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New Court Rulings Could Affect Pesticide Spraying.

By Leslie McGuire

A recent ruling has started a push aimed at Congress to adjust the EPA's guidance on pesticide spraying. At present, sprayers must comply with the provisions of the Clean Water Act's permitting requirements. If they don't, they are subject to lawsuits brought by either the Federal Government, or private citizens.

On December 9, 2003, the United States Court of Appeals for the Second Circuit ruled that citizens could sue if a pesticide sprayer didn't have the proper permits required by the Clean Water Act (CWA). Even if they were in compliance with FIFRA (the Federal Insecticide, Fungicide, and Rodenticide Act), they would still require the correct permists issued by the EPA under the CWA. The ruling in the case No Spray Coalition et al vs. City of New York, said that New York City didn't file for the correct permit from the EPA (which in fact it did not) when they began spraying for mosquitoes to prevent a spread of the West Nile virus.

After several residents of Queens had gotten a strain of the West Nile virus, which is transmitted by mosquitoes, New York City sprayed the pesticides using trucks and helicopters to kill adult mosquitoes. The virus continued to appear each summer and the spraying program was continued, using three pesticides in the program: malathion (sold under the name Fyfanon), resmethrin (Scourge), and sumithrin (Anvil). All three pesticides are regulated under FIFRA (the Federal Insecticide, Fungicide, and Rodenticide Act), and New York City had applied for their permits under FIFRA. However this spraying was in violation of the Clean Water Act.

The CWA forbids the discharge of any pollutant into the navigable waters of the United States without a permit issued under the terms of the Act. The term "navigable waters" has been interpreted broadly to include non-navigable tributaries of navigable waterways, including small streams. This kind of regulation allows the EPA to set caps for state or nationwide discharge of pollutants from all regulated sources. By taking into consideration the particular ecological conditions of particular kinds of waterways they can control the effects of certain pollutants and monitor how they spread by controlling the number and kinds of permits they issue.

This latest ruling clearly sets the precedent for citizen law suits involving the use of pesticides approved by the EPA under FIFRA but not approved under the Clean Water Act. In addition, there were two previous rulings where the courts upheld similar CWA mandates, making the precedent even stronger. Certain groups aren't happy with the opening for lawsuits this latest ruling has created, and feel that limiting the effect of these rulings can only be accomplished by new legislation.

One such set of lobbyists, an industry group keeping a low profile, is working to push for legislation on Capitol Hill that would amend the Clean Water Act so that any spraying done under FIFRA would not require EPA permitting under the Clean Water Act. They say the process of getting the correct permits is an additional cost that has no benefits. It is also worth mentioning that pesticide sprayers, whether they are farming groups, the pesticide industry, or mosquito control personnel would very much like to get immunity from any citizen lawsuits. If the legislation they are requesting gets passed, pesticide, fungicide and rodenticide spraying would be exempt from the Clean Water Act provisions and permitting requirements. They would also be exempt from the CWA's provision allowing citizens to sue manufacturers or users who may be in violation. Pesticide sprayers would only be required to deal with FIFRA. FIFRA is the regulatory law controlling the use of pesticides, fungicides and rodenticides. It requires that all such chemicals be registered if they are sold 8in the United States. The EPA accepts their registration only if the poison "when used in accordance with widespread and common practice" does not do damage to the environment. FIFRA makes it unlawful to use any of the registered pesticides in a way that is not consistent with its labeling. However FIFRA does not provide any avenue for citizen law suits. If the EPA agrees to any changes in the provisions of the Clean Water Act making FIFRA the governing law, citizen lawsuits would no longer be workable. The only lawsuits that could be brought would have to be by federal or state governments.

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August 17, 2019, 10:49 am PDT

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