FROM: Karl Malamud-Roam, Ph.D. (through Bill
Reinert – thanks Bill)
Hi all,
Some of you have been briefed on some of this or have done your own homework,
so I will keep it as brief & organized as possible so that you can quickly
decide if a section/paragraph has anything new for you. Please let me
know of specific issues not covered in enough detail.
A. WHAT
THE COURT DID & SAID
1. In late
2006 the U.S. Environmental Protection Agency (EPA) issued a rule that held
that pesticides applied to, over, or near "waters of the U.S." in
accord with their FIFRA labels were not "pollutants" under the Clean
Water Act (CWA), and therefore that their application did not require CWA
permits. Within 10 days the rule was challenged in all of the US
appellate courts except the 11th (Atlanta) -- "environmental"
plaintiffs sued in the 1st, 2nd, and 9th Circuits, and "industry"
plaintiffs in the others. The exception of the 11th was apparently
unintentional, and probably has little real significance.
2. On January
7, 2009, a three-judge panel the 6th Circuit Court of Appeals in
Ohio rejected the rule, siding with environmental plaintiffs that had
challenged EPA’s authority to issue the rule. In addition, the Court rejected
arguments by industry parties which had also sued EPA hoping to broaden the
scope of the exemption to CWA permit requirements.
3. The Court
did not determine that all pesticide applications are necessarily pollutant
discharges, but it did discern three situations in which it believes CWA permits
are required:
A. The Court found that biological pesticides are "biological
materials" and hence "pollutants" under CWA,
and will always require permits for applications to waters of the US.
This would cover bacterial larvicides, insect growth regulators, and probably
pyrethrin or other botanical adulticide products.
B. The Court found that applications of chemical pesticides that result
in "excess" chemical being applied to waters of the US constitute
discharges of "chemical wastes" to the water, and therefore will
require CWA permits. This would potentially cover any adulticide
application with detectible deposition in waters of the US.
C. The Court found that direct aquatic applications of chemical
pesticides that result in "lasting residues" in waters of the US are
also discharges of "chemical wastes" and therefore require CWA
permits.
4. The Court
determined that pesticide applications are, at the moment of application,
"point source discharges," and therefore require permits, unlike
"non-point-source" discharges such as runoff. The Court was not
persuaded by our argument that we do not discharge wastes,
and that if the chemicals at some stage result in residues, this
conversion from useful product to waste is not a point source discharge.
5. The Court
essentially determined that pesticide applications are pollutant discharges
under CWA if either 1) they are biological materials; 2) they are not
applications directly to water but result in pesticide in water; or 3) they are
applications to water which result in "lasting residuals."
6. The Court
did not discuss "de minimus" standards for tests 2 or 3, nor did they
give any meaningful guidance on what constitutes a "lasting
residual." They did acknowledge previous case law which held that
aquatic pesticide applications without residues are NOT pollutant discharges,
and do NOT require CWA permits.
7. The Court
claimed, incorrectly, that pesticides have long required CWA warnings on their
labels - while this is true for concentrated product that may result in
accidental effluent, it is not true for end-use pesticides.
8. The Court
also claimed incorrectly that existing aquatic pesticide permits in WA and CA
are evidence that the CWA permit scheme can work in a reasonable way for
pesticides applied to or over water. In fact, the CA permit doe NOT
provide permission for the use of any adulticides, which are almost certainly
the highest risk of litigation.
B.
APPEALS
1. Crop Life
America is appealing the 6th Circuit decision on behalf of industry, and
AMCA is joining this appeal as a "friend of the court." CLA is making two requests of the Court:
A. They are filing a Motion for Reconsideration by the full Court (an
"en-banc rehearing") on the grounds both of errors of law by the
by three-judge panel, and of significant unintended adverse consequences
of the opinion if left standing.
B. CLA is also filing a Motion to Stay the
Decision for 18 months as an alternative, if the Court is unwilling to
undertake an en-banc rehearing. This would give time primarily for EPA to
develop guidance documents on how to reconcile the demands of CWA and FIFRA.
C. These motions will be accompanied by Statements or Declarations on the
potential adverse impacts of the rulings.
2. AMCA
intends to file documents in support of the industry motions:
A. AMCA will file an Amicus Brief addressing points of law and adverse
consequences.
B. In support of this, AMCA President Major Dhillon will submit
a Declaration on the potential adverse consequences for our members.
C. We plan to also submit Declarations by MAD Managers that have been
sued under CWA, describing the difficulties they have
had with Citizen suits under CWA while attempting to protect public
health.
3. The
Deadline for filing these appeal motions is now Feb 23, and CLA and AMCA plan to file appeals and supporting
documents on Feb 20.
4. EPA also
has standing to appeal, but with a new Administrator working for a new
President (and with both of them having a few other things on their plates), it
is not clear yet whether EPA will appeal to defend their
regulation or not.
Some
environmental groups are convinced that the new administration wants to
repudiate Bush administration environmental rules, but it may be that EPA will
defend their rule to avoid setting a precedent that will cause them massive new
work load and potentially onerous requirements on many discharges that were not
previously regulated under CWA.
In
either case, it appears certain that EPA will file a Motion for Extension of
Time with the court, either today or Monday, requesting an additional 45 days
to decide how to respond to the Court's Opinion. Given the timing of the
decision relative to the change in Administration, it seems almost certain that
the Court will agree to this extension, which will give until mid-April for
appeals to be filed. Finally, it appears that this extension would apply
to all parties with standing. Since this paragraph includes a lot of
"it appears," we will continue for now working as though our
documents are still due 2/20.
5. An appeal to the US Supreme Court is also a possibility, and is more
likely to succeed if the appeal o the 6th has been made.
The normal deadline for an appeal to the Supreme Court would be 90
days after the Circuit decision (i.e. April 6, 2009); I do not know what
effect, if any, an extension at the 6th would have on this deadline (Ed? Any thoughts?).
C.
WILL WE GET SUED?
1. It seems
unlikely that any lawsuits on this issue will be filed before the end of
the appeals period(s). If one is filed, it is extremely unlikely to be
acted on by a court until that time has passed.
2. It is,
however, possible that one of us could be served with a CWA "Notice of
Intent to Sue" at any time. This would start a 60-day clock during
which the formal filing would have to wait. If an appeal is not filed and
accepted by mid-April (or possibly a few months later if an extension with
the 6th also creates an extension with the Supreme Court), then I expect
that one or more mosquito control programs will be served with a defendant in a
CWA suit regarding the use of pesticides to or over or near water.
3. A lawsuit would essentially claim that a defendant was discharging a
pollutant from a point source to waters of the U.S. without an NPDES
permit. A suit could probably ask the judge for several results:
A. Declarative relief = the judge will rule that the law does require a
permit for our actions, and that continuing to discharge without a permit is
unlawful;
B. An injunction = the judge will be asked to prohibit spraying
without a permit, or at least to ensure that pesticide applications are
conducted so that they cannot result in "excess material" or
"lasting residuals" in waters of the U.S.;
C. Damages or other environmental compensation = money (this seems
unlikely for us, unless there is a really egregious mistake made by somebody);
D. Legal fees = money.
4. Under the
Clean Water Act, essentially anyone has standing to file a "citizens'
suit" against either an alleged discharger or against the federal or state
agency that they think should have required the permit. For some laws
with citizen suit provisions (esp. Endangered Species Act), the norm has been
to sue the agencies lately, but we should expect that a mosquito control
program itself may be sued under the CWA.
5. To the
claim that somebody is discharging a pollutant to waters of the US without a
permit, defenses in the past have generally replied A) our material is not a
pollutant; B) these are not "waters of the US"; C) we have a permit;
and/or D) we have to use the pesticide to protect public health but no permit
is available.
To date, AMCA has
focused on supporting argument (A), by seeking legislative, legal, or
regulatory statements that mosquitocides applied in accord with their labels
are not CWA pollutant discharges. We will continue to make this argument,
but it seems prudent to look at the other options.
6. If there is not a successful appeal, and if one of us is sued
under CWA, we will not be able to use the 2006 EPA Rule as a defense (i.e.
"We don't have a permit because EPA says we don't need one.")
We may still have other defenses (we need to spray to protect public health; no
harm from the spraying has been demonstrated; and/or no permit is available),
but our case is weaker.
7. Arguments about the scope of "waters of the US" are not
often fruitful. Courts have increasingly and consistently held that many
places where mosquitocides are applied or drift onto are within US court
jurisdiction.
8. Arguments relying on the need to spray will probably be persuasive for
the short term (i.e. avoiding an injunction for a spray season) but are
unlikely to work indefinitely.
9. Arguing that no permit is available, and that
a District should not be liable for the failures of others to issue permits may
also be persuasive for a while, but will not resolve the issue
indefinitely. Sooner or later in this case, the responsible agency will
issue a permit, and MAD's will have to determine whether they can live with it
or not. If not, they probably need to work with their state water quality
agency to negotiate an acceptable permit.
10. Defending
lawsuits can be expensive, and Districts should check the extent to which their
reserves or insurance would left with environmental
litigation. Also, state associations should consider joint legal defense
funds.
D. REGULATORY
RESPONSES - FEDERAL
1. The "pollutant" question is not dead. The courts
have not determined that all pesticide applications are pollutant discharges,
but have instead found that applications that result in "excess
pesticide" or "lasting residuals" in water are "chemical
wastes" and therefore "pollutants" requiring permits.
Thus, even if appeals are unsuccessful, we can argue that we do not need CWA
permits because our particular pesticide applications do not result in
"excess pesticide" or "lasting residuals" in waters of the
U.S.
2. This argument probably distinguishes larvicides, where it will be very
difficult for plaintiffs to show that we apply an excess, from adulticides,
where potentially any detectible product in water could be considered
"excess."
3. Therefore, the legal argument for larvicides is based on using good
science and persuasive rhetoric to demonstrate that the products we use
breakdown quickly and completely without toxic byproducts. I think the
literature is pretty good on this, but we still need to pull together a good
review.
The MVCAC is
working on this type of technical review, with Chindi
Peavey (CPeavey@smcmad.org) as the
lead. Any suggestions or help is welcome.
4. The legal argument for adulticides will have to focus more on the
concept of "de minimus," which means that we will have to demonstrate
that any incidental drift or deposition of product onto water is so minor that
it does not merit legal attention. This will require us to look not only
at the fate of A.I. in water, but also synergists and other "other
ingredients," which may be challenging as we rarely know the entire
composition of a pesticide product.
5. The court
explicitly ruled that biopesticides (apparently including plant-derived
adulticides) are "biological materials" and therefore regulated
without any need to prove excess or lasting residual.
6. There are some unresolved difficult issues that we are still wrestling
with. One of these is the difficulty of proving that there are no
residual inert ingredients, especially as we do not have the information on
what materials we should be looking for after an application. Second is breakdown products, which are not specifically addressed by
the court, but which seem a logical extension of the concern about
residuals. Third is the status of living biological control organisms --
if biopesticies are considered pollutants because they are "biological
materials" discharged into waters, it is hard to see how this argument
would not extent to mosquitofish, fungi, etc.
E.
REGULATORY RESPONSES - STATE
1. The option of requesting a permit from state water quality agencies
should probably be considered by all MAD's, at least as a contingency
measure.
2. California
has had a pretty innocuous larvicide permit for the past 5 years, and it
looks like it will be renewed this year with little change. It requires
record-keeping and reporting of larvicide use, but no routine chemical or
biological assays, and the annual cost is around $100. Many districts in
CA have signed on, but many others have not, largely to avoid the legal
precedent that we are obligated to have these permits.
3. A
particular challenge of the CA permit is its failure to cover adulticides.
4. The state
association in CA has recently decided to begin negotiating an updated permit
that will cover all mosquitocides, while continuing to appeal the 6th Circuit
decision.
F.
CONCLUSIONS
1. In summary, we are working to appeal the decision, but we should all
consider that the EPA Rule might disappear in another two
months. If this happens, we will either need to demonstrate convincingly
that our applications do not result in legally significant "excess
pesticide" or "lasting residuals" in waters of the U.S., and/or
we will need to negotiate acceptable permits, in almost all states with a state
agency responsible for issuing CWA permits.
2. There is great potential for collaboration on both of these actions,
and AMCA requests that MAD's from around the country begin soon to collect all
available information on the fates of mosquitocides and their ingredients in
the environment, and especially in natural waters. In addition, we ask
that we share information on CWA permits issued for pesticides or biological
control agents in their jurisdiction. Finally, we ask Districts to
consider increasing their involvement with AMCA and their state associations.
3. The primary points of contact on this issue with AMCA are the
Technical Advisor, Joe Conlon; the L&R Committee Chair, Karl
Malamud-Roam; and the L&R Subcommittee on Water Chair, David Brown.
Many
thanks to all for comments, suggestions, news, and questions. Please keep them coming, and I'll try
to get more frequent updates out to you.
Karl
Karl Malamud-Roam,
Ph.D.
Environmental
Projects Manager
Contra Costa
Mosquito & Vector Control District
925-685-9301 x107