was being concentrated in non-target organisms but that it was dissipated relatively rapidly after equilibrium was reached. Although this test was not designed to test the chronic effects of the toxicant on the communities studied since population levels were not determined, all species were present, except certain oil-feeding ants, after treatment and appeared to be at normal population levels.
13. Additional research relating to the fire ant control program has been undertaken by scientists of the USDA and others under contract to it. Work is continuing in many of these areas, which include the following:
(1) the mechanics and extent of the natural metabolic breakdown of Mirex;
(2) the extent to which Mirex induces of inhibits enzyme production in organisms in the higher levels of the food chain;
(3) the toxic effects of Mirex residues in fish;
(4) the alterations in community compositions due to avoidance of Mirextreated areas by certain species of organisms;
(5) the physiological effects of Mirex toxicant on crustaceans and other marine organisms; and
(6) the biological and behavioral characteristics of the imported fire ant.
14. The USDA has concluded from its studies that if the fire ant control program is implemented, the presence of Mirex residues in the environment and the concentration of these residues in the food chain cannot be avoided. It has further concluded that the accumulation levels expected to result from field application of Mirex bait will have no serious adverse effect on the communities involved.
15. Various alternatives to the aerial application of Mirex bait were considered by the USDA in developing the fire ant control program. Ground application was rejected for the following reasons: (1) It was not effective since uniform coverage to reach all of the ants in a treated area cannot be accomplished by this method. (2) It could result in the application of extra dosages of Mirex because results would not be apparent for several weeks after the first application. Other alternatives considered involved the use of insecticides such as chlordane, dieldrin or heptachlor, the use of which has been shown to present a more serious ecological threat than the use of Mirex. The existing technology for the use of biological or behavioral control agents is insufficient for control purposes.
16. In evaluating the effect that the fire ant control program would have on the relationship between the local shortterm use of the environment and the maintenance and enhancement of longterm productivity, the USDA considered the following factors: The reduction of the fire ant population will lessen the threat to human health which it now poses and will substantially benefit the agricultural economy in the infested states. Native ants with similar environmental requirements will fill the ecological niches opened by elimination of the fire ant in certain communities. Although Mirex is known to concentrate in the food chain, the relatively rapid dissipation of these residues noted to date and the lack of evidence of chronic effects on nontarget populations support the conclusion that the use of Mirex at the proposed dosage will cause no excessive or irreversible impact on the environment.
17. The USDA after having prepared and distributed a draft impact statement to all interested agencies and after giving consideration to the replies received, prepared an Environmental Impact Statement which set forth the results of its studies of the fire ant and the environmental effects of Mirex, as outlined above, together with supporting documentation and bibliography. This statement has been distributed to all interested governmental agencies including the Council on Environmental Quality and the Environmental Protection Agency.
18. The Environmental Protection Agency has commenced administrative procedures under 7 U.S.C. § 135, to determine whether the registration of Mirex under the Federal Insecticide, Fungicide, and Rodenticide Act should be cancelled.
Based on the foregoing Findings of Fact, the Court makes the following
CONCLUSIONS OF LAW
1. The institution of administrative proceedings under 7 U.S.C. § 135, which provides that judicial review of that administrative determination rests in the United States Court of Appeals for the District of Columbia, does not deprive this Court of jurisdiction over the present action. This action is brought under the National Environmental Policy Act which establishes procedures for governmental agencies undertaking programs that may affect the quality of the environment. While such programs may involve the use of substances registered under the Federal Insecticide Act, such use does not exempt the program from the requirements of the National Environmental Policy Act; nor does withdrawal of registration under the Federal Insecticide Act deprive this Court of jurisdiction under the NEPA.
2. The USDA fire ant control program is a major Federal action that will significantly affect the quality of the human environment and, therefore, is subject to the procedural requirements of 42 U.S.C. § 4332.
3. The USDA scientists and administrators have sufficiently studied the potential impact of widespread use of Mirex on the environment to satisfy the research and planning requirements of the National Environmental Policy Act.
4. The Environmental Impact Statement prepared by the USDA relating to the fire ant control program sets forth the expected environmental effects of that program in sufficient detail to satisfy the disclosure requirements of the National Environmental Policy Act.
5. Plaintiffs have failed to demonstrate that they will suffer irreparable injury if the preliminary injunction is not granted.
6. Plaintiffs have not demonstrated that they are likely to succeed in proving the allegations of their complaint in the final determination of this matter.
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