Appeals court adds more uncertainty to interpretation of pesticide regs

By Sara Wyant

© Copyright Agri-Pulse Communications, Inc.

Washington, April 2 – To spray or not to spray? Need a permit to spray even if you follow federally-approved label directions? Answers to these questions became even murkier after a federal appellate court found that pesticide applications over waterways should be considered point sources of pollution under the Clean Water Act (CWA). But at the same time, the appellate court declined to challenge another key part of the ruling, which could have classified all pesticides as pollutants.

“While 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 America. “Furthermore the Court seemed to take great effort to vector around all the other ‘tortured rationale’ of the Sixth Circuit decision in the Cotton Council vs. EPA case – a perhaps more subtle but  important point. The Second also notes that nothing changes the EPA rule until the stay in the Sixth is exhausted – which we think is significant.”

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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