Apr 06, 2010
WASHINGTON, DC – CropLife America (“CLA”) and RISE (Responsible Industry for a Sound Environment)® are pleased the United States Second Circuit Court of Appeals did not endorse the analysis used by the Sixth Circuit in the case National Cotton Council v. EPA in its March 30 decision in Peconic Baykeeper vs. Suffok County Department of Public Works. The Second Circuit affirmed in its ruling that pesticide applications made in accordance with the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) and the U.S. Environmental Protection Agency’s (“EPA”) 2006 National Pollutant Discharge Elimination System (“NPDES”) Rule are lawful. However, the three-judge panel did rule the pesticide applications at issue in this case were “from a point source,” as defined by the Clean Water Act (“CWA”).
While CLA and RISE expressed concern about the Second Circuit’s ruling that certain pesticide sprayers are “point sources” under the CWA, the associations are pleased the Second Circuit refused to follow the reasoning in National Cotton Council. (In National Cotton Council, the Sixth Circuit struck down the 2006 federal rule that exempted four types of pesticide applications from NPDES permits.)
RISE and the American Mosquito Control Association filed a joint amicus brief in the Peconic case, encouraging the Second Circuit not to adopt the Sixth Circuit’s reasoning in National Cotton Council.
The Second Circuit also vacated a judgment by the lower court (U.S. District Court for Eastern New York) that Suffolk County’s mosquito control applications were in compliance with the pesticide product labels. That issue was sent back to the lower court for further review.
CLA President and CEO Jay Vroom was gratified that the decision did not address whether a pesticide applied to water is a pollutant, and did not endorse the Sixth Circuit’s reasoning on that issue. “We consider the latter development as very important in that the court appeared to take great effort to avoid adopting the tortured rationale of the Sixth Circuit decision in National Cotton Council -- a more subtle but significant action.”
“While the three-judge panel did affirm the importance of continuing with FIFRA- and New York Department of Environmental Conservation-regulated vector control by the state, we are still concerned with the panel’s decision that mosquito application equipment is a ‘point source’, despite appropriate federal and state regulation under FIFRA,” noted Allen James, RISE president.
Importantly, the Second Circuit held that applications under the auspices of EPA’s Final Rule, and applied in compliance with an EPA-approved FIFRA label is lawful as long as the Final Rule remains in effect. Otherwise, it expressed no views on the case, noting only that the Sixth Circuit issued a stay of the mandate until April 9, 2011.
Vroom said, “The Second Circuit Court ruling also notes that nothing changes the EPA rule until the stay by the Sixth Circuit Court is lifted. This is important for the continued use of vital crop protection and public health products. We’ll see what happens following that action and keep a very close watch on all related developments. The conflicting court decisions also stress the need for Congressional oversight of EPA’s development of the NPDES program. As we have for some time, the pesticide industry and our customer stakeholders will also continue to work closely with EPA on their implementation of an appropriately focused permitting system under the National Cotton Council case ruling.”
