February 22, 2010 UPDATE: The United States Supreme Court has denied, without comment, the Petitions for Certiorari of the American Farm Bureau and CropLife of this decision.
The U.S. Court of Appeals for the Sixth Circuit decided on January 7, 2009, that the EPA’s rule exempting the application of pesticides from the NPDES permit requirement contravene the “clear and unambiguous” language of the Clean Water Act. National Cotton Council of America et al. v. United States environmental Protection Agency.
The EPA issued a Final Rule on November 27, 2007 concluding that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are exempt from the Clean Water Act’s permitting requirements. See 71 Fed.Reg. 68,483 (Nov. 27, 2006). The Final Rule brought the opposition of both industry as well as environmentalists.
The EPA, as federal agencies seemingly always do, sought shelter in Chevron v. NRDC, claiming that the Final Rule was a “reasonable construction of the Clean Water Act” and that the EPA was entitled to deference because of it. However, the court did not buy that claim finding:
We cannot agree. The Clean Water Act is not ambiguous. Therefore, we hold that the EPA’s Final Rule is not a reasonable interpretation of the Act and vacate the Final Rule.
Thus, in the past month, the EPA has been told at least twice by two different courts that it must stick to the language contained in the statutes that it has been authorized to enforce, and not make questionable interpretations. See, “Court Overturns 15-year Old Pollution Exemption.”
The court’s decision rested on deciding that pesticides, even those that are compliance with FIFRA, can be “pollutants” within the meaning of the Clean Water Act. See 33 U.S.C. 1362(6). Key to their analysis was the examination of the meaning of “chemical wastes” and “biological material” which are defined by the Clean Water Act as being “pollutants.” EPA argued that because pesticides, when they are applied, are not “waste,” they do not require a NPDES permit when they are used in, on or near water. EPA then argued that it should not treat biological pesticides any differently, so they, too, should be considered not to be pollutants.
The Court held that while chemical pesticides that are applied and leave no residue or waste probably do not require a NPDES permit, any application of a chemical pesticide that produces a residue or a waste, requires a permit. This is clearly what Congress intended when it passed the Clean Water Act. The court’s decision also left no doubt that any biological pesticide required a permit, since Congress did not qualify “biological materials” with the word “waste.”
Finally, EPA attempted to argue that because chemical pesticides when they are applied are not “waste,” the “chemical waste” produced by their application is not from a “point source,” which is an exception to the permit requirement. The court said that the time element relied upon by the EPA simply does not exist, and if waste is created from the application of a pesticide, then a permit must be obtained.
While the environmentalists were pleased with the outcome, the long-term effect of this ruling may be small. As the court pointed out in its decision and in a footnote, two states have already issued “general permits” for the application of pesticides.
As a result, users of aquatic pesticides in Washington could discharge those pesticides covered by the rule without obtaining a permit. These general permits “greatly reduce [the] administrative burden by authorizing discharges from a category of point sources within a specified geographic area.” “Once [the] EPA or a state agency issues such a [general] permit, covered entities, in some cases, need take no further action to achieve compliance with the NPDES besides adhering to the permit conditions.”
(citations omitted). California is the other state that has issued a general permit. Thus, the court, despite ruling in the environmentalists favor, showed the EPA the way out of the wilderness. The EPA could issue a general permit for the application of pesticides and it would have almost the same effect as its rule exempting the application of pesticides from obtaining a NPDES permit.
UPDATE (June 11, 2009) – Sixth Circuit granted EPA’s Motion for Stay of Mandate. See, “Clean Water Act Decision Regarding Application of Pesticides Stayed by Sixth Circuit,” posted June 11, 2009.