¶1CONCURRING OPINION BY GERALD GOLDBERG
¶2May 24, 1972. — I concur in the decision and order of my colleague, the Hon. Paul E. Waters.
¶3The Federal Insecticide, Fungicide and Rodenticide Act, (7 U.S.C. §§135-135 k, (“FIFRA”), provides for the establishment of maximum tolerances for residues of those chemical substances which are commonly called pesticides. The criteria employed in determining whether a pesticide is safe for use in a public area were first adopted by the Seventh Circuit Court of Appeals, in Nor-Am Agricultural Peoducts, Inc. v. Hardin, 435 F.2d 1133 (July 15, 1970), vacated on other grounds en banc, 435 F.2d 1151 (Seventh Cir., November 9, 1970). The test used was drawn from the Legislative History of the 1962 amendments to the Food, Drug and Cosmetic Act, which provided, in effect, that a pesticide may not be used if it presents an “imminent hazard to the public.” Such a hazard is deemed to exist when the evidence is sufficient to show that use of the pesticide poses a significant threat of danger to health, or otherwise creates a hazardous situation to the public, that should be corrected immediately to prevent serious injury, and which cannot be permitted to continue during the pendency of administrative proceedings. The type, extent, probability and duration of potential or actual injury to man, plants and animals are measured in light of the positive benefits accruing from use of the responsible pesticide in human or animal disease control or food production.
¶4*770This general standard has been adopted by Pennsylvania law, and all uses of pesticides in Pennsylvania, including that by the Department of Environmental Resources, are subject to approval by the responsible State agency, which is the Pesticide Committee of the College of Agriculture of Pennsylvania State University. Detailed criteria for each type of pesticide and for each proposed use thereof have been established by the committee, and the specific plan of the department for the proposed 1972 Gypsy Moth Aerial Spraying Control Program has been submitted to and approved by the' Penn State Pesticide Committee. In fact, the details of the program, which is predominantly a biological control program rather than a spraying program, were worked out in direct consultation with personnel of the Penn State Pesticide Committee.
¶5Ideally, of course, it would be a wonderful world if it were unnecessary to resort to any pesticides, or if biological pests could be destroyed on a highly selective and nonpersistent basis. Research work toward this end is proceeding apace; at the United States Department of Agriculture experimental station at Beltsville, Md., a great deal of experimental work has been proceeding in the use of neutered male parasites, X-ray and chromosone technology, and other nonpesticide means of controlling insect pests. Unfortunately, at the present time, this research work has not been brought to a practical or commercial stage. The biological control portion of the overall Gypsy Moth plan is an extension of a successful program which has been in effect in the State of New Jersey for several years. The use of spraying, which is the subject of the matter presently before us, is but a minor part of the overall program, involving a mere 810 acres of a program which will cover seven *771counties and 23,000 acres in the Commonwealth in 1972. All authorities agree that the limited and highly selective use of pesticide application must continue on an emergency basis, or in areas where the experimental use of biological controls cannot be depended upon to save valuable stands of commercial timber or valuable recreation areas. No responsible authority at any level of government, or in the scientific community, has, to my knowledge, disputed the necessity for such topical limited applications as those proposed by the department as an ancillary part of its overall control program.
¶6With the order as modified by my brother, Mr. Waters, I conclude that there is no appreciable risk whatsoever to the public health, welfare or safety as a result of the proposed program and that, pending the results of future research, there is no alternative but to use the existing technology, with prudence, discretion and constant concern for human welfare, in fighting the battle against those biological enemies of man which threaten his health and well being.