pesticide Labels Which Allow Subjective Interpretation
by the Applicator ..................................
Label Precautions for Mosquito Control Pesticides Qualifying for
Application to W aters .. ..............................
Chapter 388. Florida Statutes (Mosquito Control) . . .........
Florida Department of Health and Rehabilitative Services Mosquito
C control R ule . . . . . . . . . .
Florida Department of Health and Rehabilitative Services Monthly
Reporting Forms ....... .. ......................









LEGAL AND POLICY OPTIONS TO MINIMIZE ADVERSE EFFECTS OF
MOSQUITO CONTROL PESTICIDES ON FLORIDA'S SALTWATER FISHERIES

INTRODUCTION
The importance of estuaries as nursery grounds for saltwater recreational and commercial
fisheries is well recognized. Estuaries are one of the most productive ecosystems in the world
and provide essential habitat for many game fish and their prey.' Many scientists and citizens
are concerned that mosquito control practices may be degrading the ecological quality and
fisheries value of estuarine waters in Florida.2
Florida has over 1200 miles of coastline, including vast areas of salt marshes and
mangrove swamps which are excellent breeding grounds for mosquitoes.3 Early efforts at
mosquito control were accomplished by eliminating breeding habitats by draining and filling low
lying areas.4 Although these early permanent control techniques were often considered




SComp and Seaman, Jr., Estuarine Habitat and Fishery Resources of Florida, in FLORIDA
AQUATIC HABITAT AND FISHERY RESOURCES 337-340 (W. Seaman, Jr., ed. 1988); E. ODUM,
FUNDAMENTALS OF ECOLOGY (3d ed. 1971): J. CLARK, COASTAL ECOSYSTEM MANAGEMENT 11
(1983); Niering, W., and R. Warren, Salt Marshes, in COASTAL ECOSYSTEM MANAGEMENT (J.
Clark 1983): Maloney, F.. and B. Canter, Stormwater Runoff and the Coastal Zone: Legal
Alternatives for Effective Management, Final Report to Florida Sea Grant, University of Florida
238 (March, 1979).

2 See generally, Clark. Adverse Impacts to Freshwater Aquatic and Marine Organisms.
MOSQUITO CONTROL PESTICIDES: ECOLOGICAL IMPACTS AND MANAGEMENT ALTERNATIVES 33-
39 (1991). (Proceedings of a Conference held on January 18. 1991, at the University of Florida,
Gainesville, Florida, published by Scientific Publishers. Inc.. Gainesville. Florida): Ward. The
Coral Reefs of Florida Are Imperiled. 178 No. I NATIONAL GEOGRAPHIC 128-130 (July, 1990):
Taylor, The Ubiquitous Mosquito. FLORIDA NATURALIST 11 (Winter 1988): Pesticide Use
Observations, Monroe County, Florida (Report prepared by the National Enforcement
Investigations Center for the U.S. Environmental Protection Agency) (January. 1980).

3 Integrated Pest Management For Mosquitoes in Florida, A Work Document 2 (Prepared by
the Sub-group for Development of IPM for the Governor's Working Group for Mosquito
Control, composed of representatives from the Florida Department of Health and Rehabilitative
Services, the University of Florida's Institute of Food and Agricultural Sciences, the U.S.
Department of Agriculture, the U.S. Navy. and several mosquito control districts in Florida.
May, 1982) [hereinafter cited as IPMI.

Id. at 3.


I










successful, they were soon replaced by cheaper and seemingly more effective pesticides.' DDT
was first used in Florida in 1945 and is credited with the elimination of malaria from the state in
1948.6 However, as early as 1947 it was becoming apparent that certain species of mosquitoes
were becoming resistant to DDT.7 In addition, adverse environmental effects were being noticed
as early as 1951.L
More recently, mosquitoes have been deemed to be directly related to the economic well
being of our state. Specifically, the eradication and control of mosquitoes has been determined to
be of such importance to the health and economy of Florida that the state legislature has declared
as public policy that levels of arthropods be reduced so as to "foster the quality of life of the
people, promote the economic development of the state, and facilitate the enjoyment of its natural
attractions...."9 To carry out this policy, the legislature authorized the creation of mosquito
control districts and established a state regulatory program for mosquito control activities.'0
Today, most efforts to control mosquitoes involve the use of pesticides. In 1988, a total
of over 1 million pounds of active ingredient of the three most widely used pesticides (malathion.
naled, and fenthion) were applied by mosquito control programs participating in Florida's
mosquito control regulatory program." This figure does not reflect significant amounts of other
pesticides which were applied by mosquito control programs participating in Florida's mosquito
control regulatory program, or any of the pesticides applied by several hundred programs which




5 Id. at 7.

6 Id. at 3.

7 Id. at 7.

SId.

9 FLA. STAT. 388.0101 (1989).

10 Id. 388.021,388.361.

Johnson. Newman. Aufmuth, and Whitten, Handbook of Pesticide Use and Effects on
Florida Wildlife (Document prepared for the Florida Game and Fresh Water Fish Commission.
Nongame Wildlife Program) 44 (February, 1991) (in press). This value was derived from the
Florida Department of Health and Rehabilitative Services, Entomology Section, 1988 Annual
Report.









do not participate in the state mosquito control regulatory program.12 Appendix B contains a
complete listing of pesticides applied from 1987 to 1989 by mosquito control programs
participating in Florida's mosquito control regulatory program. Figures 1,2,3, and 4, contained
in Appendix A. graphically illustrate relative amounts of adulticides and selected larvicides which
were sprayed during this time.13 The use of source reduction techniques, such as ditching,
diking, and draining, have been severely restricted by wetlands protection laws and changes in
management philosophies by state lands managers.14
While the obvious benefits of mosquito control programs cannot be discounted, reasonable
prudence dictates that a closer look be taken at the potential effects of large scale and continuous
use of pesticides. The effects of mosquito control pesticides on estuarine and marine organisms
are of particular concern, since spraying operations often occur in or near estuarine
environments. Although there is disagreement in the scientific community as to the direct and
indirect effects of various mosquito control pesticides on fish, some researchers indicate that
these pesticides may harm a variety of marine organisms, particularly crustaceans such as
copepods (minute freshwater and marine crustaceans) and decapods (shrimps, lobsters, and
crabs).15 These organisms play important roles in the intricate food web that supports a number


12 Mosquito control programs may choose whether to participate in Florida's mosquito
control regulatory program. See the report section entitled Florida Regulatory Framework for an
explanation of Florida's mosquito control regulatory program.

'3 Figures 3 and 4 do not include larvicides applied in the form of briquets, tossits, or
granules because of the uncertainty and incompatibility of the measuring units reported by HRS.

~1 IPM. at 19.

'5 Some researchers indicate that certain mosquito control pesticides may have adverse
effects on marine fish and crustaceans. See Thompson & Tucker. Toxiciry of the
Organophosphare Insecticide Fenrhion, Alone and with Thermal Fog Carriers, to an Esruarine
Copepod and Young Fish, 43 BULLETIN OF ENVIRONMENTAL CONTAMINATION AND
TOXICOLOGY 789 (1989): Tucker, Dangers of Using Organophosphorus Pesticides and Diesel Oil
in Fish Ponds. AQUACULTURE MAGAZINE (October, 1987); Hester. Olson, & Floore, Effects of
Diflubenzuron on three estuarine decapods, Callinecres sp., Palaemonetes pugio and Uca
pugilator. 57, No. 1 FLORIDA ANTI-MOSQUITO ASSOCIATION 8 (1986); Tsen, Wang, & Tucker,
Assimilation of Fenthion in Coastal Water, in PROCEEDINGS OF THE 8TH INTERNATIONAL OCEAN
DISPOSAL SYMPOSIUM, Yugoslavia (October. 1989) (in publication); Clark, Adverse Impacts to
Freshwater Aquatic and Marine Organisms. MOSQUITO CONTROL PESTICIDES: ECOLOGICAL
(continued...)

3









of popular game fish including red drum, spotted sea trout, and snook. Juvenile forms of fish
and other aquatic biota may be particularly vulnerable to the effects of pesticides. Some
scientists and citizens are concerned because many of the effects of these pesticides on non-target
estuarine and marine organisms are unknown, particularly cumulative and long term effects.'
The activities and regulation of mosquito control programs as they relate to non-target
marine species are the subjects of this report. The first section of the report examines the
existing federal regulatory framework; the second section examines the existing state regulatory
framework: and the third section presents findings and recommendations to correct problems
occurring in Florida's mosquito control regulatory programs.


















15 (...continued)
IMPACTS AND MANAGEMENT ALTERNATIVES 33-39 (1991). (Proceedings of a Conference held
on January 18, 1991, at the University of Florida, Gainesville, Florida, published by Scientific
Publishers, Inc., Gainesville, Florida).
However, other researchers indicate that certain mosquito control pesticides do not have
adverse impacts on non-target species. See Hester, Rathburn, & Boike. Effects of Me:hoprene on
Non-Target Organisms When Applied as a Mosquito Larvicide, in Proceedings of the Florida
Anti-Mosquito Association 51st Meeting (April 27-30, 1980); He'ster, Rathburn, & Rogers, Small
Plot Field Tests of an Oil Formulation Against Mosquito Larvae and Non-Target Organisms. 39
No. 3 MOSQUITO NEWS (September 1979): Hester. Clemonts. Dukes, & Swenson, reprinted
from Proceedings of the Florida anti-Mosquito Association 49th Meeting (April 2-5, 1978).

16 Clark. Adverse Impacts to Freshwater Aquatic and Marine Organisms. MosQUITO
CONTROL PESTICIDES: ECOLOGICAL IMPACTS AND MANAGEMENT ALTERNATIVES 33-39 (1991).
(Proceedings of a Conference held on January 18, 1991, at the University of Florida. Gainesville.
Florida, published by Scientific Publishers. Inc.. Gainesville. Florida).


I









FEDERAL REGULATORY FRAMEWORK
I. The Federal Insecticide, Fungicide, and Rodenticide Act
The registration, manufacture, distribution, and use of pesticides in the United States is
regulated by the Environmental Protection Agency (EPA) under the authority of the Federal
Insecticide. Fungicide, and Rodenticide Act (FIFRA).17 Pesticides which are used in Florida
for mosquito control are subject to the requirements of FIFRA. An examination of the
requirements of FIFRA illustrates the factors EPA considers when deciding whether to approve
registration of pesticides. For example, FIFRA requires applicants for pesticide registration to
present data regarding the effects of pesticides on non-target species.
EPA must balance adverse effects and benefits of each pesticide when deciding whether to
register a pesticide. Registered pesticides must be accompanied by labels that protect users and
the environment. FIFRA also contains mechanisms by which EPA can reconsider existing
pesticide registrations, such as when new evidence of adverse effects is discovered. In addition.
EPA may restrict, suspend, or cancel pesticide registrations which EPA finds are not meeting
statutory requirements.
A. General Statutory Scheme
Pesticide regulation under FIFRA is driven by the requirement that all pesticides must be
registered with the EPA. The registration process requires that EPA consider the adverse effects
and benefits of each pesticide, and determine whether the pesticides meet statutory criteria.
FIFRA prohibits anyone from distributing, selling, or receiving any pesticide which is not
registered with the administrator of the Federal Environmental Protection Agency (EPA)."' The
term "pesticide" is defined broadly as any substance or mixture of substances used for repelling
or destroying a pest.19 FIFRA requires that a person seeking registration must file information
about the pesticide with EPA,20 and then the administrator of EPA must decide if the pesticide


17 7 U.S.C.A. 136 136y.

18 Id. 136a(a).

19 Id. 136(u).

20 Id. 136a(c)(1),(2); 40 C.F.R. Part 158 (July 1. 1991). EPA rules require that applicants
submit data pertaining to product chemistry, residue chemistry, environmental fate, toxicology,
(continued...)










meets the statutory requirements with respect to labeling2' and will not produce "unreasonable
adverse effects on the environment."22 "Unreasonable adverse effects on the environment" are
defined as any unreasonable risk to man or the environment, taking into account economic,
social, and environmental costs and benefits of the use of a particular pesticide.' The term
"unreasonable" is not defined by FIFRA.
FIFRA imposes a reporting duty on all registrants to promptly notify EPA of any new
information regarding unreasonable adverse effects on the environment caused by a pesticide.24
Failure to report required information relating to the risks and benefits of a registered pesticide
constitutes a violation of FIFRA.25 EPA rules detail what information must be submitted.
including specific requirements relating to completed toxicological studies, incomplete
toxicological studies, epidemiological studies, efficacy studies, studies of dietary or environmental
pesticide residues, toxic or adverse effect incident reports, failure of performance incident




20 (...continued)
reentry protection, aerial drift evaluation, wildlife and aquatic organisms, plant protection.
nontarget insects, product performance, and biochemical and microbial pesticides. 40 C.F.R.
part 158 (July 1, 1991). Additional standards for conducting acceptable tests, guidance on
evaluation and reporting of data, further guidance on when data are required, definitions of most
terms, and examples of protocols are available in an advisory document referred to as Pesticide
Assessment Guidelines through the National Technical Information Service. 5285 Port Royal
Road, Springfield, VA 22161.

21 Labels are written, printed, or graphic matter accompanying pesticides. 7 U.S.C.A.
136(p). Labels must include, among other things, directions for use which are adequate to
protect health and the environment. Id. 136(q)(1)(F).

22 Id. 136a(c)(5).

23 Id. 136(bb). EPA may conditionally register or amend a pesticide registration, or
suspend the registration of a pesticide, if EPA determines the statutory requirements for such
actions are met. Id. 136a(c)(7), 136d. As of 1982, EPA had suspended or canceled the
registration of over 3.000 pesticides for use in the United States. J.C. JUERGENSMEYER & J.B.
WADLEY, AGRICULTURAL LAW 53 (1982).
24 7 U.S.C.A. 136d(a)(2). The applicant must submit the information to EPA within 15
days of the applicant becoming aware of the information. 40 C.F.R. 153.64 (July 1, 1991).
25 40 C.F.R. 153.66 (July 1. 1991).










reports, dietary or environmental pesticide residue incident reports, and other information which
might raise questions about the continued registrability of a registrant's pesticide product.26
Under FIFRA, pesticides are classified either for general or restricted use.7 General
use pesticides are those that EPA determines will not generally cause any unreasonable adverse
effects on the environment, when used in accordance with the labeling.28 Restricted use
pesticides are those that EPA determines "may generally cause, without additional regulatory
restrictions, unreasonable adverse effects on the environment," when used in accordance with the
labeling.29
General use pesticides may be bought and used by any person. Restricted use pesticides
may only be applied by a certified applicator or by someone under the direct supervision of a
certified applicator.3" FIFRA directs EPA to issue standards for the certification of applicators
of pesticides which insure that an individual is competent with respect to the use and handling of
pesticides." Applicators of restricted use pesticides must be certified by EPA in accordance
with FIFRA, or by an EPA approved state certification plan.32
Mosquito control pesticides being used in Florida at the time of this writing are all
considered general use pesticides. However. Florida exceeds federal statutory requirements by


26 Id. 153.69-153.78.

27 7 U.S.C.A. 136a(d)(1)(A).

28 Id. 136a(d)(1)(B).

29 Id. 136a(d)(l)(C).

30 Id.

31 Id. 136b(a)(1).

32 Id. 136b. A state may submit a state plan to certify applicators of restricted use
pesticides, which EPA may approve if it determines that the state has adequate regulatory
structure, legal authority, funds, reporting systems, and standards to implement and conduct a
satisfactory certification program. Id. 136b(a)(2). A state certification program must contain
provisions to submit required reports to EPA and must have certification standards which
conform with the standards promulgated by EPA under FIFRA. Id. 136b(a)(2)(D),(E). In
addition. EPA rules and state certification standards must include a provision to provide
information concerning integrated pest management techniques to individuals who request such
information. Id. 136b(c).










requiring that mosquito control pesticide applicators successfully complete a state certification
process.
In addition to regulating the registration of pesticides and the qualifications of pesticide
applicators, FIFRA also regulates the use of pesticides. Specifically, it is unlawful for any
person to alter any labeling, to use any registered pesticide in a manner inconsistent with its
labeling, to violate any cancellation of registration of a pesticide, or to add or take any substance
from a pesticide which may defeat the purposes of FIFRA.33 Of particular significance is the
requirement that pesticides may only be used in a manner which is consistent with their labeling.
Pesticide application rates specified on labels are designed to be the minimum necessary to effect
the desired eradication of the pest.
EPA may issue civil penalties for violations of FIFRA or its rules of not more than S5000
for each offense by a commercial applicator.34 A commercial applicator is any applicator who
uses or supervises the use of any restricted use pesticide for any purpose, or on any property,
other than for the purposes of producing any agricultural commodity on property owned or rented
by the applicator or the applicator's employer.35 In addition to civil penalties. EPA may issue
criminal penalties up to $25.000. or imprisonment for one year. or both, against commercial
applicators who knowingly violate use provisions of FIFRA or its rules.36
Under FIFRA, EPA is authorized to establish procedures and regulations to deal with the
disposal or storage of packages and containers of pesticides, and the disposal or storage of
pesticides.37 EPA is also authorized to establish requirements and procedures for safe disposal
of any pesticide for which the registration has been suspended or canceled.38 EPA is charged
with conducting research concerning pesticides and integrated pest management, and must



33 Id. 136j.

34 Id. 1361(a)(l).

35 Id. 136(e)(2),(3).

36 Id. 1361(b)(l).

3 Id. 136q(a).

38 Id. 136q(a)(b).

8










develop a national monitoring plan.39 EPA, in cooperation with other federal, state, and local
agencies, must monitor air, soil, water, man, plants, and animals for human and environmental
pesticide pollution.4
States may also regulate the sale or use of any federally registered pesticide in the state.
as long as the regulation does not permit any sale or use prohibited by FIFRA."4 A state plan
for regulation of the sale and use of pesticides is subject to approval by EPA and will be
suspended if EPA determines that a state is not capable of exercising, or has failed to exercise,
adequate control to insure state registration which is in accord with the provisions of FIFRA.42
EPA has approved a Florida plan for regulation of the sale and use of pesticides.43
States may also enter into cooperative agreements with EPA which delegate the authority
to enforce provisions of FIFRA to the state." Any state that has entered into a cooperative
agreement with EPA for the enforcement of pesticide use restrictions, or is deemed by EPA to
have adopted adequate 1) pesticide use laws and regulations, 2) enforcement procedures, and 3)
record keeping and recording procedures, shall have primary enforcement responsibility for
pesticide use violations within that state.45 EPA retains authority to enforce the provisions of




39 Id. 136r(a),(b).

4' Id. 136r(c).

Id. 136v(a).

42 Id. 136v(c).

43 The Florida Department of Agriculture and Consumer Services (DACS) is the state
agency responsible for regulating pesticide sales, labeling, and use in Florida. FLA. STAT. ch.
487 (1989). However, mosquito control programs, while subject to labeling and use
requirements imposed by DACS. are primarily regulated by the Florida Department of Health
and Rehabilitative Services. Id. ch. 388.

44 7 U.S.C.A. 136u(a).

45 Id. 136w-l(a),(b). EPA assumes the enforcement responsibility in states that do not
have primary enforcement responsibility, and the provision in FIFRA which allows EPA to
inspect records of producers, sellers, or distributors of pesticides is extended to apply to any
commercial applicator. Id. 136w-l(c). Section 136fof FIFRA requires producers. sellers, or
distributors of pesticides to permit EPA to inspect all records required under FIFRA. Id. 136f.










FIFRA, even when it determines that a state has primary enforcement authority.4 Florida has
entered into yearly cooperative enforcement agreements with EPA since the late 1980s. The
Florida/EPA cooperative enforcement agreement is discussed in Section III of the Florida
Regulatory Framework portion of this report.
In the event that EPA receives a complaint indicating a significant violation by a state of
the pesticide use provisions of FIFRA, EPA must first refer the matter to the appropriate state
officials.47 If the state does not take appropriate enforcement action within thirty days. EPA
may act upon the complaint.4" Similarly, if EPA determines that a state with primary
enforcement authority is not carrying out its responsibility, it must notify the state.49 The state
then has ninety days within which to correct the deficiencies. If inadequacies still exist after 90
days, EPA may rescind, in whole or in part, the state's primary enforcement authority for
pesticide use.50
In summary, FIFRA establishes a regulatory framework for registration of pesticides.
certification of pesticide applicators, and use of pesticides. Although states have the authority to
administer the provisions of FIFRA, their discretion is limited to creating regulations which are
at least as strict as those in FIFRA.
B. Cost Benefit Analysis Under FIFRA
1. Probable Issues Concerning the Use of Pesticides in Florida for
Mosquito Control
FIFRA directs the administrator of EPA to analyze the costs and benefits of a given
pesticide use when determining whether to register, re-register, suspend, or cancel that pesticide
use. FIFRA data and reporting requirements for registrants illustrate the kinds of information





46 Id. 136w-2(c).

47 Id. 136w-2(a).

48 Id.

49 Id. 136w-2(b).

50 Id.

10


I










which EPA considers when evaluating pesticide registrations.5 An important component of cost
benefit analyses is the risk assessment of pesticide uses. Unfortunately, there is evidence that the
environmental risks of many registered pesticides have not been adequately assessed." In order
to evaluate pesticides used to control mosquitos in Florida. the administrator would probably
assess potential issues such as: 1) adverse fish, insect, and wildlife impacts from pesticide
applications into and around estuarine systems, 2) adverse water quality impacts from pesticide
applications. 3) adverse health effects in humans from continued pesticide applications, 4) adverse
health effects from a reduction or termination of pesticide applications, 5) nuisance effects from a
reduction or termination of pesticide applications, 6) adverse economic effects from a reduction
or termination of pesticide applications. 7) the availability of viable alternatives, and 8) the
efficacy of the pesticide. A review of FIFRA statutory provisions. EPA regulations, and
administrative decisions regarding cost benefit analysis provides some insight into how the
administrator might evaluate the use of a particular pesticide for mosquito control in Florida.
Review of cost benefit factors is also useful to identify potential administrative and judicial
remedies for pesticides causing adverse impacts to saltwater fisheries.
2. Statutory Guidelines for Cost Benefit Analyses
The administrator of EPA is directed to approve registration of a pesticide if: 1) the
pesticide meets the efficacy and labeling requirements of FIFRA. 2) the pesticide "will perform
its intended function without adverse effects on the environment." and 3) "when used in
accordance with widespread and commonly recognized practice, it [the pesticide] will not
generally cause unreasonable adverse effects on the environment."' Congress defined
"unreasonable adverse effects on the environment" to include "any unreasonable risk to man or



51 FIFRA data requirements are discussed in note 20. FIFRA reporting requirements are
discussed in the text accompanying notes 24 26.

52 See 7 U.S.C.A. 136a-1. addressing re-registration of registered pesticides. In addition,
one scientist has indicated that current EPA models may seriously underestimate risk of pesticides
to non-target species. See Tiebout, Evaluation of Federal Ecological Risk Assessment,
MOSQUITO CONTROL PESTICIDES: ECOLOGICAL IMPACTS AND MANAGEMENT ALTERNATIVES 77-
83 (1991). (Proceedings of a Conference held on January 18. 1991, at the University of Florida.
Gainesville, Florida. published by Scientific Publishers. Inc.. Gainesville. Florida.).

53 7 U.S.C. 136a(c)(5).










the environment, taking into account the economic, social, and environmental costs and benefits
of the use of any pesticide.""4 Clearly, this definition directs the administrator to consider
economic and social, as well as environmental costs and benefits of pesticide uses. After a
pesticide is registered, FIFRA places an ongoing duty on registrants to inform EPA of any
"additional factual information regarding unreasonable adverse effects on the environment of the
pesticide.""
Similar language concerning cost and benefit analyses exists in provisions of FIFRA
addressing cancellation and suspension of pesticide uses. Specifically, when determining whether
to issue notice of intent to cancel registration.56 the administrator must take into account "the
impact of the action proposed in such notice on production and prices of agricultural
commodities, retail food prices, and otherwise on the agricultural economy."5' Prior to issuing
a final order concerning cancellation or suspension, the administrator must first consider
restricting a pesticide's use as an alternative to cancellation, and must fully explain reasons for
the restrictions, as well as the impacts on agricultural commodities, retail food prices, and the
agricultural economy.58
Additional language is contained in the provisions of FIFRA dealing with misbranding.
The administrator must review each registration to determine whether the label satisfies the
requirements of FIFRA. Among other requirements, a pesticide label is misbranded if the label
does not contain directions concerning the use of a pesticide which are "adequate to protect health
and the environment. "9 Similarly. a pesticide is misbranded if the label does not contain a
warning or caution statement which is "adequate to protect health and the environment."" The



54 Id. 136(bb).

55 Id. 136d(a)(2).

56 Id. 136d(b).

57 Id.

58 Id.

59 Id. 136(q)(1)(f).

60 Id. 136(q)(1)(g).

12









sale or distribution of pesticides which are misbranded is unlawful under FIFRA.6' Clearly, the
administrator must evaluate the risks involved with a particular pesticide use in order to ascertain
whether the label complies with the requirements of FIFRA.
FIFRA provides some general guidance for the administrator to use in determining
whether to grant registration or re-registration, to evaluate labeling, or to issue a notice to cancel
or suspend an existing registration. However, the statute provides little guidance as to the
relative weights which the administrator should give to the costs and benefits of a pesticide use.
Procedures for pesticide evaluation are further elucidated in EPA rules promulgated under
FIFRA.
3. Regulatory Guidelines for Cost Benefit Analyses
EPA rules specify the types and minimum amounts of data that a registrant must submit
to allow EPA to evaluate the risks and benefits of a pesticide use.62 In addition, the rules
provide guidance for determining use classifications by listing specific criteria for determinations
of unreasonable adverse effects.63 The rules list minimum criteria which must be met in order
for a pesticide to be classified for general use for both domestic and non-domestic application.6
Pesticide uses which do not meet these tolerances are classified for restricted use unless the label
meets certain additional criteria.6 or the benefits of unrestricted use outweigh the risks of
unrestricted use.6
EPA rules addressing Special Review procedures provide additional insight into how EPA
evaluates the costs and benefits of pesticide uses. The purpose of a Special Review proceeding is



61 Id. 136j(a)(1)(E).

62 40 C.F.R. 158.20(b) (July 1. 1991).

63 Id. 162.11(c).

64 Id. The criteria include tolerances for acute dermal LD5o, inhalation LC50, eye irritation
or corneal opacity, skin irritation, and acute oral LD5o.

65 Id. 162.11(c). Section 162.11(c)(3) lists labeling criteria, which if met, can prevent a
pesticide from being classified for restricted use. If these criteria are met the labeling will be
considered sufficient to prevent unreasonable adverse effects on the environment.

66 Id. 162.11(c).


0










to help the administrator determine when to initiate procedures to cancel, deny, or reclassify a
pesticide registration because uses of that pesticide may cause unreasonable adverse effects on the
environment.67 The process contains many procedural requirements and is intended to insure
that EPA openly evaluates both the risks and benefits of pesticide uses.68
Prior to 1985, EPA risk assessment criteria for the evaluation of potential adverse effects
focused primarily on toxicity data for the particular pesticide.69 EPA was required to initiate
Special Review70 for any pesticide whose acute toxicity exceeded specific numerical values, or
which caused certain chronic effects at any level.7 In 1985, EPA issued revised risk
criteria rules, claiming that the lack of flexibility in the current rules limited EPA's discretion to
consider other relevant factors and prevented EPA from addressing the most dangerous pesticides
first.7
Under current EPA rules, the administrator may initiate Special Review on his own
initiative or at the request of any interested person.,3 if the administrator determines that certain
risk criteria are met by the pesticide use.74 Several of the risk criteria are of particular


67 Id. 154.1.

68 Id.

69 50 Fed. Reg. 49005 (Nov. 27. 1985).

70 In the earlier rules Special Review was called Rebuttable Presumption Against Registration
(RPAR). The title was changed amid concern that RPAR carried negative connotations that
could cause adverse economic consequences for the pesticide industry.
71 50 Fed. Reg. 49005 (Nov. 27. 1985).

72 Id.

73 EPA rejected industry suggestions that restrictions be placed on communications from
persons outside EPA. and expressly stated that EPA may initiate a Special Review in response to
any communication from a person outside EPA, regardless of the manner or form of the
communication. 40 C.F.R. 154.7. 154.10 (July 1, 1991).

.4 40 C.F.R. 154.7 (July 1. 1991). Criteria for initiation of Special Review include a
number of factors relating to humans, animals, and the environment. The criteria are as follows:
(a) The administrator may conduct a Special Review of a pesticide use if he
determines, based on a validated test or other significant evidence, that the use of
(continued...)










significance to mosquito control activities in Florida. Specifically, the administrator may conduct
a Special Review of a pesticide use "if he determines, based on a validated test or other
significant evidence,"75 that a pesticide use adversely effects non-target organisms, endangered



74 (...continued)
the pesticide ...
(1) May pose a risk of serious acute injury to humans or domestic animals.
(2) May pose a risk of inducing in humans an oncogenic, heritable genetic,
teratogenic, fetotoxic, reproductive effect, or a chronic or delayed toxic effect,
which risk is of concern in terms of either the degree of risk to individual humans
or the number of humans at some risk, based upon:
(i) Effects demonstrated in humans or experimental animals.
(ii) Known or predicted level of exposure of various groups of humans.
(iii) The use of appropriate methods of evaluating data and relating such data
to human risk.
(3) May result in residues in the environment of nontarger organisms at levels
which equal or exceed concentrations acutely or chronically toxic to such
organisms, as determined from tests conducted on representative species or from
other appropriate data.
(4) May' pose a risk to the continued existence of any endangered or
threatened species....
(5) May result in the destruction or other adverse modification of any habitat
designated ... as a critical habitat Jbr any endangered or threatened species.
(6) May otherwise pose a risk to humans or to the environment which is of
sufficient magnitude to merit a determination whether the use of the pesticide
product offers offsetting social, economic, and environmental benefits that justify
initial or continued registration.
(b) In making any determination that a pesticide use satisfies one of the
criteria for issuance of a Special Review ... the administrator shall consider
available evidence concerning both the adverse effect in question and the
magnitude and scope of exposure of humans and nontarget organisms associated
with use of the pesticide.
40 C.F.R. 154.7 (July 1. 1991). (Emphasis added).

7 Id. 154.7. A "validated test" is defined as "a test determined by the agency to have
been conducted and evaluated in a manner consistent with accepted scientific procedures." Id.
154.1(i). "Other additional evidence" means "factually significant information that relates to the
uses of the pesticide and their adverse risk to man or to the environment but does not include
evidence based only on misuse of the pesticide unless such misuse is widespread and commonly
recognized practice." Id. 154. l(e). EPA intended that these rather broad definitions would
assure that risk assessment would have a reasonable scientific basis, yet would not bind EPA
from considering pertinent information merely because the information would not satisfy rigid
criteria. 50 Fed. Reg. 49006 (Nov. 27. 1985).










or threatened species, or the habitat of endangered or threatened species.76 In addition, risks to
the environment of "sufficient magnitude" may also justify initiation of Special Review.7
Furthermore, there is a catch-all criterion which directs EPA to initiate a Special Review when
potential risks arise which are not addressed by any of the specific criteria.78 The risk criteria
are intended to insure that EPA considers both the "toxic effects associated with the pesticide and
the actual or projected exposure of humans and other non-target organisms to the pesticide."79
The Special Review proceeding serves as a mechanism for reconsideration of pesticide
registrations which appear to cause unreasonable adverse effects on the environment. Special
Review may be initiated by EPA or at the request of any interested person. Requests which meet
certain risk criteria will trigger a formal Special Review proceeding. Through the procedure,
EPA attempts to gain public input and to insure adequate consideration of risks and benefits of
pesticide uses.80 As part of the evaluation under the risk criteria, the administrator must
consider adverse effects and the magnitude and scope of exposure of humans and non-target
organisms to the pesticide. The Special Review process can result in cancellation, suspension, or
reclassification of a pesticide registration.
4. Administrative Interpretations
FIFRA directs EPA to evaluate the costs and benefits of pesticide uses whenever EPA
pursues a cancellation or suspension proceeding. Accordingly, administrative proceedings are the
appropriate forum for in-depth analyses of the various cost and benefit issues surrounding



76 40 C.F.R. 154.7(a)(3).(4),(5) (July 1, 1991). EPA received industry comments
criticizing the criteria regulating the impact of pesticide uses on endangered species. Specifically.
industry representatives suggested that the word "significant" should be put before "risk," and
that the language about critical habitats be deleted from the rule. EPA declined to follow these
industry suggestions, expressly stating that the Endangered Species Act prohibited the
consideration of population size and the taking of even one endangered species. Similarly,
pesticide use which impacts the food source or critical habitat of an endangered species is
prohibited under the Endangered Species Act. 50 Fed. Reg. 49007 (Nov. 27, 1985).

77 40 C.F.R. 154.7(a)(6) (July 1. 1991).

78 50 Fed. Reg. 49003-4 (Nov. 27. 1985).

79 Id. at 49003.

8 Special Review procedural requirements are discussed on pages 27 29 of this report.










particular pesticide uses. The administrator must consider statutory and regulatory criteria, and,
therefore, administrative decisions help illustrate the factors considered in cost benefit analyses
and how the various statutory and regulatory criteria have been applied. Ultimately, however,
the final decision making power lies with the administrator. Several recent administrative
decisions addressing pesticide cancellation procedures are discussed below.
a. Special Review of Diazinon
In 1986, EPA initiated a Special Review of the pesticide diazinon for use on golf courses
and sod farms.81 After initial consideration. EPA issued a Notice of Intent to Cancel because of
alleged risks to birds."2 EPA examined factors such as diazinon's acute toxicity, estimated
doses consumed by birds, diazinon application practices, reported bird kills, problems with
reporting bird kills, and effects on endangered species." In addition. EPA also examined the
effectiveness of alternatives to the use of diazinon and the impact cancellation would have on
operating costs." Ultimately, EPA concluded that the use of diazinon on golf courses and sod
farms should be canceled because the risks to birds outweighed the economic benefits of
continued use.s8
As part of its analysis of the use of diazinon. EPA attempted to determine what degree of
risk warrants cancellation. Petitioners argued that cancellation is justified only if "continued use
of diazinon would adversely affect long-term bird populations or result in widespread
mortality."" However, FIFRA directs that cancellation is required if continued use would
cause "any" unreasonable risk to the environment.7 In holding that there was significant risk to
justify cancellation, the administrator cited the legislative history of FIFRA, which stated that



8' In re Ciba-Geigy Corp., 53 Fed. Reg. 1119 (April 5, 1988).

82 Id. at 11120.

83 Id.

84 Id.

85 Id.

86 Id. at 11122.

87 7 U.S.C. 136(bb) (1987).










"'any adverse effect ought not be tolerated unless there are overriding benefits from the use of a
pesticide.'""8 In addition, the administrator stated that there is no statutory or regulatory
requirement that a particular threshold level of risk must be reached in order to justify
cancellation."9
The administrator examined prior cancellation decisions and found that any risk is
sufficient to justify cancellation if the risk is unreasonable in relation to the benefits of continued
use.90 As further evidence that FIFRA does not envision a threshold risk level above which
cancellations are warranted, the administrator pointed out that in 1985 EPA specifically deleted a
regulatory provision providing that population effects were a separate basis for initiating Special
Review.91
In evaluating the risks of continued use of diazinon, the administrator examined factors
such as diazinon's comparative toxicity.92 routes of exposure, magnitude of exposure, risk
assessment based on toxicity and residue data, reported bird kills, and field studies.93 The
administrator determined that diazinon was "very highly toxic" compared to other pesticides"
and that diazinon could easily be ingested directly by birds feeding in treated areas, or indirectly
by ingestion of seeds or invertebrates.95 The magnitude of exposure was evaluated by


8 In re Ciba-Geigy Corp.. 53 Fed. Reg. 11119, 11122 (April 5, 1988), quoting S.Rep. No.
970, 92d Cong., 2d Sess. 11 (1972).

'9 Id. On appeal, the circuit court expressly affirmed the administrator's rejection of Ciba
Geigy's argument that bird kills alone were not sufficient to show unreasonable risk and that the
administrator must first determine that the pesticide use will endanger the overall bird population.
Ciba-Geigy Corp. v. U.S. EPA. 874 F.2d 277, 279 (5th Cir. 1989).


90 In re Ciba-Geigy Corp., 53 Fed. Reg. 11119, 11122 (April 5, 1988).

91 Id.

92 Id. Comparative toxicity is evaluated by reference to a pesticide's median lethal dosage
(LDso) which is the single dose that causes mortality in 50 percent of adult birds. Id. at 11122.

93 Id. at 11122-25.

9 Id. at 11122.

95 Id. at 11123.

18










examining the concentrations of residues which remained from various application techniques.
The residues were then factored into a risk assessment model, along with bird feeding habits, in
an attempt to predict the time it would take for various bird species feeding in treated areas to
reach their median lethal dosage.96 The model, which received favorable peer'review, indicated
that the median lethal dosage would be reached in 15 to 80 minutes, depending on the size of the
bird and the concentration of the application.97 The administrator determined that these
predictions were particularly significant because the waterfowl in question typically feed for a
single five to eight hour period."
Petitioners argued that cancellation should never be based only on lab data, exposure
information, and bird kills, and that the best evidence is provided from validly conducted field
studies.9 The administrator, citing previous administrative and judicial decisions,100
rejected this contention, stating instead that lab data alone may provide a sufficient basis to
warrant cancellation or suspension.o'0 With respect to field studies, the administrator
acknowledged that such studies may often be the best evidence of risk, but that petitioner's
studies were inadequate and inconclusive.0o2 The administrator concluded that although the risk
to overall bird populations might be less under the proposed modified label, the risk to individual
birds would still be too great.
In evaluating the benefits of continued use of diazinon. the administrator examined the
potential economic impacts of cancellation, such as effects on price competition, turf quality.





96 Id.

97 Id.

98 Id. at 11124.

99 Id.

0o0 Id. at 11124. See EDF v. EPA, 548 F.2d 998. 1005 (D.C. Cir. 1976), quoting EDF v.
EPA, 489 F.2d 1247. 1254 (D.C. Cir 1973).
101 Id.

102 Id.










minor pests, and pest resistance.'03 Although the administrator concluded that diazinon was the
most economic pesticide for most turf pests, he identified several alternative pesticides. In
addition, the administrator pointed out the availability of non-chemical control methods, such as
biological controls'" and cultural controls.'05 Similarly, integrated pest management
programs'06 could be used to control turf pests. In summary, the administrator determined that
the economic effect of cancellation of diazinon for turf grazes was insignificant because a number
of viable alternatives existed.
One of the issues in the decision was whether proposed label amendments were sufficient
to meet the requirements for continued use under FIFRA. FIFRA requires EPA to consider label
or use changes as an alternative to outright cancellation of a pesticide use.'07 However, the
administrator determined that there was no evidence that additional amendments would
significantly reduce the risks to acceptable levels.108 The administrator noted that additional
amendments would also reduce the benefits of the pesticide use, which were already outweighed
by the risks.'"9 Accordingly, the administrator declined to allow continued use subject to
additional label restrictions."0
FIFRA directs that EPA may issue a notice of intent to cancel if a pesticide "generally
causes unreasonable adverse effects on the environment.""' Petitioners asserted that


'03 Id. at 11126.

4 Id. at 11128. An example of biological control is the use of bacteria to eradicate a I
particular pest.

1os Id. An example of a cultural control is to reduce stress on the turf, thereby increasing i
the vigor and growth of the turf and making it more resistant to pests.
106 Id. Integrated pest management is the pest control practice of using biological control I
and other non-chemical methods in conjunction with minimal amounts of pesticides.
107 7 U.S.C. 136d(b) (1987). i

08 In re Ciba-Geigy Corp.. 53 Fed. Reg. 11119. 11130 (April 5, 1988).

109 Id.

io Id. I

"' 7 U.S.C. 136d(b) (1987). .


I










"generally" means that EPA may only issue a notice of intent to cancel if the pesticide use causes
such effects in more than 51 percent of the cases in which it is used."2 EPA rejected this
interpretation, stating that FIFRA makes it clear that unreasonable adverse effects on the
environment are prohibited regardless of whether such effects are caused most of the time.
Ciba-Geigy subsequently challenged EPA's interpretation of the term "generally" in Ciba-
Geigy Corp. v. U.S. EPA."' The court of appeals approved of the administrator's
interpretation that FIFRA allows the administrator to cancel registrations of pesticides whenever
he determines a pesticide commonly causes unreasonable risks, regardless of whether the
pesticide use actually causes adverse effects more than 50 percent of the time.114 The court
stated that the administrator need only determine that there is a significant probability that
adverse effects may occur."
The court of appeals declined to consider whether EPA's analysis and ultimate
determination of the relative costs and benefits of diazinon use were supported by substantial
evidence."6 However, the court remanded the case back to the administrator, indicating that
the administrator had failed to consider all of the substantive requirements of the term
"generally." Specifically, the court stated that "generally" requires that administrator determine
whether a particular pesticide application "creates unreasonable risks, though not necessarily
actual adverse consequences, with considerable frequency, and thus requires the administrator to
consider whether he has defined the application he intends to prohibit sufficiently narrowly.""7
In other words, the court felt that the administrator should reevaluate the scope of its ban on the
use of diazinon, paying particular attention to the court's elucidation of the statutory requirements
of the term "generally."



112 53 Fed. Reg. 11119. 11122 (April 5. 1988).

"3 874 F.2d 277 (5th Cir. 1989).

114 Id. at 278.

"5 Id. at 279.

116 Id. at 280.

117 Id.










Despite its holding remanding the decision back to EPA, the Ciba-Geigy court reaffirmed
much of the administrator's reasoning. EPA's interpretation of "generally" indicated that
cancellation of certain pesticide uses may be appropriate even though the adverse affects may be
limited to a particular geographic area or to the use of a particular'application technique.
Although the Ciba-Geigy court cautions against imposing too wide a ban on a pesticide use in
response to localized adverse effects, the court affirmatively endorses the concept of narrow bans
designed to alleviate specific instances of adverse effects.
In addition, EPA and the Ciba-Geigy court make it clear that "generally" does not
necessarily mean most of the time. Rather, "generally" may be interpreted as meaning that, in a
particular instance, there were unreasonable adverse effects "'with regard to the overall
picture.'""S This interpretation of "generally" could be of particular significance to mosquito
control activities in Florida, where application of a pesticide may cause adverse effects in one
geographic area but not in another. Similarly, a particular application technique, such as aerial
spraying may cause more adverse effects than ground applications.
On remand, EPA upheld its earlier decision to cancel diazinon use on golf courses and
sod farms."' EPA found that diazinon "causes an unreasonable risk to birds commonly and
with considerable frequency," and that regulatory alternatives short of cancellation would not
reduce risk to acceptable levels.'12 On remand EPA also reviewed the evidence and re-
considered the merits of Ciba-Geigy's proposed label amendments and found that: 1) there was
widespread and continuous risk to a number of bird species; 2) label amendments would not
sufficiently lower the risks, and 3) the benefits of continued use would be minimal."12 Of
particular interest is EPA's statement concerning what constitutes an unreasonable risk:
...the Agency's concern for wildlife is not limited to long-term adverse effects on
populations. Absent some countervailing benefit of continued use, as a matter of



18 874 F.2d 277, 279 (5th Cir. 1989), citing 53 Fed. Reg. 11119, 11122 (1988).

119 In re Ciba-Geigy Corporation, et al.. 55 Fed. Reg. 31138 (July 31. 1990).

120 Id. at 31138.

121 Id. at 31140. EPA determined the benefits were minimal because there were other
effective and less harmful pesticides available.


0










policy an unnecessary risk of regularly repeated bird kills will not be
tolerated.122
Throughout the case. Ciba-Geigy argued that cancellation of diazinon was warranted only if
diazinon posed an unreasonable risk to bird populations. EPA and the court disagreed, stating
that diazinon use did not have to "generally cause actual bird kills."1"' Instead, cancellation is
justifiable if diazinon "generally causes an unreasonable risk of bird kills.""2 The court of
appeals stated that
FIFRA gives the Administrator sufficient discretion to determine that recurring
bird kills, even if they do not significantly reduce bird population, are themselves
an unreasonable environmental effect.125
Accordingly, EPA rejected Ciba-Geigy's argument that bird populations had to be adversely
affected, stating that such a position is "inconsistent with this Agency's commitment to eliminate
unreasonable risks generally posed to individual birds, regardless of the effect on bird
populations. "26
The diazinon case is significant in several respects. Prior to this decision, successful
requests for cancellation of other pesticides had been based, at least partially, on a risk to human
health. However, the decision to cancel diazinon use on golf courses was based solely on the
fact that diazinon causes adverse impacts to birds. Another distinction between the diazinon case
and previous cancellation proceedings is that the arguments for continued use were not based on
benefits to public health programs or food programs. Rather, the arguments were based on
economics and the benefits of well groomed golf courses.
These distinctions are significant with regard to Florida's mosquito control programs.
The diazinon case is strong precedent for cancellation of pesticide uses which adversely effect
non-target wildlife and for which there are no public health or food production benefits. Much of
Florida's mosquito control spraying is similar in nature. While it is true that some mosquito


122 55 Fed. Reg. 31138. 31144 (July 31. 1990).

123 Id. at 31138.

124 Id.

125 874 F.2d 277. 280 (5th Cir. 1989).

126 55 Fed. Reg. 31138. 31145 (July 31. 1990).










control spraying is conducted for public health concerns, the majority of spraying is conducted to
eliminate nuisance biting mosquitoes. In addition, the court of appeals makes it clear that EPA
need not tolerate pesticide uses which pose an unreasonable risk to non-target species when the
adverse effects outweigh the countervailing benefits. FIFRA gives the administrator of EPA
considerable discretion to determine what constitutes an unreasonable risk. The diazinon case
indicates that pesticide uses in Florida which adversely impact non-target species and which are
conducted solely to control nuisance mosquitoes might be susceptible to a cancellation action, if
the adverse effects are determined to outweigh the economic benefits of control of nuisance
mosquitos.
b. Special Review of Dicofol
In its decision concerning the use of diazinon on golf courses and sod farms, EPA
determined that outright cancellation of those uses was the only acceptable solution. However, as
an alternative to outright cancellation of a pesticide use, EPA may consider altering the terms of
the registration, including, but not limited to, the pesticide's chemical composition, the label
requirements, and application techniques. In 1986, after conducting a Special Review of the
pesticide dicofol, EPA determined that certain changes in the existing registration would bring the
use of dicofol within an acceptable level of risk.'27
EPA initiated a Special Review of the miticide dicofol in 1984, amid concern that dicofol
and its contaminants (DDTr)"'2 were causing significant adverse effects to non-target wildlife.
In assessing the risks of dicofol use. EPA found that DDTr had adverse effects on various fish
and birds, and that dicofol may cause adverse effects in birds. EPA consulted with the Office of
Endangered Species (OES) and determined that continued use of dicofol would probably
jeopardize the existence of a number of endangered species of birds.129 EPA and OES


27 51 Fed. Reg. 19508 (1986).

128 At the time that the Special Review was initiated. Dicofol products were regularly
contaminated with DDT, DDE, and other closely related compounds. These compounds,
referred to collectively as DDTr. were thought to be the primary cause of the adverse effects
observed in relation to Dicofol use. 51 Fed. Reg. 19508 (1986).

129 51 Fed. Reg. 19508, 19509 (1986). The Office of Endangered Species found that
Dicofol use would probably jeopardize the existence of the peregrine falcon, brown pelican, bald
(continued...)

24


I










conclusions were derived from both field and laboratory studies. As part of their analysis, EPA
and OES evaluated the distribution of sensitive species to determine whether these species were
actually present in areas of high dicofol use.'30 EPA and OES found that there were one or
more highly sensitive species and several endangered species present in each of the areas of high
dicofol use. 13
EPA found a number of significant benefits to dicofol use. EPA found that dicofol,
unlike other miticides, was particularly selective, and consequently was favored for use in
Integrated Pest Management programs because it did not kill potentially beneficial non-target
insects.32 Similarly, because of its high selectivity and common use in Integrated Pest
Management programs, dicofol was determined to be a factor in prohibiting mite resistance to
pesticides.'33 In addition. EPA evaluated both the effectiveness of dicofol as compared to other
miticides, and the overall economic impact of removal of dicofol from the market.13 EPA
found that cancellation of dicofol would probably disrupt Integrated Pest Management programs.
accelerate mite resistance to other miticides, and cost producers of agricultural crops between 21
and 39 million dollars per year.





129 (...continued)
eagle, Everglade kite. wood stork, and Arctic peregrine falcon. 51 Fed. Reg. 19508. 19509
(1986).

130 Id. at 19512.

131 Id.

132 Id. at 19515. Less selective alternative miticides would probably kill non-target
beneficial insects which are essential components of many Integrated Pest Management (IPM)
programs. Accordingly, the effectiveness of the IPM programs would be reduced and more
alternative miticides would have to be applied. Id.

33 Id. at 19516. Repeated use of a particular class of pesticide can lead to accelerated insect
resistance to pesticides within that class. Dicofol was the last chlorinated hydrocarbon available
for use as a miticide. Cancellation of dicofol would probably result in increased use of other
miticides, thereby increasing the rate by which mites become resistant to the alternative miticides.
Id.

134 Id.


I










After balancing the risks and benefits of dicofol use, EPA determined that the risks of
dicofol use as currently formulated and regulated were unacceptable. However, as an alternative
to the outright ban of dicofol products, EPA suggested certain modifications to the registration.
Generally, EPA determined that continued use of dicofol would be acceptable if registrants
reduced the DDTr contamination in dicofol products to a specified level,"'35 and the label was
revised to address disposal and handling concerns.136
Several aspects of EPA's balancing of risks and benefits of dicofol use are particularly
significant with regard to mosquito control activities in Florida. First, EPA's final assessment of
risks was based solely on risks to birds and fish. Although EPA had initially determined that
dicofol use might be a potential human carcinogen, this view was rejected as non-verifiable by
both EPA and a Scientific Advisory Panel.'37 Second. despite significant benefits of dicofol
use, EPA determined that the risks to wildlife were too great to allow continued use without
restrictions. Undoubtedly, the existence of adversely effected endangered species contributed to
EPA's decision. Third, rather than imposing an outright ban on any future use of dicofol, EPA
attempted to design a creative remedy addressing environmental, agricultural, and economic
concerns.
C. Potential Legal Remedies Under FIFRA
1. Administrative Remedies
a. General
FIFRA directs that EPA provide an administrative mechanism for reevaluation of existing
pesticide registrations. Section 136d(b) provides that the administrator of EPA may change a
pesticide classification or cancel use of a pesticide if a pesticide or its labeling does not comply
with FIFRA, or if a pesticide "when used in accordance with widespread and commonly



135 Id. at 19517. In 1984. when EPA initiated Special Review. DDTr constituted roughly 10
percent of the composition of dicofol. In 1986, at the time EPA issued its final determination.
several manufacturers had amended their registrations to indicate DDTr constituted no more than
2.5 percent of dicofol. Under EPA's final determination levels of DDTr would initially have to
be equal to or less than 2.5 percent of dicofol's composition, and then equal to or less than 0.1
percent within two years. Id. at 19517.

136 Id. at 19517.

37 Id. at 19522-23.

26









recognized practice. generally causes unreasonable adverse effects on the environment."'38 If
the administrator determines that the pesticide poses an "imminent hazard during the time
required for cancellation or change of classification proceedings," he may suspend use of the
pesticide.'39 In the case of an emergency, the administrator may suspend use of a pesticide
prior to the notification and hearing requirement.'40 EPA orders concerning cancellation,
suspension, or some other change in classification are judicially reviewable in federal court.'14
b. Petition for Special Review
EPA Special Review procedures provide a mechanism for evaluating pesticide uses which
allegedly cause unreasonable adverse effects on the environment."4 Suspension and
cancellation actions are usually initiated through the special review process. The administrator
must first make an initial determination of whether to initiate a Special Review.'4 If the
administrator decides he may initiate a Special Review, he must notify affected registrants and
applicants and solicit their comments for a 30 day period.'" The administrator must then make
a final public announcement of whether to initiate Special Review.'45 If the administrator
proposes not to initiate Special Review. he must issue a proposed decision in the Federal Register


138 7 U.S.C.A. 136d(b).

'39 Id. 136d(c)(l). If EPA determines that suspension of a pesticide use is warranted, then
EPA must notify the registrant and include findings pertaining to the question of "imminent
hazard." Id. The registrant may request a hearing within five days of receipt of notification of a
suspension order. Id. 136d(c)(2). If a hearing is requested, EPA must commence the hearing
within five days of receipt of the request unless EPA and the registrant agree that it can
commence at a later time: Id. The hearing officer has 10 days from the completion of the
presentation of evidence to issue a recommended order. Id. EPA then has 7 days to render a
final order on the issue of suspension. Id.
140 7 U.S.C.A. 136d(c)(3).

141 Id. 136d(c)(4). 136d(h). 136n. A discussion of jurisdiction, standards of review.
causes of action, and standing begins on page 30 of this report.
142 40 C.F.R. Part 154 (July 1. 1991).

143 d.

44 Id. 154.21.

145 Id. 154.25.

27










and provide for public comment for 30 days.146 A decision not to initiate Special Review must
be accompanied with a statement of reasons and published in the Federal Register."7 A
decision to initiate Special Review must also be published in the Federal Register."4
If the agency decides to initiate a Special Review, it also will initiate a Current Benefits
Review. Although the Current Benefits Review is not considered in the decision of whether to
initiate Special Review, the review is used to assist the EPA in deciding whether to allow
continued use of the pesticide pending a detailed risk benefit analysis.149 In addition, the
Current Benefits Review is used by EPA in identifying potential regulatory options and in
preparing for a more detailed benefits analysis. 15
After the administrator issues notice of the decision to initiate a Special Review
proceeding, any person may comment on whether the pesticide use meets the risk criteria
necessary for initiation of a Special Review.'15 In addition, any interested person may request
a meeting with EPA to discuss matters relating to the Special Review proceeding.s'2 The
administrator may also conduct an informal public hearing to gather relevant information.'53
As part of its risk benefit evaluation, EPA evaluates potential risks by examining factors such as
the nature of any adverse effect. the magnitude of exposure of humans and other non-target









146 Id. 154.23.

"47 Id. 154.25(b).

148 Id. 154.25(c).

"49 50 Fed. Reg. 49004 (Nov. 27, 1985).

150 Id.

1" 40 C.F.R. 154.26 (July 1, 1991).

152 Id. 154.27.

153 Id. 154.29.


I










organisms, and the size of the population at risk.154 Data relating to these factors may be
supplied by the registrant, EPA, or any interested person.55
EPA evaluates benefits of continued use by assessing the availability, efficacy, and cost of
alternative control methods.'56 After the initial comment period the administrator must prepare
a notice of preliminary determination, which must set forth the facts the administrator used in
reaching a decision and include explanations of the decision."57 The administrator must also
request comments from the Secretary of Agriculture'58 and the Scientific Advisory Panel. 59
Finally, the administrator must prepare a notice of final determination which must include: a
discussion of the administrator's reasoning with respect to determinations about pesticide uses:
comments received from the Secretary of Agriculture and the Scientific Advisory Panel: the
administrator's responses to any significant public comments: and instructions to registrants,
j applicants, and other interested persons concerning future regulatory action.'60
The elaborate procedure required in Special Review proceedings reflects congressional
Desire that EPA carefully consider environmental, human, social, and economic benefits and costs
in evaluating pesticide uses. Review by the Secretary of Agriculture envisions adequate
evaluation of benefits and costs to the agricultural economy, while Scientific Advisory Panel
review envisions an unbiased scientific assessment of benefits and costs by the nation's leading



'4 50 Fed. Reg. 49004 (Nov. 27. 1985).

55 40 C.F.R. 154.21(b). 154.26. 154.27. 154.29 (July 1. 1991).

S156 Id.
157 40 C.F.R. 154.31 (July 1. 1991).

1f58 Id. 154.31(b). Referral to the Secretary of Agriculture enables the administrator to
more adequately analyze the impact of the proposed action on agricultural commodities, retail
food prices, and the agricultural economy. Id. 154.31(b)(2).

159 Id. 154.31(b)(3). The Scientific Advisory Panel consists of seven representatives
appointed by the administrator from a list of nominees nominated by the National Institutes of
Health and the National Science Foundation. The members are representatives from the
disciplines of toxicology, pathology, environmental biology, and related sciences. 7 U.S.C.A.
136w(d).
160 40 C.F.R. 154.33(b) (July 1. 1991).










scientists. In addition, comments are solicited from all affected and interested persons.
Ultimately, however, the decision of whether to initiate a Special Review proceeding and the
final outcome of a Special Review proceeding lie within the discretion of the EPA administrator.
2. Judicial Remedies
Several opportunities exist for persons to challenge EPA decisions under FIFRA and to
enforce various provisions of FIFRA in the Federal courts. Unfortunately, FIFRA provisions
addressing judicial review are somewhat confusing and unclear. The array of potential plaintiffs
and their stated causes of action and desired remedies further confuse standing issues. Generally,
potential plaintiffs attempting to bring suits under FIFRA can be either registrants, non-registrants
who participated in earlier proceedings, or non-registrants who did not participate in earlier
proceedings. Plaintiffs may be seeking to challenge an EPA decision concerning a pesticide. or
plaintiffs may be seeking an injunction against a third party's use of a pesticide. An examination
of pesticide cases provides some clarification as to how various factors affect judicial review
under FIFRA. This section discusses federal court jurisdiction, standards of review, causes of
action, and standing.
a. Jurisdiction and Standards of Review
FIFRA provides for district court review of agency orders which refuse to cancel or
suspend registrations or change classifications not following a hearing, and other final agency
orders not committed to agency discretion.'"' District courts may also enforce and prevent
violations of FIFRA.'12 FIFRA does not indicate the appropriate standard of review for these
types of actions. In the absence of an explicit statement of the appropriate standard of review by
the enabling statute, the standard of review under the Administrative Procedure Act (APA) is
determined by the nature of the agency action being reviewed by the court. Courts typically
apply the arbitrary and capricious standard when reviewing informal non-adjudicatory type
agency actions and the substantial evidence standard when reviewing formal adjudicatory type
agency actions.'63 FIFRA also provides for immediate federal district court review of any

I
161 7 U.S.C.A. 136n(a).

162 Id. 136n(c). I

63 B. SCHWARTZ. ADMINISTRATIVE LAW 10.7. 10.13 (2d ed. 1984).









suspension order entered prior to a hearing, to determine whether the agency action was
arbitrary, capricious, an abuse of discretion, or whether the order was issued in accordance with
procedures established by law."6
Agency orders entered after a public hearing may be challenged in federal circuit
court.16' In order to bring an action in circuit court, the following statutory conditions must be
met: 1) an agency order must have been issued after a public hearing, 2) an actual controversy
must exist as to the validity of the order, 3) there must be an adversely affected person, and 4)
the adversely affected person must have been a party to the proceedings.'66 Circuit courts
which review agency orders under FIFRA must sustain the order of the administrator if "it is
supported by-substantial evidence when considered on the record as a whole."''67 Challenges to
agency orders must be filed in the circuit court within sixty days of the entry of the order being
challenged. 16
Although FIFRA provisions provide guidance as to the jurisdiction of federal district and
circuit courts, there remains some confusion as to the appropriate forum for particular causes of
action. For example. Section 136n(a) provides that "final actions of the administrator not
committed to the discretion of the administrator by law are judicially reviewable by the district
courts of the United States." However. Section 136n(b) provides that courts of appeal may
review orders issued by the administrator following a public hearing which adversely affect any
person. These two provisions appear to grant concurrent jurisdiction for challenges of certain
agency actions or orders.



164 7 U.S.C.A. 136d(c)(4). Any registrant or interested person with registrant's
permission may request review by the district court. Under this provision, a district court is
limited to ordering a temporary stay of the suspension order until the Administrator makes a final
decision concerning cancellation. A temporary court order to stay an agency suspension order
does not prohibit action under any other administrative review proceedings authorized by FIFRA.
Id.
165 Id. 136n(b).

166 Id.

167 Id.

168 Id.

31


I










In Amvac Chemical Corporation v. U.S. Environmental Protection Agency, plaintiff
Amvac filed suit simultaneously in district and circuit court, challenging EPA's refusal to hold a
public hearing prior to publication of an amended notice of intent to cancel the registration of
dibromochloropropane, a nematode control pesticide. Defendant EPA moved to dismiss the suit
from district court, arguing that Congress intended for decisions regarding pesticide registrations
to be decided by the circuit courts. The court of appeals disagreed with EPA, stating that "a
decision not to hold a public hearing is not an order issued following a public hearing"'6 and
accordingly the agency decision canceling the registration "is not yet ripe for review" by the
circuit court.170 The court subsequently dismissed the petition from circuit court, holding that
district court was the appropriate forum. One commentator has suggested that there may be
overlapping jurisdiction in the district and circuit courts for certain FIFRA matters and that the
safest course is to file simultaneous suits in each of the two forums.'7'
b. Causes of Action and Standing to Restrain Violations of FIFRA
FIFRA, unlike most other federal environmental protection statutes, has no express
citizen's suit provision. FIFRA does provide detailed procedures for challenges to agency
decisions concerning pesticides, but does not provide for private actions against states or private
polluters. The legislative history surrounding FIFRA indicates that although Congress rejected an
express citizen's suit provision."7 it did want to encourage review of agency actions in the
federal courts.'73 Courts have consistently allowed challenges of final EPA orders regarding
suspension, cancellation, or reclassification of pesticide registrations.







'69 653 F.2d 1260. 1265 (9th Cir. 1981).

170 Id. at 1262.

171 See W. RODGERS. ENVIRONMENTAL LAW. PESTICIDES AND ToxIC SUBSTANCES 58
(1988).
172 S. Rep. No. 92-970, 92d Cong., 2d Sess. 4-5 (1972).

173 See W. RODGERS, ENVIRONMENTAL LAW, PESTICIDES AND TOXIC SUBSTANCES 5.7
(1988).


I









Standing for adversely affected citizens to challenge EPA final decisions was firmly
established in the early 1970s in the case of Environmental Defense Fund, Inc. v. Hardin.'74
In Hardin, plaintiffs, five environmental organizations, sought cancellation and suspension of
registration for all pesticides containing DDT. The court applied the "zone of interests" test, and
held that plaintiffs alleged injury of biological harm to man and other living things was sufficient
to meet the constitutional case and controversy requirement.175
In addition, the court held that plaintiffs met standing requirements under the
Administrative Procedure Act (APA) because plaintiffs were "aggrieved by agency action within
the meaning of the relevant statute."176 The court cited affirmatively earlier cases which
established that environmental groups may bring suits to protect the public interest.177
Hardin establishes that persons who are adversely affected by EPA decisions concerning
pesticides have standing to challenge those decisions in a Federal Court of Appeals. The court in
Hardin takes a broad view of FIFRA standing requirements, despite the absence of an express
citizen's suit provision. Clearly, Hardin encourages non-registrant parties to scrutinize and
challenge EPA's regulation of pesticides. The decision in Hardin was reaffirmed in a related
case. Environmental Defense Fund. Inc. v. Ruckelshaus.'78
The courts have generally allowed actions challenging EPA decisions regarding pesticides.
In addition, the courts have generally allowed suits by adversely affected persons against federal
agencies allegedly using pesticides in violation of FIFRA. Jurisdiction in these suits is often
based on the APA and FIFRA. Under Section 10 of the APA, persons adversely affected by





174 428 F.2d 1093 (D.C. Cir. 1970).

'7 Id. at 1096. citing Association of Data Processing Service Organizations v. Camp. 397
U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970): Flast v. Cohen. 392 U.S. 83. 88 S.Ct. 1942.
20 L.Ed.2d 947 (1968).
176 428 F.2d 1093. 1097 (D.C. Cir. 1970). The court stated that the "zone of interests" test
is equivalent to the APA test. Id. at 1097. n. 16.

177 Id. at 1097.

7' 439 F.2d 584. 590 (D.C. Cir. 1971).










federal agency action are entitled to judicial review of that action.179 Persons alleging they
have been adversely affected by a federal agency that is violating FIFRA are therefore entitled to
judicial review.
However, the courts have been reluctant to allow adversely affected parties to sue to
enjoin other users of pesticides, such as states and private parties, who are violating FIFRA.
Section 136n(c) of FIFRA states that "the district courts of the United States are vested with
jurisdiction specifically to enforce, and to prevent and restrain violations ... [of FIFRA]."'31
This provision, in combination with Section 10 of the APA, appears to allow suits to enjoin user
violations of FIFRA. However, use of this section has been limited to specific plaintiffs and
defendants. Section 136n(c) has been interpreted by reviewing courts to allow suits by EPA and
the United States Attorney General against any defendant.1" but citizens have only been
allowed to use this provision to obtain review of federal "agency actions" which allegedly violate
FIFRA. 82
Potential plaintiffs have -sought to invoke other statutes to establish jurisdiction under
FIFRA for actions to enjoin private parties or states which are allegedly violating FIFRA.
Several successful suits have been brought alleging that federal agency actions violate the
National Environmental Policy Act. because the agency actions result in violations of FIFRA
which should have been the subject of an Environmental Impact Statement.'8


179 5 U.S.C.A. 702.

130 7 U.S.C.A. 136n(c).

181 See People for Environmental Progress v. Leisz. 373 F.Supp. 589 (D. Cal. 1974)..
stating that enforcement of FIFRA is reserved for the U.S. Environmental Protection Agency and
the U.S. Attorney-General and does not extend to civil actions by private citizens.

182 See Kelly v. Butz, 404 F.Supp. 925 (W.D. 1975), holding that a state attorney general
may bring suit on behalf of the citizens of the state to enjoin FIFRA violations by a federal
agency. See also Sierra Club v. Peterson. 705 F.2d 1475 (9th Cir. 1983) and Oregon
Environmental Council v. Kunzman. 714 F.2d 901 (9th Cir. 1983), both holding that plaintiff
environmental groups could use Section 10 of the Administrative Procedure Act to challenge
federal agency spraying programs for allegedly violating FIFRA.

13 See Save Our Ecosystems v. Clark. 747 F.2d 1240 (9th Cir. 1984); Southern Oregon
Citizens Against Toxic Sprays. Inc. v. Clark. 720 F.2d 1475 (9th Cir. 1983). cert. denied 469
U.S. 1028, 105 S.Ct. 446, 83 L.Ed.2d 372 (1984).


i










Several suits have been brought alleging jurisdiction through the Declaratory Judgement
Act and FIFRA. The Declaratory Judgment Act states that "in a case of actual controversy
within its jurisdiction ... any court ... may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be
sought."'84 This provision has been uniformly interpreted to allow actions only when there is a
separate basis for jurisdiction.'" Several cases have held that FIFRA does not provide a basis
for jurisdiction when a private party is suing to enjoin an unlawful pesticide user that is not a
federal agency. 18
Private plaintiffs have also attempted to use Section 1983 to challenge state spraying
programs. In Almond Hill School v. U.S. Department of Agriculture,'7 plaintiffs argued that
a private cause of action exists through 42 U.S.C. 1983 to enforce provisions of FIFRA.'88
On review, the circuit court held that plaintiffs were barred from pursuing private enforcement of
FIFRA through section 1983."' The court reviewed the legislative history of FIFRA and
found that remedial devices were "sufficiently comprehensive" to suggest that private causes of
action were not part of the legislative scheme.
Private plaintiffs may also bring actions against federal agencies for procedural violations
of the APA. In Defenders of Wildlife v. Administrator. Environmental Protection Agency,
plaintiffs sought an injunction to prohibit the continued above-ground use of the pesticide
strychnine. Plaintiffs asserted that the EPA's actions were arbitrary and capricious within the
meaning of the APA because EPA had violated APA procedural requirements.




184 28 U.S.C.A. 2201(a).

185 Fielder v. Clark. 714 F.2d 77. 77 (9th Cir. 1983): Skelly Oil Co. v. Phillips Petroleum
Co., 339 U.S. 667. 671-74 (1950).
186 Fielder v. Clark, 714 F.2d 77, 79 (9th Cir. 1983): In re "Agent Orange" Product
Liability Litigation. 635 F.2d 987, 991-92 n. 9 (2d Cir. 1980).
187 768 F.2d 1030 (9th Cir. 1985).

188 Id. at 1033.

189 Id. at 1039.

35











The Defenders of Wildlife court ultimately held that EPA actions were arbitrary and
capricious and not in accordance with law because EPA failed to follow proper APA procedure.
The court stated explicitly that the strychnine registration process is governed by the APA.
despite the existence of FIFRA judicial review provisions. The court characterized the EPA
administrative action as informal rulemaking which was subject to judicial review under the APA
absent "legislative intention to preclude review."190 Under the APA, the standard of review for
informal rulemaking is whether the action is arbitrary and capricious and in accordance with law.


Table 1. Potential Causes of Action under FIFRA for an Injunction to Prohibit Unlawful
Pesticide Use

Plaintiff Defendant Does Viable C/A Exist?

EPA Any User Yes'

U.S. Attorney Any User Yes'
General

State Attorney Any User Yes'
General

Citizens Federal Yes2
Agency

Citizens Users other than No3
Federal Agency


Basis for C/A:
S Action under 7 U.S.C.A. 136n(c) and 7 U.S.C.A. 1361. and APA
2 Action under Section 10 of APA and FIFRA, APA and NEPA
3 Action under APA. FIFRA. Declaratory Judgment Act, and Section 1983


190 Id. at 1347.


I









II. The Federal Clean Water Act
The second federal enactment with potential application is the Clean Water Act (CWA).
The CWA regulates toxic substances by establishing effluent limitations for some of these
substances and requiring that the best available technology economically achievable be applied to
control sources.191 However, permitting requirements under the CWA for toxic substances and
other pollutants apply only to discharges of pollutants.192 A "discharge of a pollutant" is
defined as any addition of a pollutant to waters from any point source.'9
Point sources are defined as any "discernible, confined, discrete conveyance, including
but not limited to any pipe, ditch ... from which pollutants are... discharged."194 It is unclear
whether aerial applications of pesticides which are deposited in water meet the statutory definition
of a point source. EPA currently does not require mosquito control operations to obtain point
source pollution permits.
The CWA does require states to establish Water Quality Standards for state waters."95
States have addressed toxic pollutants in their water quality standards but violations and lack of
regulatory mechanisms to enforce these standards are widespread.196


III. The Federal Toxic Substances Control Act
The Federal Toxic Substances Control Act (TSCA)197 regulates the manufacture of a
variety of new and existing chemical substances.'" EPA has the power to forbid the
manufacture of both new and existing chemicals that studies have shown present an unreasonable


19' 33 U.S.C.A. 1317.
192 Id. 1342(a)(1).

193 Id. 1362(12).

194 Id. 1362(14).

195 Id. 1313.

196 W. RODGERS, 2 ENVIRONMENTAL LAW. AIR AND WATER 245-52 (1986).

197 15 U.S.C.A. 2601 2654 (1988).

'98 Id. 2601.









II. The Federal Clean Water Act
The second federal enactment with potential application is the Clean Water Act (CWA).
The CWA regulates toxic substances by establishing effluent limitations for some of these
substances and requiring that the best available technology economically achievable be applied to
control sources.191 However, permitting requirements under the CWA for toxic substances and
other pollutants apply only to discharges of pollutants.192 A "discharge of a pollutant" is
defined as any addition of a pollutant to waters from any point source.'9
Point sources are defined as any "discernible, confined, discrete conveyance, including
but not limited to any pipe, ditch ... from which pollutants are... discharged."194 It is unclear
whether aerial applications of pesticides which are deposited in water meet the statutory definition
of a point source. EPA currently does not require mosquito control operations to obtain point
source pollution permits.
The CWA does require states to establish Water Quality Standards for state waters."95
States have addressed toxic pollutants in their water quality standards but violations and lack of
regulatory mechanisms to enforce these standards are widespread.196


III. The Federal Toxic Substances Control Act
The Federal Toxic Substances Control Act (TSCA)197 regulates the manufacture of a
variety of new and existing chemical substances.'" EPA has the power to forbid the
manufacture of both new and existing chemicals that studies have shown present an unreasonable


19' 33 U.S.C.A. 1317.
192 Id. 1342(a)(1).

193 Id. 1362(12).

194 Id. 1362(14).

195 Id. 1313.

196 W. RODGERS, 2 ENVIRONMENTAL LAW. AIR AND WATER 245-52 (1986).

197 15 U.S.C.A. 2601 2654 (1988).

'98 Id. 2601.










risk to health or the environment."' However, pesticides are expressly exempted from
regulation under TSCA.2'o


IV. The Endangered Species Act
The Endangered Species Act of 1973 (ESA)201 prohibits takings of threatened or
endangered species. The use of mosquito control pesticides which harm threatened or
endangered species may be a violation of the ESA. The following section discusses the
requirements and prohibitions of the ESA and its regulatory programs, and identifies potential
causes of action under the ESA regarding mosquito control pesticides which adversely affect
threatened or endangered species.
A. General Statutory Scheme
The ESA mandates the protection of fish, wildlife, and plants that are "endangered or
threatened" species as defined in the Act.202 Endangered species are those that are in danger of
extinction throughout all, or a significant portion of their range.203 Threatened species are
those that are likely to become endangered throughout all, or a significant portion of their range
in the foreseeable future.2" The Act provides for the creation of a list of endangered species
and a list of threatened species.20s The Secretary must consider the following factors in
determining whether a species is endangered or threatened: 1) present or threatened modification
of its habitat or range: 2) overutilization for commercial, sporting, scientific, or educational
purposes: 3) disease or predation: 4) inadequacy of existing regulatory mechanisms: and 5) other





199 Id. 2605.

200 Id. 2602(2)(B)(ii).

201 16 U.S.C.A. 1531 1544.

202 Id. 1531.

203 Id. 1532(6).

204 Id. 1532(20).

205 Id. 1533(c)(1).


I










risk to health or the environment."' However, pesticides are expressly exempted from
regulation under TSCA.2'o


IV. The Endangered Species Act
The Endangered Species Act of 1973 (ESA)201 prohibits takings of threatened or
endangered species. The use of mosquito control pesticides which harm threatened or
endangered species may be a violation of the ESA. The following section discusses the
requirements and prohibitions of the ESA and its regulatory programs, and identifies potential
causes of action under the ESA regarding mosquito control pesticides which adversely affect
threatened or endangered species.
A. General Statutory Scheme
The ESA mandates the protection of fish, wildlife, and plants that are "endangered or
threatened" species as defined in the Act.202 Endangered species are those that are in danger of
extinction throughout all, or a significant portion of their range.203 Threatened species are
those that are likely to become endangered throughout all, or a significant portion of their range
in the foreseeable future.2" The Act provides for the creation of a list of endangered species
and a list of threatened species.20s The Secretary must consider the following factors in
determining whether a species is endangered or threatened: 1) present or threatened modification
of its habitat or range: 2) overutilization for commercial, sporting, scientific, or educational
purposes: 3) disease or predation: 4) inadequacy of existing regulatory mechanisms: and 5) other





199 Id. 2605.

200 Id. 2602(2)(B)(ii).

201 16 U.S.C.A. 1531 1544.

202 Id. 1531.

203 Id. 1532(6).

204 Id. 1532(20).

205 Id. 1533(c)(1).


I









natural or human-made factors affecting its continued existence.206 The Secretary of the
Interior may add or subtract species from the list depending upon the status of the species.207
Section 9 of the ESA protects these species by making it illegal to take endangered or
threatened species.208 The term "take" means to "harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such conduct."209 The U.S. Fish
and Wildlife Service has by regulation defined "harm" to "include habitat modification or
degradation where it actually kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding or sheltering. "21 Clearly, the poisoning of an
endangered species with a mosquito pesticide would meet the definition of "take."
Another form of protection for listed species is the development and implementation of
recovery plans by the Secretary of the Interior."2 The Secretary must create a recovery plan
unless he finds that a plan will not promote the conservation of the species.212 The Secretary.
when developing and implementing recovery plans, must give priority to endangered or



206 Id. 1533(a)(l)(A)-(E).

207 Id. 1533(c). The Secretary must consider the factors and follow the procedures in
Sections 1533(a) and 1533(b) of the ESA when deciding whether to add, remove, or reclassify a
species. Id. In addition, the Secretary must review all species on the lists at least once every
five years to determine whether the status of the species should be changed. Id. 1533(c)(2).

208 Id. 1538(a)(1)(B). In addition to the prohibition on taking endangered species, the ESA
makes it illegal, except with regard to fish or wildlife held for noncommercial purposes prior to
the effective date of the ESA, to import or export endangered species within the United States or
Territorial Seas of the United States, to take endangered species upon the High Seas. to sell or
offer for sale any endangered species in interstate or foreign commerce, to possess, sell, deliver.
carry, transport, or ship any species taken in violation of the ESA. or to engage in any trade in
specimens or to possess any specimens in violation of the Convention on International Trade in
Endangered Species of Wild Fauna and Flora. See Annotation. Validity, Construction, and
Application of the Endangered Species Act of 1973 (16 U.S.C.S. 1531-1543), 32 A.L.R. 332.
340-342 (1989).

209 16 U.S.C.A. 1532(19).

210 50 C.F.R. 17.3 (July 1. 1991).

211 16 U.S.C.A. 1533(t)(1).

212 Id.










threatened species which are most likely to benefit from a recovery plan, and which are
threatened by construction, other development projects, or other forms of economic activity.23
Recovery plans must include: 1) site-specific management actions which are necessary to ensure
the conservation and survival of the species: 2) objective, measurable criteria to measure the
success of the plan; and 3) estimates of the time and cost to achieve the plan's goal.2" Also.
in a further effort to protect threatened and endangered species, the ESA provides the Secretary
of the Interior with the power to acquire land in order to establish and implement a program to
conserve endangered plants, fish and wildlife.215
Section 7 of the ESA requires that federal agencies must abide by the prohibitions
contained in the ESA and carry out programs for the conservation of threatened and endangered
species.26 Federal agencies must also consult with the Secretary of the Interior and insure that
actions authorized, funded, or carried out by the agencies do not jeopardize the continued
existence of threatened or endangered species, nor result in destruction or modification of the
habitats of such species.217 After initiating the consultation required under this section, an
agency or permit applicant may not make any "irreversible or irretrievable commitment of
resources...which has the effect of foreclosing the formulation or implementation of any
reasonable and prudent alternative measures."218 The restrictions of this section extend to
actions with direct or indirect effects on endangered or threatened species, or their habitat.
The Environmental Protection Agency (EPA) is the federal agency that is responsible for
the registration of pesticides for use in the United States. The duty under Section 7 to ensure that
agency actions do not jeopardize listed species extends to licensing activities, such as the





213 Id. 1533(t)(1)(A).

214 Id. 1533(f)(B).

215 Id. 1534(a).

216 Id. 1536(a)(l).

217 Id. 1536(a)(2).

213 16 U.S.C.A. 1536(d).


z










registration of pesticides by EPA.21 Accordingly, EPA must ensure that its actions regarding
pesticide registrations do not harm listed species.22 Approval of registration of a pesticide that
is likely to harm endangered or threatened species would probably be a violation of the ESA.22
However, it might be difficult to prove harm prior to registration and subsequent use of the
pesticide. A more likely scenario would be to use evidence that the current use of a particular
pesticide is adversely affecting listed, threatened or endangered species, to prevent the EPA from
re-registering the pesticide, or to prompt the EPA to suspend or cancel a pesticide already in use.
The ESA directs the Secretary of the Interior to cooperate with the states to the maximum
extent practicable.222 This involves allowing the states to: 1) manage programs for the
protection of threatened and endangered species pursuant to a cooperative agreement with the
federal government, 2) manage areas established for the conservation of endangered species. 3)
adopt import and export laws concerning endangered species so long as there is no conflict with
federal law, and 4) make other laws protecting endangered species that are stricter than those
found in the ESA.223
The ESA provides sanctions for violations of the Act, including civil penalties, forfeiture.
fines, and imprisonment.22 In addition, the ESA provides for citizen's suits against any
person, including any local, state, or federal government or agency, to enjoin actions that would
violate the ESA.225 The Secretary and the alleged violator must be given written notice sixty
days prior to the commencement of any action under the citizen's suit provision.226 The ESA



219 Part III. Environmental Protection Agency. Endangered Species Protection Program:
Notice of Proposed Program. 54 Fed. Reg. 27.984 (1989).

220 Id.

221 See notes 268 270 and accompanying text.

222 16 U.S.C.A. 1535(a).

223 Id. 1535(a)-(d).

224 Id. 1540(a)-(d).

225 Id. 1540(g).

226 Id. 1540(g)(2)(A)(i).

41


I ,











also mandates that the Secretary of the Interior or the Secretary of Commerce enforce the Act to
prevent the taking of threatened or endangered species.227 There are, however, exceptions
from the prohibitions of the ESA that are allowed at the discretion of the Secretary."'
B. Endangered Species Protection Program
The EPA is charged with implementing and enforcing the ESA. The EPA has created a
program which attempts to minimize the adverse effects of pesticides on threatened and
endangered species.
1. Purpose
Section 7 of the ESA requires all federal agencies to insure that actions authorized.
funded or carried out by such agency will not be "likely to jeopardize the continued existence" of
a listed species or to result in the destruction or adverse modification of the critical habitat of a
listed species.229 This mandate applies to the registration of pesticides by the EPA. Therefore.
EPA must ensure, as part of the registration process, that pesticides do not adversely affect
threatened or endangered species. In an effort to comply with the Endangered Species Act. the
EPA has implemented a program called the Endangered Species Protection Program (ESPP).23
The ESPP is a pesticide labeling program enacted to protect threatened and endangered species
from pesticides, while allowing for the continuation of agricultural food and fiber commodity
production."2







227 Id. 1540(e)(1).

228 Id. 1539(a)-(j). Exceptions at the Secretary's discretion include: undue economic
hardship (one year only). Alaska natives if for subsistence purposes. pre-Act endangered species
parts, antique articles greater than 100 years of age composed in whole or in part from
endangered species, and experimental populations.

229 16 U.S.C.A. 1536(a)(2).

230 Part III, Environmental Protection Agency, Endangered Species Protection Program:
Notice of Proposed Program. 54 Fed. Reg. 27,984 (1989).

231 Id. at 27.984.


M









2. History
The ESPP started in 1982 as a case-by-case approach with the EPA conducting
consultations in response to requests for registration of individual pesticides.232 This approach
was slow. often did not consider older and more toxic pesticides, and fostered market inequity
among registrants of different pesticides for the same uses. The case-by-case approach resulted
in the inadequate protection of listed species.233
In order to rectify the situation, the EPA in cooperation with the U.S. Fish and Wildlife
Service (USFWS), developed the "cluster" approach to conducting consultations. All pesticides
registered for the same use pattern were to be addressed at the same time. Each pesticide in a
cluster was evaluated independently for its toxicity and expected exposure to threatened and
endangered species. The individual evaluations were grouped together and referred to the
USFWS for consultation as a cluster. This approach accelerated the review of a larger number
of pesticides that could affect threatened and endangered species, treated new and old pesticides
alike, and eliminated market inequities by reviewing pesticides with similar uses as a single
group.234
The cluster approach, however, had several problems associated with it. First, the EPA
encountered difficulties in obtaining accurate maps and map information for its county-specific
Pesticide Use Bulletins. These bulletins were to contain habitat maps and descriptions of
pesticide use limitations within the habitat of threatened and endangered species, and were to
supplement pesticide product labeling. Second, the EPA received numerous suggestions from
other federal agencies, states, and users regarding the overall cluster approach that might be
incorporated into the plan. or perhaps into a new plan. Third. lack of public participation in the
formation of the program caused great criticism. These factors prompted the EPA to conclude
that more time was necessary to develop the ESPP.235




232 Id. at 27.985.

233 Id.

234 Id.

235 Id.










3. The Current ESPP
The EPA began implementing the current version of the ESPP in January of 1991."6
The new ESPP was created to fulfill two objectives: 1) to provide the best protection for
endangered species by developing a species-based approach to biological consultation, focusing
on the endangered species themselves rather than on clusters of pesticide use sites, and 2) to be
responsive to the needs of agricultural production in this country by developing a program that
can be readily implemented without an unnecessary burden on pesticide users.237
EPA is beginning the new the new species-based program by determining which listed
species are in the most need of protection. Endangered species are being ranked according to
their status, vulnerability to pesticides, and other pertinent factors."8 The EPA, with the
assistance of the USFWS, will identify: the counties in which each of the ranked species are
located: the agricultural crops and other pesticide use sites that are in the county; and the
pesticides registered for use on those sites. For each pesticide that is identified, the EPA will
evaluate all possible uses to determine those that "may affect" listed species."39 The EPA will
determine the threshold (lowest) application rate on the pesticide label that "may affect"
endangered species. This rate will then be used to evaluate all uses of a particular pesticide.
EPA will then request a consultation from the USFWS for those pesticide uses that result in "may
affect" determinations.240 Consultation with the USFWS is limited to specific application rates


236 Id. at 27.991.

237 Id. at 27.988. The program attempts to ease implementation burdens by creating refined
maps, by developing threshold application rates, and by considering different exposures resulting
from various application methods when determining whether a pesticide "may affect" endangered
species.

238 Id. at 27.988.

239 In evaluating "may affect" determinations, the EPA will take into account, to the extent
the information is available: validated toxicity data; newer, more precise mathematical systems
models; and information on exposure and other aspects of exposure such as application methods.
timing, and species biology. Often, pesticide threats to endangered species are from acute
toxicity from direct exposure. However, "may affect" determinations may be made on the basis
of secondary toxicity; cumulative, reproductive, or chronic effects: or effects on habitat or food
supply. Id. at 27.989.

240 Id. at 27,988.










that "may affect" endangered species. Application rates which fall below the threshold
application rate will not be part of the consultation request.24 This procedure allows the
USFWS to include all species that may be affected by pesticides that are referred to them.
Subsequent consultations will focus on the next group in the species ranking and their
associated pesticides until all species and pesticides have been reviewed. When all species and
pesticides have been reviewed, additional consultation will occur on a case-by-case basis
depending on the receipt of new information, registration applications, or listing of new
species.242
4. Public Comment
The EPA will provide notice to the public thirty (30) days prior to initiating consultation
with the USFWS. The notice will identify the pesticides. use sites, species evaluated, and will
summarize the "may affect" determinations. Submission of information or scientific data early in
the process by concerned citizens, users, states, and other federal agencies, will help the EPA in
making its "may affect" determinations. The EPA will also review its preliminary "may affect"
determination if a pesticide registrant applies for an amendment to the registration that is based
on reducing or nullifying the effects of a pesticide on endangered species.243 This provision
encourages identification of additional reasonable and prudent actions that will protect
endangered species while minimizing the limitations on pesticide use.2'
5. Consultation
After the thirty day period, consultation with the USFWS begins. At this time the EPA.
the USFWS, and the U.S. Department of Agriculture (USDA) exchange information on
exposure. work to identify relationships between species and pesticide use sites, and attempt to
identify modifications of use which could be used as reasonable and prudent actions to protect



241 Id.

242 Id.

243 For example, a registrant might show elimination of high exposure use patterns or
modification of application rates that reduce exposure to endangered species.

2" Part III. Environmental Protection Agency. Endangered Species Protection Program:
Notice of Proposed Program. 54 Fed. Reg. 27.989 (1989).

45











listed species.2'4 The final result will be a Biological Opinion (BO) developed by the USFWS.
The BO will contain currently occupied habitat maps and habitat descriptions. This information
will be available to the public for comment prior to adoption of regulations. The EPA will then
address new problems, implement viable actions, or reinitiate consultation with the USFWS if
necessary.246 It is important to note that not all pesticides that EPA refers to the USFWS via a
"may affect" determination will necessarily be found by the USFWS to cause jeopardy to a
species or result in reasonable and prudent measures to reduce incidental take. The jeopardy
opinion can be based on an assessment of whether a species will actually be exposed to the
pesticide in question.247
6. Implementation
EPA will institute the new species-based program in several phrases: 1) the "catch-up"
phase during which the EPA will reinitiate consultation to update existing BO's. including those
generated from the cluster approach consultations, to incorporate newly listed species, all uses.
and additional information now available on the pesticides involved; 2) the "additional
consultations" phase during which EPA will use the new species-based approach to evaluate all
remaining registered pesticides: and 3) the "maintenance" phase during which the EPA will
maintain ongoing compliance with the ESA by evaluating registration actions for new pesticide
uses and referring those that exceed the "may affect" criteria to the USFWS.248
The EPA will implement the new species-based ESPP through pesticide labeling that will
refer users to, and require compliance with, county-specific bulletins rather than listing all
affected counties on the label. Because the label statement is generic and counties will not be
listed, registrants will not need to change their product labels whenever use limitations are
extended to new counties or rescinded in currently listed counties. Label changes will be
necessary only if the reasonable and prudent actions specified in a BO are rescinded for all uses




245 Id.

246 Id.

247 Id.

248 Id. at 27.989-90.


I









of a product.249 The EPA will also refine habitat maps and identify reasonable and prudent
actions to mitigate jeopardy and anticipated incidental take. When modifications in pesticide use
are necessary to protect a threatened or endangered species, the product registrant will be
instructed that in order to remain in compliance with FIFRA, the product label must be modified
to inform the user that the product can only be used in compliance with a county bulletin.250
The county bulletins will contain a county map showing the geographic area associated
with each threatened or endangered species and general information pertaining to the protection
of listed species. In addition, the county map will identify the pesticides that may harm these
species and describe the use limitations necessary to protect them. If a county has no use
limitations the bulletin will state that use of the pesticide according to label directions is
appropriate. All bulletins will contain an address to which a pesticide user or other interested
party may direct comments.25 Bulletins will be updated no more than once a year.252
Technically valid information received by the EPA may be used to reinitiate consultation with the
USFWS.253
7. State Plans
States affected by the ESPP may develop a state-initiated plan for protecting threatened
and endangered species from pesticides.254 State plans are submitted to the EPA for review and
approval.255 subject to consultation with the USFWS to determine if the provisions of the plan
constitute reasonable and prudent actions to protect endangered species. If approved. EPA will



249 Id. at 27,991.

250 Id. at 27.990.

251 Persons may make suggestions for improving the information contained in the bulletins,
pertinent technical information, and suggestions for less stringent but equally protective
reasonable and prudent alternatives to the use limitations.
252 Part III, Environmental Protection Agency. Endangered Species Protection Program:
Notice of Proposed Program, 54 Fed. Reg. 27,991 (1989).
253 Id. at 27,990.

254 Id. at 27.991.

255 States may submit plans to EPA at any time. Id.










adopt the state plan and issue bulletins that require users to comply with the restrictions of the
plan.256 All federal programs are in effect until a state plan is approved.
The only complete exemption to the requirements of the ESPP is the indoor use of
pesticide products.27 Public health emergencies may also constitute an exemption, but only
during the period of the emergency.258
8. Enforcement
Enforcement of the pesticide use limitations imposed by the ESPP will be carried out
under the misbranding259 and misuse260 provisions of FIFRA. Products found to be
misbranded may be subject to cancellation.261 Also. the USFWS may take enforcement action
under the ESA if a person harms an endangered species through pesticide use or any other
means.262 unless the USFWS has provided for an incidental take.263 States with primary
enforcement responsibility under FIFRA will enforce the ESPP through existing cooperative
enforcement agreements with EPA. Otherwise, enforcement will remain with EPA.



256 Id. at 27.991.

257 Id.

258 Under section 18 of FIFRA (40 C.F.R. Part 166), a state or federal public health agency
may request that the EPA grant an emergency exemption for a public health emergency or utilize
the crisis provision (40 C.F.R. 166.50), if a state or federal agency can demonstrate that: 1) an
emergency, non-routine condition exists that requires the use of a pesticide; 2) effective
registered pesticides or alternative practices are not available or economically or environmentally
feasible; and 3) the situation will present significant risks to human health.
259 7 U.S.C. 136j(a)(1)(E). Products which do not carry the required label language to
protect threatened and endangered species are misbranded.
260 7 U.S.C. 136j(a)(2)(G).

261 Part III, Environmental Protection Agency. Endangered Species Protection Program:
Notice of Proposed Program, 54 Fed. Reg. 27.992 (1989).
262 Id. See also. 16 U.S.C.A. 1540(e)(1), authorizing the use of other federal agencies
for enforcement of the ESA.
263 Under Section 10 of the ESA the secretary may issue permits allowing incidental takings
of endangered and threatened species, provided that the applicant submits an acceptable
conservation plan. 16 U.S.C.A. 1539 (1989).










9. Critique of the Endangered Species Protection Program
The ESPP under the "cluster" approach has been criticized for a number of reasons,
several of which may also hinder the effectiveness of the new species-based approach.26 First.
it is difficult to get adequate data regarding certain pesticides because of product marketing and
trade secret considerations. Second, it is difficult to obtain adequate data demonstrating that the
application of a particular pesticide to an endangered species or its habitat actually causes harm.
Third, there is a serious lack of sophisticated data on pesticide application, specifically, "how
much goes where." At this time, it would appear that any attempt to apply such information to
an assessment is purely speculative. These factors make it difficult, if not impossible, to quantify
the effects of a pesticide on threatened and endangered species when the data used to assess the
situation is either non-existent, difficult to obtain, or is purely speculative. One solution would
be to fund more research in these areas, thus supplying information to make future assessments
more accurate.
It is only fair to point out that the EPA. in switching from a case-by-case method of
analysis to the cluster approach, has significantly increased the efficiency of its review process.
The cluster approach allowed a greater number of pesticides to be reviewed at a much faster rate
than before. The new species-based approach falls prey to the same criticisms as noted above.
but it is far better that pesticides are being assessed in this manner than to curtail all analysis
because of poor data.
C. Opportunities for Judicial Review
There have been a number of decisions favoring the application of the ESA to block the
actions of persons, businesses, and federal agencies that were detrimental to listed, threatened or
endangered species.'" To date, no cases have dealt specifically with mosquito pesticides.


64 See Part III. Environmental Protection Agency, Endangered Species Protection Program:
Notice of Proposed Program. 54 Fed. Reg. 27.984. 27.985 (1989).
265 See. Wildlife Federation v. Coleman, 400 F.Supp. 705 (D.Miss. 1975) holding that
where the Federal Highway Administration had been found to have breached its duties under
7 of the ESA by authorizing and funding construction of a highway through the critical habitat of
an endangered species of bird, the state agency doing the construction was subject to an
injunction brought against the federal agency until it brought the highway project into compliance
with 7: People v. K. Sakai Co., 56 Cal. App. 3d 531 (1976) where the court stated that the
(continued...)

49


I










However, in Defenders of Wildlife v. Administrator. Environmental Protection Agencv 25 the
ESA was used to enjoin the EPA's registration of a pesticide that was adversely affecting a listed.
threatened or endangered species.
In Defenders, environmental organizations brought suit against the EPA, challenging the
continued registration of strychnine pesticides and rodenticides for above-ground use. The court
held that the environmental organizations could maintain a suit under the citizen suit provision of
the ESA, even if an incidental result of a successful suit would be'a cancellation of a pesticide
registration, because the ESA citizen suit provision expressly provides a private right of
action. 67 The court also held that continued registration of the strychnine pesticides resulted in
a prohibited "taking" because endangered species (black-footed ferret) had directly or indirectly
ingested strychnine bait and had died as a result.268 The Defenders of Wildlife had submitted
to the EPA information that they had compiled on poisonings of threatened and endangered
species, the so called "Kill Book."269 This type of proof, it appears, helped persuade the court
that the continued registration of strychnine pesticides was effecting a "taking" of listed,
threatened or endangered species. If the EPA had obtained an incidental taking statement from
the USFWS prior to the taking of endangered species, then the strychnine registration would not
have constituted a taking.270 Finally, the court held that the environmental organizations could


265 (...continued)
ESA is a constitutional exercise of the police power since protection of endangered species of
wildlife is a matter of general concern and in the interest of the public.
266 882 F.2d. 1294 (8th Cir. 1989), aff'g, 700 F. Supp. 1028 (D. Minn. 1988), 688 F.
Supp. 1134 (D. Minn. 1988).
267 882 F.2d 1294, 1298 (8th Cir. 1989): See 16 U.S.C.A. 1540 (g)(1) (1990).

268 882 F.2d 1294. 1301 (8th Cir. 1989).

269 Id. at 1298.

270 Id. See 16 U.S.C. 1536(b)(4),(o)(2): 50 C.F.R. 402.14(g)(7),.14(i) (1987). EPA
may issue incidental take permits to federal agencies if, after consultation, the EPA determines
that the agency action "is not likely to jeopardize the continued existence of any endangered or
threatened species or result in the destruction or adverse modification of [critical] habitat of such
species." 16 U.S.C. 1536(a)(2),(b)(4). Applicants for incidental take permits must propose a
conservation plan which minimizes and mitigates the impacts of takings. Id. 1536(b)(4).









not maintain their claims under the Bald and Golden Eagle Protection Act (BGEPA) and the
Migratory Bird Treaty Act (MBTA), because neither the BGEPA nor the MBTA provides a
private right of action.27' Although Section 704 of the APA provides for review of "final
agency action for which there is no other adequate remedy in a court ...,"272 the court held that
use of this provision was precluded because FIFRA provides for judicial review.273
D. Conclusions
The ESA prohibits activities which result in "takings" of endangered or threatened
species. The term "takings" includes most activities which result in harm to endangered or
threatened species. It is important to note that a taking may occur in the absence of direct
physical injury. A taking occurs when a challenged action has "some prohibited impact on an
endangered species."274 For example, a prohibited impact can take the form of allowing an
endangered species' critical habitat to be adversely affected when no direct physical damage is
being done to the species.27 Acts which result in significant habitat modification or
degradation which "actually kills or injures wildlife by significantly impairing essential behavioral
patterns, including breeding, feeding or sheltering" are defined as takings.276 These examples
illustrate that taking includes actions that directly or indirectly result in injury or death.
Spraying of mosquito control pesticides which results in direct or indirect harm to
endangered or threatened species would probably be a violation of the taking prohibition
contained in the ESA. Mosquito control applications which caused direct mortality of endangered



271 882 F.2d 1294, 1298 (8th Cir. 1989).

272 5 U.S.C. 704 (1982).

273 882 F.2d 1294. 1302, 1303 (8th Cir. 1989).

274 Palila v. Hawaii Dep't. of Land and Natural Resources. 639 F.2d 495. 497 (9th Cir.
1981). In this case, the state's maintenance of sheep and goats in critical habitat of an
endangered species, causing destructive impact on the species, was found to be a taking under the
ESA.

275 Sierra Club v. Lyng. 694 F.Supp. 1260. 1268-72 (E.D.Tex. 1988). In this case, the
United States Forest Service's tree-cutting practices harmed the habitat of an endangered species
thus constituting a taking under the ESA.
276 50 C.F.R. 17.3 (July 1, 1991).


I










or threatened species would definitely be a violation of the Act. Likewise, pesticides which
caused long term adverse effects, such as sub-lethal poisoning or depletion of the affected
species' food supply, would also probably be a violation of the Act.
One difficulty in establishing that a taking has occurred or will occur comes in proving
that a particular pesticide is causing or will cause harm to the endangered species. The
likelihood of success of a suit alleging a taking can be greatly enhanced through the presentation
of scientific documentation of actual or potential direct or indirect harm to the endangered or
threatened species. However, collection of scientific evidence can be both costly and time
consuming. In addition, the taking must be presently occurring or be likely to occur in the
foreseeable future. Allegations of past violations are unlikely to be persuasive.
Parties engaged in the spraying of mosquito control pesticides can insulate themselves
from potential liability under the ESA by obtaining an incidental take permit. EPA may issue
incidental take permits if the applicant proposes a conservation plan which minimizes and
mitigates the impacts of the takings. Conservation plans have the dual benefit of protecting
applicants from liability while providing enhanced protection for endangered species.
The ESPP establishes an elaborate system designed to minimize or eliminate the effects of
pesticides on endangered and threatened species. The ESPP has just begun to be implemented
and it is too early to draw any conclusions as to its effectiveness. However, the program, if
implemented properly, should provide significant additional protection for endangered and
threatened species. At a minimum, the program requires agencies to consider and evaluate the
effects of various pesticides on endangered and threatened species. A potential pitfall of the
program is that, like FIFRA. the ESPP relies heavily on applicator compliance with the new
restrictions.









FLORIDA REGULATORY FRAMEWORK
I. Overview
Regulation of mosquito control activities in Florida involves several agencies. The
Florida Department of Health and Rehabilitative Services (HRS) is the lead agency charged with
regulating mosquito control activities. The Department of Agriculture and Consumer Services
(DACS) is responsible for registering pesticides for mosquito control use in Florida. The U.S.
Environmental Protection Agency is responsible for ensuring that federal pesticide law is
enforced. The Florida Department of Natural Resources and the Florida Department of
Environmental Regulation have some authority with respect to mosquito control activities on
certain lands and waters of the state.
The DACS regulates the registration, distribution, and application of pesticides within
Florida pursuant to Chapter 487. Florida Statutes. Like FIFRA, Chapter 487 focuses primarily
on the registration and distribution of pesticides, and relies on label restrictions to regulate the
use of pesticides. Chapter 487 requires registrants to submit information about a pesticide.
including an ingredient statement, a complete copy of the labeling for the pesticide, a statement
of claims including directions for use, and a guaranteed analysis of the active ingredients
contained in the pesticide.77 The DACS must also adopt rules governing the review of data
submitted by a registrant, and may require the registrant to submit the complete formula,
evidence of the efficacy and the safety of the pesticide, and any other relevant data.278
DACS rules governing pesticide registration requirements are contained in Rule 5E-2.031.
Florida Administrative Code. Generally, DACS requires that all information submitted to EPA
in support of federal registration must be submitted to DACS in the form of data summaries.279
If DACS determines that the data summaries are inadequate to allow adequate public health and
environmental assessments, then DACS may require the applicant to submit or generate
additional data.2s In its review of applications for registration. DACS must consider product


277 FLA. STAT. 487.041(1)(c) (1989).

278 Id. 487.041(3).

27 FLA. ADMIN. CODE Rule 5E-2.031(2)(a) (August 2. 1989).

280 Id. Rule 5E-2.031(2)(b).


I










chemistry data, toxicological data, environmental fate data, residue chemistry data. and
worker/applicator data.281 DACS must also consider data from other authoritative sources.2s2
Chapter 487 provides DACS with authority to fully approve a registration, conditionally
register a product subject to additional data. or to deny the registration.233 A pesticide use may
be restricted or limited through labeling or by creation of rules which regulate the use of a
product.284 As in federal pesticide registrations under FIFRA, registrants are under a continual
duty to report any new information which indicates that a pesticide has or may cause any
unreasonable adverse effect on public health or the environment.285 DACS may also consider
new information made available by persons other than the registrant.286
Chapter 487 expressly exempts persons licensed or certified under Chapter 388 (mosquito
control) from the licensing and certification requirements of Chapter 487.237 The U.S.
Environmental Protection Agency has delegated primary enforcement authority to DACS for
pesticide misuse violations under FIFRA. Under the delegation agreement, the Florida
Department of Health and Rehabilitative Services is responsible for regulation of mosquito
control programs and participates in a cooperative agreement with the EPA.288 Accordingly,
the use of mosquito control pesticides is regulated primarily by HRS under the authority of
FIFRA and Chapter 388, Florida Statutes.




281 Id. Rule 5E-2.031(3).

282 Id. Rule 5E-2.031(4).

283 Id. Rule 5E-2.031(6).

284 Id. Rule 5E-2.031(7). Specific rules which apply to the use of mosquito control
pesticides are contained in Rule 10D-54. Florida Administrative Code. Rule 10D-54 is discussed
later in this report and is contained in full in Appendix E.

285 Id. Rule 5E-2.031(8).

286 Id. Rule 5E-2.031(9).

287 FLA. STAT. 487.081(4) (1989).

288 EPA/DHRS Consolidated Cooperative Agreement, FY-91, obtained from the Florida
Department of Health and Rehabilitative Services. Entomology Services.










Mosquito control programs in Florida may choose whether to participate in a state funded
assistance program. The assistance program, which is implemented by the HRS, provides
technical and monetary support for participating mosquito control programs, in exchange for
increased state control over the operations of participating programs. The assistance program is
established by Chapter 388, Florida Statutes, and is implemented by HRS through Chapter 10D-
54,' Florida Administrative Code. Non-participating mosquito control programs must also comply
with some of the requirements in Chapters 388 and 10D-54, although the statute and rule are not
entirely clear regarding which requirements apply only to participating programs and which
requirements also apply to non-participating programs.
Most mosquito control districts and large programs are participating operations.
Mosquito control "districts" are distinguished from other mosquito control programs by their
authority to levy taxes on property owners within such districts.2S9 There are currently about
50 participating programs in Florida. Non-participating programs are usually small local
government or private operations. There are currently hundreds of non-participating programs in
Florida. All mosquito control operations must abide by federal pesticide regulations and many
HRS rules. Mosquito control programs which participate in the HRS mosquito control program
must submit monthly reports documenting their mosquito control accomplishments and
expenditures. Mosquito control programs which are not participating in the HRS program must
abide by HRS rules and must maintain records, but they are not required to submit monthly
reports to HRS.
The following discussions examine the requirements which Florida law places on
participating and non-participating programs. Unfortunately, it is difficult to determine how well
non-participating programs are abiding by the regulations because there are no regular reporting
requirements. An. individual examination of each non-participating program's records is beyond
the scope of this research project. Accordingly, the analysis of compliance and enforcement does
not include data on non-participating programs. This section begins with a general discussion of
the statutory authority for creation, operation, and regulation of mosquito control districts and
other programs in Florida, and then discusses specific regulatory provisions which relate to
protection of non-target species.


289 FLA. STAT. 388.221 (1989).


I










A. Statutory Authority, Charge, and Organization of Mosquito Control
Programs
Chapter 388. Florida Statutes, provides statutory authority for regulation of mosquito
control programs. Chapter 388 states it is the public policy of the state to control arthropods to a
level that will protect human health and safety, protect the quality of life. promote economic
development, and facilitate the enjoyment of nature.290 However, arthropod control must be
conducted in a "manner consistent with protection of the environmental and ecological integrity
of all lands and waters throughout the state. "291
The Florida Department of Health and Rehabilitative Services (HRS) is charged with
administering Chapter 388 and adopting rules to regulate arthropod control.2m While ultimate
authority to regulate arthropod control activities is placed with HRS. local governments are
authorized to create mosquito control districts293 and have the power to do whatever is
necessary to carry out the intent and purposes of Chapter 388.29 Mosquito control districts
may use any chemicals approved by HRS but "only in such quantities as may be necessary to
control mosquito breeding and not be detrimental to fish life."295
Mosquito control districts may be composed of any city, town, or county, or any portion
or combination of any city, town, or county. and possess the power to assess a special tax for the
control of arthropods.296 Mosquito control districts may be governed by a district board of
commissioners, composed of three to five nonpartisan elected persons.297 or, if no special board
of commissioners has been formed, by the board of county commissioners of the appropriate


290 FLA. STAT. 388.0101 (1989).

291 Id.

292 Id. 388.361.

293 Id. 388.021.

294 Id. 388.161. 388.181.

295 Id. 388.161(1).

296 Id. 388.021. 388.221.

297 Id. 388.101.

56









county.29 Each member of the mosquito control district's board of commissioners is required
to post a surety bond which is conditioned on the member's faithful performance of the duties
under Chapter 388.99
If a board of county commissioners has assumed the authority to regulate arthropods, the
board may delegate this authority to the appropriate county health department.300 Delegation to
county health departments is conditioned upon the county health department keeping all records
and submitting all reports required by Chapter 388. following county commission purchasing
procedures, and submitting monthly reports of expenses to the county commissioners.30'
B. State Assistance to Mosquito Control Programs
Mosquito control programs, including districts and other programs, may receive state
assistance if they participate in the HRS mosquito control program. Mosquito control programs
may receive state equipment and supplies, and state matching funds on a dollar to dollar basis if
they submit an arthropod control plan to HRS and HRS approves the plan.302 Mosquito control
programs with approved plans. known as "participating programs." must submit monthly reports
to HRS detailing expenditures, activities, and accomplishments pertaining to arthropod
control.303 Non-participating programs are not required to submit monthly reports, although
they are subject to many other requirements of Chapter 388 and HRS regulations.
Participating programs. which receive state funds, must use state matching funds in a
manner which is consistent with an HRS approved plan.'4 State matching funds may be used
for all types of control measures approved by HRS. including temporary control measures such




298 Id. 388.241.

299 Id. 388.131.

300 Id. 388.251.

301 Id.

302 Id. 388.261.

303 Id. 388.341.

3 Id. 388.281.


1










as spraying, or for permanent control measures such as structural habitat manipulation.305 HRS
has the duty to "guide, review, approve, and coordinate the activities of all county governments
and special districts receiving state funds for furtherance of the goal of integrated arthropod
control.""' The term "integrated arthropod control" is defined as the "implementation of
arthropod control measures, including, but not limited to, the use of pesticides and biological
control agents and source reduction, to control arthropods without an unreasonable adverse effect
on the environment. 307 This definition indicates that mosquito control programs must consider
and minimize adverse environmental consequences of their control activities.
The term "unreasonable adverse effects on the environment" is defined as "any
unreasonable risk to man or the environment, with due consideration of the economic, social, and
environmental costs and benefits of the use of any arthropod control measure."30' This
definition suggests a cost-benefit analysis must be conducted which considers health, economic.
social, and environmental costs of the mosquito control program. However, the definition fails
to designate the relative weights to be given to the factors being considered and does not define
the term "unreasonable."
HRS is directed to supervise source reduction measures and to advise programs on the
best and most effective measures to obtain temporary control and to permanently eliminate
breeding conditions.30' Source reduction measures include controls for sanitary landfills and





305 Id. Counties or districts may receive up to $15.000 per year on a matching basis, and
this money can be used for all control measures approved by the department. Id. 388.261(1).
388.281(1). In addition, counties or districts may receive from the state up to 75 percent of the
amount of local funds budgeted for control, and this money must be used for permanent control
measures. Id. 388.261(2), 388.281(2). However, if permanent control measures are not
feasible, HRS may authorize the program to use the 75 percent matching funds for temporary
control measures. Id. 388.281(3).
306 Id. 388.271(1).

307 Id. 388.011(5).

308 Id. 388.011(8).

309 Id. 388.291.


I










drainage, diking, and filling of arthropod breeding areas.3" HRS may discontinue state aid at
its discretion if it determines the jointly agreed upon program for arthropod control is not being
efficiently and effectively administered."' In addition, if the arthropod problem in a particular
county or district is reduced or eliminated, state funds will be reduced to the amount necessary to
meet the actual need.31
C. HRS Responsibilities Under Chapter 388, Florida Statutes
1. General
HRS must promulgate, adopt, administer, and enforce rules in accordance with Chapter
388.31 Specifically, HRS must develop: 1) criteria by which an increase or other indicator of
arthropod population levels is shown to constitute a public health or nuisance problem;314 2)
criteria to govern aerial spraying of pesticides or other substances on private lands for control of
arthropods, which "minimize the deposition onto and the potential for substantial adverse effects
to environmentally sensitive and biologically highly productive public lands caused by such
airborne substances;"'31 3) requirements that all pesticides be used in accordance with the
registered label or otherwise be accepted by the United States Environmental Protection Agency
or the Department of Agriculture and Consumer Services;316 4) criteria which protect the
health, safety, and welfare of arthropod employees, the general public, and the natural resources





310 Id. 388.281(2).

311 Id.

312 Id. 388.281(4).

313 Id. 388.361.

314 Id. 388.361(2)(a).

315 Id. 388.361(2)(b). When promulgating these rules. HRS must also consider the
recommendations of the Florida Coordinating Council on Mosquito Control. Id. 388.361(2)(b).
The Council has a variety of responsibilities including research, developing guidelines to assist in
resolving disputes arising from control of arthropods on public lands, and preparing reports on
arthropod control activities in the state.
316 Id. 388.361(2)(c).











of the state;37 and 5) criteria to license applicators and "require record keeping and reporting
of applicator activities in furtherance of the goal of integrated arthropod control."3"'
2. Licensing
HRS rules require that applicators of mosquito control pesticides must be properly
licensed or be working under the supervision of a licensed applicator. However, applicators
applying mosquito control pesticides on personally owned land or agricultural land are exempted
from the licensing requirement. To become properly licensed, an arthropod control pesticide
applicator must submit an application to HRS and pass an examination which demonstrates the
applicant possesses a "practical knowledge of the principles and practices of arthropod control
and the safe use of pesticides and ... practical knowledge of vector-disease transmission as it
relates to and influences application programs.""9 In addition, applicators must keep accurate
records so that HRS can assess, on a monthly basis, activities such as pesticide application.
source reduction, water management, biological control. and surveillance.320
3. Inspections and Enforcement
HRS has authority to inspect the premises of any licensee, to inspect lands upon which a
licensee has applied or has been reported to apply arthropod control pesticides, to inspect storage
and disposal areas, to inspect or investigate any complaints against licensees for injury to humans
or lands, and to sample pesticides which the licensee is currently applying or is planning to apply
in the future.3"2 HRS conducts routine inspections and attempts to inspect all mosquito control
programs in the state once a year. HRS also inspects mosquito control programs in response to
complaints about specific programs. In addition. HRS has the authority to enter into cooperative
agreements with any other state or federal agency in order to carry out and enforce the provisions




317 Id. 388.361(2)(d).

318 Id. 388.361(4). See supra text accompanying note 307 (defining the term "integrated
arthropod control").
319 FLA. ADMIN. CODE Rule 10D-54.040 (Feb., 1987).

320 Id. Rule 10D-54.040(8).

321 FLA. STAT. 388.361(5) (1989).


I










of Chapter 388.322 HRS has entered into a cooperative enforcement agreement with the U.S.
Environmental Protection Agency.32
D. HRS Declaration of a Threat to Public Health
Chapter 388 authorizes the secretary of HRS to declare a threat to public health if "the
department discovers in the human or surrogate population the occurrence of an infectious disease
that may be transmitted from arthropods to humans."J24 A declaration of a public health threat
must include the geographical boundaries and duration of the threat.35 Once the secretary has
declared a public health threat, the secretary "shall order such preventive treatment and
ameliorative arthropod control measures as may be necessary to prevent spread of disease.
notwithstanding contrary provisions of this chapter or the rules promulgated hereunder. "326
The HRS must notify the departments of Agriculture and Consumer Services. Natural Resources.
and Environmental Regulation within 24 hours of the declaration.
Public health threat provisions in Chapter 388 allow HRS to conduct whatever treatment
is necessary to prevent the spread of disease, regardless of other provisions in Chapter 388 or
HRS rules. Accordingly, provisions in the statute and rules protecting non-target species can be
ignored in times of a declared public health threat. However. mosquito control programs must
abide by the provisions contained in the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA). unless the state obtains an emergency exemption from the administrator of the U.S.
Environmental Protection Agency.'32 Similarly, mosquito control programs must abide by the





322 Id. 388.361(6).

323 EPA/DHRS Consolidated Cooperative Agreement. FY-91. obtained from the Florida
Department of Health and Rehabilitative Services. Entomology Services. See infra note 361. and
accompanying text.

324 FLA. STAT. 388.45 (1989). "Surrogate population" means a population of non-human
species, such as chicken flocks, that is monitored for certain infectious diseases
325 Id.

326 Id.

_27 7 U.S.C. 136p (1989).










requirements of the Endangered Species Act, which prohibits takings of endangered or threatened

species.3'

II. Florida's Mosquito Control Regulations and Estuarine Non-Target Species
A. FIFRA and the Endangered Species Act
Generally, mosquito control operations must abide by applicable federal regulations,
regardless of conflicting state regulations. Applicable federal regulations include pesticide
labeling and use requirements imposed by FIFRA,3"2 and requirements of the Endangered
Species Act.
B. Surveillance of Mosquito Populations
HRS rules direct mosquito control programs to apply pesticides only when the program
has determined, through the use of designated criteria, that there is: 1) a specific need because
of a potential for a mosquito-borne disease outbreak. 2) an increase in numbers of disease ve
mosquitoes, or 3) a quantifiable increase in the numbers of pestiferous mosquitoes.330 Specific
criteria to determine whether there has been an adequate increase in mosquito or other arthropod
population to warrant the application of adulticides are listed in Table 2.














323 The Endangered Species Act also provides for exceptions under certain circumstances.
See supra note 228 and 16 U.S.C. 1539.

329 Mosquito control programs must also comply with labeling and use requirements
contained in Chapter 487, Florida Statutes. FLA. STAT. 487.011-487.166 (1989). Chapter
487 regulates registration, distribution and application of pesticides within Florida. However.
Chapter 487 does not regulate the licensing and certification of applicators engaged in operations
under Chapter 388, Florida Statutes. Id. 487.155(1).
330 FLA. ADMIN. CODE Rule 10D-54.036 (Feb.. 1987).


I









Table 2. Criteria to Determine Whether to Spray Adulticides.

(1) When a large population of adult mosquitoes is demonstrated by either a
quantifiable increase in. or a sustained elevated, mosquito population level as
detected by standard surveillance methods.

(2) Where adult mosquito populations build to levels exceeding 25 mosquitoes per
trap night or 5 mosquitoes per trap hour during crepuscular (twilight) periods.

(3) When service requests for arthropod control from the public have been
confirmed by one or more recognized surveillance methods.

(4) When counts as determined by normal surveillance methods in the daytime
exceed 5 per minute for stable flies (dogflies) on beaches and bayshores.

FLA. ADMIN. CODE Rule IOD-54.036(1)-(4) (Feb.. 1987).

C. Aerial Applications
HRS rules provide that aerial applications for the control of mosquitoes on private lands.
where there is a possibility that pesticides may be deposited on public lands which have been
designated as environmentally sensitive and biologically highly productive, must be conducted in
a manner to minimize the deposition onto such lands.33 In addition, all aerial applications of
adulticides must comply with the criteria summarized in Table 3.




















"' Id. Rule IOD-54.037(1). See infra notes 336-340 and accompanying text for an
explanation of "environmentally sensitive and biologically highly productive" public lands.


I










Table 3. Aerial Applications of Adulticides.


(1) Only in specific areas where surveillance indicates control is needed.
Three-fold increase required along beaches or bayshores:

(2) Must be labeled for aircraft application and used so they do not cause
unreasonable adverse effects on the environment;

(3) Must be timed to be most effective during mosquito activity periods (no later
than two hours after sunrise or earlier than two hours before sunset);

(4) Must be conducted with properly calibrated equipment:

(5) Must be applied, taking into account wind speed and direction, so the pesticide
is deposited on land (pesticide labels prohibit aerial application of adulticides
directly over water):

(6) Must maintain records for a minimum of three years (records must include the
area treated, the application rate and the material used, the equipment and
technique used, the name of the pilot in charge, and the date, time. temperature.
and general wind speed and direction):

(7) Must include pre-treatment and post-treatment surveillance records of mosquito
presence: and

(8) Must document apparent non-target effects.


FLA. ADMIN. CODE Rules 10D-54.036(5). 10D-54.037 (Feb., 1987).


HRS rules allow aerial applications on public lands identified as environmentally sensitive and
biologically highly productive, of adulticides containing the active ingredients listed in Table 4.
However, the use of these adulticides on environmentally sensitive and biologically highly
productive public lands must first be authorized by a public lands control plan.3'







332 See infra text accompanying notes 335-344 for an explanation of public lands control
plans.










Table 4. Mosquito Control Adulticides Which May Be Applied Aerially to Environmentally
Sensitive and Biologically Highly Productive Public Lands.

SActive Ingredient

chlorpyrifos
fenthion
malathion
naled
pyrethrins and piperonyl butoxide
resmethrin
propoxur
bendiocarb
resmethrin and piperonyl butoxide
phenothrin


FLA. ADMIN. CODE Rules 10D-54.037(2)(b), 10D-54.046(6)(b) (Feb.. 1987).


D. Use Requirements and Natural Resources
HRS rules specifically provide that all uses of registered arthropod control pesticides must
be conducted in a manner consistent with the pesticide's labeling." In addition, all methods of '
control on private lands, where natural resources are of major concern, must be conducted so as
to "protect the environmental and ecological integrity of the lands and waters.""4
E. Mosquito Control on Public Lands
In addition to regulating arthropod control activities on private lands. HRS regulates
control activities on public lands where arthropods constitute a public health or nuisance
problem."35 HRS rules require that all land management agencies identify environmentally
sensitive and biologically highly productive public lands under their control.36 HRS rules
require that land management agencies include, in their determinations of which land is
environmentally sensitive and biologically productive, a statement of purpose for which the lands


33 FLA. ADMIN. CODE Rule 10D-54.038.

334 Id. Rule 10D-54.039(1).

335 FLA. STAT. 388.4111(1) (1989).

336 Id. 388.4111(2)(a).










are managed, a description of ecological data upon which the determination is based, and a
specification of the potential ecological harm which should be avoided in planning an arthropod
control program.337 Land identified as environmentally sensitive and biologically highly
productive is subject to a public lands control plan which the local arthropod control agency must
propose.3" The public lands control plan must use methods which "shall be the minimum
necessary and economically feasible to abate a public health or nuisance problem and impose the
least hazard to fish. wildlife, and other natural resources protected or managed in such
areas.""339 All other public lands are subject to the local arthropod control agency's general
work plan.'34
The proposed public lands control plan must specify: 1) the need for arthropod control
on the identified lands. 2) periodic restrictions as applicable, such as during peak fish spawning
times. 3) criteria to be used in determining application of pesticides, and 4) methods and rates of
application for each pesticide.4"
Public lands control plans become effective upon mutual agreement of the land
management agency and the local arthropod control agency.34" Until a public lands control
plan becomes effective, arthropod control activities may only take place at the consent of the





37 FLA. ADMIN. CODE Rule 10D-54.042(3) (Feb.. 1987).

338 FLA. STAT. 388.411l(2)(a),(b).

339 Id. 388.4111(1).

340 Id. 388.4111(2)(a).

341 FLA. ADMIN. CODE Rule 10D-54.042(4)(b) (Feb. 1987).

342 FLA. STAT. 388.4111(2)(b) (1989). If the land management agency and the arthropod
control agency are unable to agree, the Florida Coordinating Council on Mosquito Control may
recommend a plan to the two agencies. Id. 388.4111(2)(c) (1989). If the two agencies are still
unable to agree, either agency may petition the Land and Water Adjudicatory Commission to
consider the proposed public lands control plan. A hearing officer will then conduct a hearing
and issue a recommended order. The Land and Water Adjudicatory Commission may adopt or
modify the proposed control plan, which then becomes binding on the land management agency
and the arthropod control agency. Id.


I










Board of Trustees of the Internal Improvement Trust Fund.33 If the adopted public lands
control plan prohibits a local arthropod control agency from performing control activities on
certain designated parcels of public land, then the agency is relieved of responsibility for
arthropod control on those lands.3
F. Chapter 403 Alternative Permitting Process for Application of Pesticides to
Waters
Chapter 403. Florida Statutes, establishes a mechanism which allows approved mosquito
control programs to apply pesticides to waters without obtaining a specific water pollution
operation permit from the Department of Environmental Regulation (DER).345 Chapter 403
directs DER to enter into interagency agreements for HRS approval of mosquito control program
applications of pesticides to waters."3 The interagency agreements must provide for public
health, safety, and welfare, including environmental factors. Approved programs must use
chemicals approved by the Federal Environmental Protection Agency, and apply the chemicals in
accordance with the registered label instructions, state standards for application, and the
provisions of the Florida Pesticide Law. Chapter 487. Florida Statutes.347
HRS rules establish standards for participation in the alternative permitting process
described in Section 403.088(1). Florida Statutes.34" A mosquito control program which wishes
to exercise the alternative permitting process must complete a form provided by HRS which is
then filed with DER.349 Upon approval by HRS. the mosquito control program may apply
pesticides to waters without obtaining a specific water pollution permit.s35


343 Id. 388.4111(2)(e).

344 Id. 388.411(2)(d).

345 Id. 403.088(1).

346 Id.

347 Id.

348 FLA. ADMIN. CODE Rule 10D-54.046(1) (Feb.. 1987).

349 Id. Rule 10D-54.046(2).

350 Id. Rule 10D-54.046(3).


67










Pesticides which may be applied under this program include those which are labeled and

registered under FIFRA or Chapter 487. Florida Statutes, and are composed of the active
ingredients listed in Table 5."'


Table 5. Section 403.088, Florida Statutes,
of Mosquito Control Pesticides to Waters.


Larvicides


distillate petroleum oils
methoxychlor
methoprene
chlorpyrifos
fenthion
malathion
temephos
non-petroleum oils
pyrethrins
allethrin
biological materials


Alternative Permitting Process for Application


Adulticides


chlorpyrifos
fenthion
malathion
naled
pyrethrins and piperonyl butoxide
resmethrin
propoxur
bendiocarb
resmethrin and piperonyl butoxide
phenothrin


FLA. ADMIL. CODE Rule 10D-54.046(6)(b) (Feb.. 1987).


HRS rules further provide that all pesticides must be applied in accordance with labeling
instructions and good standards regarding safety and efficacy, and that records must be kept that
meet the criteria specified in the rule.' ,


III. Enforcement
HRS has authority to enforce the provisions of Chapter 388, HRS rules, and certain
provisions of FIFRA. HRS rules address the penalties for failure to comply with FIFRA and




5' Id. Rule 10D-54.046(5),(6).

352 Id. Rule 10D-54.046(7).(8). Records must address the following factors: types of
pesticides, amount of pesticides used, pesticide application rates, and costs of applications. Id.


II










requirements of the Endangered Species Act, which prohibits takings of endangered or threatened

species.3'

II. Florida's Mosquito Control Regulations and Estuarine Non-Target Species
A. FIFRA and the Endangered Species Act
Generally, mosquito control operations must abide by applicable federal regulations,
regardless of conflicting state regulations. Applicable federal regulations include pesticide
labeling and use requirements imposed by FIFRA,3"2 and requirements of the Endangered
Species Act.
B. Surveillance of Mosquito Populations
HRS rules direct mosquito control programs to apply pesticides only when the program
has determined, through the use of designated criteria, that there is: 1) a specific need because
of a potential for a mosquito-borne disease outbreak. 2) an increase in numbers of disease ve
mosquitoes, or 3) a quantifiable increase in the numbers of pestiferous mosquitoes.330 Specific
criteria to determine whether there has been an adequate increase in mosquito or other arthropod
population to warrant the application of adulticides are listed in Table 2.














323 The Endangered Species Act also provides for exceptions under certain circumstances.
See supra note 228 and 16 U.S.C. 1539.

329 Mosquito control programs must also comply with labeling and use requirements
contained in Chapter 487, Florida Statutes. FLA. STAT. 487.011-487.166 (1989). Chapter
487 regulates registration, distribution and application of pesticides within Florida. However.
Chapter 487 does not regulate the licensing and certification of applicators engaged in operations
under Chapter 388, Florida Statutes. Id. 487.155(1).
330 FLA. ADMIN. CODE Rule 10D-54.036 (Feb.. 1987).


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EPA rules.35 When the board of commissioners of a mosquito control district, or county,
whichever is applicable, is notified that a mosquito control program director is violating state or
federal laws or regulations, the board must take appropriate action to prevent future
violations.354 If the board of commissioners of the district or county fails to take appropriate
action when violations have been brought to their attention, or HRS determines that fines or
sanctions should be imposed, then HRS has the duty to notify EPA of all evidence of violations,
and EPA may take whatever action it feels is warranted.355
HRS may enforce Chapter 388 and its rules by any appropriate action in circuit court,
including, but not limited to. an application for a temporary or permanent injunction to restrain
any person from violating the chapter or its rules.35 HRS may deny. suspend. or revoke any
license, certification. or state aid if a person 1) violates any rule of the department or Chapter
388, 2) violates the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) or any relevant
EPA rule. or 3) fails to supply HRS with true information.' HRS enforcement authority is
summarized in Table 6.


















33 Id. Rule 10D-54.034.

34 Id. Rule 10D-54.034(1).

35 Id. Rule 10D-54.034(5).
356 FLA. STAT. 388.3711(1) (1989).

357 Id. 388.3711(2).


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Table 6. HRS Enforcement Authority.


Enforcement by all proper and necessary actions, including:

(1) Temporary or permanent injunction.

(2) Deny, suspend, revoke any license or certification.

(3) Probation for up to 2 years but allow program to continue.

(4) Administrative fines of $25-$500 per offense.


FLA. STAT. 388.3711 (1989).


HRS has discretion to place an offending party on probation if it determines a more
severe action would be detrimental to the public or would be unreasonably harsh under the
circumstances.35 HRS may impose administrative fines of up to $500 per day for each
separate violation and must consider the severity of the violation, actions taken by the licensee to
correct the action, and any previous violations by the licensee when determining, the amount of
any penalty.59 in addition, HRS must publish a quarterly list of all disciplinary actions, and
this list is available to the public. '6
HRS is participating in a Cooperative Enforcement Agreement with the U.S.
Environmental Protection Agency.3"' Under this agreement, HRS shares enforcement authority
with EPA and receives federal assistance in exchange for agreeing to meet certain EPA
enforcement goals. There is currently only one person, hired jointly by HRS and EPA. who
inspects mosquito control programs in Florida. EPA conducts bi-annual written reviews of the
Florida program.


358 Id. 388.3711(3).

359 Id. 388.3711(4).(5).

360 Id. 388.3711(6).

361 EPA/DHRS Consolidated Cooperative Agreement. FY-91. obtained from the Florida
Department of Health and Rehabilitative Services. Entomology Services.


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Pesticides which may be applied under this program include those which are labeled and

registered under FIFRA or Chapter 487. Florida Statutes, and are composed of the active
ingredients listed in Table 5."'


Table 5. Section 403.088, Florida Statutes,
of Mosquito Control Pesticides to Waters.


Larvicides


distillate petroleum oils
methoxychlor
methoprene
chlorpyrifos
fenthion
malathion
temephos
non-petroleum oils
pyrethrins
allethrin
biological materials


Alternative Permitting Process for Application


Adulticides


chlorpyrifos
fenthion
malathion
naled
pyrethrins and piperonyl butoxide
resmethrin
propoxur
bendiocarb
resmethrin and piperonyl butoxide
phenothrin


FLA. ADMIL. CODE Rule 10D-54.046(6)(b) (Feb.. 1987).


HRS rules further provide that all pesticides must be applied in accordance with labeling
instructions and good standards regarding safety and efficacy, and that records must be kept that
meet the criteria specified in the rule.' ,


III. Enforcement
HRS has authority to enforce the provisions of Chapter 388, HRS rules, and certain
provisions of FIFRA. HRS rules address the penalties for failure to comply with FIFRA and




5' Id. Rule 10D-54.046(5),(6).

352 Id. Rule 10D-54.046(7).(8). Records must address the following factors: types of
pesticides, amount of pesticides used, pesticide application rates, and costs of applications. Id.


II











IV. Research and Support
Chapter 388 established the John A. Mulrennan. Sr., Arthropod Research Laboratory,
which is charged with developing formulations and application techniques for pesticides and
biological control agents for the control of arthropods.362 The laboratory must make
recommendations for safe and effective control of arthropods which create a health or nuisance
problem, and must conduct environmental impact studies to determine the effects of pesticides,
with a special emphasis on integrated arthropod control.63
The Florida Medical Entomology Laboratory (FMEL) also provides support for mosquito
control programs in Florida.364 FMEL conducts basic and applied research in biology and
control of mosquitos, and provides quarterly reports to the HRS to assist the agency in
performing its duties under Chapter 388.
Chapter 388 also creates the Florida Coordinating Council on Mosquito Control
(Council).36' The Council has a variety of responsibilities including research, developing
guidelines to assist in resolving disputes arising from control of arthropods on public lands, and
preparing reports on arthropod control activities in the state.
The U.S. Environmental Protection Agency (EPA) has a laboratory in Gulf Breeze. Fla.
where research is conducted on the effects of pesticides on the environment, including aquatic
resources. In addition, there are several private laboratories in Florida where researchers have
studied the effects of mosquito control pesticides on the environment.66 Mosquito control




362 FLA. STAT. 388.42(1) (1989 & Supp. 1 1990). The John A. Mulrennan. Sr.,
Arthropod Research Laboratory is located in Panama City, Fla.
363 Id. 388.42(1).

364 FLA. STAT. 388.43 (.1989). The Florida Medical Entomology Laboratory is located in
Vero Beach, Fla.. and is part of the University of Florida's Institute of Food and Agricultural
Sciences. Id.
365 Id. 388.46 (1989).

366 Researchers at the Harbor Branch Oceanographic Institution, located in Fort Pierce. Fla..
and the Mote Marine Laboratory, located in Sarasota. Fla.. have conducted research concerning
mosquito control pesticides and non-target species.










programs have also conducted research relating to mosquito control pesticides and non-target
species.


V. Summary
Chapter 388, Florida Statutes, establishes a fairly comprehensive framework for
regulation of mosquito control programs. Applicator certification requirements, surveillance
requirements, and technical and monetary state support are strong points of the existing system.
Since the passage of amendments to Chapter 388 in 1984, regulation of mosquito control
programs has greatly improved. Of particular significance is the requirement that efforts be
made at using integrated arthropod control. The concept of integrated control, commonly known
as integrated pest management (IPM). was originally developed as a response to over-spraying by
farmers attempting to control insects which destroyed their crops.367 Over-spraying of
pesticides increases pesticide pollution, results in adverse effects to non-target species,368 and
accelerates the buildup of resistance by target species. IPM also provides protection for
organisms which are not the target of control and prevents excess pollution of the
environment.369 Although it is clear that Chapter 388 embraces integrated arthropod control as
a philosophy, the extent to which mosquito control programs actually practice comprehensive
integrated control varies with the resources of each particular program.
Despite significant accomplishments and improvements in mosquito control programs and
regulatory programs, a number deficiencies relating to implementation and substance serve to
undercut the effectiveness of Florida's mosquito control regulations. Problem areas include
pesticide labels, spray drift, surveillance and reporting requirements, enforcement, pest control


367 E. ODUM; FUNDAMENTALS OF ECOLOGY 445-447 (1971). In the agricultural context.
IPM has been defined as the use of multiple tactics in a compatible manner to maintain insect
pest populations below levels which cause economic damage to the crop. G. Leibee, Report on
Entomology, prepared for Open House and Research Update at the Agricultural Research and
Education Center. Sanford. FL., Institute of Food and Agricultural Sciences. University of
Florida (April 20. 1982).
368 E. ODUM. FUNDAMENTALS OF ECOLOGY 445-447 (1971).

369 G. Leibee. Report on Entomology, prepared for Open House and Research Update at the
Agricultural Research and Education Center. Sanford, FL.. Institute of Food and Agricultural
Sciences, University of Florida (April 20. 1982).


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programs have also conducted research relating to mosquito control pesticides and non-target
species.


V. Summary
Chapter 388, Florida Statutes, establishes a fairly comprehensive framework for
regulation of mosquito control programs. Applicator certification requirements, surveillance
requirements, and technical and monetary state support are strong points of the existing system.
Since the passage of amendments to Chapter 388 in 1984, regulation of mosquito control
programs has greatly improved. Of particular significance is the requirement that efforts be
made at using integrated arthropod control. The concept of integrated control, commonly known
as integrated pest management (IPM). was originally developed as a response to over-spraying by
farmers attempting to control insects which destroyed their crops.367 Over-spraying of
pesticides increases pesticide pollution, results in adverse effects to non-target species,368 and
accelerates the buildup of resistance by target species. IPM also provides protection for
organisms which are not the target of control and prevents excess pollution of the
environment.369 Although it is clear that Chapter 388 embraces integrated arthropod control as
a philosophy, the extent to which mosquito control programs actually practice comprehensive
integrated control varies with the resources of each particular program.
Despite significant accomplishments and improvements in mosquito control programs and
regulatory programs, a number deficiencies relating to implementation and substance serve to
undercut the effectiveness of Florida's mosquito control regulations. Problem areas include
pesticide labels, spray drift, surveillance and reporting requirements, enforcement, pest control


367 E. ODUM; FUNDAMENTALS OF ECOLOGY 445-447 (1971). In the agricultural context.
IPM has been defined as the use of multiple tactics in a compatible manner to maintain insect
pest populations below levels which cause economic damage to the crop. G. Leibee, Report on
Entomology, prepared for Open House and Research Update at the Agricultural Research and
Education Center. Sanford. FL., Institute of Food and Agricultural Sciences. University of
Florida (April 20. 1982).
368 E. ODUM. FUNDAMENTALS OF ECOLOGY 445-447 (1971).

369 G. Leibee. Report on Entomology, prepared for Open House and Research Update at the
Agricultural Research and Education Center. Sanford, FL.. Institute of Food and Agricultural
Sciences, University of Florida (April 20. 1982).


I I










philosophies, research, public education, and funding. The following section details specific
problem areas that were identified through this research project and suggests solutions for these
problems.










FINDINGS AND RECOMMENDATIONS


PESTICIDE LABELS
Mosquito control pesticides used in Florida are registered by the U.S. Environmental
Protection Agency (EPA) and the Florida Department of Agriculture and Consumer Services
(DACS) for mosquito control. Labels are developed for pesticides as part of the registration
process and are intended to protect the environment from unreasonable adverse effects of
pesticide use. Users of pesticides must abide by all label instructions and warnings. Both EPA
and DACS have the authority and responsibility to require that pesticide labels include adequate
environmental warnings and directions for use. EPA or DACS can require modification of
existing labels or cancellation of uses when a pesticide label is found to be inadequate. In
Florida, a number of problems exist with respect to some mosquito control pesticide labels.
Some of the labels for Florida mosquito control pesticides contain conflicting warnings
and directions for use, particularly with respect to whether the products can be applied to waters.
For example, the label for Cythion, a formulation of malathion manufactured by American
Cyanamid Company, states "avoid direct applications to lakes, streams, ponds, tidal marshes and
estuaries." However, the label instructions provide how to apply the pesticide aerially for adult
control "over [populated areas where ... pleasure boats are present." The label for the larvicide
Abate, a formulation of temephos manufactured by American Cyanamid. states thishs product is
toxic to fish. Fish and other aquatic organisms in water treated with this product may be killed."
However, the label instructions provide rates for application of Abate to "standing water, shallow
ponds, lakes, woodland pools, tidal waters, marshes, swamps and waters high in organic content.
and highly polluted waters." These labels do not provide clear guidance for pesticide applicators.
The Florida Department of Health and Rehabilitative Services (HRS) mosquito control section has
requested that EPA issue a policy statement clarifying these labels. To date, EPA has not
responded to the HRS request. Appendix C contains examples of mosquito control labels with
conflicting language.
It is not clear what is meant by "waters." Federal water pollution laws define waters
broadly to include marshes, swamps, and tidal pools. Some labels state that applications to
waters are not allowed, but that applications to swamps, marshes, and estuaries are allowed.
Other labels state only that application of the pesticide to "waters" is prohibited. Large areas of


I









wetlands, isolated tidal ponds, and marsh are sprayed regularly with pesticides which may be
hazardous to estuarine organisms.
Some mosquito control pesticide labels state that the pesticide should not be applied where
certain organisms, such as crabs, shrimp, and fish are "important resources." Examples include
formulations of chlorpyrifos (Dursban) manufactured by Dow Chemical Company, Southern Mill
Creek Products Company, and Cornbelt Chemical Company: formulations of malathion
manufactured by American Cyanamid Company, Southern Mill Creek Products Company, and
Clarke Outdoor Spraying Company: and Abate, a formulation of temephos manufactured by
Southern Mill Creek Products Company. The label for the larvicide Pyrenone, which is a
formulation of pyrethrins and piperonyl butoxide manufactured by Fairfield American
Corporation, states "ltlhis product is toxic to fish. shrimp, crabs and other aquatic organisms.
Do not apply directly to lakes, streams, or ponds. May be used in mosquito breeding areas such
as marshy areas, pools and ponds where fish, shrimp, crabs and other desirable aquatic animals
will not be harmed." These labels are subjective and ripe for abuse. Although some of the
labels direct the applicant to consult with the state game and fish department, others provide no
additional direction. Appendix D contains examples of mosquito control pesticide labels which
allow applicators to subjectively interpret environmental factors.
Florida mosquito control regulations include a list of pesticides which may be applied to
waters of the state subject to approval by the HRS and the Department of Environmental
Regulation. However, the labels of many of these pesticides prohibit applications to waters.
Appendix E contains examples of label precautions for pesticides which qualify for application to
waters under Rule 10D-54.046. F.A.C.
Recommendation #1
The DACS and the EPA should clarify inconsistent mosquito control pesticide labels.
Specifically, the labels should be changed to remove ambiguiry as to whether drift and indirect
applications to water constitute violations.
Recommendation #2
The DACS and the EPA should clarify' the meaning of "water" as it is used in labels.
Recommendation #3
The DACS and the EPA should clarify what is meant by "important resources" and should state
who is responsible for making this determination.










Recommendation #4
Rule 10D-54.046, FLA. ADMIN. CODE (Feb. 1987) should be amended to remove pesticides whose
labels prohibit application to waters.

PESTICIDE DRIFT
Most significant problems with mosquito control pesticides and non-target species result
from aerial applications of mosquito adulticides. Pesticide effectiveness is enhanced if slow
moving winds are present, thereby causing the pesticide to stay suspended in the air longer and to
cover a greater area. Fast moving winds, or changes in wind direction, may cause pesticides to
move out of the targeted area. Changes in wind direction and speed are particularly critical in
areas adjacent to water. Shifting winds may cause pesticides released over water, which are
intended to drift and be deposited on land, to be deposited into water. Similarly, shifting winds
may cause pesticides released over land to be deposited in water. HRS personnel and
enforcement records indicate that spray drift and spray releases into water continue to occur.
Current EPA and HRS enforcement policies are unclear with respect to pesticides which drift and
are deposited in water.
Recommendation #5
The EPA and HRS should clarify whether applications of pesticides to water, by drift or by direct
application, constitute violations of mosquito control pesticide labels. EPA and HRS should
respond to violations in a consistent and rigorous manner.

SURVEILLANCE
Chapter 388, F. S.. requires that all mosquito control programs assess the apparent
effects of aerial applications of mosquito control pesticides on non-target species. Mosquito
control personnel and HRS officials indicate that many programs do not have the resources or
expertise to regularly monitor effects of aerial applications of pesticides on non-target species. In
addition, the term "apparent effects" is vague and subject to varied interpretations. Ultimately, it
is doubtful that many mosquito control programs have the resources to effectively monitor non-
target effects.
Mosquito control programs are also required to conduct surveillance prior to spraying
mosquito control pesticides and may spray only if mosquito populations reach levels designated
by HRS rules. Mosquito control programs must also assess mosquito populations after spray










events. It is unclear whether mosquito control programs routinely conduct surveillance to assess
mosquito populations before and after spray events. In addition, there has been criticism of some
of the surveillance techniques used by mosquito control programs. The current rule allows the
use of "recognized surveillance methods." Certain techniques, such as monitoring of telephone
complaints by citizens, may not consistently provide an accurate indication of mosquito
population levels.
Recommendation #6
The HRS should amend its rule to define what is meant by "apparent effects" and should provide
minimum standards Jbr mosquito control programs to follow in monitoring and assessing effects
to non-target species.
Recommendation #7
State laws relating to assessment of non-target species should be rigorously enforced.

Recommendation #8

State laws requiring pre- and post-spray surveillance of mosquito populations should be
rigorously enforced.
Recommendation #9
HRS should develop minimum guidelines derailing which surveillance techniques are acceptable
indicators of mosquito population levels. HRS should insure that accurate surveillance techniques
are used.
Recommendation #10
Additional finding should be provided to train mosquito control personnel to thoroughly assess
non-target effects and conduct adequate pre- and post-spray surveillance and environmental
monitoring.

REPORTING REQUIREMENTS
Chapter 388. F. S., requires that all mosquito control programs participating in the HRS
program submit monthly reports to HRS detailing expenditures and work accomplishments.
Although participating mosquito control programs are regularly submitting reports to HRS. the
reporting forms emphasize the amount of money spent and the total acres or miles treated and do
not require any reporting of environmental monitoring or effects. Accordingly, HRS review of
environmental monitoring by mosquito control programs is limited to occasional HRS inspections
of the programs. Appendix H contains HRS monthly reporting forms.










There are a significant number of mosquito control operations which do not participate in
the HRS program. Most of these operations consist of municipalities, condominium associations.
or other private pest control operations. While these programs must abide by most HRS
regulations, they are not required to submit monthly reports. Accordingly, the only state
oversight of these programs occurs when HRS conducts an inspection of the program, either
routinely or in response to a complaint.
Recommendation #11
HRS should require that participating mosquito control programs report environmental
monitoring and surveillance.
Recommendation #12
HRS should require that all mosquito control programs submit reports to the regulatory agency,
whether or not the program is participating in the HRS mosquito control program.

Recommendation #13
Chapter 388, F.S, should be amended to require non-participating mosquito control programs to
submit monthly reports to HRS.

ENFORCEMENT
The enforcement authority of HRS is not being fully utilized. Prior to 1986. HRS
oversight of mosquito control programs primarily involved monetary and technical support. In
1986. Chapter 388, F.S. was amended to provide HRS with explicit enforcement authority. HRS
may apply for an injunction, revoke a license, place an offending party on probation, or impose
administrative fines from $25 to $500 per day. Despite this additional grant of authority. HRS
has been reluctant to assume the role.of an aggressive enforcer. To date. the HRS mosquito
control rule, Chapter 10D-54 FLA. ADMIN. CODE (Feb. 1987), has not been amended to reflect
the 1986 authorization to impose administrative fines.
While HRS does conduct inspections and write warning letters, no other enforcement
options have been utilized despite apparent violations of state and federal law. HRS currently has
one inspector for the entire state of Florida. Many of the investigations concerning aerial
applications of pesticides to waters have been brought to the attention of HRS by citizens and the
Department of Natural Resources. Ultimately, the lack of enforcement actions by HRS stems
from a combination of factors, including vague and ambiguous pesticide labels, insufficient










numbers of enforcement personnel, and inadequate adherence to rigorous enforcement. Figure 5
illustrates recent trends in enforcement by HRS.
Recommendation #14
Enforcement of mosquito control laws could be improved by placing the enjbrcement authority for
Chapter 388, F. S., in a separate state agency. HRS should retain responsibility for support and
oversight of mosquito control programs.
Recommendation #15
The agency responsible for enforcement should establish and practice a rigid enforcement policy.
Recommendation #16
More personnel should be provided for enforcement. More funding should be provided for all
aspects of enforcement. Recommendation #25 discusses potential funding sources.
Recommendation #17
The penalties available under Chapter 388, F. S., should be upgraded so that they will act as a
real deterrent to violations of state and federal pesticide laws. The current maximum limit of
$500 per violation may not be sufficient to deter violations by mosquito control programs with
large operating budgets. The penalties should be upgraded to reflect federal guidelines under
FIFRA (up to $5000 per ojjense), including provisions for criminal penalties (up to $25,000 or
imprisonment fr one year, or both).
Recommendation #18
Chapter 10D-54, FLA. ADMIN. CODE (Feb. 1987) should be amended to reflect HRS enforcement
authority.
Recommendation #19
The agency responsible for enforcement should conduct random unannounced inspections of
mosquito control programs.
Recommendation #20
State agencies and individuals should continue to bring violations of Florida's mosquito control
regulations to the attention of HRS, and whatever state agency is charged with enforcement under
a future regulatory scheme.










INTEGRATED PEST MANAGEMENT
Participating mosquito control programs are required to employ integrated pest
management (IPM) practices. However, HRS monthly reporting forms do not require any
reporting of IPM practices. Appendix H contains HRS monthly reporting forms. Chapter 388.
F. S.. and Chapter 10D-54, F.A.C, are unclear as to whether non-participating programs are
required to follow IPM practices. In addition, non-participating programs are exempt from
reporting requirements and are therefore not regularly monitored.
A good IPM program should minimize adverse effects to the environment while
maintaining mosquito populations at acceptable levels. Typical IPM techniques-include minimal
use of pesticides, rotation of pesticides, avoidance of spraying areas containing particularly
sensitive non-target species, avoidance of spraying at times when non-target species are
particularly vulnerable to pesticides, use of spray techniques which are least harmful to non-target
species, and use of alternatives to pesticides, including biological control. HRS mosquito control
personnel have indicated that the degree to which mosquito control programs follow IPM
practices varies widely with the monetary resources, geographical characteristics, and
philosophical attitude of individual mosquito control programs.
Recommendation #21
All mosquito control programs, participating and non-participating, should be required to
implement and report IPM practices, including: assessment of non-target species within their
jurisdiction which are likely to be adversely affected by spraying; avoidance of spraying in areas
containing sensitive non-target species; avoidance of spraying when non-target species are most
likely to be affected; determination of which application techniques pose the least risk to non-
target species; and use of alternatives to pesticides, including biological control, and source
reduction.

ALTERNATIVES TO PESTICIDES
Mosquito control pesticides may cause adverse effects to certain non-target species.
Alternatives to pesticides do exist, but significant research is needed before those techniques
might be used for large scale control. Potential alternatives include source reduction, biological
control, biotechnology, repellents, and attractants.
Permanent control measures, such as impounding and draining wetlands, are generally
frowned upon by environmental and land management agencies because they result in destruction
and degradation of wetlands.









Recommendation #22
There should be increased emphasis placed on research into alternative methods of control.
Adequate finding should be provided to impartial and qualified scientists. Recommendation #25
discusses potential finding sources.
Recommendation #23
Re-construction of early permanent control projects would result in improved mosquito control
and environmental benefits.

RESEARCH
Scientists indicate that many of the effects of mosquito control pesticides on non-target
species are unknown. While direct effects may be fairly easily observed, indirect effects are
more difficult to detect and may require complex, time consuming, and costly research.
Particularly, research is needed regarding the sublethal and long term effects of these pesticides
on non-target species. Although the Florida Medical Entomology Laboratory and the John A.
Mulrennan, Sr. Laboratory both conduct mosquito control research, there remains a serious need
for research in this area.
Recommendation #24
Significant research needs to be done regarding the effects of mosquito control pesticides on non-
target species. Recommendation #25 discusses potential finding sources for additional research.

FUNDING
HRS does not have sufficient monetary resources to adequately regulate mosquito control
operations in Florida. Unfortunately, funding for the HRS mosquito control program was
reduced this year by over 75 percent. Similarly, individual mosquito control programs need
more funds for development and implementation of environmentally sound control techniques.
including IPM. surveillance, and environmental monitoring. District programs are typically
better funded than programs without taxing authority, and are therefore better able to support
extensive surveillance and education programs.


I










Recommendation #25
Increase funding for state oversight of mosquito control programs in Florida, particularly in the
areas of public education, research, and enforcement. Possible mechanisms for obtaining
funding include: an excise tax on mosquito control pesticides; a legislative mandate requiring
mosquito control districts to increase taxes within their district; and an appropriation from the
legislature. The additional funds should be controlled by the state agency (or agencies)
responsible for state oversight and enforcement, and should be designated specifically for public
education, research, and enforcement.

Recommendation #26

Increase state funding for mosquito control programs and provide incentives for local
governments to establish special taxing districts for mosquito control.

LEGAL REMEDIES
Specific pesticide registrations could be challenged under FIFRA. An interested person
could challenge a registration by requesting a special review procedure, or by participating in a
re-registration procedure. Interested persons may submit newly discovered scientific data
concerning a particular pesticide use. These procedures could result in the modification,
relabeling, suspension, or cancellation of a pesticide use.
The Endangered Species Act could be used to challenge the registration and use of
mosquito control pesticides which are adversely affecting endangered or threatened species.
Specifically, interested persons could take the following actions: 1) Notify the EPA or USFWS
of instances of mosquito control pesticides harming endangered or threatened species: 2) Initiate
a citizen's suit to challenge an EPA registration of a particular mosquito control pesticide which
is harming endangered or threatened species: or 3) Initiate a citizen's suit to request an
injunction against a mosquito control program from spraying pesticides which harm endangered
or threatened species.
Section 403.412, F. S.. authorizes citizen's suits to enforce laws relating to protection of
environmental resources. This provision could be used to compel HRS to enforce Chapter 388.
F. S., Chapter 10D-54. F.A.C., and FIFRA. It might also be possible to use Section 403.412.
F. S., to challenge a pesticide use approved by the Florida Department of Agriculture and
Consumer Services. Although a cause of action would probably exist under Section 403.412.
this may not be a good approach because the non-prevailing party must pay attorney's fees.


L










Recommendation #27
As necessary, the Endangered Species Act citizen's suit provision should be used to enjoin
applications of mosquito control pesticides which harm endangered or threatened species.
Recommendation #28
Legal remedies available under FIFRA and Florida law should be considered if there is
evidence of ongoing violations and other options have failed to produce adequate results.
Unfortunately, actions of this type are usually both costly and lengthy.

PESTICIDE REVIEW COUNCIL
The Pesticide Review Council has the duty to recommend scientific studies of pesticide
uses which may pose an unreasonable adverse effect on the environment. The Council also has
the duty to make recommendations regarding the sale and use of pesticides.
Recommendation #29
An interested parry could petition the Pesticide Review Council to consider recommending that
additional label restrictions be placed upon existing labels of pesticides registered for mosquito
control use in Florida.

FLORIDA COORDINATING COUNCIL ON MOSQUITO CONTROL
The Florida Coordinating Council on Mosquito Control is charged with making
recommendations regarding research priorities for mosquito control. In addition, the
Coordinating Council must report to the Pesticide Review Council and other governmental
organizations on mosquito control activities in Florida.
Recommendation #30
An interested party could petition the Florida Coordinating Council on Mosquito Control to
consider recommending that additional research be conducted and that additional label
restrictions be placed upon existing labels of pesticides registered for mosquito control use in
Florida.

MOSQUITO CONTROL DISTRICT WORK PLAN BUDGET
Mosquito control programs which are receiving state funds from HRS must adopt a work
plan budget which includes a budget and a plan of operations. Work plan budgets must be
adopted at a public hearing. Chapter 388. F. S., requires that the governing board of the
mosquito control district consider objections which are filed against the tentative detailed work










plan budget. Accordingly, the public hearing presents an opportunity for interested citizens to
comment on the budget and plan of operations of the mosquito control program.
Recommendation #31
The public should scrutinize the work plan budget to make sure it contains adequate proposed
expenditures for environmental monitoring, including assessment of non-target species which are
likely to be affected by spraying, assessment of non-target species which are known to be affected
by spraying, and development of a legitimate Integrated Pest Management Program. The work
plan budget should also contain adequate funding for routine pre- and post-spray surveillance.
Monetary appropriations for specific pesticides could also be challenged at this time.

PUBLIC AWARENESS AND ATTITUDES
Mosquito control in Florida is driven to a large extent by public expectations and desires.
Many residents and tourists in Florida have grown to expect mosquito free conditions and are
increasingly intolerant of relatively low levels of mosquitos. The declaration of legislative intent
in Chapter 388, F. S., reinforces the idea that reduction of mosquito populations is a desirable
and necessary goal. Florida's mosquito control regulations allow for citizen input regarding the
need to spray, and often spray events are instigated by citizen complaints of too many mosquitos.
Citizens may be unaware of the potential harm of mosquito control pesticides to human
and other non-target species, and may be unfamiliar with concepts such as resistance, bio-
accumulation, sub-lethal effects, long term effects, and biological control. Old time Florida
residents coped with intense mosquito populations by avoiding mosquito infested areas during
certain times of the day or year, and by wearing appropriate clothing. Today many repellents are
available which offer effective protection from mosquitoes.
With the recent outbreaks of St. Louis and Equine Encephalitis, public pressure has
increased to spray mosquitoes. While the severity of those diseases should not be disregarded, it
is important to remember that actual occurrences of the diseases are very rare. Most mosquito
control efforts in Florida are targeted at non-disease carrying nuisance mosquitoes.
Representatives of HRS and the Florida Medical Entomology Laboratory have indicated
that past efforts at public education have focused primarily on prompting people to eliminate
mosquito breeding areas on their own property. While this is a laudable goal. many public
education efforts have neglected to inform citizens of the potential negative health and
environmental consequences of excessive or long-term use of mosquito control pesticides. A
more informed public might become more tolerant of moderate levels of mosquitoes.









Recommendation #32
HRS should inform people of the potential dangers of excessive or long-term use of mosquito
control pesticides to humans and other non-target species. Informed people are more likely to
change their attitudes and become more tolerant of modest levels of mosquitoes.
Recommendation #33
Mosquito control spraying should be avoided on publicly held lands for which the management
goal is to approximate a natural environment.





I










Appendix A. Figures 1 5


Figure 1: Ground Applications of Mosquito Adultlcides


Lognd
" MalatNon
SNaed (DIrom 14)
J Bayto(Fwth n)
SScourge
SOther


1987 1988 1989
Year


Figure 2: Aerial Applications of Mosquito Adulticides


0.4-

..0.2 98

01987
1987


Legend
aia M (lDiion
SNaied (Dibrom 14)
," Baylex (FenBnon)


1988
Year


Figures 1 and 2 were derived from the Florida Department of Health and
Rehabilitative Services, Entomology Services, Mosquito Control Section,
Annual Reports (1988, 1989).




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