CONCURRING OPINION BY MICHAEL H. MALIN
MALIN, Chairman,May 24, 1972. — I concur in the order made by my colleague, the Hon. Paul E. Waters, but I arrive at the same conclusion by a different route. The emergency nature of this adjudication does not permit a formal presentation and detailed analysis of my differences and agreements with my colleague.
Gypsy Moth spraying, to be effective, must be done the last week in May and no later than the first few days in June when the larvae hatch. This is the first day of the last week of May.
The burden is on appellant to show that the deci*772sion of the Department of Environmental Resources to spray the areas in question was arbitrary, unreasonable and/or a menace to the public health, safety and welfare. We must proceed, however, from the assumption that the use of any chemical in a natural environment may lead to unforeseen consequences. The department implicitly recognizes this in its statewide program by limiting the area in which it will spray, 23,000 out of the 500,000 acres, which it believes will be infested by and subject to defoliation by the Gypsy Moth. Also implicit in the department’s action is the belief that, if left sufficiently alone, the Gypsy Moth will come into balance with the ecology through natural control by predators, diseases and exhaustion of food supply.
The decision to spray was brought about largely by the belief that recreational areas in northeastern Pennsylvania must be kept from defoliation because of the importance of the recreation and tourist industry located there to the economy of Pennsylvania. The reasoning and/or experience appears to be that people will not spend tourist dollars in defoliated areas crawling with allegedly ugly Gypsy Moth caterpillars which can make one’s presence in the infested area at least pyschologically unpleasant.
Accordingly, the department is spraying only in the so-called “high use” areas, and in what it calls “barrier” areas in an attempt to prevent further spread of Gypsy Moth infestation. It is also experimenting with new pesticides. This is a “barrier” case, with a pesticide called Dylox, requiring field testing.
The department’s decision was cautious and considered:
1. The ecological factors involved in spraying insofar as known;
*7732. The ecological factors involved in not spraying;
3. The possible economic cost of not spraying;
4. The desire of many in infested areas to be rid of creeping, crawling creatures which appear unsightly to them and which can overwhelm residences and recreation areas and may be found at every turn of the head.
Nonetheless, it is my judgment that despite the presumption of validity to be given to an administrative decision, a decision to spray chemicals in a natural environment where the possibility of contamination of water supply, damage to wildlife systems, and ingestion or absorption by human beings is present, the presumption should disappear when any evidence of possible adverse ecological effects is introduced. Such evidence was introduced in this proceeding. This evidence includes, but is not limited to, the dire warnings on the Dylox label, the Department of Agriculture’s conclusion that Dylox is an unacceptable alternative to other sprays, the admitted fact that it does kill certain aquatic insects and the fact that it is a nerve toxin.
I would, therefore, conclude that the department in this or similar cases has the burden of showing that the risks of using a relatively untested pesticide are acceptable in the light of the benefits to be derived.
The evidence adduced herein further indicates:
1. That Gypsy Moth defoliation lasts only a few weeks, and the trees will refoliate with nascent green leaves in late July and August, if sufficient moisture is available.
2. The forests most affected are monoculture oak forests, where oak timber mortality may even be desirable in order to have a more balanced forest. *774The area in question is not a commercial forest where timber mortality would cause economic loss.
3. Even the loss of 60 percent of the oaks would not be a disaster because of the presence of low shrub and berry foliage which would provide feed for animals such as deer, pheasant and quail to a greater extent than the tall oaks. Shade-needing animals would not be affected.
4. The Gypsy Moth may be beneficial to birds which feed on the larvae and caterpillars. Indeed, there is some evidence that the wild turkey population is increasing because of the Gypsy Moth.
5. The necessity for experimentation with Dylox as a method of control may be of marginal importance because of the highly satisfactory results being achieved with bacterial sprays which are nontoxic and affect only the Gypsy Moth.
6. Dylox kills some enemies of the Gypsy Moth as well as the Gypsy Moth.
7. Of the 61,647 acres of forest land in Northampton County, approximately 610 will be sprayed under this board’s order and, furthermore, spraying will be prohibited in the Bushkill Watershed.
8. The possibility of harm to human beings, other than some discomfort and irritation even if all the spray in the quantity proposed to be used were to descend on adjoining population centers is virtually nonexistent.
9. The experimentation with Dylox may indicate that it can be safely used in future Gypsy Moth “emergencies” where nontoxic type treatments were not properly or effectively used.
10. The threat of the Gypsy Moth to the overall ecology is probably exaggerated.
11. The spraying sought to be done will likely have little effect on the spread of the Gypsy Moth as *775it goes on its southerly course from and along the Blue Mountain ridge.
12. The most careful and competent aerial spraying can, nonetheless, lead to spray settling in areas where spraying is unwanted.
13. The department has hired highly competent and experienced contractors with the necessary control equipment to do the spraying.
I conclude that, because the risk to humans is minimal and the area to be sprayed is of such small size and with such a small potential for ecological damage under the most adverse conditions which are conceivable, it is not within the power of this board to say that the department has not sustained its burden of showing:
1. That it has a valid object in spraying; i.e., developing an ecologically acceptable nontoxic spray to use in the future when there is deemed to be a Gypsy Moth “emergency,” especially in high use recreational areas of economic importance to the Commonwealth;
2. The spraying presents little or no danger to those living in the area of the spray;
3. The possibility of creating ecological imbalances in the larger region is virtually norexistent in and around the spray area.
The additional safety measures required by my colleague will further minimize the already small possibility of harm to humans.
I disagree that the Ecological Protection Society lacks standing before the board because of our newly adopted Rule 6(b) negating the necessity for a proprietary interest to intervene in a proceeding. I would at least consider it an intervenor.
I join in Mr. Waters’ order.