Appeals court adds more uncertainty to interpretation of pesticide regs
By Sara Wyant
© Copyright Agri-Pulse Communications, Inc.
we are disappointed that the Second Circuit Court has also decided that a
pesticide sprayer is a ‘point source’ of pollution, they seem to also have not
determined that a pesticide applied to water is a pollutant. So the second part we see as a very important
and resounding conclusion,” says Jay Vroom, President of CropLife
In essence, that means most pesticide applications, whether they be in a city or farm, can continue as normal. The Second U.S. Circuit Court of Appeals vacated the decision of a federal judge, who found that pesticide applications for mosquito control are technically discharged into the air – and not directly applied to water. The Second Circuit Court reversed and remanded the portion of the case relating to whether the application was done in compliance with the FIFRA label. Basically, they’re asking the district court to better explain their decision-making process.
However, the appellate judges refused to overturn other parts of the legal challenge, noting that they “express no views on the reasoning” of the Sixth Circuit decision to vacate EPA’s final rule on pesticide application and did not specifically classify pesticides as pollutants.
In vacating the EPA’s Final Rule, the Sixth Circuit held that the application of pesticides “above” or “near’ waterways” that leave “excess” or “residual” pesticide in navigable waters meets the CWA’s definition of “chemical waste.” For this, among other reasons, the Sixth Circuit concluded that EPA’s Final Rule was contrary to the CWA’s text and must be vacated.”
The Second District Appeals Court wrote:
After the Sixth Circuit ruled in National Cotton Council vs. EPA, the EPA moved to stay the mandate. It argued, among other things, that immediate issuance of a mandate vacating the Final Rule would be unduly disruptive to state and federal permitting authorities and would trigger a rash of citizen suits. The Sixth Circuit granted the EPA’s motion, and stayed issuance of the mandate until April 9, 2011. The EPA has publicly announced that it “plans, before the ruling takes effect, to issue a final general NPDES permit for covered pesticide applications,” and to help develop new state-level permitting plans. Because the EPA’s exemption is still in place until April 8, 2011, the 2nd Circuit declined to issue an injunction against spraying for mosquito control.
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