[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]




                               before the


                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION


                            OCTOBER 6, 2004


                           Serial No. 108-274


       Printed for the use of the Committee on Government Reform

  Available via the World Wide Web: http://www.gpo.gov/congress/house


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                     TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana                  HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut       TOM LANTOS, California
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana              CAROLYN B. MALONEY, New York
DOUG OSE, California                 DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky                  DANNY K. DAVIS, Illinois
TODD RUSSELL PLATTS, Pennsylvania    JOHN F. TIERNEY, Massachusetts
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
ADAM H. PUTNAM, Florida              DIANE E. WATSON, California
EDWARD L. SCHROCK, Virginia          STEPHEN F. LYNCH, Massachusetts
JOHN J. DUNCAN, Jr., Tennessee       CHRIS VAN HOLLEN, Maryland
NATHAN DEAL, Georgia                 LINDA T. SANCHEZ, California
TIM MURPHY, Pennsylvania                 Maryland
MICHAEL R. TURNER, Ohio              ELEANOR HOLMES NORTON, District of 
JOHN R. CARTER, Texas                    Columbia
MARSHA BLACKBURN, Tennessee          JIM COOPER, Tennessee
PATRICK J. TIBERI, Ohio              BETTY McCOLLUM, Minnesota
KATHERINE HARRIS, Florida                        ------
MICHAEL C. BURGESS, Texas            BERNARD SANDERS, Vermont 

                    Melissa Wojciak, Staff Director
       David Marin, Deputy Staff Director/Communications Director
                      Rob Borden, Parliamentarian
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel

Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs

                     DOUG OSE, California, Chairman
EDWARD L. SCHROCK, Virginia          JOHN F. TIERNEY, Massachusetts
CHRISTOPHER SHAYS, Connecticut       TOM LANTOS, California
JOHN M. McHUGH, New York             PAUL E. KANJORSKI, Pennsylvania
CHRIS CANNON, Utah                   DENNIS J. KUCINICH, Ohio
NATHAN DEAL, Georgia                 CHRIS VAN HOLLEN, Maryland
CANDICE S. MILLER, Michigan          JIM COOPER, Tennessee

                               Ex Officio

TOM DAVIS, Virginia                  HENRY A. WAXMAN, California
                   Barbara F. Kahlow, Staff Director
                          Lauren Jacobs, Clerk
                     Krista Boyd, Minority Counsel

                            C O N T E N T S

Hearing held on October 6, 2004..................................     1
Statement of:
    Fauci, Dr. Anthony S., Director, National Institute of 
      Allergy and Infectious Diseases, National Institutes of 
      Health, Department of Health and Human Services; Dr. 
      Stephen M. Ostroff, Deputy Director, National Center for 
      Infectious Diseases, Centers for Disease Control and 
      Prevention, Department of Health and Human Services; and 
      Benjamin J. Grumbles, Acting Assistant Administrator, 
      Office of Water, Environmental Protection Agency, 
      accompanied by Adam Sharp, Associate Assistant 
      Administrator, Office of Prevention, Pesticides, and Toxics    12
    Kilpatrick, Dr. Marm, senior research scientist, the 
      Consortium for Conservation Medicine at Wildlife Trust; 
      Wendy Station, founder, Encephalitis Global; David Brown, 
      Chair, integrated pest management, Mosquito and Vector 
      Control Association of California; Joe Conlon, technical 
      advisor, American Mosquito Control Association; Dr. 
      Jonathan Weisbuch, director of public health, Maricopa 
      County, AZ; and John Pape, chief epidemiologist, Colorado 
      Department of Public Health and Environment................    75
Letters, statements, etc., submitted for the record by:
    Brown, David, Chair, integrated pest management, Mosquito and 
      Vector Control Association of California, prepared 
      statement of...............................................    94
    Conlon, Joe, technical advisor, American Mosquito Control 
      Association, prepared statement of.........................   100
    Fauci, Dr. Anthony S., Director, National Institute of 
      Allergy and Infectious Diseases, National Institutes of 
      Health, Department of Health and Human Services, prepared 
      statement of...............................................    14
    Grumbles, Benjamin J., Acting Assistant Administrator, Office 
      of Water, Environmental Protection Agency, prepared 
      statement of...............................................    46
    Kilpatrick, Dr. Marm, senior research scientist, the 
      Consortium for Conservation Medicine at Wildlife Trust, 
      prepared statement of......................................    78
    Ose, Hon. Doug, a Representative in Congress from the State 
      of California, prepared statement of.......................     4
    Ostroff, Dr. Stephen M., Deputy Director, National Center for 
      Infectious Diseases, Centers for Disease Control and 
      Prevention, Department of Health and Human Services, 
      prepared statement of......................................    25
    Pape, John, chief epidemiologist, Colorado Department of 
      Public Health and Environment, prepared statement of.......   130
    Sharp, Adam, Associate Assistant Administrator, Office of 
      Prevention, Pesticides, and Toxics, information concerning 
      new active ingredients for mosquito control................    73
    Station, Wendy, founder, Encephalitis Global, prepared 
      statement of...............................................    84
    Weisbuch, Dr. Jonathan, director of public health, Maricopa 
      County, AZ, prepared statement of..........................   115



                       WEDNESDAY, OCTOBER 6, 2004

                  House of Representatives,
  Subcommittee on Energy Policy, Natural Resources 
                            and Regulatory Affairs,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m., in 
room 2154, Rayburn House Office Building, Hon. Doug Ose 
(chairman of the subcommittee) presiding.
    Present: Representatives Ose, Miller, Tierney, and 
    Staff present: Barbara F. Kahlow, staff director; Danielle 
Hallcom Quist, counsel; Lauren Jacobs, clerk; Megan Taormino, 
press secretary; Krista Boyd, minority counsel; and Cecelia 
Morton, minority office manager.
    Mr. Ose. Good morning. Welcome to today's hearing of the 
Government Reform Subcommittee on Energy Policy, Natural 
Resources and Regulatory Affairs. Today's hearing is titled 
``Current Challenges in Combating the West Nile Virus.'' I want 
to recognize a quorum as being present.
    We are joined today by two very distinguished panels to 
discuss the West Nile virus issue. Our first panel will be 
composed of Dr. Anthony Fauci--is that right?
    Dr. Fauci. ``Fauchi.''
    Mr. Ose. ``Fauchi.'' OK--Dr. Stephen Ostroff and Mr. 
Benjamin Grumbles, respectively, from the NIH, the CDC and the 
    Our second panel is composed of Mr. John Pape, Dr. Jonathan 
Weisbuch, Mr. Joe Conlon, Mr. David Brown, Ms. Wendy Station, 
and Dr. Marm Kilpatrick, respectively, from the Colorado 
Department of Public Health and Environment, from Maricopa 
County, AZ, Department of Public Health, from the American 
Mosquito Control Association, from the Mosquito and Vector 
Control Association of California, from Encephalitis Global, 
and from the Consortium for Conservation Medicine and Wildlife 
    It has been 5 years since public health officials diagnosed 
the first case of West Nile virus in the United States. Since 
then the virus has crisscrossed this Nation, leaving thousands 
sick from a debilitating form of meningitis, encephalitis and 
about 620 people dead. This year, while many parts of the 
country have a respite, people in the Southwest are fiercely 
combating the West Nile virus as the epidemic rages in 
California and Arizona.
    Over the last several years, the Centers for Disease 
Control and Prevention and the EPA have coordinated with local 
vector control districts and public health officials to control 
and eliminate mosquitoes from spreading the virus. Meanwhile 
the National Institutes of Health, the States and private 
companies have been conducting research to develop better 
treatments for those who suffer from encephalitis and to 
develop a vaccine for West Nile virus. Together with State and 
local officials, Federal agencies have also organized a 
national public education effort to encourage individual bite 
prevention and source reduction.
    Today our vector control districts are working around the 
clock to locate and diagnose infected dead birds and kill virus 
infected mosquitos before they infect people. While local 
health and abatement officials work tirelessly to reduce the 
threat posed by mosquitos, a minority of our population is 
using our Federal court system to insert regulatory obstacles 
that tend to obstruct efforts to end this epidemic.
    Since the Ninth Circuit decided in March 2001 that 
pesticide applicators required Clean Water Act National 
Pollutant Discharge Elimination System permits to apply aquatic 
pesticides to waters of the United States, California and 
Washington have required mosquito control professionals to 
obtain NPDES permits. With similar challenges pending in the 
Second Circuit Court, local officials await court decisions 
that would determine whether such permits are needed in those 
jurisdictions as well.
    In July 2003, EPA issued an interim statement and guidance 
memorandum to its regional offices in an effort to clarify 
whether pesticide applications required NPDES permits. The 
guidance stated EPA's position that under certain 
circumstances, Federal, Insecticide, Fungicide, Rodenticide Act 
compliant pesticide applications do not require NPDES permits 
for purposes of mosquito abatement. Agency guidance, however, 
is not binding on non-Federal entities; therefore, a few States 
continue to require NPDES permits because of the 9th Circuit 
legal precedent.
    Unfortunately, EPA's guidance has not protected vector 
control districts from citizen lawsuits under the Clean Water 
Act. The vector control district in Gem County, Idaho was sued 
under the Clean Water Act for application of pesticides to 
waters of the United States even after EPA decided in August 
2003 that Gem County did not need an NPDES permit to conduct 
its mosquito abatement activities. The result of the Gem County 
case and other lawsuits still pending is to add legal permit 
application and water quality monitoring costs and 
uncertainties to vector control districts already strapped for 
funds to control mosquitoes. Moreover, in controlling mosquito 
born illnesses, time is of the essence, as the testimony will 
clarify today, and the addition of regulatory obstacles hampers 
the efforts of our public health officials.
    We must support the efforts of local officials in combating 
the West Nile virus, not add additional uncertainty. I strongly 
urge EPA to promulgate a regulation to replace its nonbinding 
guidance and to provide unchallengeable clarity for this issue. 
We need a safe harbor. We can protect people from the West Nile 
virus while still maintaining the health of our aquatic 
    Today we will discuss these challenges and other challenges 
facing us in the eradication of the West Nile virus. We will 
hear testimony from Federal, State and local experts in an 
effort to gain a better understanding of why the virus 
continues to be a public health threat and how close we are to 
eliminating it and other mosquito born illnesses.
    I have previously introduced our two panels today. I would 
be pleased to recognize my friend from Massachusetts for the 
purpose of an opening statement.
    [The prepared statement of Hon. Doug Ose follows:]

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    Mr. Tierney. Thank you, Mr. Chairman, and I want to thank 
you for holding this hearing on the West Nile virus. Obviously, 
we are all concerned because there is no available vaccine. 
There are no specific treatments yet known and there is not yet 
enough information to effectively predict what areas might be 
hit the hardest. Public health workers are on the front line 
when it comes to defending and responding, and so it is 
essential that those communities have the tools and the support 
and the resources that they need in order to be effective.
    Public education we are told is probably the best and most 
effective means of dealing with this. So I would like obviously 
today to hear more from our witnesses on how those educational 
efforts can be improved as well as other responses that might 
be available.
    And as the chairman mentioned, I know that one of the 
issues we are dealing with here today is how local mosquito 
abatement efforts, as varied as they are, will include spraying 
pesticides against larva and against adult populations and 
whether or not there can't be some reconciliation between 
protecting the clean waters of this country and making sure 
that we respond effectively to this concern of West Nile virus.
    I have read a lot of the materials here, and I know that 
there are positions on both sides. I am curious to know whether 
or not the initial EPA tests do in fact take into consideration 
the NPDES consideration with regard to clean waters and, if 
not, why they can't and why both of these issues aren't 
reconcilable. I should think that they would be. I should think 
that we would be able to both keep our waters clean and have 
the Clean Water Act lived up to and adhered to while at the 
same time making sure our local communities have the ability to 
respond in the way that they should effectively.
    So, Mr. Chairman, again I thank you for this hearing. I 
look forward to our witnesses and want to proceed as quickly as 
we can. Thank you.
    Mr. Ose. I thank the gentleman. Gentlelady from Michigan.
    Mrs. Miller. Thank you, Mr. Chairman. I want to thank you 
for holding this hearing today. You know, with so many threats 
that are facing our Nation today certainly the threat of 
disease is one that we cannot overlook. The spread of the West 
Nile virus is a problem that's troubled our Nation for the past 
5 years. But the purveyor of this threat is a thing that's been 
annoying us for our entire lives, the lowly mosquito. It is 
hard to believe that the mosquito is the cause of all these 
    Since the first case was reported in 1999 there have been 
622 reported human deaths related to this virus. It is a virus 
that has a dire potential because it affects livestock, other 
animals. In my home State of Michigan we know very well, 
unfortunately, firsthand the dire consequences of this damaging 
disease. But this is an issue that's not only affected humans. 
As I say, livestock, other animals as well.
    The first case that was detected in Michigan was found in 
birds actually in 2001. I know I will never look at a crow the 
same way, either live or dead. By 2002 the virus activity had 
expanded to horses and then to humans, and in that year 
Michigan actually had 644 recorded cases of the West Nile 
infection, which was the second highest number of any of the 
States. 51 of these cases unfortunately resulted in death.
    In the last 2 years, the disease seems to have sort of 
moved to the West and to the South as well. Thus far in 2004 
there have been a total of six human cases of the West Nile 
virus in my home State of Michigan. And even though the number 
of West Nile infections in the East and the Midwest has 
declined, fortunately, the threat certainly has not.
    In Michigan our officials have actually developed a 
comprehensive campaign to inform the public and to expand 
efforts to stop the spread of this virus. The State actually 
introduced a Web site in 2003, which is a fantastic Web site, 
with a focus on educating our State's citizens. This Web site 
also contains a diseased wildlife observation report that can 
be filled out by the citizen to notify the appropriate 
authorities of any sick or diseased birds, where they are 
located and what citizens actually are observing in these 
cases. In 2003 alone--I thought this was interesting--we had 
actually over 5,000, I think 5,500 cases that were reported 
through the Web site, which was significant. And with this new 
system certainly the State of Michigan is trying to take a very 
proactive response to this problem.
    We have also put together a West Nile virus working group 
as well to monitor the disease within our State, and after 51 
deaths in only 1 year I think every resident, certainly of 
Michigan and now our entire Nation, are very perceptive as to 
the West Nile impact.
    So I want to thank each of the witnesses for appearing 
today. I am certainly looking forward to your testimony. As you 
see, it is something that has a very high degree of perception 
in my State of Michigan, and I am looking forward to what we 
can do to work together to avail ourselves of getting rid of 
this threat.
    Thank you, Mr. Chairman.
    Mr. Ose. I thank the gentlelady. Now I'd just advise the 
witnesses as a matter of course in our subcommittee we swear 
everybody in. It is not judgmental. It is just standard 
practice here. So if you would all rise, please, and if you 
have folks that are going to provide oral testimony they need 
to rise and be sworn in too. I just need to make sure I have 
who's standing where.
    [Witnesses sworn.]
    Mr. Ose. Let the record show that the witnesses all 
answered in the affirmative. Now we have received your written 
testimony, and we have reviewed it. What we do here is we are 
going to recognize each of you in turn for 5 minutes to 
summarize your testimony. I would urge you in the course of 
your remarks to focus on a couple of things in particular. 
First, the precursor conditions that lead to an outbreak of 
West Nile virus, heat, water, etc., the cross-species 
communicability of the disease, and the treatment and 
prevention protocols that we need to consider. Dr. Fauci, 
you're recognized for 5 minutes.

                     PESTICIDES, AND TOXICS

    Dr. Fauci. Thank you, Mr. Chairman. I appreciate the 
opportunity to testify before you and the other members of the 
committee. I am going to focus my remarks on the NIH research 
efforts involved in one of the components that you mentioned; 
namely, the development of treatments and prevention in the 
form of vaccine.
    This first poster that I have here up on the board puts 
into the general context of what West Nile virus is. It is one 
of a rapidly growing group of diseases that we refer to as 
emerging and reemerging infections. An emerging is a new 
infection that we've never experienced before, like HIV/AIDS, 
SARS or nipa virus, whereas a reemerging infection is one that 
has been around perhaps for a very long time, but reappears in 
a different location and in a different form. That is the case 
with West Nile virus.
    Now the NIH has had a headstart on research endeavors with 
West Nile virus even before we knew it was a problem in this 
country, because West Nile virus falls under the category of a 
Flavivirus group, which includes yellow fever, dengue, Japanese 
encephalitis and others, for which we have had research 
programs for decades. So when West Nile came along, as you 
could see on the next slide, we markedly escalated our research 
resources to approach this problem with an almost tenfold 
increase from 1998 through 2005, and that allowed us to hit the 
ground running in looking for ways to intervene, particularly 
in the form of treatment and vaccines.
    With regard to our research agenda, it is multi-faceted. As 
I mentioned, we now have over $40 million in funding 
specifically for this particular endeavor of West Nile. We are 
doing a number of research projects, including the development 
of animal models. Of course, all that we do is based on 
fundamental basic research with application where we can do as 
rapidly as possible. We do some research on vector biology and 
control, and all are aimed at the application for the 
development of countermeasure in the form of vaccines, 
therapies and diagnostics.
    Let me just take a moment to point out one of the vaccine 
programs that's particularly exciting to us. We call it a 
Chimeric vaccine, named after the Greek mythological figure 
Chimera, which is an animal that had the body of a goat, the 
head of a lion and the tail of a serpent; in other words, 
multiple animals mythologically put together. In a vaccine 
approach to West Nile we did just that. Since we already had 
vaccines for yellow fever, which is the same general class as 
West Nile, we were able to take that vaccine and use molecular 
approaches to insert the genes of West Nile into the yellow 
fever or the dengue virus, which will ultimately cutoff at 
least several years in the vaccine development process because 
of this running start that we had.
    Next, with regard to therapies we had basic research and 
targeting our therapeutic approach to vulnerable components of 
the virus, but also a major screening program where we screened 
over 1,000 known drugs and compounds in our libraries to see if 
there's activity. Particularly interesting is a program that's 
ongoing now where we are passively transfusing into West Nile 
virus patients in the United States sera, anti-sera antibodies 
that we have collected from people in Israel because the 
baseline level of antibodies, because Israel has had a problem 
with West Nile before we did, that we perhaps would be able to 
get some degree of protection from those passively transferred 
    And finally, we have a vector control program that's modest 
in size but it is taking novel approaches to being able to 
figure out ways to control the principal vector, as Congressman 
Miller mentioned, the mosquito, which is really a very 
important issue with regard to West Nile as well as other 
diseases. We are trying to understand the role of vectors in 
introducing and maintaining this virus in nature as well as its 
transmission not only to humans but to other hosts such as 
    So finally, on this last poster, which shows the headline 
from last August from the Baltimore Sun, in which it talks 
about West Nile, both flaring and fizzling, and there's a 
lesson to that because, as you'll hear from Dr. Ostroff in a 
moment, that the epidemiology and the pattern of this disease 
is such that you can have a bad year 1 year and then the next 
year might be a modest or easy year followed by a bad year. So 
whatever the flares and the fizzles are, the message that we 
leave from the research standpoint is that we need to continue 
and to escalate our research endeavors to ultimately get the 
appropriate countermeasures, particularly in the form of safe 
and effective vaccines and therapies that can be safely 
administered to patients who suffer from West Nile.
    Thank you for this opportunity. I'd be happy to answer any 
questions later.
    [The prepared statement of Dr. Fauci follows:]

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    Mr. Ose. Thank you, Dr. Fauci.
    Our next witness comes to us from the CDC, where he is the 
Deputy Director for the National Center for Infectious 
Diseases. Dr. Ostroff, welcome to our subcommittee. You're 
recognized for 5 minutes.
    Dr. Ostroff. Thank you, Mr. Chairman, and let me thank you 
as well for holding this hearing to discuss our current efforts 
to monitor and control West Nile virus. We've submitted a 
longer written statement for the record.
    As mentioned, West Nile was first detected in the United 
States in 1999 and therefore holds the dubious distinction of 
being the last of the major emerging infections detected in 
this country in the 20th century. Through last year there have 
been more than 14,000 cases reported to the CDC and so far 
another 1,800 have been reported this year. These are really 
pretty amazing statistics. For those of us who have followed 
the saga from the beginning, these numbers are to us much more 
than statistics. Each represents a name and a face, including 
people who have experienced very severe illness, some lying in 
coma for weeks, some paralyzed for months to years. And as was 
mentioned, for more than 600 of these persons this infection 
was tragically fatal.
    Our hearts and prayers go out to all of these individuals 
who developed this disease and to the families of those who 
didn't survive. This commits us to working each and every day 
to try to prevent additional cases from occurring.
    West Nile's natural host is birds. Migratory birds carry it 
from place to place and mosquitos transmit it from bird to 
bird. Sometimes instead of biting another bird the mosquitos 
bite a horse or a human, transmitting the virus to them 
instead. It is unlikely that we will ever know how the virus 
was actually introduced into the United States in 1999.
    In the first poster you'll see since its introduction West 
Nile's march across the country has been very steady and 
relentless. It has swept across the entire continent, leaving 
wave after wave of illness in its wake during the summer 
mosquito season.
    Next poster. In its first 3 years its impact was fairly 
modest, but in 2002 as it moved into the Midwest case counts 
exploded. In the following year the case numbers doubled as the 
virus moved into the high plains and the Rocky Mountain States.
    Next poster. 2004 brings both bad and good news. The bad 
news is that the virus has continued its western movement 
principally impacting the Southwest and far West, with Arizona 
and California being most affected. The good news in the next 
poster is that the overall disease burden is down significantly 
from last year, with the number of cases and deaths about half 
of what we saw at the same time last year.
    In addition, in the next poster, illness seems to have 
peaked quite early in Arizona and has been on the decline ever 
since. Trends in California are less clear, but appear to be 
following a similar trend.
    CDC has been at the forefront of the efforts to respond to 
the challenge of West Nile virus in concert with our partners 
at the State and local level. Our efforts have been multi-
faceted. First, using funds allocated by Congress, we have 
supported all States to conduct West Nile monitoring, not only 
for human illness but also for the presence of the virus in 
birds, mosquitos and other animals. Only by knowing when and 
where the virus is present can steps be taken to control it.
    This effort also revealed unknown routes of transmission, 
including blood transfusion, leading to rapid steps to protect 
the blood supply. Starting only last year, we now screen more 
than 12 million units annually and we estimate that this effort 
has prevented more than 1,000 West Nile infected units from 
being transfused.
    Second, we have developed diagnostic tests for West Nile 
and provided them to public health labs throughout the country 
to speed accurate diagnosis.
    Third, we have supported academically based research to 
address how West Nile survives and spreads, to evaluate the 
impact of control measures and to optimize these measures. We 
have also supported academic programs to train experts in 
mosquito control.
    Fourth, we have provided extramural funds to develop model 
guidelines for sustainable State and local mosquito control 
programs. In this poster you'll see we've also developed 
guidelines on all aspects of West Nile prevention and control 
and update them annually with public health and academic 
    These guidelines emphasize the fundamentals of mosquito 
transmitted disease prevention and control in this country: 
Namely, one, integrated pest management to reduce habitat where 
mosquitos breed, treat habitats to keep mosquitos from hatching 
into adults, and control adult mosquitos if they do hatch 
through EPA approved products; second, educate providers to 
appropriately diagnose and treat West Nile; and, third, as seen 
in the next poster, educate the public about what they can do 
to avoid exposure to West Nile.
    Shown here are some examples of posters produced by our 
partners at the State and local level. They emphasize several 
important messages: One, reduce breeding sites around the home; 
two, properly screen windows and doors; three, use DEET 
containing insect repellent when outdoors; four, reduce skin 
exposure by wearing long sleeves and pants; and, five, for 
those at the highest risk of severe disease, such as the 
elderly, avoid outdoor activities during peak dawn and dusk 
biting periods.
    West Nile has taught us many lessons. It has shown us that 
we won't be complacent about mosquito control in this country. 
We don't know what the future holds for this infection, but we 
do know that everywhere that West Nile has shown up it 
continues to produce disease season after season. As new 
vaccines and therapeutics become available for West Nile, we 
will still need to control and avoid mosquitos. Everyone needs 
to do their part not only today but also in the future.
    Thank you, and I'll be happy to take any questions.
    [The prepared statement of Dr. Ostroff follows:]

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    Mr. Ose. Thank you, Dr. Ostroff.
    Our third witness on the first panel is Mr. Benjamin 
Grumbles. He's the Acting Assistant Administrator for Water at 
the U.S. Environmental Protection Agency. Sir, welcome.
    Mr. Grumbles. Thank you.
    Mr. Ose. Welcome back. Nice too see you. You're recognized 
for 5 minutes.
    Mr. Grumbles. Thank you, Mr. Chairman and Congresswoman 
Miller. It is an honor and a pleasure to be here to represent 
EPA. I am the Acting Assistant Administrator for the Office of 
Water, and I am joined by Adam Sharp, who is the Associate 
Administrator for the Office of Prevention, Pesticides and 
    Mr. Ose. If I recall, he was one of those who rose to be 
sworn in.
    Mr. Grumbles. Yes, that's correct.
    Mr. Ose. Thank you.
    Mr. Grumbles. And Adam also has formerly served as the 
Acting Counselor on Agricultural Issues for the Administrator, 
so he brings a wealth of knowledge to the table.
    Mr. Chairman, I would like to talk briefly about the role 
of the EPA in ensuring the protection of public health and the 
environment, particularly in the context of mosquito control 
and pesticide and clean water programs. I'd like to ask that 
the prepared testimony be entered as part of the record.
    Mr. Ose. Without objection.
    [The prepared statement of Mr. Grumbles follows:]

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    Mr. Grumbles. I would like to note that when my staff 
prepared the talking points for that they had a parenthetical 
after that said ``pause,'' and I looked at that and I thought 
it said ``applause.'' And as a former committee staffer, I know 
that what really was an applause line was when the witness 
asked for their whole eloquent statement to be submitted for 
the record. So I appreciate that. I would just like to focus on 
a couple of points.
    One is the role of the agency in the registration of 
pesticides and carrying out the responsibilities under FIFRA. 
But I want to focus on integrated pest management. Then I also 
want to mention the integration of the statutes, FIFRA and the 
Clean Water Act.
    Congressman Tierney talked about the need to reconcile the 
two statutes and we feel that it is a positive effort to 
integrate the statutes to get both protection of public health 
and the environment and to do so in a responsible way.
    Also, integrated pest management, certainly EPA feels very 
strongly that is an appropriate path, that is the right 
approach. This means effective and environmentally sensitive 
management of pesticides using common sense measures. It 
involves going through a process where we really focus in on 
the source for the potential spread of the disease, and that 
often means habitat alteration and looking at those issues of 
standing water and things of that type. It is also very 
important to focus in on the early stages, whether it is the 
egg or the pupa or the larva, as the prime opportunity to 
eradicate and prevent the spread of adult mosquitos and the 
    We take very seriously our responsibilities under FIFRA and 
the importance and the safeguards that the registration and 
reregistration and labeling process provide for both effective 
use of pesticides to protect public health and the environment 
and also ensuring enforceable and appropriate environmental 
safeguards. On the integration issue that you raised in your 
statement regarding the Clean Water Act, the agency did in fact 
issue a guidance. It was effective immediately, July 11 of last 
year, and it is important to emphasize that the guidance says: 
and we believe it is clear--that in certain situations Clean 
Water Act permits--NPDES permits--are not required and that the 
basis for that and the whole intent there is to make sure that 
the statutes are integrated and not always dueling or requiring 
two Federal approvals.
    We don't want to stand in the way of appropriate use of 
pesticides. So the guidance specifically says that for the 
direct application of pesticides, direct application to waters 
of the United States, in accordance with all the relevant 
requirements under FIFRA. In that situation you do not need a 
Clean Water Act permit.
    Also, in application directly over waters such as to 
control for aerial spraying like over the canopy of a forest, 
or also aerial spraying for, you know, adulticide, to nip that 
problem in the bud. Again, if that's carried out in accordance 
with FIFRA--all relevant FIFRA requirements--our view, our 
interpretation of the Clean Water Act is that a NPDES permit is 
not required.
    We also issued guidance in September last year, the general 
counsel of the agency, addressing other cases and situations 
about point sources and when is and isn't a pesticide a point 
    The last point I want to make, Mr. Chairman, is that we 
continue to focus on reviewing the various facts and 
circumstances, making sure that guidance and the comments we 
have received on that guidance are reviewed. We are committed 
to ensuring through partnerships with other Federal agencies 
and through our Clean Water Act and FIFRA program 
responsibilities that we have a system where we have both 
protection and public health in the environment and not dueling 
programs or statutes.
    Thank you, Mr. Chairman. Adam and I'd be happy to respond 
to any questions you or your colleague may have.
    Mr. Ose. Thank you. I appreciate your attendance and 
participation. I am going to go ahead and claim time. I want to 
go back to your July 11 guidance.
    Now, it is my understanding that guidance document was 
issued in the context of Altman v. Town of Amherst. In that 
case, the court opined that EPA needed to articulate a clear 
interpretation of the law. Since the guidance was issued, we 
still have a little bit of a divergence between how some States 
are treating EPA's guidance, and how others, in particular the 
States of Washington and California, have maintained that under 
the Talent case the Ninth Circuit's decision still requires 
them to get an NPDES permit for application of the chemical.
    The first question I have is do you agree with California 
and Washington's decision to mandate NPDES permits for use of 
pesticides to combat the West Nile virus?
    Mr. Grumbles. Mr. Chairman, I respect their decision to 
mandate permits. I don't believe that they are legally required 
and our interpretation of the statute in the Talent case and 
the other cases, coupled with our guidance, we believe that it 
is their discretion to choose to issue permits for pesticide 
applications. But it is not our interpretation that they are 
legally required or mandated to do that.
    Mr. Ose. And again, this is for the very narrow purpose of 
mosquito abatement?
    Mr. Grumbles. Right. And specifically, for the--what I am 
referring to is the two situations that we squarely address in 
our interim guidance. That is the direct application to waters 
of the United States of pesticides, and also application 
directly over waters such as when you have adulticides that 
you're spraying or----
    Mr. Ose. So there's two different tests there at least. 
There's the mosquito abatement purpose and then there's the 
waters of the United States or the aerosol treatment over 
waters of the United States or in a canopy.
    Mr. Grumbles. I think rather than focusing just on the 
purpose, it is the actual use. I mean, we want to make sure 
that we look not just to what the purpose of the applicator is, 
but how the applicator ends up following through on that 
purpose. If they use their pesticide, apply it in accordance 
with all relevant FIFRA requirements and it is in the context 
of a direct application to waters, or an application of 
pesticides directly over waters of the United States, then we 
believe a NPDES clean water permit is not required.
    Mr. Ose. All right. I guess one of the questions I have is, 
at least in California, native of California who lives in 
California. I noticed on one of the maps up there the dot 
matrix or the tracking system from 1999 to 2003. Frankly, the 
map didn't show a large population in California as yet. I am 
trying to get to some degree of certainty that my State can 
have a reasonable chance of forestalling an outbreak of this 
    Now, how do we reconcile EPA's determination, which 
arguably is very narrow in scope, with California's basis for 
requiring an NPDES permit? There's some sort of disconnect and 
I don't quite understand what it is. Is it based on the Ninth 
Circuit's determination? Or is it something beyond that, that's 
not legally driven but driven perhaps from the State level?
    Mr. Grumbles. I think it may be a combination of things, 
Mr. Chairman. Our view is that the interim guidance does 
specifically address not just the Altman case in New York, but 
also the Talent case, that situation. Now, one of the most 
important components here to keep in mind is that the Clean 
Water Act, a bedrock principle of the statute, is that the 
States always have the flexibility to have additional 
requirements that are more protective than, are broader in 
scope than the Federal requirements. I think there is a 
conscious effort by the State to choose to interpret the 
guidance and also to use the permits, the general permits or a 
permitting program as a tool in their toolbox. So I think that 
there are a variety of factors that are in play there.
    Our basic position, Mr. Chairman, is that when you look at 
those situations, direct application into waters of the United 
States of pesticide or application directly above to deal with 
like adulticide, adult mosquitos, if the applicator is 
following their requirements under FIFRA, we do not see the 
need for--we don't think that legally the Clean Water Act would 
require a permit because the pesticide is not a waste. It is a 
product that's being used in accordance with Federal 
    Mr. Ose. My time's expired. The gentlelady from Michigan.
    Mrs. Miller. Thank you, Mr. Chairman. You were talking 
about States in regards to permits and that. But I am wondering 
how each of your agencies interacts with the various States on 
West Nile. It is great for us to sit here in Washington and 
talk about the West Nile virus. But it is really for the 
individuals right out into the neighborhoods to identify what 
is happening out there, and I have to show off a little bit for 
my State, I think, in Michigan. I mentioned to you that, you 
know, a couple of years ago, several years ago no one had ever 
heard of West Nile before. And I'll tell you, in our State it 
is a household word now. Everybody is well aware of the dangers 
of it. In fact, there's sort of a subtle paranoia, I think, 
that has set in in the psyche of many mothers watching their 
children and making sure that they are--and Dr. Fauci was 
mentioning some of the various therapies and that. But I think 
sort of the old therapies of just wearing long sleeves and long 
pants and trying to protect yourself, putting on your 
pesticides, insecticides I should say, and all these kinds of 
things probably work well. I guess my question is how you're 
working with the different States.
    I mentioned to you that we have this Web site, and if 
you've not had an opportunity to look at it you might want to 
do that. I don't know what the other States are doing. I can 
only speak for our own State. But of course we are all a 
society now that is so much more using the electronic format to 
access information. And this is a fantastic Web site. You can 
go on here and it tells you how to report a dead bird, a sick 
bird or a mammal, and then it actually gives you a bird 
identification page and the kinds of birds that might have the 
West Nile virus, the different kinds that you might--you're 
looking at a starling and you think it is a crow and all of 
these kinds of things, and then goes right into a site where 
the individual citizen would fill out their date of 
observation, when they observed this, what kind of thing they 
think they saw there and whether it was dead or they think it 
is sick and etc. If they want to have a lab come out and take a 
look at these sites. I just think it is a fantastic way to get 
information out into the public, and again, I am just wondering 
from the Federal Government's standard, from the agencies here, 
how are we doing? Are we doing similar kinds of things? Are 
your agencies doing similar kinds of things on the Web? Are you 
working with the States?
    Dr. Fauci. The direct involvement with the State and local 
public health officials is fundamentally the basis of how the 
Centers for Disease Control and Prevention interacts with the 
community. The National Institutes of Health, being 
fundamentally a basic and clinical research organization, is 
much more national and nonsegregated into States. So what we do 
is generically applicable to each of the States, and we fund 
grants and contracts. Clearly that are individuals that might 
be in State funded institutions, but it isn't directly related 
to a State function; whereas the CDC, as I am sure Dr. Ostroff 
will delineate for you, is much more connected to the State and 
local public health officials.
    Dr. Ostroff. Thanks, Dr. Fauci, and thank you, 
Congresswoman, for that question. Indeed, as was pointed out, 
one of our primary partners, if not our primary partner, are 
the State and local health departments. West Nile was first 
recognized in 1999; the following year we received an 
appropriation from Congress specifically to address the problem 
of West Nile virus in the United States. That allocation has 
gone up each year since, but has now plateaued. More than 50 
percent of those resources have gone directly to the various 
State health departments to support specifically the activities 
that you mentioned, particularly monitoring, not only in 
humans, but also for dead birds, etc., to produce educational 
materials, to develop the Web site and to support the State 
public health laboratory in being able to do the diagnostic 
tests that are necessary to test those birds, to test humans 
who may conceivably have the disease.
    Our resources specifically to the State of Michigan, as the 
virus moved to the West from its original focus in New York, 
went up in concert. They reached a peak in 2002 and 2003 of 
about $800,000 per year, specifically to Michigan, to support 
the various activities that I just described.
    In addition, we keep in very close contact with the States. 
All of the States report in to our surveillance system, not 
only findings in humans, but finding in birds, finding in 
mosquitos, finding in humans and findings in horses. We produce 
updates that are published every week in terms of what's going 
on in the country, and we also hold weekly conference calls 
with all of our State partners where they share information 
with all of the other States to tell them what's going on 
within their jurisdictions.
    So we do have a fairly extensive program to support their 
activities. And last, if there are any unusual things going on 
in the State of Michigan or if they need specific technical 
support we actually send teams to work with them.
    Mrs. Miller. If I could followup on that just a bit, 
Doctor, as well, you mentioned in your remarks that you had a 
number of academic partners. And again, just from my own 
personal experience in Michigan we've actually put together a 
West Nile working group. Michigan State University is a 
critical element in that and I know the University of Michigan 
and some of the other universities as well. Could you expand a 
little bit on--some of our best research obviously is being 
done out in the universities, the campuses across our Nation. 
Are we bringing all of them into--utilizing them and 
advantaging ourselves of all of them as much as we need to?
    Dr. Ostroff. Well, actually in late 2002, which you pointed 
out was the worst year for Michigan, at the end of that year I 
actually went to the University of Michigan and gave medical 
grand rounds specifically on West Nile virus. We have a very 
close working relationship with the faculty of the Infectious 
Disease Division in the Department of Medicine, University of 
Michigan. We also have a very close working relationship with 
Michigan State University on veterinary issues, and you are 
indeed correct. There is superb capability to address West 
Nile. I do not know if any of the specific academic grants that 
we have related to West Nile go to the State of Michigan, but 
we can certainly find out.
    Dr. Fauci. You made the point that a substantial proportion 
of the research is done at the universities. As a matter of 
fact, the vast, vast majority of the research. If you look at 
the NIH funding, we only have about 10 percent of our research 
resources goes to our intramural program, which is 
fundamentally here in Bethesda, Maryland, and 85-plus percent 
of the money goes out to the universities. And we do have 
networks in coordination among them, particularly when we have 
interconnecting centers.
    Particularly with West Nile, for example, we have the World 
Reference Center for Research Resources to allow investigators 
from throughout the country and even the world to have access 
to resources to do the research. That's located at the 
University of Texas Medical Branch at Galveston. We also have 
collaborating emerging disease research centers, one in New 
York, one in Texas. So the local universities is really where 
we do our business with regard to research in this country.
    Mrs. Miller. Thank you. I think my time is up, Mr. 
    Mr. Ose. We'll have another round. The gentleman from 
    Mr. Tierney. Thank you, Mr. Chairman. Mr. Grumbles, I want 
to just focus in with you for a couple of seconds on the issue 
of the Clean Water Act if I could. I know back some time ago 
that the EPA filed an amicus brief in a case called Headwaters 
Inc. v. Talent Irrigation District in the Ninth Circuit. In 
that brief, the position of the EPA was that nothing in FIFRA 
or the Clean Water Act remotely suggests that compliance with 
FIFRA also means compliance with the CWA. The agency's brief 
highlights the distinct purposes of the two statutes and 
recognizes FIFRA's inability to adequately address the 
environmental effects.
    Here's specifically what the language in that brief said. 
``In approving the registration of the pesticide, EPA concluded 
that the overall economic benefits of allowing the use of the 
product outweigh adverse environmental effects. EPA did not 
analyze, was not required to analyze, and could not feasibly 
have analyzed, whether, or under what conditions, the product 
could be discharged from a point source into particular public 
water bodies in compliance with the CWA. In approving the 
registration of Magnicide H, EPA did not warrant that a users 
compliance with the pesticide label instructions would satisfy 
all other Federal environmental laws. Indeed, EPA approves 
pesticides under FIFRA with the knowledge that pesticides 
containing pollutants may be discharged from point sources into 
navigable waters only pursuant to a properly issued CWA 
    What is the basis for EPA's change of position from that 
    Mr. Grumbles. Mr. Chairman--Congressman, you made a strong 
reference in your opening statement to the need to reconcile 
the statutes and EPA fully agrees with that. It is about 
integrating the two statutes. On the specific points and the 
question you're asking, I would say a couple of things. One of 
them is, the footnote 1 in the July 11 memorandum, the interim 
guidance, that specifically addresses the brief that was filed 
in the case, the Talent case, and the basic point that's 
embodied in the EPA position and in the footnote in the July 11 
guidance is that amicus brief was not saying--it wasn't, as you 
describe that, that it is that clear that the Clean Water Act 
needs to be added on top of FIFRA and will add value.
    Mr. Tierney. Excuse me. You don't think that language was 
    Mr. Grumbles. No. What I am saying is that the language 
that is clear is that there are not--just because the position 
of the agency is that there may be additional value added to a 
Clean Water Act program doesn't mean that a Clean Water Act 
permit should always be required in these cases. Specifically, 
our footnote says that EPA stated in the brief that compliance 
with FIFRA does not necessarily mean compliance with the Clean 
Water Act. However, the government's Talent brief did not 
address the question of how pesticide application is regulated 
under the Clean Water Act or the circumstances in which 
pesticides are pollutants under the Clean Water Act. And I 
think the key point, the key point, Congressman, is that in 
defining that phrase, that term ``pollutant,'' which is the 
trigger for Clean Water Act regulation, you need to look at the 
particular item involved. And with pesticides if they are fully 
meeting FIFRA, labeling and other relevant requirements under 
FIFRA, our view is that they're not a chemical waste or a 
biological material, the terms in the definition of pollutant 
in the Clean Water Act. Instead they're more of a useful 
product. So that's our current position.
    Mr. Tierney. And I have to tell you that is an ingenious 
stretch of language, and I mean I just think that you've gone 
way beyond the pale. Congress I would think would be the one to 
decide whether or not their statutes ought to be integrated or 
not. And I think that the department taking upon itself to 
change the position that was pretty clear, and I think 
concisely stated in your own brief, and then just decide at 
some point later that you're now going to say, well, we don't 
think you have to apply both of the Federal statutes that 
Congress put in place; we are going to say you pick and choose 
and then integrate, or however you want to phrase it, to say 
that one doesn't apply and the other does is troublesome to me. 
And on that it is troublesome. It is a change from your 
previous position without any apparent rationale for it and it 
is troublesome that you would take Congress's role upon 
yourself as an agency to start interpreting and choosing which 
to apply or not. The definition is there that this is a 
pollutant and I don't see how you're ever going to get around 
that. I think the courts have been pretty definitive on that 
also. But if you as an agency want to recommend to Congress 
some action so that they could reconcile those, I think that's 
an appropriate role for an agency. If you think that there's 
something there. But I think that having admitted in your brief 
that when you're doing a NPDES permit that you're not 
necessarily considering those facts that are important for a 
Clean Water Act compliance, you know, it gives a good example 
of why there are two statutes out there and not one. And what 
I'd be interested in hearing, if we are going to have another 
round, is if you claim that FIFRA is all you need, then how do 
we protect those things that the Clean Water Act is supposed to 
    Mr. Grumbles. Can I respond? Mr. Chairman, first of all, 
EPA's position is that both FIFRA and Clean Water Act have 
important roles to play. We embrace the notion that even in 
those situations where our legal analysis is that the pesticide 
that's being lawfully applied is not a waste and therefore is 
not a pollutant and a NPDES permit is not required, that 
doesn't mean that other Clean Water Act provisions and 
authorities aren't relevant. And we fully recognize that the 
States have the authority to use additional Clean Water Act 
provisions or State law to add to the situation if they choose 
to do so. Because I think the point is worth making that while 
the FIFRA label does have environmental safeguards, a State may 
choose to add additional provisions that are more site specific 
or tailored to that particular water body. But our legal 
analysis, Congressman, I don't view that it has changed. We 
have fleshed out with greater specificity the types of analyses 
and factors you use in parsing out the language. And the courts 
across the country certainly recognize--I mean, there is a role 
for the agency and there is most definitely a role for the 
Congress on adding further specificity or clarifying what these 
sometimes vague terms mean in the statute.
    Mr. Ose. I just want to followup on something here. Dr. 
Fauci and Dr. Ostroff, I am going to get to you. Don't worry. I 
am not ignoring you. You'll get your turn.
    Mr. Grumbles, if I understood you correctly, you answered 
``no'' to the following question, and that was do public health 
mosquito larvacide and adulticide applications made in strict 
accordance with EPA registered labels constitute point source 
application of pollutants? And I believe you said no, is that 
    Mr. Grumbles. More specifically, I was saying that they do 
not constitute a pollutant. You know better than anyone. There 
are actually more than two, three tests as to whether or not a 
Clean Water Act permit is going to be required. One is, is it a 
discharge of a pollutant; the second one, from a point source; 
third, into navigable waters or waters of the United States is 
how it is further defined. What we are saying through our 
guidance and in our interpretation is that in that situation, 
if it is being lawfully applied in accordance with FIFRA and it 
is a direct application of a pesticide into waters of the 
United States, it is not a pollutant and it doesn't require a 
permit. That doesn't address the issue of the mechanism in 
which it is being applied, whether it is sprayed or aerially 
applied. The general counsel for the agency did issue in 
September of last year, an interpretive guidance that does 
address the question of point source that you're getting at in 
your question, and that guidance was also a direct response to 
the Forsgren case, which involved aerial application of the 
pesticide to control moth infestation in forests. And in the 
guidance of our general counsel, what we stated was, is that we 
interpret our regulations on silvacultural operations to be 
very narrow in terms of the types of point sources that are 
called point sources for silvacultural activities, and that 
other types of activities such as fire control are nonpoint 
sources. And so we have spoken pretty clearly on that point 
that the application is covered by our current regulations that 
say that type of silvacultural operation is not a point source.
    Mr. Ose. I think my question is whether it was a pollutant, 
and I think I hear you saying it is not.
    Mr. Grumbles. It is not a pollutant if it is being directly 
applied or directly over, that's the case.
    Mr. Ose. OK. One of the reasons this issue is of such 
interest to me, it is right at the intersection of public 
health, our environmental concerns, and science. You could see 
by the preponderance of witnesses on this panel exactly what 
our interest is. The questions that Mr. Tierney asked drove 
home the point from my perspective of the need for a rule as 
opposed to guidance because a rule will provide that safe 
harbor that the vector control districts and the like across 
the country can then utilize to define whether application of 
this particular pesticide or herbicide or whatever is a 
pollutant in this case. We have to figure out a way where when 
we are talking about public health issues of this nature that 
we understand the nature of the application of the chemical we 
are using, and I think it is reasonable to ask that at least 
within that very narrow scope, that we obtain a rule, properly 
crafted through the Administrative Procedures Act and what have 
you, that we obtain a rule that provides a safe harbor for 
folks out in the rest of the country.
    So the question I have is, will you issue a rule to that 
    Mr. Grumbles. The answer is perhaps. We are going through 
480 comments on the interim guidance. We are taking those very 
serious. I mean, there are a lot of substantive important 
components to the guidance. They can shed light on our decision 
on whether to finalize the guidance and also when we finalize 
it, and most importantly from your perspective, whether or not 
to issue a rule.
    I would like to say that those who believe that a rule, a 
rulemaking process resulting in a rule, will create a safe 
harbor, may have false expectations. I think one of the reasons 
the Clean Water Act has been both a success and also been 
controversial at times is that citizens suit provisions--
whether we finalize our interim guidance, Mr. Chairman, or go 
through a lengthier process of an actual rule, our view is that 
citizen suits will still be brought. If Congress changed the 
statute then that becomes a more difficult question whether or 
not citizen suits will be brought.
    What we are focused in on is making sure that the agency's 
guidance, the policy we have is finalized, and we are taking 
very seriously your recommendations that we go forward with a 
rulemaking, but we frankly haven't reached that point yet, Mr. 
    Mr. Ose. If I understand the written testimony from the 
other witnesses in the aggregate, it is that you can generally 
project 6 to 8 months in advance whether or not you are going 
to have an outbreak of West Nile virus based on infestation, or 
whatever the word is, within a bird population or something, 
and the evidence indicates that next spring we are going to 
have a problem in California.
    The comments you have received on the guidance you have 
been working on for a year, and it is my further understanding 
that the courts give far greater deference to a rule issued by 
a Federal agency or department, however narrowly constructed, 
than they do to guidance.
    So I just want to come back to this, and that is that the 
vector control districts across the country in areas that are 
likely or projected to have outbreaks of this disease in the 
spring of 2005 could stand the assistance in a timely fashion 
from EPA with a narrowly constructed rule that provides a safe 
harbor for the application of these pesticides for public 
health purposes. And, I want to communicate that in no 
uncertain terms to you. I like clarity, and I am trying to be 
    Mr. Grumbles. And we appreciate that and receive it--
understand it very clearly.
    I think it is also important to keep in mind that States 
can--even if we do go through with a rule, States can still use 
their discretion to require a permit.
    Mr. Ose. All right. The gentlelady from Michigan.
    Mrs. Miller. Thank you, Mr. Chairman.
    I think I just have one other question, but I want to go to 
why there has been such a dramatic decline in the incidence 
that we are experiencing with the West Nile virus.
    I think it was Dr. Fauci who provided us--I thought this 
was sort of interesting--this article in the Sun: West Nile 
Both Flares and Fizzles. Just 5 years after its arrival, the 
West Nile virus has completed its east to west invasion of the 
United States and Canada; and, at the same time, the mosquito 
virus may be having a diminished impact on Maryland and other 
States where it has resided.
    I am also aware of an article, just in September here, from 
the Healthy Day News; and they describe the lower occurrences 
of the West Nile virus infections in the East and the Midwest. 
They said that this was due to higher levels of animal 
immunity, actually, to the disease. So perhaps you could talk a 
little bit about the adaptability of the disease, and, as like 
all viruses, I suppose, it begins to change its shape. Are we 
sort of in danger of seeing a different strain that is going to 
reappear here?
    Dr. Fauci. Well, I can begin to answer the question. I am 
sure that Dr. Ostroff also has some comments on that.
    In general, we don't know precisely why we have this waxing 
and waning. But if you look at it mechanistically it certainly 
is related, at least in part, to the building up of immunity 
not only in the intermediate hosts but also in humans 
    When it first came to the United States in 1999, we would 
be considered what is called a naive population in the sense 
that there is virtually no immunity in the population. You get 
a country like Israel that has had this before us, that their 
level of ability to protect is considerably better because they 
have had experience.
    So one could project that over years, as we get more and 
more seasonal involvement, that the naivete will go down and 
there will be, in the population, people who have some degree 
of immunity. Obviously, as new children are born, they will 
come in and will also be naive, in a sense; and there may be 
the transient people that come back and forth.
    So you will always have a group of naive patients, naive 
individuals, but as you go further and further into what we 
call an endemic area, where it is there and it has been there, 
then you would unlikely see major blasts like we saw on the 
slide that Dr. Ostroff showed where we went from 62 cases to 32 
to 100 and then 4,000 and then 9,000. It is unlikely that once 
you reach a stable baseline that is going to happen.
    We have similar experiences with other Flaviviruses. For 
example, St. Louis Encephalitis Virus, you don't hear much 
about that now, but it has the potential to do the same thing 
that West Nile did. So it really is related, at least in part, 
to the baseline immunity in the population of people as well as 
in the animal hosts.
    Dr. Ostroff. I would echo Dr. Fauci's comments.
    There are a couple of points that I think are salient. One 
of them was that, after West Nile first appeared in New York, 
particularly in the areas most affected, such as Queens, we 
actually did surveys the following year where we went out and 
caught live birds and tested them to see whether they had 
immunity against West Nile. In New York alone that immunity 
ranged from more than one in two birds that we caught, so 50 to 
60 percent of the birds were immune. In some other areas that 
were not heavily impacted, it was only 1 or 2 percent.
    You need susceptible birds out there to amplify the virus 
in nature. If you don't have that susceptibility, the virus has 
a difficult time amplifying the following year.
    We believe that, as this wave has moved across the country, 
similar patterns have followed. So if you go into the Rocky 
Mountains this year in places like Colorado, you would find 
high levels of immunity in the bird population. Their immunity 
traps the virus from being able to amplify to levels that 
increase chances for exposure to an infected mosquito.
    However, the important thing is that birds don't live very 
long. So after a couple of years all of those immune birds, if 
the virus hasn't been widely circulated, go away, and you once 
again have a susceptible population of birds.
    As far as humans are concerned, we have done a number of 
surveys in various locations after West Nile has swept through. 
There has been no population that we have seen with relatively 
high levels of immunity, despite the fact that for every severe 
case of illness that occurs with West Nile there is somewhere 
between 100 to 150 other people that were infected but never 
got sick.
    So that if there were, let's say, 600 or so cases in 
Michigan in 2002, you can multiply that by a factor of 100 to 
150 and see that there were probably 60,000, 80,0000, 100,000 
individuals that were infected. That doesn't do enough to 
actually block subsequent transmission to humans.
    Other reasons that we may be seeing this waxing and waning 
include West Nile's very complicated ecology in this country. 
We know that have there have been more than 50 different 
species of mosquitos that have been identified as carrying this 
virus. Not all of them are as competent in being vectors to 
    In addition, there have been more than 250 different bird 
species that have been identified as being infected. So as you 
go from place to place around the country the predominant 
mosquitos that are responsible for transmission tend to be 
different, which causes the impact and the amount of disease 
from place to place would also be expected to also vary.
    The third thing that I think might be playing some role is 
what we are doing to reduce the impact of the disease; and 
whether it is public education or whether it is what the local 
mosquito control districts are doing, I would like to think 
that some of our best programs such as the programs in 
California, are also having some impact.
    Mrs. Miller. Thank you.
    Mr. Ose. The gentleman from Massachusetts.
    Mr. Tierney. Thank you.
    Mr. Grumbles, I just want to try to wrap up some things. I 
have really three things that are bothering me here, is your 
definition of pollutant, your attempt to reconcile two statutes 
that seem to me to be distinct in their purposes, and that--the 
so-called guidance itself, which I think you purport is not a 
rule and somehow didn't need notice and comment.
    So take it maybe the first order first. Can you explain to 
me your legal rationale for determining that what you have done 
in putting out this so-called guidance somehow doesn't meet the 
definition of a rule as it is put out in the Administrative 
Procedure Act as has been interpreted by the courts? Because I 
think I look at it quite differently.
    Mr. Grumbles. Our approach is that it is interpretative 
guidance, in essence, an interpretive rule. It is not a 
rulemaking. We didn't have to, Congressman, but we did seek 
notice and comment; and we have had----
    Mr. Tierney. But after the fact. You put it into effect, 
and then you sought notice and comment, right?
    Mr. Grumbles. We put it into effect immediately and----
    Mr. Tierney. Well, let me just read to you what the 
Administrative Procedure Act says. Basically defines a rule as 
the whole or a part of an agency statement of general or 
particular applicability and future effect designed to 
implement, interpret or prescribe law or policy.
    The courts in fact have held that definition is broad 
enough to include nearly every statement an agency can make. I 
am having a hard time figuring out how you somehow manage to 
think just because you don't call it a rule that you avoid that 
interpretation of the law.
    Mr. Grumbles. Well, our attorneys made it very clear that 
this was an appropriate, accepted practice through the 
Administrative Procedure Act to issue this interim guidance; 
and our plan, Congressman, is to take full analysis of the 
comments and then----
    Mr. Tierney. Sorry to interrupt you. Because that is late. 
The whole purpose of the Administrative Procedure Act is that 
you have notice and comment before it goes into effect. And I 
don't care what kind of back-flips your attorneys are telling 
you are OK to take. I don't think there is any room for wiggle 
where it says, the whole or part of an agency's statement of 
general or particular applicability and future effect designed 
to implement, interpret or prescribe law or policy. The Court 
is clear. Just about any statement the Department makes comes 
under that.
    I would like you to take back to your lawyers and maybe go 
back to their first year of law school and go back to reading 
that. Because I think they are dead wrong on that. I think it 
is offensive to the whole act. I think that, you know, we all 
want to get the right answer on this, but we want to do it the 
right way.
    If there are Federal laws that are trying to protect our 
health and safety, you know, it is Congress that should be 
listening, as we are here today having hearings. I thank the 
chairman for having these. If something needs to be reconciled, 
we should do it.
    But that brings me to the second point.
    The Federal Insecticide, Fungicide, Rodenticide Act 
[FIFRA], deals with establishing, through a labeling, the 
general acceptability of that product, am I correct?
    Mr. Grumbles. Yes.
    Mr. Tierney. Now, that is fine. But how is EPA then going 
to determine with regard to the specific application or 
injection of that product into a particular local body of water 
if it doesn't take the Clean Water Act and do a NPDES permit? 
Aren't you abrogating your responsibility under the CWA, the 
Clean Water Act, and the NPDES requirements to just give out 
that first level of FIFRA and then say, hey, we are going to 
try to make them reconcile by having it apply to those 
particular circumstances without taking a look?
    Mr. Grumbles. Congressman, I don't think we are abrogating 
our responsibility. I think the intent is to integrate the 
statutes and to have them work together.
    Mr. Tierney. Well, let me ask you that. If you are 
integrating them and you think you are going to serve that 
purpose, then at the time you are going giving out the FIFRA 
thing are you then purporting to look at every local body of 
water to see whether or not it is going to be a pollutant in 
that body of water, whether or not it meets the clean water 
standard? Because I think that's the only way you can do just 
one of the two and serve the purposes of both.
    So how do you do that? If you rely just on FIFRA, how do 
you do that, what is required by the CWA?
    Mr. Grumbles. I think there are two aspects. One is, we 
don't just rely on FIFRA. There are Clean Water Act relevant 
factors and programs that play into this, just not the NPDES 
permitting program.
    Mr. Tierney. Why not?
    Mr. Grumbles. Because our best legal reading of the statute 
is that in two situations when an applicator is following all 
of the relevant requirements of FIFRA, which are extensive----
    Mr. Tierney. They are not. You have already said yourself 
they may be extensive, but they are general. And they do not 
handle the specifics of a particular body of water. Right?
    Mr. Grumbles. Well, there is nothing in the Clean Water Act 
or in EPA policy that would prohibit or discourage other laws 
being used or States using clean water provisions or laws to 
address those site-specific factors. It doesn't always----
    Mr. Tierney. But EPA has the responsibility, does it not, 
under the CWA to make these kinds of determinations to issue or 
not issue a NPDES, unless Congress tells you otherwise?
    Mr. Grumbles. We have a responsibility under the CWA which 
we take very seriously, and that is to implement it as it is 
written and to make good judgment as to where there are grey 
areas as to which licensing or permitting program applies.
    Mr. Tierney. You have two different statutes. Congress has 
told you two different things. On FIFRA, they are giving you 
directions on what to do, and on the NPDES, within the CWA, 
they have told you what to do. Tell me where it is that your 
agency then decides when it will apply one and not the other, 
because we are just going to make some theory up that they 
somehow can be reconciled, when you have already admitted to me 
that one does a very general overview on that and the other 
deals with specific bodies of waters and injections into them.
    Mr. Grumbles. The Clean Water Act is going to be 34 years 
old in a few weeks; and at this point in time, there are areas 
where courts, State, local, Federal agencies, citizens have 
questions about the jurisdictional scope.
    Mr. Tierney. When they have a question, then Congress will 
answer it, I suspect, not the agency and a reinterpretation, 
even from its own previous statements and legal briefs, where 
they made clear that FIFRA deals with one thing and that the 
NPDES deals with the other and that when they approve a 
pesticide under FIFRA they do it with the knowledge that 
pesticides containing pollutants may be discharged from point 
sources into navigable waters only pursuant to a properly 
issued CWA permit.
    That is your department's language. When you think that 
something has become unclear to you, even though it was clear 
as a bell apparently at one point here that you put in a legal 
brief, I would think that you would come back to Congress with 
a recommendation that all of a sudden things have gotten fuzzy 
for you. Maybe it is the new lawyers on your staff. Maybe we 
ought to have them in, Mr. Chairman, for a little conversation. 
Because I think it is somewhat unfair to put Mr.--you are not a 
lawyer, Mr. Grumbles?
    Mr. Grumbles. I am.
    Mr. Tierney. You are. Well, maybe it is fair to have you 
here then, and maybe we can go over your legal background.
    Mr. Ose. Let the record show that the witness answered in 
the negative, that it is fair.
    Mr. Tierney. Let me just say how is it that you are so 
crystal clear in one brief and then all of a sudden you decide 
that for Congress--you are going to take the role of Congress 
and decide now that we are just going to do one of those and 
that is going to cover everything.
    Mr. Grumbles. Congressman, in all fairness, I don't think 
things are crystal clear in this area. What I think is clear is 
the legal basis we have for articulating our view, the view 
that when a pesticide is being lawfully applied under FIFRA, 
which does include environmental and water quality related 
    Mr. Tierney. In general.
    Mr. Grumbles [continuing]. In general, that it is not a 
waste. The best reading of the statute--and there is lawsuit 
after lawsuit, as you know, over how to interpret those words 
in the definition of pollutant.
    Mr. Tierney. But so far they have been interpreted to apply 
to both FIFRA and NPDES.
    Mr. Grumbles. Well, my understanding is no. The history of 
the agency is not to require a NPDES permit under the Clean 
Water Act for those situations.
    Mr. Tierney. But the interpretation of the courts is what 
you are talking about, and they have so far instructed that 
both are applicable?
    Mr. Grumbles. I would say just as many courts have not and 
have taken a very different view, the view that if it is being 
lawfully applied it is not a waste, it is a product. And if it 
is a product, then it is not a pollutant.
    We embraced the notion that Clean Water Act programs and 
factors should be taken into account precisely for that reason. 
When the agency issued the July 11 interim guidance, we also 
established a work group between the FIFRA folks and the clean 
water permitting folks specifically with the task of doing 
several case studies on pesticides, one of which would be a 
mosquitocide, to analyze the risk minimization and risk 
management structures under the two statutes and to see how 
they differ.
    But from a legal analysis, Congressman, our view, until 
Congress gives us clearer direction, is that the best reading 
of the statute, the one that we have had over the years, is 
that the pesticide is not a waste or a biological material, it 
is not a pollutant under the act when it is being applied fully 
in accordance with all relevant FIFRA requirements in those two 
situations of direct application above waters of the United 
States and also direct application to waters in the United 
    Mr. Tierney. Thank you.
    Mr. Ose. Dr. Ostroff, you had that map--1999, 2000, 2001, 
2002, and 2003. Can we get that back up on the easel, please? I 
have asked for this map to be put back up because it very 
graphically depicts the concerns that all three of us up here 
have expressed.
    If you look in the upper left-hand corner, you see 1999; 
upper right-hand corner 2000, 2001, 2002, and 2003. If you look 
closely, you will notice that every State represented up here 
on the map is affected by this issue; and what I hear us saying 
in no uncertain terms is that the development and issuance of a 
rule, however crafted or scoped, will provide a great deal of 
certainty to this process.
    Mr. Tierney I think makes a very good point, that the lack 
of enforceability, if you will, under guidance leaves a lot of 
doors open. I have made that point not nearly as eloquently. I 
think Ms. Miller did, too, more eloquently than I did. But my 
point is that, absent the certainty of a rule that has gone 
through due process and what have you, we are going to be stuck 
in this circle.
    Now every one of us up here recognizes that the guidance 
came out for a very real purpose. That was there was a threat 
to public health, and we needed to provide some guidance, and 
that served its purpose. But we are now to the next step, and 
we need that rulemaking, at least as it relates to the public 
health issue that we are all confronted with as represented by 
that map.
    Now, Dr. Fauci, Dr. Ostroff, educate us a little bit. When 
we talk about these mosquitos, the period of time during which 
the larvae can be laid and mature to traveling mosquitos, that 
is a highly technical term, mosquitos that can fly, what period 
of time are we dealing with? Is it 48 hours, 72 hours? Do 
either of you know?
    Dr. Ostroff. It probably varies by the mosquito, but it is 
a relatively brief period of time. And, obviously, it also 
depends on the weather conditions. So it is not a 
straightforward answer, but you are not talking months, you are 
certainly talking about days for the mosquitos to go through 
their lifecycles.
    Mr. Ose. So, under optimal conditions, it might be as 
little as how many days?
    Dr. Ostroff. I believe as little as 1 or 2 days.
    Mr. Ose. From the time the larvae are laid to the time 
where they are in the air? I have people shaking their heads.
    Dr. Ostroff. They are the experts from the Mosquito Control 
    Dr. Weisbuch. Our experience in Arizona is that----
    Mr. Ose. Would you identify yourself?
    Dr. Weisbuch. I am Dr. Jonathan Weisbuch from the State of 
Arizona, Maricopa County.
    Our experience is that there are multiple--I will be 
presenting a little more of this at the next panel. Our 
experience has been that there are multiple different mosquito 
types that are potential vectors for this disease. The most 
common mosquito that we see, and I think it is true across the 
country, are the Aedes vexans and other flood water mosquitos. 
They are usually not carriers of the disease, and they are very 
short-lived. Their larvae cycle may be 2 to 3 days, depending 
on the temperature that is extant in the community. Of course, 
in Arizona it is very high, and so the days of larvae period is 
very short.
    When the mosquito becomes an adult, the flood water 
mosquitos last maybe a week or even less; one feeding cycle 
maybe the whole time. However, the most serious vector, which 
is the one that we see and which I think is more common in the 
West of this country than it is in the East, that is the Culex 
tarsalis mosquito and the Culex quinquefasciatus mosquito. 
These are longer-lived mosquitos. I think the former can live 
up to 3 weeks or more depending on the ambient conditions, and 
that means that they can lay eggs several times in their cycle, 
since once they can bite an appropriate mammal or possibly 
reptile then they lay eggs; and then another 4 or 5 days later 
they will do the same thing.
    So depending on what the ecology is in the area in which we 
are talking--and this is the one of the questions that I am 
going to raise in my discussion--you have a different 
manifestation of the frequency of infected mosquitos, the 
probability that an infected mosquito will in fact bite another 
acceptable host and the probability that mosquito will live to 
bite again. Infection with West Nile virus is dependent on many 
different variables.
    And the question that I think we need to ask is, how do 
these variables interrelate? How does temperature, how does 
rainfall, how does the lifecycle of the mosquito, depending on 
its ambient conditions, affect the infection rate of other host 
animals and especially human beings? Because it is highly 
    Again, we will talk more about that later. But I think it 
is a critical question in knowing--and for us in public health 
to know--what is the epidemic going to look like, given a rainy 
spring, a dry spring, a hot spring, a cold spring? These kinds 
of questions, if we knew the probabilistic relationship between 
the multiple factors, would give us an opportunity to make some 
predictions about how bad the epidemic might be, where we have 
to focus our efforts, is it larvaciding, is it adultaciding, 
and so on.
    Mr. Ose. I thank you, Doctor, for that clarification. We 
actually do have a number of questions along that path that we 
will ask you in the second panel, so I appreciate the 
    The reason I asked about the minimum-maximum life spans has 
to do with, from a public health perspective, how quickly must 
you act? And Dr. Ostroff and Dr. Fauci, any guidance? I mean, 
if it breaks out--I mean, you guys have to start--you have to 
be rolling almost before the first mosquito takes air.
    Dr. Ostroff. Well, Congressman, what I would say is, and I 
think the folks behind me that do mosquito control for a living 
would say, doing integrated pest management is most important. 
You should be taking steps to control mosquito populations 
during the winter months when you have an opportunity to do so.
    It is habitat management. It is larval control. It is many 
different things. And the earlier you start in the cycle the 
more likelihood you have of success. Once the mosquito 
transmission season gets up and rolling, all of us I think 
would be in agreement that where we get into trouble is when 
many of those things haven't been done earlier, and then people 
get into an epidemic situation, and have to resort to tools 
which we know probably aren't the most effective ways to 
protect public health, such as using adulticides.
    What we would like to see is more mosquito control 
districts using comprehensive integrated pest management so 
that many of these steps are potentially averted in the midst 
of a crisis.
    Mr. Ose. Dr. Fauci, anything to add?
    Dr. Fauci. I have nothing to add. Dr. Ostroff said that 
very well. It is comprehensive, and it is year-round.
    Mr. Ose. Dr. Ostroff, this is my last question in this 
round. Do I recall in your testimony, you said 2.6 percent of 
the population in certain portions of New York City are 
infected with West Nile virus?
    Dr. Ostroff. Not infected--had at one point become 
infected. We have done several surveys after outbreaks have 
swept through communities to see what proportion of the 
population actually became infected when West Nile was 
circulating. We did this in New York. We also did this in 
Louisiana after a relatively intense outbreak in Louisiana in 
2002. And in each of those situations, by doing random surveys 
of the population and taking blood samples, we were able to 
determine that between 2 and 3 percent of the population had 
actually become infected and were now immune.
    Mr. Ose. And some percentage of that 2 to 3 percent 
actually gets the worst result?
    Dr. Ostroff. Correct. We know from surveys that have been 
done that if you take all comers with West Nile infection, the 
vast majority of them won't develop any disease at all.
    Mr. Ose. The statistic was 80 percent?
    Dr. Ostroff. More than that. More than 90 percent. So only 
1 out of every 150 individuals that become infected will 
develop the most severe forms of the disease. There are another 
5 to 10 percent or so who will develop what we refer to as West 
Nile fever, which is not a nice disease, but it is not a very 
severe disease that would put you in the hospital.
    Also, by looking at blood donors who were infected at the 
time that they donated the blood, we have been able to 
determine that 20 percent of those individuals will 
subsequently become sick, most of them with West Nile fever, 
and another 1 to 2 percent will develop the more severe forms.
    Mr. Ose. So what is the level at which smallpox or the flu 
or something like that becomes a pandemic? Is it at the level 
that you are talking about of 1 in 150, or 2 or 3 percent?
    Dr. Ostroff. It is different for every disease. But I would 
say that the West Nile virus in this country for the last 
several years has clearly been epidemic as it has moved from 
place to place to place. When it will convert itself to 
endemicity so that we won't be in its epidemic waves in the way 
that we have been seeing is hard to say. We think that it is 
clearly still in its epidemic phase.
    If I was to look at that map and say what is likely to 
happen in 2005, one would think that it would continue to, in 
your State of California, move to the north, in areas that 
haven't yet been very heavily impacted. What will happen in 
subsequent years is still difficult to say. Because, as was 
pointed out, it depends on a lot of factors.
    What we do know is that it hasn't gone away anywhere. So in 
every State where this virus has shown up we have seen it at 
some level year after year after year. So this is a problem we 
are going to have to continue to deal with into the future.
    Mr. Ose. Dr. Fauci, do you have anything to add?
    Dr. Fauci. No. I agree. And if you do comparisons, for 
example, of diseases like influenza at each given year, 10 to 
20 percent of the population will get infected with influenza, 
and a fraction of them will have very serious disease.
    The numbers that we were speaking about yesterday with the 
issues that arose yesterday, the 36,000 people a year who die 
in this country from influenza and about 200,000 get 
hospitalized, but if you are taking about 10 to 20 percent of 
288 million people, that is a lot of people that get infected, 
and a relatively small number will get seriously ill.
    Mr. Ose. Thank you. The gentlelady from Michigan.
    The gentleman from Massachusetts.
    Mr. Tierney. I have a question that may be best reserved 
for the next panel, but it seems to me that probably two 
objections to looking to get both permits would be cost and 
time. So setting cost aside for a second, if time for 
permitting is a problem, isn't there some way of anticipating 
where this is going to occur and having some sort of 
anticipatory process where people get their plans approved and 
go through the NPDES process? So in the event that there is a 
need for these pesticides that they are all set and ready to 
go, as opposed to waiting until they are inflicted with a 
situation and then going through?
    So I guess the relevant question would be, how much time 
does the permitting process actually take? And maybe Mr. 
Grumbles can help us with that. And then for the other 
witnesses included, maybe whether or not it is possible to 
anticipate a need and get the permitting done ahead of time.
    Mr. Grumbles. Congressman, on the question of the timing, 
NPDES permitting can--you know, there are basic variations. 
There are individual permits which can take years to issue. It 
is a process.
    Mr. Tierney. Clearly that won't help then.
    Mr. Grumbles. No. There are general permits. I think the 
general permit, it can be a much more expedited, 
administratively convenient approach. But I think it is a 
question well put to the regulated community, the applicators 
in terms of their time constraints or the necessity to go 
through that additional permitting process and experiences in 
California or Oregon or Washington where there are clean water 
permitting authorities being used.
    So I think timing--it just varies. It ranges. But certainly 
it can be viewed as a cumbersome process, particularly from the 
applicators' perspective if they feel that they have done 
everything under the FIFRA program.
    Just so that you don't think that EPA spends all of its 
time looking at Clean Water Act jurisdiction, we would like to 
just highlight some of the things we are doing in terms of 
developing new products and also revising pesticide labeling. 
Could I just defer to Adam Sharp?
    Mr. Ose. Given the constraints of time, Mr. Tierney is 
likely to have more questions. Mr. Sharp, could you submit 
those for the record?
    Mr. Sharp. Sure. Thank you.
    Mr. Tierney. That would be fine with me. Thank you for your 
offer on that, and we will certainly take a look at them.
    [The information referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T8485.045
    Mr. Tierney. I only say this because I am thinking that, 
you know, if we should decide and if it is determined that the 
NPDES process is important--that will have to be something that 
is ironed out or whatever--the next step is how do you make 
that process expedited so that it gets the purpose done and 
doesn't drag people through all of this cost and time and then 
serves that purpose.
    Clearly, the inference from the people, I think we are 
going to hear on the next panel, is that it is not that way 
now. That has created some of the problems.
    But, Dr. Fauci and Dr. Ostroff, I don't know if you have 
anything that you want to weigh in on this issue or just leave 
it for the next panel?
    Dr. Fauci. Leave it.
    Dr. Ostroff. My only comment would be that we don't have as 
many tools as we would necessarily like to be able to deal with 
this problem. I mean, this is a battle against this disease and 
against this virus and against the mosquitos that transmit it; 
and anything that we can do to facilitate being able to do what 
is necessary to deal with this battle would certainly be 
welcome. I don't want any of our public health partners at the 
State and local level to be going into this battle with one 
hand tied behind their back.
    Mr. Tierney. At some point, we ought to weigh what is the 
danger of pollutants in the water versus the danger of not 
getting this resolved fast enough. But that is a larger issue.
    Mr. Ose. I actually think that is Mr. Grumbles' and Mr. 
Sharp's central dilemma, is how to work through that.
    Mr. Tierney. Exactly. Thank you all very much.
    Mr. Ose. I have one other question here, if I may; and this 
is unique. In my neighborhood, one of the local municipal 
entities is proposing to create a settling basin. This is in 
Sacramento. We get very hot summers, and we have rain. They 
want to create a wetlands. If you were living in that immediate 
area, would you be concerned or not concerned about the 
creation of this wetlands? Dr. Fauci.
    Dr. Fauci. Environmentally, a lot of people love wetlands. 
But if you have standing water in a State that has the risk 
that California has now with West Nile, I would be concerned 
about providing the macro and micro environment for some rather 
efficient proliferation of mosquitos. So I would be concerned.
    Mr. Ose. Dr. Ostroff.
    Dr. Ostroff. Well, without knowing any of the specifics, it 
is really difficult to answer that question.
    Mr. Ose. I will be happy to give them to you.
    Dr. Ostroff. As somebody that if there is one mosquito in 
the neighborhood it manages to find me, I would definitely have 
concerns about the standing water.
    Mr. Ose. Thank you.
    I want to thank this panel for their testimony and their 
patience. We will probably have additional questions for 
submittal to you, which we will do in writing. We would 
appreciate a timely response so that we can make them part of 
the record. Again, your testimony has been very illuminating, 
and we appreciate your participation.
    We are going to take a 5-minute recess here while the next 
panel comes up and joins us.
    Mr. Ose. OK, we are back. Just for safety's sake we are 
going to go ahead and swear everybody in again. So if you would 
all please rise.
    [Witnesses sworn.]
    Mr. Ose. Let the record show the witnesses all answered in 
the affirmative.
    Our second panel, previously introduced, is composed of the 
following individuals: Mr. John Pape, chief epidemiologist for 
the Colorado Department of Public Health and Environment; Dr. 
Jonathan Weisbuch, director of public health from Maricopa 
County, AZ; Mr. Joe Conlon, technical advisor to the American 
Mosquito Control Association; Mr. David Brown, who is the Chair 
of the integrated pest management portion of the Mosquito and 
Vector Control Association of California; Ms. Wendy Station, 
who is the founder of Encephalitis Global; and Dr. Marm 
Kilpatrick, who is a senior research scientist for the 
Consortium for Conservation Medicine at the Wildlife Trust.
    Collectively, welcome. Thank you all for coming.
    You have seen how we handled the first panel. We have 
received your testimony or your statements in writing, and they 
have been entered into the record. Each of you in turn will be 
recognized for 5 minutes for the purpose of summarizing your 
written statement.
    We usually go from left to right. Today, we are going to go 
from right to left on second panel. So, Dr. Kilpatrick, you are 
first. Welcome. You are recognized for 5 minutes.


    Dr. Kilpatrick. Mr. Chairman and members of the 
subcommittee, thank you for giving me this opportunity to 
discuss these important issues. My name is Marm Kilpatrick, and 
I am a senior research scientist with the Consortium for 
Conservation Medicine.
    The Consortium is a collaboration between Wildlife Trust, a 
conservation NGO, the USGS's National Wildlife Health Center, 
and three universities--Harvard, Tufts and Johns Hopkins. The 
Consortium is a leader in the field of conservation medicine, 
which explores the links between human health, wildlife health 
and ecological health.
    I am a disease ecologist working on West Nile virus through 
a project funded with Federal and private foundation grants. My 
testimony focuses on four major points: First, the efficient 
allocation of resources to control West Nile virus during 
mosquito season; second, the prediction of disease hot spots at 
least a year ahead of time; third, the sharing of data between 
scientists and government; and, finally, the spread of 
mosquito-borne pathogens over oceans.
    First, concerning resource allocation, our research group 
has developed a risk assessment or framework that allows for 
the comparison of a West Nile virus epidemic between locations 
at different spatial scales. This risk measure is easy to 
describe and understand, which should facilitate its use by 
resource managers in a range of settings. Our risk measure is 
based or incorporates information on human density, mosquito 
abundance, and prevalence data collected by surveillance 
efforts and published information on mosquito feeding behavior 
and vector competence.
    In short, it is a prediction or an estimation of the 
impending number of human West Nile virus infections based on 
the current state of mosquito populations. It offers important 
advantages over resource allocation strategies that do not 
include unbiased information on the intensity of disease 
between areas. Its use could improve the efficiency of control 
efforts during mosquito season by allocating limited financial 
resources to the areas that need it most.
    Second, if we can predict West Nile virus hot spots at 
least a year ahead of time, we can implement effective but 
slower-acting strategies such as education outreach and the 
development of integrated mosquito control plans.
    However, hot spot prediction requires an understanding of 
what determines spatial variation and disease intensity. 
Unfortunately, our understanding of the basic ecology of West 
Nile virus is limited. As a result, additional funding for 
research is urgently needed to determine, among other things, 
the relative importance of mosquito abundances, the composition 
and previous exposure of the bird community, and climatic 
effects on disease transmission.
    Third, our understanding of West Nile virus would be 
greatly facilitated by the increased sharing of data between 
health departments and scientists working on this disease. The 
mosquito abundance and infection prevalence data collected by 
county and State health departments is extremely valuable for 
understanding spatial and tempo of variation in disease 
intensity, but, unfortunately, is rarely available to planners 
and scientists. Although there are some privacy and property 
value concerns that impede data sharing, it should be possible 
to work with local health departments to address these issues.
    One strategy that may be effective is to aggregate the data 
to a level that maintains its usefulness for research and 
planning while also addressing the privacy and property value 
concerns. If surveillance data can be made available, the 
creation of an open access data base to archive the data would 
greatly facilitate research and understanding.
    Fourth, and finally, recent work by our group suggests that 
the introduction of mosquito-borne diseases from other 
continents to North America and the spread of West Nile virus 
to Hawaii is likely to occur through the accidental transport 
of mosquitos on airplanes.
    Research suggests that the most promising and politically 
feasible strategy to reduce the number of live mosquitos on 
airplanes is the use of a residual insecticide coating on the 
inside surface of airplane cargo holds, where over 80 percent 
of mosquitos are usually found. This strategy achieves 
significant reductions in mosquitos and avoids the politically 
difficult issue of using insecticides in airplane passenger 
    However, implementing this strategy requires compliance by 
airlines, the air transport industry, and the military, which 
is unlikely to occur without government intervention. 
Nonetheless, urgent action is necessary to prevent the 
introduction of new pathogens. In particular, the introduction 
of West Nile virus to Hawaii could have strong negative 
consequences for Hawaii's public health, tourism, and a long 
list of critically endangered birds.
    In summary, I believe tools are available to improve the 
efficiency of our control efforts, but additional data sharing, 
research funding, and proactive regulatory action are necessary 
to meet the challenges of combating West Nile virus.
    Once again, thank you for your time and the opportunity to 
discuss these issues.
    Mr. Ose. Thank you, Dr. Kilpatrick. I do want to compliment 
you. You were very specific on four approaches, and that is 
exactly the kind of feedback we look for up here: specific, 
pointed, boom. So thank you.
    [The prepared statement of Dr. Kilpatrick follows:]

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    Mr. Ose. Ms. Station, thank you for joining us today.
    Ms. Station is the founder of Encephalitis Global and is 
here to talk not only about those who might have died from West 
Nile virus or its associated diseases but in part also about 
those who survive it and the consequences thereof.
    You are recognized for 5 minutes.
    Ms. Station. Thank you, Mr. Chairman. Good morning to 
yourself and the subcommittee members and guests here today.
    As you know from my testimony, I am an encephalitis 
survivor. I am here today to proudly speak on behalf of 
encephalitis survivors, caregivers and their loved ones.
    Encephalitis impacts the whole family. Today, I speak in 
one voice for all of these families, asking you to please 
recognize encephalitis. Hear more, learn more, understand what 
it means.
    Encephalitis is inflammation inside your brain. 
Encephalitis has changed my life. I cannot clearly verbalize. I 
cannot clearly and verbally express the ideas in my head. I 
cannot think of the right words to make conversation. I am 
neurologically disabled, and I struggle to express my thoughts 
and my ideas.
    Yesterday, on arrival here in Washington, DC, my good 
spouse and I--that is, my husband and I--we went for a walk, 
then stopped into an informal restaurant for dinner. We got 
chatting with a young couple who had a new baby. They sat at 
the table beside us. They asked why we were here. When I told 
them why I was invited to this hearing, the young mother said 
to me, ``tell them, explain it clearly. I am so worried for my 
husband, for myself, and now for our young son. You tell them 
that something must be done so that we don't have to be so 
    I am here today to speak for my friends and for families 
like the one I met just yesterday. I thank you very much for 
the honor of your recognizing my Web site, Encephalitis Global. 
I work daily to help society be aware and to help families and 
friends cope with this disabling disease and thank you, 
sincerely, for this opportunity to do so.
    Mr. Ose. Thank you, Ms. Station. We are pleased you are 
able to join us.
    [The prepared statement of Ms. Station follows:]

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    Mr. Ose. Our next witness is Mr. David Brown, who is the 
Chair of the integrated pest management efforts at the 
California Mosquito and Vector Control Association.
    Sir, welcome to our subcommittee. Appreciate your written 
statement. It has been read and entered into the record. You 
are welcome to summarize in 5 minutes.
    Mr. Brown. Thank you, sir.
    Good morning, Mr. Chairman and Congressman Tierney. My name 
is David Brown. I am a member of the Mosquito and Vector 
Control Association of California, an association comprised of 
57 public health agencies responsible for the control of 
mosquitoes and other vectors in California.
    I also co-chair the Association's Integrated Pest 
Management Committee; and, Congressman, I am also the manager 
of the Sacramento Yolo Mosquito and Vector Control District, 
the area where you earlier referred to, the detention basin 
being developed.
    Mr. Ose. That is a coincidence, I am sure.
    Mr. Brown. Since 1999, as West Nile virus has steadily 
moved west, we have seen its arrival here in California to 
where, as of October 1, 2004, West Nile virus has been detected 
in 57 of the 58 counties of California, with over 654 humans 
infected and 18 deaths.
    There have also been 419 equine cases, with 177 of the 
horses dying from the infection or requiring euthanization. 
Most of the human infections have been located in the southern 
part of the State, but as the virus becomes more established we 
can anticipate Northern California facing serious issues next 
year as well, and I believe that was discussed and confirmed 
from the earlier panel as well.
    California has what could be characterized as the most 
comprehensive mosquito control programs in the United States, 
fully utilizing integrated pest management in our control 
efforts. California's unique blend, however, of wetlands, 
agriculture and dense urban populations create a public health 
challenge when addressing mosquito populations.
    However, since we have seen West Nile virus move into 
California, we have significantly increased surveillance for 
mosquitoes, cooperating with the California Department of 
Health Services in a dead bird surveillance program. We 
dramatically increased control responses in areas where the 
disease has been detected, and we have increased education to 
citizens on how they can prevent the disease themselves.
    We do have concerns about sustaining and maintaining these 
efforts, as has already been outlined from the previous panel 
and in my written testimony. Specifically, issues of funding 
regarding maintaining our mosquito control efforts as well as 
the need for clarity of regulations between the Clean Water Act 
and FIFRA. We are hopeful that we can address some of these 
issues today.
    I want to thank you for the opportunity to provide this 
testimony, and I will be happy to address questions later.
    Mr. Ose. Thank you, Mr. Brown. I appreciate your 
    [The prepared statement of Mr. Brown follows:]

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    Mr. Ose. Our next witness is Mr. Joe Conlon, who is the 
technical advisor to the American Mosquito Control Association. 
Mr. Conlon, I have actually waded through your testimony, and I 
have lots of questions. I am hoping you can summarize and 
clarify. You are recognized for 5 minutes.
    Mr. Conlon. Very well, sir.
    Good morning. My name is Joseph Conlon. I am an 
entomologist serving as technical advisor for the American 
Mosquito Control Association, a nonprofit organization 
dedicated to enhancing public health through the suppression of 
mosquito vectors; and I welcome this opportunity to provide a 
mosquito control perspective to the deliberations of this 
    The introduction and spread of West Nile virus in the 
United States has reawakened an appreciation of mosquitos as 
vectors of disease. I use the term reawakened advisedly, for 
mosquito-borne diseases were once quite prevalent in the United 
States and indeed played a major part in shaping our Nation's 
destiny. These diseases no longer claim victims in the United 
States as a matter of course, largely due to the exemplary 
effort of organized mosquito control agencies in conjunction 
with an enlightened and effective public health infrastructure.
    Best mosquito management practices, when exercised within 
an integrated framework of surveillance, prevention and 
control, have demonstrated their effectiveness in combating 
West Nile virus when employed as a phased response challenge.
    The integrated mosquito management methods currently 
employed by organized control districts in the control of West 
Nile virus and endorsed by both the CDC and EPA are 
comprehensive and specifically tailored to safely counter each 
stage of the mosquito lifecycle. Larval control through water 
management source reduction, where compatible with other land 
management uses, is the lynch pin of this strategy, as is use 
of the environmentally friendly EPA registered larvacides 
currently available.
    When source elimination or larval control measures are 
clearly inadequate or in the case of imminent disease, both the 
EPA and CDC have emphasized in a published joint statement the 
need for considered application of adulticides by certified 
applicators trained in the special handling characteristics of 
these products.
    The extremely small droplet aerosols utilized in adult 
mosquito control are designed to impact primarily on adult 
mosquitos that are in flight at the time of application. 
Degradation of these small droplets is extremely rapid, leaving 
little or no residue in the target area at ground level. These 
special considerations are major factors that favor the use of 
very low application rates for these products, generally less 
than 4 grams active ingredient per acre, and are instrumental 
in minimizing adverse impacts.
    Since its inception, the Environmental Protection Agency 
has regulated mosquito control through the enforcement of 
standards instituted by FIFRA. This legislation mandated 
documentation of extensive testing of public health 
insecticides according to EPA guidelines prior to their 
registration and use. These data requirements are among the 
most stringent in the Federal Government and are met through 
research by established scientists in Federal, State and 
private institutions.
    This process costs a registrant several million dollars per 
product but ensures that the public health insecticides 
available for mosquito control do not represent health or 
environmental risks when used as directed. Indeed, the five or 
six adulticides currently available are the selected survivors 
of literally hundreds of products developed for these uses over 
the years. The dosages at which these products are legally 
dispensed are at least 100fold and often several thousandfold 
less than the point at which public health and environmental 
safety merit consideration.
    In point of fact, literature posted on the Web sites of the 
EPA Office of Pesticide Programs, CDC, American Association of 
Pesticide Safety Educators and National Pesticide 
Telecommunications Network emphasizes that proper use of 
mosquitocides by established mosquito control agencies does not 
put the general public or the environment at unreasonable risk 
from runoff, leaching or drift when used according to label 
    Even with these safeguards, organized mosquito control 
agencies often go to extraordinary lengths to accommodate 
individuals who, for varying reasons, prefer their property not 
be sprayed with approved public health insecticides.
    When surveys indicate the need for adult sprays, they are 
approved, planned and conducted with special regard to the 
concerns of chemically sensitive persons. Personal notification 
of chemically sensitive individuals, the spray times, in 
addition to using global positioning systems and global 
information systems technology to reduce the likelihood of 
drift over unauthorized areas are but a few of the means 
utilized to ensure mosquito control serves the entire public 
health spectrum.
    The AMCA fully endorses the Clean Water Act's intent of 
reducing pollutant load in the Nation's clean water while 
allowing productive use of that resource. However, the AMCA 
considers NPDES permits attendant to this legislation to be 
both redundant and unnecessary for the application of public 
health insecticides specifically registered by EPA under FIFRA.
    Furthermore, the excessive fiscal burdens that NPDES 
permits entail through compliance measures and threat of civil 
lawsuits will ultimately divert scarce mosquito control 
resources away from the primary mission of protecting human 
health while not contributing tangibly to the critical goal of 
environmental protection.
    In January 2003, the American Mosquito Control Association 
proposed a rulemaking by EPA to exempt mosquito larvacides duly 
registered under FIFRA for water application from NPDES permit 
requirement. A clear articulation by EPA of the exemption of 
FIFRA registered mosquito larvacides and adulticides from these 
permitting requirements through a rulemaking would both 
tangibly validate the registration process while obviating 
further civil litigation.
    The EPA currently has this issue under active review, but 
at some point definitive action by the agency is needed or the 
citizen suits attendant to CWA will continue to proliferate.
    West Nile virus has now accounted for almost 16,000 cases, 
622 fatalities, and 48,000 cases of meningoencaphalitis. Those 
statistics are but a pale shadow of the human experience of 
this devastating disease. The increase in worldwide tourism and 
trade virtually guarantees further challenges from other exotic 
mosquito-borne diseases such as Japanese encephalitis and Rift 
Valley Fever in the future.
    Should these emerging diseases settle into the American 
public health landscape, particularly an as unintended 
consequence of otherwise laudatory environmental policy 
initiatives, we will have only ourselves to blame, for we have 
the means to control these diseases within our grasp.
    A robust interagency cooperation and design, resourcing and 
implementation of sustainable mosquito-borne disease programs 
are cornerstones of this national effort. In conjunction with 
judicious application of federally registered and NPDES-exempt 
public health mosquito insecticides when warranted our shared 
goals of both the health populous and environment can thus be 
attained--our citizens and our Nation's wildlife deserve no 
    Again, thank you for the opportunity to testify, and I 
would be most happy to answer any questions.
    [The prepared statement of Mr. Conlon follows:]

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    Mr. Ose. Our next witness is the chief health officer for 
Maricopa County, AZ, somebody right there in the heart of the 
struggle on this, Dr. Jonathan Weisbuch.
    Welcome to our subcommittee, and you are recognized for 5 
minutes. Thank you.
    You need to push it so the green light is on. There you go.
    Dr. Weisbuch. Thank you very much for inviting me to 
testify before your committee, Mr. Chairman. I am Dr. Jonathan 
Weisbuch from the Maricopa County Department of Public Health 
and the chief health officer in that county.
    Our struggle in 2004 with the West Nile virus I think all 
of you are familiar with. I am going to discuss four points. 
First of all, what we knew prior to the epidemic, what we did, 
and then what we have learned and the questions that we have.
    Controlling mosquitos in the greater metropolitan Phoenix 
area possess unique challenges. Maricopa County is over 9,000 
square miles, larger than several States. Its population, 3.5 
million, exceeds that of 20 States. While much of Arizona is 
desert, Maricopa County has built an artificial oasis, the 
perfect harbor for mosquitos. We have green lawns, golf 
fairways, lakes, wetlands, irrigation canals, storm sewers, an 
urban heat island, and the largest number of private home 
swimming pools in the Nation. We estimate it at the level of 
    During our long hot summer, many of those backyard swimming 
pools go unused, go unmanaged, and are available for mosquito 
larva. And we can show this, if we have a copy of the first 
slide. It's just a map of the area. This is the central part. I 
guess this doesn't show on there, the central part of Maricopa 
County, only part of it, about 2,000 square miles, all of which 
are filled with dense area of human beings; and then we have 
horses, we have chickens, we have birds, we have a variety of 
other things, including harborage for mosquitoes.
    In late 2002 we estimated that 2003 would be the time in 
which West Nile would arrive in Maricopa County, but it did 
not. We then knew that 2004 would be our time. Mosquito disease 
usually impacts Arizona during our rainy season in late July, 
and then peaking in August and waning in September as diurnal 
temperatures decline and mosquitoes become inactive.
    We began larvaciding using the management technique that 
has been described earlier. We began larvaciding our breeding 
sites in late March 2004 and surveillance of both mosquitoes 
and animal cases, including human cases, in April. We had a 
communication package ready to go after our first case in order 
to inform the public of the situation. But unfortunately, 
nature in our case did not cooperate. A blood donor was 
identified on April 24, long before our normal season. The 
first human case was reported in mid-May. The epidemic was in 
full swing and by the end of May we had over 60 cases.
    Our media message was very simple. We stressed prevention: 
Clean up your back yard, clean up your neighborhood, report 
mosquitoes to environmental services, report stagnant swimming 
pools, use repellent, long sleeves, and stay indoors after 
dark. As a result the media ran several stories. Complaints 
increased to the hundreds a day to our environmental control 
program. We were fortunate that the message did get out; 
Ninety-eight percent of our residents were aware of the West 
Nile virus and how to prevent disease; 71 percent had done 
something; but only 30 percent had ever used repellant. By the 
end of June we had 150 cases. July was our hot month. 
Temperatures were over 100 every day. Mosquito trap counts were 
increased, as did the viral infection rate of mosquitoes. 
Chickens, horses, and dead birds showed West Nile infection, 
and 100 new cases of human disease were added to the total, 
giving us 250 cases by July 31. Half of those cases were 
encephalitis and meningitis. We had two deaths.
    We can show the second slide which is a picture of what the 
epidemic looked like in the different colors; you have it in 
front of you. The different colors indicate encephalitis, 
meningitis fever, and what have you. And the cases reported 
from blood sampling. We began expanding our larvaciding to the 
hundreds of green pools that have been reported. Over the 
course of this last summer we did over 1,000, 1,500 green 
pools, to larvacide them. We doubled our fogging with anvil 2.2 
and then doubled it again before the end of July as we added 
fogging devices to our fleet.
    In late July, with the epidemic raging in Maricopa County, 
our conference call with CDC discussed the possibility of 
aerial spraying for the entire 2,000 square miles that I showed 
earlier. That was a big step we chose not to take.
    In August we increased our mosquito traps. We expanded our 
fogging where the traps showed vector mosquitoes and viruses to 
be prevalent. We expanded ground fogging tenfold so that by the 
end of the season we had fogged well over a million acres. 
That's about 10 times the size of the city of Philadelphia.
    West Nile-positive mosquito pools and vector mosquitoes 
began to decline. Mosquito complaints dropped. Human cases also 
began to go down. Was this a cause and effect with our spraying 
and the decline? I cannot say.
    There are several other slides that we could show. We can 
show the case, and the next case would be the--have you got it 
up there? This is, again, the reported cases slightly different 
from the cases by the time of onset. But you can see this line 
over here at the end of the slide which indicates the number of 
acres that we larvacided. And you can see here in the middle of 
June we've increased or doubled the number of acres, then we 
doubled it again toward the middle of July, and then we 
exploded it as our number of foggers became available to us.
    The next slide shows something similar to that which is 
really the same case reports, but if you can see the small 
line, that's the proportion of mosquitoes that we trapped which 
were infected with the virus. And it is the virus in the 
mosquitoes that causes the disease and you can see that in the 
outset of our epidemic it was high. It began to decline as we 
began to do the other efforts of adulticiding.
    Map No. 5 indicates, again the total number of--it's hard 
to see on the slide here, but you have it in front of you. 
There are 347 cases shown on this slide, the total number that 
we've had through September, and it cuts across the entire 
county of Maricopa where every area was infected.
    The last slide, of course, is just a summary of the cases 
that we've discussed.
    Deaths, however, continue to increase. We've had six in 
Maricopa county, one extra one in the State of Arizona. That 
final case actually was a blood recipient from blood that had 
been tested and where they had missed the virus so that we 
would--we were unaware of the fact that the individual had been 
given tainted blood until we went back and checked.
    The 2004 epidemic has taught us a great deal, the 
interrelationships between the multiple factors that were 
discussed in the previous panel--the bird migration, over-
winter cycles, mosquito infection rates, vertical transmission 
to larva, seasonal variations in temperature and rainfall, and 
the particular nature of our own built environment all have an 
impact and interrelate in the explosion of our epidemic this 
    We think that mosquito traps are probably our best 
surveillance tool because they give us rapid information about 
what the vectors are and whether they're infected. And we also 
recognize that physicians do not always recognize West Nile 
viruses, either in their cases or in those who have succumbed 
to the disease. Close surveillance of disease and infectious 
disease encephalitis and deaths is very important by our 
epidemiological staff. Stagnant swimming pools are probably our 
most significant breeding sites. They are extremely difficult 
to manage. We know little about the impact of pesticides on 
people, and that ignorance has undermined our ability to assure 
citizens that the risks of pesticides is worth the benefit of 
killing adult mosquitoes.
    Mr. Ose. Doctor, could you summarize here?
    Dr. Weisbuch. I'm going to summarize. We have a number of 
questions you have before you. But let me just say in 
conclusion, our experience with West Nile virus exposed 
underlying deficiencies in the public health infrastructure 
that can only be rectified with adequate funding for State and 
local public health systems and a national investment in the 
applied research that was described earlier in the earlier 
    Congress and States should determine how to provide health 
departments with sufficient fundings to support public health 
infrastructure so that this and other kinds of health problems 
can be managed. A small percentage of the $1.5 trillion spent 
in the national medical system could be allocated to strengthen 
the public health infrastructure and assure that the health of 
the public and communities would be preserved in the event of 
unexpected biological events. Absent the necessary resources, 
the health of this Nation will continue to be at risk.
    And I thank you very much, Mr. Chairman, for the few extra 
minutes, and I appreciate the opportunity to speak before you 
    Mr. Ose. Thank you, Doctor.
    [The prepared statement of Dr. Weisbuch follows:]

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    Mr. Ose. Our final witness on the second panel is John Pape 
who is an epidemiologist for the Colorado Department of Public 
Health and Environment. He too has been at the center of 
significant efforts dealing with West Nile virus. Sir, welcome 
to our panel. We have received your statement. It has been 
entered into the record. I have read it and I'd be happy to 
recognize you for 5 minutes for the purpose of a summary.
    Mr. Pape. Thank you, Chairman. On behalf of the Colorado 
Department of Public Health and Environment, our local health 
partners, and the citizens of Colorado, I'd like to thank the 
committee for this opportunity to share THE Colorado experience 
with West Nile virus.
    As is well known, since its introduction into New York City 
in 1999, this virus has marched rapidly across the country 
resulting in large outbreaks in each of the last 3 years. Thus 
our experience in Colorado is not unique. Many States have felt 
the bite of West Nile virus.
    I would also like to take this opportunity to thank our 
partners at the Centers for Disease Control and Prevention 
whose technical and financial support were absolutely crucial 
to our response to West Nile virus. Without the CDC investment 
in laboratory and public health infrastructure, Colorado would 
not have been prepared to respond when West Nile entered the 
State in 2002.
    Additionally, as has been discussed earlier, the 
collaborative research between CDC, State and local health 
agencies, academia, and private industry have been critical to 
our understanding and response to this emerging infection. By 
the time West Nile virus reached Colorado in August 2002, 
relatively few human cases had been reported in Eastern States 
and there was considerable uncertainty as to what West Nile 
virus would do in the Western United States. In preparation, 
Colorado enhanced its comprehensive surveillance system, 
upgraded laboratory capacity and launched Fight the Bite-
Colorado, a multifaceted public education campaign focused on 
personal protection to avoid mosquito bites.
    In consideration of time, I will not reiterate the details 
of the 2003 epidemic in Colorado that resulted in 2,947 cases 
and 63 deaths; actually 64, as one of our patients died just 
this week. This information IS provided in written testimony. 
However, it is important to note that neighboring States in 
Nebraska, South Dakota, Wyoming, were hit just as hard as 
Colorado in 2003 and that has been discussed in these hearings. 
Other States have experienced West Nile epidemics, including 
Arizona and California this year. So this is a national issue.
    Colorado was the first State to make a conscientious effort 
to investigate all patients who were diagnosed with any illness 
from West Nile virus, not just the more severe illnesses of 
meningitis or encephalitis. This effort has advanced our 
knowledge on the clinical spectrum of West Nile infection which 
is still not completely defined. Personally I know several 
people who were infected last year. For most, fortunately, the 
illness lasted a couple of weeks, followed by a full recovery. 
However, the middle-aged daughter of a longtime friend and 
public health colleague was not so fortunate. She was infected, 
developed encephalitis and paralysis in one leg. A year later 
she is still severely affected, and subsequent testing has 
demonstrated permanent brain damage that has left her unable to 
work or care for her daughter. For some people, infection with 
this virus is a life-altering event, and that is why prevention 
is so critical in our response to West Nile virus.
    Colorado's prevention efforts revolved around three areas: 
surveillance to identify high areas of risk of virus activity; 
public education on personal prevention measures; and 
encouraging local community-based mosquito control. All three 
components are necessary.
    We do need to improve our public prevention messages to 
encourage citizens to take personal precautions. Many people 
heard these recommendations but did not take actions to protect 
themselves. In the semi-arid climate of Colorado, nuisance 
mosquitoes are not a widespread problem like other more 
mosquito-prone areas of the country, and thus mosquito 
infrastructure is not as well developed or extensive, if it 
exists at all, in many areas of the State.
    Based on health department recommendations, many 
jurisdictions expanded or implemented mosquito controls. Others 
did not. Reasons for not implementing control varied, but 
generally held to four themes: tight budgets with competing 
community needs; uncertainty as to the impact of West Nile 
virus and the benefit of mosquito control; the stance that if 
people took personal precautions such as repellent use, 
mosquito control was unnecessary; and vocal opposition to 
mosquito control from some members of the community with a 
potential of lawsuits.
    In particular, adult mosquito control--that is, spraying--
is controversial. And although a survey found the majority of 
Coloradans would support spraying in the face of an epidemic, 
there are many constituencies out there that will oppose such 
action under any circumstance.
    Congress could take several steps to assist State and local 
agencies in addressing mosquito-borne disease problems and 
removing barriers to local control efforts. Foremost, as has 
been discussed at these hearings, would be resolving the 
contradictory Federal laws that could potentially result in a 
district complying with pesticide regulations under FIFRA, but 
then being sued under provisions of the Clean Water Act. And 
we've gone through that--this committee's gone through that.
    Pesticide regulation should be incorporated under one law, 
a law that encourages development of new, effective, 
environmentally friendly mosquito control products and methods.
    Second, the Mosquito Abatement for Safety and Health Act, 
which was passed and signed into law 2 years ago, has never 
been appropriated. Funding the MASH Act would provide 
communities with startup funds from a matching grant to 
initiate mosquito control that would then be maintained by 
local resources.
    And, finally, the funding provided from CDC for West Nile 
surveillance prevention and research was critical to our 
preparedness and response to the epidemic. Continued funding 
support of research and basic public health infrastructure at 
national, State, and local levels is imperative. As we've seen 
with the outbreaks of
West Nile virus, with monkey pox, with the continuing threat of 
bioterrorism attack, a strong public health system remains 
vital to the health and security of U.S. citizens. Thank you.
    Mr. Ose. Thank you, Mr. Pape. I appreciate your testimony.
    [The prepared statement of Mr. Pape follows:]

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    Mr. Ose. OK. We went from right to left with our public 
statements. We're going to go from east to west on our 
questions. Mr. Tierney, you're recognized.
    Mr. Tierney. Thank you, Mr. Chairman. And I'm going to be 
brief because I have to leave. And I mean no ill intent toward 
the panel here. I thank you for your testimony, which has been 
read with some interest.
    Dr. Kilpatrick, let me just ask a couple of quick 
questions. You talked about the need for better evaluating 
where resources for preventing and combating West Nile viruses 
are most needed. Can you explain why it's important to look at 
information that goes beyond just the number of positive human 
West Nile virus cases in a given area?
    Dr. Kilpatrick. Yes. Thank you for the opportunity to 
address that. I think as several of the speakers have 
suggested, putting resources in place before human infections 
take place is the only way to kind of prevent them. And so if 
there can be a framework that can predict the risk of a human 
epidemic, then you can put the resources in those places to try 
to stop things from happening ahead of time.
    Mr. Tierney. You made some comments about the data base 
needed to be improved. Can you add some specifics on that and 
tell us how more comprehensive data would be helpful to your 
efforts and other researchers' efforts?
    Dr. Kilpatrick. Yes, definitely. So in my view, the two 
most important pieces of information in terms of assessing the 
risk of a West Nile virus epidemic are the mosquito abundances 
and the infection rates of those mosquitoes. And currently, 
unfortunately, those two pieces of information are not part of 
Arbonet, which is the CDC's data base. And my experience has 
been those are not part of that because of issues I discussed 
having to do with county health departments not wanting to 
provide those data for either privacy or property value issues. 
But if those two pieces of information could be brought 
together in a data base that would be available for planning 
either on a statewide or a countrywide level, that would 
immensely help us in understanding and predicting where 
epidemics would occur.
    Mr. Tierney. Is it the general consensus from our 
individuals? Mr. Pape.
    Mr. Pape. Well, we actually use that data in Colorado, what 
Dr. Kilpatrick was talking about, both the mosquito 
populations, the make-up of mosquitoes--because some species 
are better at transmitting this than others--and mosquito 
infection rates. And we calculate those. I'm not sure of the 
value at a national level because this is such a focal disease.
    If you look at the information in my written statement, 46 
percent of our cases last year occurred in a very small area of 
the State. It was a very focused area. And you would find some 
cities that were hit very hard, and 20 miles down the road 
another town had much lower activity due to environmental 
factors and other things in play.
    So we really look at that data at the State level but focus 
more on the local picture, because it does provide you with 
evidence of how bad the activity is this year, or how much 
human risk may be present.
    Mr. Tierney. So would you argue against putting that 
information on CDC's data base?
    Mr. Pape. I don't think there's any problem with it from 
our end. We have that data available and could easily transmit 
it to CDC with the rest of the data we provide through Arbonet. 
For us it would not be an issue.
    Mr. Tierney. You don't think you'd get any resistance with 
respect to the property value issue or things of that nature?
    Mr. Pape. No, not at this point.
    Mr. Tierney. Dr. Weisbuch, you wanted to say something?
    Dr. Weisbuch. Yes. We have accumulated the same 
information. We've augmented it with meteorologic data in terms 
of the temperatures and the amount of the rainfall in different 
sections of the communities so that we can combine all of the 
several factors, hopefully, in some kind of a mathematical 
model, which I think is what's being done. And I would look 
forward to using that and sharing our data with either CDC or 
with the Harvard-Tufts-BU group that's doing this work.
    I asked in the beginning who can project for me from what 
we already know in April when we had our first couple of cases 
who can tell me how big this is going to be? We didn't have 
that capability. And I think that others in the future would 
like to have it so that we would know where to focus our 
efforts, where to do our larviciding, where to place our traps. 
I think putting the large number of mosquito traps out early in 
the scene is critical so that you know which mosquitoes are out 
there, because some of them are very good transmitters, as I 
mentioned earlier in the hearing, and others--and then knowing 
in each of those mosquitoes what the prevalence of infection by 
virus is critical. Then you can focus your larviciding. You can 
focus your ground fogging, and you don't have to go to the more 
general fogging that is so difficult for the population, or at 
least members of the population, to accept. I mean, we've had 
as many arguments with the citizenry on our ground fogging as 
we've had about the disease itself. And I think that's 
something that needs to be addressed in this epidemic as well.
    Mr. Tierney. Thank you. I yield to the chairman.
    Mr. Ose. Will the gentleman yield?
    Doctor Kilpatrick has in his testimony a formula for 
calculating the risk of a human epidemic, and I'm curious 
whether the other witnesses have seen that formula. Have any of 
you seen the formula he laid out?
    Dr. Kilpatrick. It's just in the progress of being 
published right now, so I would guess that most people probably 
have not.
    Mr. Ose. All right. I'm trying to get to the model that Dr. 
Weisbuch was talking about, so----
    Mr. Tierney. I yield back and thank the witnesses for the 
    Mr. Ose. I thank the gentleman.
    Mr. Pape, on page 3 of your testimony, you make some 
interesting observations. I want to step through them. You 
state that opposition to mosquito control, with the potential 
of lawsuits from segments of the community, was one of the 
reasons certain Colorado localities did not implement mosquito 
control in 2003. And it's your contention that many local 
officials felt that this particular dynamic put them in a no-
win situation. How did Colorado resolve this matter?
    Mr. Pape. Well, again, mosquito control in Colorado, as I 
think most of the country, is really a local decision item. 
It's locally funded and the citizens who pay through tax for 
the benefit of mosquito control receive that benefit. At 
several of our meetings, both with meetings we had with 
Colorado County Commissioners Inc., with our vector mosquito 
control associations, this issue of adulticide spraying comes 
up, and it's a very controversial issue. There's a lot of 
things that play into it. But clearly, in many communities, the 
feeling was that if they went ahead with it, went ahead with 
spraying in the face of opposition from some of these 
constituencies, that they would be opening up their community 
to a potential lawsuit. And so they would be putting out money 
to do the control, and then they would have to put out 
additional money to fight the lawsuit, from taking action that 
they felt was going to benefit the health of the people. It 
basically has been resolved by communities deciding was that 
risk worth it and voting whether they would enact or not enact 
mosquito control.
    One of the things I think is interesting is that in many 
communities the decision was made in the winter months, during 
January February when we were doing all our planning, doing all 
our discussions, that we were not going to do mosquito control. 
And yet, come mid-August when the community was faced with a 
couple hundred cases and the fifth person had died, suddenly 
there was a big public outcry to do something. And of course, 
by this time it's too late to gear up any type of effective 
measures. And I think that lesson was learned by many of the 
communities because a lot of those that opted out of doing any 
control last year, this year opted to do some.
    Mr. Ose. I mean, we had a long conversation with Mr. 
Grumbles about--from the EPA about the certainty provided under 
a regulation as opposed to a lack of enforceability under 
guidance. Would EPA issuance of a rule properly vetted under 
the Administrative Procedures Act and Congressional Review Act 
and all that, would the issuance of that rule be helpful or 
hurtful from your perspective in the field in treating this 
    Mr. Pape. It clearly would be helpful because any barrier 
that we can remove from a local community to take a 
preventative measure or to take some action would be helpful 
and move things along. This was discussed, this problem with 
the Clean Water Act and the requirement for an NDPES permit, at 
some length with a variety of our mosquito control agencies and 
communities. And certainly it was a concern.
    Mr. Ose. Dr. Weisbuch, down in Maricopa County, same 
    Dr. Weisbuch. Yes. We didn't have that same kind of 
concern. For some reason the--I think Arizona has a unique 
situation, and that is that the counties have the full 
responsibility, granted from the State Department of 
Environmental Protection, to carry out the vector control 
services that county feels is necessary.
    During this last summer, some counties actually chose not 
to do any spraying of any kind. Maricopa, of course, has chosen 
to do limited spraying for several years. And this year we 
chose to do broad spraying. We did, however, have to gain 
support from our supervisors from the Maricopa County Board of 
Supervisors, who are our policymaking board, and without that 
support we would never have been able to spray. Four out of the 
five were in strong support of using an adulticide in order to 
cut back on this epidemic when we had over 300 cases in the 
middle of August. One of the supervisors, however, was strongly 
opposed to using adulticiding, and I think next year we may 
have more political pressure and certainly more pressure from 
the community itself against spraying. And I think we'll 
probably have to make a much more complex argument of the value 
for spraying. And that argument will have to include the cost 
of a death, the cost of illness, the cost of injury, as 
described earlier, all of which must play into the model for 
making a risk assessment: Is it valuable to spray or not?
    But I would emphasize Mr. Pape's point, that early 
intervention with larvacides, identifying the pools, 
identifying the breeding sites, identifying places where the 
mosquito lives over the winter, are all extremely important; 
and that's something which we've been doing, but we realize 
that the swimming pools themselves are clear areas that we have 
to address and we haven't in the past.
    Mr. Ose. Dr. Kilpatrick, in terms of the discussion we had 
with Mr. Grumbles as it relates to the issuance of a narrowly 
crafted rule focusing on public health, do you think the 
certainty that would come from that would be helpful or not 
helpful in these issues?
    Dr. Kilpatrick. I guess I would suggest that due to the 
time scale in which these problems present themselves, 
additional regulatory hurdles certainly are going to slow down 
efforts to try to reduce the problem when it happens. So I 
would think that certainty would in fact, as suggested by the 
other panel witnesses, help our efforts in combating this 
    Mr. Ose. Mr. Brown, Mr. Conlon, you guys have in the 
field--I mean, your membership and what have you deals with 
this. What's your feedback on this same question?
    Mr. Conlon. From a nationwide perspective there aren't any 
mosquito abatement districts that I'm aware of nationwide that 
are awash in money. They're all operating pretty much at the 
margins. Anything we can do to free up resources for them to do 
the preventive nature of their work is something we should 
pursue. Mosquito abatement districts outside the 9th Circuit 
are looking at this quite closely, because they can see this 
becoming writ large, and then they're going to be fighting 
rear-guard actions against that ad infinitum.
    And I think it's the statement that's being made of 
federally registered insecticides being de facto pollutants 
that's really got them scared, because this drives an emotive 
response from antipesticide activists that's going to keep 
mosquito abatement districts in a defensive role, and it's 
going to divert resources from where they really should be 
    Mr. Ose. Well, I think the diversion of resources is an 
important point because the vector control district has X 
amount of money. They can either spend it to address the 
problem or they can spend it to defend themselves legally. You 
can't spend it for both.
    Now Mr. Brown, in Sacramento or central valley California, 
if I read my history correctly--and I guarantee you I've 
studied it well--that particular portion of the country at one 
time, 150 years ago, was a wetland. So you're kind of like at 
ground zero on this stuff.
    Mr. Brown. Yes, sir. And in fact as you well know, 
California has undertaken great lengths to try to restore much 
of the wetlands in our central valley which creates a 
potentially serious issue as West Nile virus moves its way up 
through the State into northern California.
    To underscore a little bit what Mr. Conlon mentioned, we're 
very concerned about the vague rulings right now coming out of 
EPA relative to the NPDES permitting process. I can tell you 
that the State of California has clearly stated that it is 
nothing more than a memo and therefore does not require any 
deference. We believe that the next step, minus any 
congressional action taken, would be for U.S. EPA to perform a 
rulemaking, as has been previously suggested.
    Mr. Ose. If I understand correctly, you have from the 
Attorney General a statement that guidance is nonbinding and--I 
mean, it's gone to that level.
    Mr. Brown. That's correct.
    Mr. Ose. It's gone to that degree of activity. So the 
issuance of a rule may very well solve the 9th Circuit problem.
    Mr. Brown. Correct.
    Mr. Ose. All right. Before I leave that point, you're from 
    Mr. Brown. Yes, sir.
    Mr. Ose. If you lived across from a site where someone was 
going to build a settlement basin, would you be happy or 
unhappy, given the consequence that might arise? I'm going to 
keep asking until you answer yes or no, so you might as well 
just give up now.
    Mr. Brown. Well I've never been one to give up. So, in my 
capacity as the director of the district in Sacramento, I would 
go to great lengths to ensure that proper integrated pest 
management programs were in place to alleviate my concerns of 
mosquitoes being developed at that site. If I did not have that 
opportunity to do that, or if I had regulations put in place 
that prevented me from doing that, I can tell you I would be 
very unhappy.
    Mr. Ose. Now, you did talk about best management practices 
in your statement at length. And you also talked about the 
severe fiscal constraints that you operate under in the State 
of California for funding. Does the Sacramento Yolo vector 
district have adequate resources today to deal with the 
challenges it faces?
    Mr. Brown. Currently we believe that our district does. 
Understanding that, as what was mentioned in the previous 
panel, this is a disease that is within a naive population, so 
we aren't completely confident that we'll be able to reduce the 
mosquito population below levels that will result in 
transmission to humans. However, with the data that we've 
accumulated so far, we feel confident that we can reduce the 
numbers of mosquitoes so that it won't be as serious as in 
other parts of the country.
    Mr. Ose. One of the things California does is, it very 
comprehensively addresses environmental questions far beyond 
what perhaps happens in other States. One of those issues that 
we deal with is the preservation of wetlands for sound policy 
reasons. Do you see any correlation between a focus on 
preservation of wetlands, a successful preservation thereof, 
and the potential for a rise in the level of West Nile virus 
    Mr. Brown. The short answer is, yes, I do. However, I don't 
think it has to be. I think that given the science that we know 
today, that we can restore many of our wetland values and yet 
reduce the numbers of mosquitoes that may come from those 
sites. Unfortunately, as is often the case and as you mentioned 
previously, 150 years ago California was a--certainly the 
central valley was a broad wetland, if you will. And for many 
reasons, mosquito control being one of them, a lot of them were 
drained. We have since recognized that the values of wetlands 
suggest that we should restore many of those wetland habitats. 
However, knowing why we conducted some of the draining that we 
did in the past, I think we can introduce the principles that 
would reduce mosquito populations, yet still enhance and 
restore many of the wetlands that we've lost.
    Mr. Ose. Your point being that it's one thing to build 
them. It's another thing to keep them in proper functioning 
    Mr. Brown. Correct. Correct.
    The Chairman. Now, Ms. Station, in your experience how do--
I just want to be able to share this with my neighbors and 
constituents, of course--how do survivors of West Nile virus 
feel about some of the regulatory challenges and protests 
against the use of ground foggers or aerosol sprays?
    Ms. Station. They're very dismayed. Once you've been 
touched or had encephalitis touch you, touch someone in your 
family--they're frustrated with this no more spraying that's 
going on everywhere and all the fuss that's going on. So much 
of society and so much of the media is talking, as we're 
talking today, about what will we do in the future? Well, what 
can we do to fix this? So little attention has been paid to the 
people who've already been touched. I'm hoping that everyone 
here will include my Web site in references on their own Web 
sites so that the hundreds of people that are now coping with 
this debilitating disease can turn to someone for help.
    Mr. Ose. Well, now, Dr. Fauci and Dr. Ostroff, earlier in 
their written statements, clearly indicated that there's no 
curative medical treatment. I mean once you have it, you have 
it. That's the way it is. Even though they're working on some 
vaccines that would prevent a person from catching it.
    I guess my question would be perhaps directed to Dr. 
Weisbuch, the incidence of which people contract the disease 
and don't develop the really serious symptoms, what is that 
incidence? And then conversely, what is the incidence within 
the naive population that people do contract the disease and 
develop the very serious symptoms?
    Dr. Weisbuch. That's a complicated question because I think 
it varies or has varied across the country as I've looked at 
some the data. In the Maricopa County experience this year, we 
had 347 identified cases, laboratory confirmed, of illness. 
Approximately half of those only had fever with no residual 
whatsoever. We're following up on all of them to determine over 
the next 6 to 9 months to a year whether or not any other 
sequelae occur. But the other hundred and whatever, 50 or 60 
individuals who suffered either a meningitis attack or an 
encephalitis attack, or both, that group obviously has the 
highest potential for long-term sequelae. We don't know at the 
present time what proportion of that group will, in fact, have 
residual 6 months, 9 months, a year from now. We're going to be 
following those. We do know that six of those individuals or 
actually seven have died as a result of the disease. And we 
also know that there are about a half a dozen or maybe a dozen 
who are still in intensive care units with all of the various 
ramifications of paralysis, coma, loss of sensitivity, 
inability to breathe normally, and so on. And we're expecting 
that some of that group will also succumb to the illness.
    One of the most interesting things that we've found in 
reviewing our six death certificates is that at least two of 
these individuals succumbed from what the physician called a 
respiratory paralysis. But when x-rayed, and in one case 
autopsied, there was no real evidence of a pneumonia. And so it 
appears that the virus is infecting the central aspect of 
respiration in the pons of the brain, where the individual is 
just dying from a respiratory disease as a result of their not 
moving their diaphragm, sort of like what polio used to do 50 
years ago.
    These kinds of things need further evaluation and I think 
further research. We don't know the overall impact, long-term 
impact of this illness. It's only been a what, a 5-year 
problem. And I think that's--I think maybe Dr. Pape has other--
    Mr. Pape. I would agree with that. We took an effort in 
2003 to look at the full clinical spectrum of illness. If you 
look at data from earlier years from other States, they 
primarily were reporting meningitis and encephalitis, which was 
what the national guidelines recommended at that point. We 
tried to look at the full spectrum which is one of the reasons 
we had a large number of cases. Eighty percent of our cases 
were the West Nile fever. And what we found is there's not a, 
you know, nice even break where you have fever and then you 
break, now you have meningitis. It's a full spectrum from 
people who are ill a couple of days with fever, to some people 
who had prolonged fever--our average duration of people who had 
West Nile fever, the milder illness, was 23 days. That's they 
were sick, they had fever, they had aches, they had all these 
other symptoms, and it took them 2 or 3 weeks to get their 
strength back to be able to go back to work or function.
    As you get into, as Dr. Weisbuch talked about, the more 
severe manifestations, we actually had our 64th patient die 
this week, who has been in the ICU with respiratory paralysis 
since last August. And essentially this is identical 
pathologically to what we used to see with the polio epidemics 
in the fifties. It's a poliomyelitis that affects various 
nerves. And depending on which nerves the virus destroys, 
depends on whether your respiratory system get paralyzed; is it 
your arm, is it a leg, is it some cognitive function because of 
damage to those areas of the brain? And so there is really a 
wide spectrum of illness.
    We've actually got a couple of papers that we're working on 
that will be out shortly, scientific papers looking at exactly 
that question: What are the long-term ramifications, what are 
some of the clinical manifestations with this infection?
    Mr. Ose. You're not making a very good case for this 
settling basin across the street from my house.
    Mr. Pape. Well, if you were to ask me that question about 
the settlement basin, I would say I wouldn't have opposition to 
it, provided part of their plan is, as Dave Brown pointed out, 
was that they're going to do some kind of mosquito control. 
And, in fact, we have seen those problems, I think other States 
have experienced it, where for instance we have a wetlands. One 
city I know in particular has a federally protected wetlands on 
the border of their city that they will not allow--are not 
allowed to do any control on. And so they have a buffer zone of 
control between the city and that wetlands area, because they 
get a lot of mosquitoes coming off of the wetland since it's 
protected as natural, and we don't want to get rid of the fish 
food or the bat food or things like that.
    I won't argue the validity of that point because I tend to 
be fairly environmentally sensitive myself. But I think there 
are situations where, in the case of that catch basin, it would 
be beneficial to be able to go and put some larvacide into it.
    Mr. Ose. All right. I want to come back to this particular 
question. I want to ask Ms. Station something, and that is that 
you indicated in your statement that a lot of people don't take 
vector-borne diseases very seriously because historically 
there's been a very low number of deaths and the large portion 
of those people who get infected, they have a relatively minor 
    Now, how do we get the message out that there's a certain 
group of people where the impact of that sickness is severe? 
How do we get that out? I mean, you're talking to some folks 
who are on the front lines here. Help me help you, so to speak. 
How do I do that?
    Ms. Station. How do we do it? Any way possible, sir. I 
spend 12 hours a day on the computer. I started my Web site in 
the year 2000. I write to newspapers. I've got a newspaper 
article that was published here in, oh, just within the past 
week that was--I just got in the mail yesterday. I go on talk 
shows. I was on a talk show radio, I believe it was in 
Minnesota last year. I pound the pavement. And that seems to be 
the only way to get the message out.
    I see here, Ohio State University says in a recent study it 
was found people who were hospitalized last year with 
encephalitis, with West Nile encephalitis, they have reported 
problems 1 year after their illness including headaches, 
concentration problems, fatigue, movement disorders.
    Let's see, New York State, they did a study saying nearly 
two-thirds of severely infected patients still suffer physical 
and mental impairments 12 months after falling ill. So I would 
do anything I could.
    Mr. Ose. Excuse me. All right. Like Pavlov's dog, we all 
learn what the bell means. What we've got is a 15-minute vote 
that's just been called on the floor, followed by a 5-minute 
vote. So we're going to have to move quickly here.
    Mr. Brown, I want to come back to this issue on this catch 
basin. It is admittedly across the street from my house, but my 
neighbors and constituents have a concern about it. Now, this 
area is within the 9th Circuit, and if I understand correctly, 
under best management practices, a treatment with either a 
larvacide or an adulticide would be part of an integrated pest 
management system. But in California that would require an 
NPDES permit for application thereof. Am I correct on that?
    Mr. Brown. At least for the larvacide. It's one of the 
concerns about the vagueness of the ruling that we have 
currently in California. There is an NPDES permit for the 
application of larvicides in California. It is silent to date 
on an application of an adulticide. It has raised concerns, as 
has already been mentioned, about the potential of litigation 
for the use of an adulticide in and around that area you refer 
to. And could you give me the address of that area, by the way?
    Mr. Ose. Yes. Del Paso Regional Park at the very east end 
of the city. But it is also 9th Circuit case law that an NPDES 
permit will be required for the application of a larvacide.
    Mr. Brown. For a larvacide. Yes, sir.
    Mr. Ose. Right. OK.
    Dr. Weisbuch. Does that include biological larva sites? I 
mean, we use fish and we use a particular bacterium, Bacillus 
thuringiensis, I think.
    Mr. Ose. I believe it's restricted to the----
    Dr. Weisbuch. To the oils.
    Mr. Ose. To the organophosphate classification.
    Mr. Brown. It is for the application of any registered 
pesticide. So the larvacide you're referring to, Bacillus 
thuringiensis, is a registered larvacide and would therefore 
require an NPDES permit as defined under the 9th Circuit.
    Dr. Weisbuch. I'm glad we don't have that in Arizona.
    Mr. Ose. And absent an NPDES permit, you can't apply the 
    Mr. Brown. Without fear of litigation.
    Mr. Ose. OK. Now, I have a significant number of additional 
questions here for each of you in turn. But we're not going to 
be able to get to them verbally here. As I indicated to the 
first panel, we will send those questions to you in writing. We 
would appreciate a timely response. I believe the record stays 
open for 10 days for Members and what have you who have been in 
attendance, in part or not, to submit additional questions. 
Those will be forwarded to you.
    I do want to thank you all for taking the time to come and 
testify. This is one of those interesting, as I said earlier, 
interesting intersections between public health, the 
environment, and science that gets very little play because 
it's highly technical and it requires some thought.
    I would urge you to stay on your message. I mean, stay at 
this. The MASH Act by Senator Gregg of New Hampshire--
eventually it will get funded. Unfortunately, it may be after 
600-odd people have died and untold thousands have been 
infected. But stay on this.
    And California in particular, this is an issue I think of 
significant concern because of what the likely consequence of 
next spring will bring.
    Mr. Conlon, Mr. Brown, what you do across the country makes 
a difference. Dr. Weisbuch, Mr. Pape, what you do in Arizona 
and in Colorado is appreciated. Ms. Station, Dr. Kilpatrick, we 
thank you for your suggestions and your input. We'll send you 
the questions. This panel is excused and this hearing is 
    [Whereupon, at 12:51 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record