PESTICIDE RESIDUES / CLEAN WATER ACT PERMITTING
January 2009. The Environmental Protection Agency notified the public they it has received an initial filing of a pesticide petition that will establish and modify regulations for residues of pesticide chemicals in or on various commodities under the Federal, Food, Drug, and Cosmetic Act (FFDCA). (74 Fed. Reg. 808, January 8, 2008). Potentially affected groups include farmers, food manufacturers, and pesticide producers. The agency is seeking comments upon the recommendation.
This notice is coming on the heels of a decision handed down by the Sixth Circuit in National Cotton Council of Amer. V. EPA, No. 06-4630 (Jan. 7, 2009), which the honorable Court struck down a regulatory exemption for pesticides under the Clean Water Act. The Court vacated the final rule that exempted pesticides from the permitting requirements if they were applied in accordance with the Federal, Insecticide, Fungicide, Rodenticide and Insecticide Act (FIFRA). The Court held that the Clean Water Act is clear, and the EPA’s interpretation is impermissible in light of the statutory language regarding pesticides not being considered “pollutants” under the definition of “chemical waste” or “biological materials,” and pesticide residues not being derived from a point source. This was a consolidated case from actions brought in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits.
The Court elaborated that there are two circumstances that chemical pesticides are “chemical waste”, and therefore pollutants requiring a permit to be discharged into the water. First, a terrestrial pesticide or aerial pesticide is applied above or near a waterway, and excess or residual pesticide finds its way into the waterway. Second, a pesticide is applied directly to the water for a beneficial purpose. In the second example that there will naturally be residue left after the beneficial purpose has been completed. Under a common sense view, if it can be shown that no excess or residual pesticide is present following the completion of its purpose, than it would not be a pollutant and require permitting.
Biological pesticides are pollutants if they are discharged into water, as they are considered “biological materials”. The Court reasoned that to hold otherwise would give no meaning to the word “biological material” within the definition of “pollutant”. Also, the Sixth Circuit examined congressional intent for the Clean Water Act by stating the addition of a biological pesticide would alter the water’s biological integrity, which is clearly within the ambit of the Act.
These legal and regulatory developments will continue to open the universe of pesticide regulation, as there may be more guidelines and requirements regarding pesticide use from the EPA and possibly the FDA on the horizon.