[Federal Register Volume 70, Number 20 (Tuesday, February 1, 2005)]
[Proposed Rules]
[Pages 5093-5100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1868]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 122
[OW-2003-0063; FRL-7866-5]
RIN 2040-AE72
Application of Pesticides to Waters of the United States in
Compliance With FIFRA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rulemaking and notice of interpretive statement.
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SUMMARY: On August 13, 2003, the Environmental Protection Agency (EPA)
published a notice in the Federal Register soliciting public comment on
an Interim Statement and Guidance to address issues pertaining to
coverage under the Clean Water Act (CWA) of pesticides regulated under
the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that
are applied to or over waters of the United States. The interpretation
addressed two sets of circumstances for which EPA has determined that
the application of a pesticide to waters of the United States
consistent with all relevant requirements of FIFRA does not constitute
the discharge of a pollutant that requires a National Pollutant
Discharge Elimination System (NPDES) permit under the CWA. EPA is
announcing today the interpretive statement developed after
consideration of public comments. In this notice, EPA is also proposing
to revise the NPDES permit program regulations to incorporate the
substance of the interpretive statement.
DATES: Comments on this action must be received or postmarked on or
before midnight April 4, 2005.
ADDRESSES: Submit your comments, identified by Docket ID No. OW-2003-
0063, by one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
(2) Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
(3) E-mail: [email protected], Attention Docket ID No. OW-2003-
0063.
(4) Mail: Send the original and three copies of your comments to:
Water Docket, Environmental Protection Agency, Mailcode 4101T, 1200
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No.
OW-2003-0063.
(5) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC,
Attention Docket ID No. OW-2003-0063. Such deliveries are only accepted
during the Docket's normal hours of operation.
Instructions: Direct your comments to Docket ID No. OW-2003-0063.
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the Federal regulations.gov Web sites are
``anonymous access'' systems, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through EDOCKET or regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit EDOCKET on-line or see the Federal Register of May 31,
2002 (67 FR 38102). For additional instructions on submitting comments,
go to section B.1. of the SUPPLEMENTARY INFORMATION section of this
document.
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in EDOCKET or in hard
copy at the Water Docket in the EPA Docket Center, EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Water Docket is (202)
566-2426.
FOR FURTHER INFORMATION CONTACT: For additional information contact
Louis Eby, Water Permits Division, Office of Wastewater Management
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 564-6599, e-mail address:
[email protected]; or William Jordan, Office of Pesticide Programs,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (703) 305-1049, e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
You may be potentially affected by this action if you apply
pesticides to or
[[Page 5094]]
over, including near, water. Potentially affected entities may include,
but are not limited to:
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Category NAICS Examples of potentially affected entities
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Agriculture parties--General 111 Crop Production........ Producers of crops mainly for food and
agricultural interests, farmers/ fiber including farms, orchards, groves,
producers, forestry, and irrigation. greenhouses, and nurseries.
112511 Finfish Farming and Producers of farm raised finfish (e.g.,
Fisher Hatcheries. catfish, trout, goldfish, tropical fish,
minnows) and/or hatching fish of any
kind.
112519 Other Animal Producers engaged in farm raising animal
Aquaculture. aquaculture (except finfish and
shellfish). Alligator, frog, or turtle
production is included in this industry.
113110 Timber Tract The operation of timber tracts for the
Operations. purpose of selling standing timber.
113210 Forest Nurseries Growing trees for reforestation and/or
Gathering of Forest gathering forest products, such as gums,
Products. barks, balsam needles, rhizomes, fibers,
Spanish moss, ginseng, and truffles.
221310 Water Supply for Operating irrigation systems.
Irrigation.
Pesticide parties (includes pesticide 325320 Pesticide and Other Formulation and preparation of
manufacturers, other pesticide users/ Agricultural Chemical agricultural pest control chemicals.
interests, and consultants). Manufacturing.
Public health parties (includes mosquito 923120 Administration of Government establishments primarily
or other vector control districts and Public Health Programs. engaged in the planning, administration,
commercial applicators that service and coordination of public health
these). programs and services, including
environmental health activities.
Resource management parties (includes 924110 Administration of Government establishments primarily
state departments of fish and wildlife, Air and Water Resource and engaged in the administration,
state departments of pesticide Solid Waste Management regulation, and enforcement of air and
regulation, state environmental Programs. water resource programs; the
agencies, and universities). administration and regulation of water
and air pollution control and prevention
programs; the administration and
regulation of flood control programs;
the administration and regulation of
drainage development and water resource
consumption programs; and coordination
of these activities at intergovernmental
levels.
924120 Administration of Government establishments primarily
Conservation Programs. engaged in the administration,
regulation, supervision and control of
land use, including recreational areas;
conservation and preservation of natural
resources; erosion control; geological
survey program administration; weather
forecasting program administration; and
the administration and protection of
publicly and privately owned forest
lands. Government establishments
responsible for planning, management,
regulation and conservation of game,
fish, and wildlife populations,
including wildlife management areas and
field stations; and other administrative
matters relating to the protection of
fish, game, and wildlife are included in
this industry.
Utility parties (includes utilities).... 221 Utilities.............. Provide electric power, natural gas,
steam supply, water supply, and sewage
removal through a permanent
infrastructure of lines, mains, and
pipes.
Other Parties........................... 713910 Golf courses and Golf course operators who have ponds for
country clubs. irrigation.
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This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed could also be affected.
Other stakeholders and members of the public concerned about the
application of pesticides to and over, including near, waters of the
U.S. may also have an interest in this action. If you have any
questions regarding the applicability of this action to a particular
entity, consult the person listed under FOR FURTHER INFORMATION
CONTACT.
B. 1. Submitting CBI. Do not submit this information to EPA through
EDOCKET, regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
i. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
[[Page 5095]]
vi. Provide specific examples to illustrate your concerns, and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. Background and Public Comments
EPA issued an Interim Statement and Guidance addressing two
circumstances in which the Agency interprets the CWA as not requiring
NPDES permits for the application of pesticides to and over waters of
the United States, because such materials are not ``pollutants'' as
that term is defined in the CWA. The first situation addressed in the
Interim Statement and Guidance was the application of pesticides
directly to waters of the United States in order to control pests (for
example, mosquito larvae or aquatic weeds that are present in the
water). The second situation was the application of pesticides to
control pests that are present over waters of the United States that
results in a portion of the pesticide being deposited to waters of the
United States (for example, when pesticides are aerially applied to a
forest canopy where waters of the United States may be present below
the canopy or when insecticides are applied for control of adult
mosquitos). Although the Interim Statement and Guidance was effective
when issued, EPA provided public notice and solicited public comment.
68 FR 48385; August 13, 2003.
EPA received many comments on the Interim Statement and Guidance,
including comments supporting EPA's interpretation as well as comments
opposing it. In general, most commenters who supported EPA's
interpretation agreed that it was the best interpretation of the CWA's
definition of ``pollutant,'' and that the issuance of the Interim
Statement and Guidance would facilitate application of pesticides in a
manner consistent with relevant FIFRA requirements to serve important
public health purposes. The comments opposing EPA's interpretation
disagreed with the Agency's interpretation of the Act and expressed
concerns about the environmental effects of pesticides applied to and
over waters of the United States. EPA has considered the comments
received on the Interim Statement and will continue to do so in the
context of today's proposed rulemaking. The Agency will formally
respond to all public comments received on the Interim Statement and
during the public comment period for today's proposed rule. Therefore,
it is not necessary to resubmit comments that were previously submitted
on the Interim Statement and Guidance.
While EPA will formally address all the comments when it
promulgates a final regulation, the Agency addresses here two issues
raised by public comments. Some commenters expressed concern that the
Agency was not adopting this interpretation through a rulemaking
proceeding; a subset of these comments argued that failure to go
through rulemaking violated the Administrative Procedure Act (APA);
other commenters urged EPA to undergo rulemaking in order to provide
greater legal certainty to pesticide applicators. EPA disagrees with
those commenters who contended that the APA rulemaking requirements
apply to today's Interpretive Statement. The Interpretive Statement,
like the Interim Statement and Guidance, is an ``interpretative'' rule
under 5 U.S.C. 553(b) since it interprets the meaning of the term
``pollutant'' in section 502(6) of the CWA as applied to certain
pesticide applications. Therefore, it is exempt from notice and comment
rulemaking requirements under the APA. Consistent with its status, the
document is entitled an ``Interpretive Statement.''
EPA agrees, however, with those commenters who emphasized the
importance of providing clarity and greater legal certainty to parties
who apply pesticides under the circumstances addressed by the Interim
Statement and Guidance. Therefore, EPA is proposing to codify the
substance of today's Interpretive Statement into EPA's NPDES
regulations.
Second, several other commenters argued that EPA's interpretation
in the Interim Statement and Guidance is a significant departure from
previous statements in amicus briefs the Agency filed in Headwaters,
Inc., v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001), and
in Altman v. Town of Amherst, 47 Fed. Appx. 62 (2d Cir. 2002). EPA
believes that, in some respects, these commenters have incorrectly
characterized past government positions in these cases, consequently
overstating the differences between the Interpretive Statement and the
positions in those cases. Neither the CWA itself nor EPA's regulations
address the question of whether pesticides are ``chemical wastes'' or
``biological materials'' under section 502(6) of the Act when used for
their intended purpose and in conformity with relevant requirements of
FIFRA. Moreover, EPA does not have a longstanding interpretation of the
statute or its regulations that resolves this issue. Nonetheless, EPA's
position on these issues has evolved since the briefs were filed in
these cases. EPA believes that its revised thinking best accords with
Congressional intent reflected in the language, structure and purposes
of the CWA. A more detailed explanation is contained in a January 24,
2005, memorandum from EPA's General Counsel titled ``Analysis of
Previous Federal Government Statements on Application of Pesticides to
Waters of the United States in Compliance with FIFRA,'' which is
available in the docket for this rule at http://www.epa.gov/edocket.
III. Summary of Revisions to Interpretive Statement
EPA is issuing an Interpretive Statement that is substantially
similar to the Interim Statement and Guidance. The Interpretive
Statement contains the following changes from the Interim Statement and
Guidance:
EPA has modified the description of the first circumstance
addressed in the statement to include other pests in addition to
mosquito larvae and aquatic weeds, since pesticide applications
directly to waters of the United States may target organisms other than
the two identified in the Interim Statement and Guidance;
EPA has modified the description of the second
circumstance addressed in the statement to refer to pesticides (rather
than insecticides) that are applied over water, and to refer to other
pests in addition to mosquitos, since pesticide applications to control
pests present over waters of the United States may target organisms
other than mosquitos;
EPA has modified the second circumstance to clarify that
the reference to pests ``over water'' includes pests near water, since
organisms targeted by pesticides covered by the Interpretive Statement
are often found near as well as in, on or above waters;
EPA has clarified that ``relevant requirements'' under
FIFRA for purposes of this document refers to requirements relevant to
protection of water quality; and
Today's statement only specifically analyzes the
applicability of NPDES permitting requirements to pesticide
applications in the two circumstances identified therein. The
Interpretive Statement now references, however, several other
interpretive statements previously issued by the Agency and also notes
that it has been and will continue to be the operating approach of the
Agency that the application of agricultural and other pesticides in
accordance with relevant FIFRA
[[Page 5096]]
requirements is not subject to NPDES permitting requirements.
The full text of the Interpretive Statement is included below in
section VI.
IV. Summary of Proposed Rule
EPA is also proposing to revise the NPDES permit program
regulations to incorporate the substance of the Interpretive Statement.
The proposed revision would add a paragraph to 40 CFR 122.3's list of
discharges that are excluded from NPDES permit requirements. The new
paragraph would exclude applications of pesticides to waters of the
United States consistent with all relevant requirements under FIFRA in
the two circumstances described in the Interpretive Statement. As is
explained in the Interpretive Statement, the pesticides are not
pollutants under these circumstances and, therefore, are not discharges
of pollutants subject to NPDES permitting requirements.
EPA is soliciting public comment today on the proposed regulatory
language. The Agency will formally respond to all public comments
received on the Interim Statement during the comment period on today's
proposed rule. Therefore, it is not necessary to resubmit comments that
were previously submitted on the Interim Statement and Guidance.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this proposed rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and, therefore, is not subject to OMB review.
B. Paperwork Reduction Act
This proposed action would not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. If promulgated, it would merely identify two circumstances
in which the application of a pesticide to waters of the United States
consistent with all relevant requirements under FIFRA does not
constitute the discharge of a pollutant that requires a NPDES permit
under the Clean Water Act.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information; processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business based
on Small Business Administration (SBA) size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Because EPA
proposes to identify two circumstances in which the application of a
pesticide to waters of the United States consistent with all relevant
requirements under FIFRA does not constitute the discharge of a
pollutant that requires a NPDES permit under the Clean Water Act, this
proposed action will not impose any burden on any small entity. We
continue to be interested in the potential impacts of the proposed rule
on small entities and welcome comments on issues related to such
impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
[[Page 5097]]
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this proposed rule to change an NPDES
deadline would not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
The proposed rule would not impose any additional costs to these
entities. Thus, today's proposed rule is not subject to the
requirements of sections 202 and 205 of the UMRA. For the same reason,
EPA has determined that this rule contains no regulatory requirements
that might significantly or uniquely affect small governments. Thus,
today's proposed rule is not subject to the requirements of section 203
of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. If
promulgated, it will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132. Thus,
Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
EPA specifically solicits additional comment on this proposed rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This
regulation is not subject to Executive Order 13045 because it is not
economically significant as defined under E.O. 12866, and because the
Agency does not have reason to believe the environmental health and
safety risks addressed by this action present a disproportionate risk
to children. The proposed rule only interprets the legal scope of NPDES
permits requirement under the CWA and does not change how pesticide
applications are addressed under FIFRA.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule would not be subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866. The
only effect of this proposed rule would be is to identify two
circumstances in which the application of a pesticide to waters of the
United States consistent with all relevant requirements under FIFRA
does not constitute the discharge of a pollutant that requires a NPDES
permit under the Clean Water Act.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. 104-113, Section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standard bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
proposed rulemaking does not involve technical standards.
VI. Today's Interpretive Statement
The text of the final Interpretive Statement follows:
Memorandum
Subject: Interpretive Statement on Application of Pesticides to
Waters of the United States in Compliance with FIFRA.
From: Benjamin H. Grumbles (signed and dated January 25, 2005).
Assistant Administrator for Water (4101).
Susan Hazen (signed and dated January 25, 2005). Acting Assistant
Administrator for Prevention, Pesticides and Toxic Substances (7101).
To: Regional Administrators, Regions I-X.
The Environmental Protection Agency (EPA) is issuing this
interpretation of the Clean Water Act (CWA) to address issues regarding
coverage under the CWA of pesticides regulated under the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA) that are applied to
or over, including near, waters of the United States. This Memorandum
is issued to address the question of whether National Pollutant
Discharge Elimination System (NPDES) permits under section 402 of the
CWA are required for the applications of pesticides described below
that comply with relevant requirements of FIFRA. EPA provided public
notice of and solicited public comment on its interpretation of the CWA
with regard to
[[Page 5098]]
this question. See 68 FR 48385 (Aug. 13, 2003). After considering the
comments received in response to that notice, EPA is issuing this
Interpretive Statement.
The application of a pesticide to or over, including near, waters
of the United States consistent with all relevant requirements under
FIFRA does not constitute the discharge of a pollutant that requires a
NPDES permit under the Clean Water Act in the following two
circumstances:
(1) The application of pesticides directly to waters of the United
States in order to control pests. Examples of such applications include
applications to control mosquito larvae, aquatic weeds or other pests
that are present in the waters of the United States.
(2) The application of pesticides to control pests that are present
over waters of the United States, including near such waters, that
results in a portion of the pesticides being deposited to waters of the
United States; for example, when insecticides are aerially applied to a
forest canopy where waters of the United States may be present below
the canopy or when pesticides are applied over, including near, water
for control of adult mosquitos or other pests.
It is the Agency's position that these types of applications do not
require NPDES permits under the Clean Water Act if the pesticides are
applied consistent with all relevant requirements under FIFRA (i.e.,
those relevant to protecting water quality).\1\ Applications of
pesticides in violation of the relevant requirements under FIFRA would
be subject to enforcement under any and all appropriate statutes
including, but not limited to FIFRA and the Clean Water Act.
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\1\ As described in this Interpretive Statement, pesticides
designed and registered for application to or over, including near,
water are not considered to be pollutants requiring an NPDES permit
under the CWA, regardless of whether the pesticides targets are in
the water itself or over, including near, the water. If applied in
accordance with all relevant requirements under FIFRA, EPA considers
these pesticides to be products that are applied to perform their
intended purpose of controlling target organisms and, therefore, are
neither ``chemical wastes'' nor ``biological materials'' within the
meaning of section 502(6) of the CWA. This includes any residual
product that is an inherent, inextricable element of the pesticide
application. For purposes of this Interpretive Statement, EPA
considers the portion of a pesticide application that does not reach
a target organism and any pesticide remaining in the water after the
application is complete to be residual product, and not a pollutant
requiring an NPDES permit, only if the product had been applied in
accordance with all relevant requirements under FIFRA. However, the
Agency continues to review whether and under what unique
circumstances the material might later become a waste and,
therefore, a pollutant. See also n.5, infra. If such residuals were
to present a water quality problem, they could be addressed through
nonregulatory planning and grant processes under the CWA.
The Agency's interpretation is not inconsistent with the result
in the Ninth Circuit's decision in Headwaters, Inc. v. Talent
Irrigation District, 243 F. 3d 526 (9th Cir. 2001), because in the
factual situation described by the district court, in EPA's view,
the application did not comply with relevant FIFRA requirements and,
therefore, was not the type of activity addressed by this
Interpretive Statement.
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EPA will continue to review the variety of other circumstances
beyond the two described above in which questions have been raised
about whether applications of pesticides that enter waters of the U.S.
are regulated under the CWA, including other applications over land
areas that may drift over and into waters of the U.S.
Through a proposed rule in the Federal Register, EPA will solicit
comment on incorporating the substance of this Interpretive Statement
in the NPDES permit program regulations in 40 CFR part 122.
Notwithstanding that action, however, the application of pesticides in
compliance with relevant FIFRA requirements is not subject to NPDES
permitting requirements, as described in this Interpretive Statement.
Background and Rationale
In this Interpretive Statement, the Agency construes the Clean
Water Act in a manner consistent with how the statute has been
administered for more than 30 years. EPA does not issue NPDES permits
solely for the direct application of a pesticide to target a pest that
is present in or over a water of the United States, nor has it ever
stated in any general policy or guidance that an NPDES permit is
required for such applications.
It has been and will continue to be the operating approach of the
Agency that the application of agricultural and other pesticides in
accordance with label directions is not subject to NPDES permitting
requirements.
In Headwaters, Inc. v. Talent Irrigation District, the U.S. Court
of Appeals for the Ninth Circuit held that an applicator of herbicides
was required to obtain an NPDES permit under the circumstances before
the court. 243 F.3rd 526 (9th Cir. 2001).\2\ The Talent decision caused
public health authorities, natural resource managers and others who
rely on pesticides great concern and confusion about whether they have
a legal obligation to obtain an NPDES permit when applying a pesticide
consistent with FIFRA and, if so, the potential impact such a
requirement could have on accomplishing their own mission of protecting
human health and the environment. Since Talent, only a few states have
issued NPDES permits for the application of pesticides. Most state
NPDES permit authorities have opted not to require applicators of
pesticides to obtain an NPDES permit. In addition, state officials have
continued to apply pesticides for public health and resource management
purposes without obtaining an NPDES permit. These varying practices
reflect the substantial uncertainty among regulators, the regulated
community and the public regarding how the Clean Water Act applies to
the use of pesticides.
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\2\ In an amicus brief filed by the United States in the Talent
case, the Agency did not address EPA's interpretation of the
circumstances in which pesticides applied to or over water are
``pollutants'' under the CWA's definition of that term. Rather, the
Talent brief accepted the District Court's factual findings that a
``person'' had discharged a ``pollutant'' from a ``point source''
into ``navigable waters'' but then disputed the District'' Court's
legal determination that, even in these circumstances, the discharge
did not require a CWA permit because the FIFRA label for the
particular pesticide did not reference the NPDES permitting
requirement. In contrast, this Interpretive Statement addresses the
specific and distinct legal question of whether pesticides applied
in the two specific circumstances discussed above are pollutants to
begin with, and concludes they are not, provided the use of the
pesticide complies with all relevant FIFRA requirements.
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There has been continued litigation and uncertainty following the
Talent decision. One such case is Altman v. Town of Amherst (Altman),
which was brought against the Town of Amherst for not having obtained
an NPDES permit for its application of pesticides to wetlands as part
of a mosquito control program. EPA filed an amicus brief in that case
setting forth the agency's views in the context of that particular
case. In September 2002, the Second Circuit remanded the Altman case
for further consideration and issued a Summary Order that stated,
``Until the EPA articulates a clear interpretation of current law among
other things, whether properly used pesticides released into or over
waters of the United States can trigger the requirement for an NPDES
permit [or a state-issued permit in the case before the court] the
question of whether properly used pesticides can become pollutants that
violate the Clean Water Act will remain open.'' 46 Fed. Appx. 62, 67
(2d Cir. 2002).
This Memorandum provides EPA's interpretation of how the CWA
currently applies to the two specific circumstances listed above. Under
those circumstances, EPA has concluded that the CWA does not require
NPDES permits for a pesticide applied
[[Page 5099]]
consistent with all relevant requirements under FIFRA.\3\
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\3\ EPA discusses the positions taken in Talent and Altman in
greater detail in a Memorandum issued by EPA's General Counsel on
January 24, 2005, titled ``Analysis of Previous Federal Government
Statements on Application of Pesticides to Waters of the United
States in Compliance with FIFRA.''
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Many of the pesticide applications covered by this memorandum are
applied either to address public health concerns such as controlling
mosquitos or to address natural resource needs such as controlling non-
native species or plant matter growth that upsets a sustainable
ecosystem or blocks the flow of water in irrigation systems. Under
FIFRA, EPA is charged to consider the effects of pesticides on the
environment by determining, among other things, whether a pesticide
``will perform its intended function without unreasonable adverse
effects on the environment,'' and whether ``when used in accordance
with widespread and commonly recognized practice [the pesticide] will
not generally cause unreasonable adverse effects on the environment.''
FIFRA section 3(c)(5).
The application of a pesticide to waters of the U.S. would require
an NPDES permit only if it constitutes the ``discharge of a pollutant''
within the meaning of the Clean Water Act.\4\ The term ``pollutant'' is
defined in section 502(6) of the CWA as follows:
\4\ This Interpretive Statement addresses circumstances when a
pesticide is not a ``pollutant'' that would be subject to NPDES
permit requirements when discharged into a water of the United
States. It does not address the threshold question of whether these
or other types of pesticide applications constitute ``point source''
discharges to waters of the United States. On March 29, 2002, EPA
issued a Memorandum titled ``Interpretive Statement and Regional
Guidance on the Clean Water Act's Exemption for Return Flows from
Irrigated Agriculture.'' This statement clarified that the
application of an aquatic herbicide consistent with the FIFRA label
to ensure the passage of irrigation return flow is a nonpoint source
activity not subject to NPDES permit requirements under the CWA.
Additionally, on September 13, 2003, EPA's General Counsel issued a
Memorandum titled ``Interpretive Statement and Guidance Addressing
Effect of Ninth Circuit Decision in League of Wilderness Defenders
v. Forsgren on Application of Pesticides and Fire Retardants.'' That
Memorandum reaffirmed EPA's long-standing interpretation of its
regulations that silvicultural activities such as pest and fire
control are nonpoint source activities that do not require NPDES
permits. Both these documents remain in effect and are available at
http://www.epa.gov/npdes/agriculture.
The term ``pollutant'' means dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and
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industrial, municipal, and agricultural waste discharged into water.
EPA has evaluated whether pesticides applied consistent with FIFRA
fall within any of the terms in section 506(2), in particular whether
they are ``chemical wastes'' or ``biological materials.'' EPA has
concluded that they do not fall within either term. First, EPA does not
believe that pesticides applied consistent with FIFRA are ``chemical
wastes.'' The term ``waste'' ordinarily means that which is
``eliminated or discarded as no longer useful or required after the
completion of a process.'' The New Oxford American Dictionary 1905
(Elizabeth J. Jewell & Frank Abate eds., 2001); see also The American
Heritage Dictionary of the English Language 1942 (Joseph P. Pickett
ed., 4th ed. 2000) (defining waste as ``[a]n unusable or unwanted
substance or material, such as a waste product''). Pesticides applied
consistent with FIFRA are not such wastes; on the contrary, they are
EPA-evaluated products designed, purchased and applied to perform their
intended purpose of controlling target organisms in the environment.\5\
Therefore, EPA concludes that ``chemical wastes'' do not include
pesticides applied consistent with FIFRA.
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\5\ Where, however, pesticides are a waste, for example when
contained in stormwater regulated under section 402(p) of the CWA or
other industrial or municipal discharges, they are pollutants and
their discharge by a point source to a water of the U.S. may be
controlled in an NPDES permit.
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EPA also interprets the term ``biological materials'' not to
include pesticides applied consistent with FIFRA. We think it unlikely
that Congress intended EPA and the States to issue permits for the
discharge into water of any and all material with biological
content.\6\ With specific regard to biological pesticides, moreover, we
think it far more likely that Congress intended not to include
biological pesticides within the definition of ``pollutant.'' This
interpretation is supported by multiple factors.
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\6\ Taken to its literal extreme, such an interpretation could
arguably mean that activities such as fishing with bait would
constitute the addition of a pollutant.
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EPA's interpretation of ``biological materials'' as not including
biological pesticides avoids the nonsensical result of treating
biological pesticides as pollutants even though chemical pesticides are
not. Since all pesticides applied in a manner consistent with the
relevant requirements under FIFRA are EPA-evaluated products that are
intended to perform essentially similar functions, disparate treatment
would, in EPA's view, not be warranted, and an intention to incorporate
such disparate treatment into the statute ought not to be imputed to
Congress.\7\ Moreover, at the time the Act was adopted in 1972,
chemical pesticides were the predominant type of pesticide in use. In
light of this fact, it is not surprising that Congress failed to
discuss whether biological pesticides were covered by the Act. The fact
that more biological pesticides have been developed since passage of
the 1972 Act does not, in EPA's view, justify expanding the Act's reach
to include such pesticides when there is no evidence that Congress
intended them to be covered by the statute in a manner different from
chemical pesticides. Finally, many of the biological pesticides in use
today are reduced-risk products that produce a more narrow range of
potential adverse environmental effects than many chemical pesticides.
As a matter of policy, it makes little sense and would be inconsistent
with the environmental purposes of the CWA to discourage the use of
these products by treating them as subject to CWA permitting
requirements when chemical pesticides are not. Caselaw also supports
this interpretation. Ass'n to Protect Hammersley, Eld, and Totten
Inlets v. Taylor Resources, 299 F.3d 1007, 1016 (9th Cir. 2002)
(application of the esjudem generis canon of statutory interpretation
supports the view that the CWA ``supports an understanding of * * *
``biological materials,'' as waste material of a human or industrial
process'').\8\
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\7\ Further, some pesticide products may elude classification as
strictly ``chemical'' or ``biological.''
\8\ EPA's interpretation of section 502(6) with regard to
biological pesticides should not be taken to mean that EPA reads the
CWA generally to regulate only wastes. EPA notes that other terms in
section 502(6) may or may not be limited in whole or in part to
wastes, depending on how the substances potentially addressed by
those terms are created or used. For example, ``sand'' and ``rock''
can either be discharged as waste or as fill material to create
structures in waters of the U.S., and Congress created in section
404 of the Act a specific regulatory program to address such
discharges. See 67 FR 31129 (May 9, 2002) (subjecting to the section
404 program discharges that have the effect of filling waters of the
U.S., including fills constructed for beneficial purposes). The
question in any particular case is whether a discharge falls within
one of the terms in section 502(6), in light of the factors relevant
to the interpretation of that particular term. As discussed above,
the factors critical to EPA's interpretation concerning biological
pesticides are consistency with section 502(6)'s treatment of
chemical pesticides and chemical wastes, and how the general term
``biological materials'' fits within the constellation of other,
more specific terms in section 502(6), which to a great extent
focuses on wastes.
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Under EPA's interpretation, whether a pesticide is a pollutant
under the CWA turns on whether or not it is a chemical waste or
biological material within the meaning of the statute, and this can
only be determined by considering the manner in which the pesticide is
used. Where a pesticide is used for its intended purpose and its use
complies
[[Page 5100]]
with all relevant requirements under FIFRA, EPA has determined that it
is not a chemical waste or biological material and, therefore, is not a
pollutant subject to NPDES permitting requirements. That coverage under
the Act turns on the particular circumstances of its use is not
remarkable. Indeed, when asked on the Senate floor whether a particular
discharge would be regulated, the primary sponsor of the CWA, Senator
Muskie (whose views regarding the interpretation of the CWA have been
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accorded substantial weight over the last four decades), stated:
I do not get into the business of defining or applying these
definitions to particular kinds of pollutants. That is an
administrative decision to be made by the Administrator. Sometimes a
particular kind of matter is a pollutant in one circumstance, and
not in another. Senate Debate on S. 2770, Nov. 2, 1971 (117 Cong.
Rec. 38,838).
Here, to determine whether a pesticide is a pollutant under the
CWA, EPA believes it is appropriate to consider the circumstances of
how a pesticide is applied, specifically whether it is applied
consistent with relevant requirements under FIFRA. Rather than
interpret the statutes so as to impose overlapping and potentially
confusing regulatory regimes on the use of pesticides, this
interpretation seeks to harmonize the CWA and FIFRA.\9\ Under this
interpretation, a pesticide applicator is assured that complying with
relevant requirements under FIFRA will mean that the activity is not
also subject to the distinct NPDES permitting requirements of the CWA.
However, like an unpermitted discharge of a pollutant, application of a
pesticide in violation of relevant FIFRA requirements would be subject
to enforcement under any and all appropriate statutes including, but
not limited to, FIFRA and the CWA.
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\9\ EPA's Talent brief suggested that compliance with FIFRA does
not necessarily mean compliance with the CWA, and pointed out one
difference between CWA and FIFRA regulation, i.e., individual NPDES
permits could address local water quality concerns that might not be
specifically addressed through FIFRA's national registration
process. The position EPA is articulating in this memo would not
preclude states from further limiting the use of a particular
pesticide in accord with their authorities under 7 U.S.C. 136v(a)
and Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 613-614
(1991), to the extent otherwise authorized by Federal and state law.
Furthermore, under section 510 of the CWA, States and other
governmental entities are not precluded from adopting more stringent
requirements to address local water quality concerns.
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Please feel free to call us to discuss this memorandum. Your staff
may call Louis Eby in the Office of Wastewater Management at (202) 564-
6599 or William Jordan in the Office of Pesticide Programs at (703)
305-1049.
List of Subjects in 40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
Dated: January 26, 2005.
Stephen L. Johnson,
Deputy Administrator.
For the reasons set forth in the preamble, chapter I of title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
Subpart A--[Amended]
2. Section 122.3 is amended by adding paragraph (h) to read as
follows:
Sec. 122.3 Exclusions.
* * * * *
(h) The application of pesticides to waters of the United States
consistent with all relevant requirements under FIFRA (i.e., those
relevant to protecting water quality), in the following two
circumstances:
(1) The application of pesticides directly to waters of the United
States in order to control pests. Examples of such applications include
applications to control mosquito larvae, aquatic weeds or other pests
that are present in the waters of the United States.
(2) The application of pesticides to control pests that are present
over waters of the United States, including near such waters, that
results in a portion of the pesticides being deposited to waters of the
United States; for example, when insecticides are aerially applied to a
forest canopy where waters of the United States may be present below
the canopy or when pesticides are applied over, including near, water
for control of adult mosquitos or other pests.
[FR Doc. 05-1868 Filed 1-31-05; 8:45 am]
BILLING CODE 6560-50-P