[Federal Register: August 13, 2003 (Volume 68, Number 156)]
[Notices]
[Page 48385-48388]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13au03-84]
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ENVIRONMENTAL PROTECTION AGENCY
[OW-2003-0063; FRL-7542-9]
Interim Statement and Guidance on Application of Pesticides to
Waters of the United States in Compliance with FIFRA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice and request for comment.
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SUMMARY: In a July 11, 2003, memorandum, the Environmental Protection
Agency (EPA) issued, as an Interim Statement and Guidance, an
interpretation of the Clean Water Act (CWA) to resolve jurisdictional
issues pertaining to pesticides regulated under the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) that are applied to
waters of the United States. The interpretation addresses two sets of
circumstances for which EPA believes 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 Clean Water Act: 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)
and 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 insecticides 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 mosquitoes). EPA issued
this statement pursuant to its authority under Section 301 of the Clean
Water Act. EPA is soliciting and will consider comment on this interim
statement and guidance before determining a final Agency position.
DATES: Comments on this notice must be received or postmarked on or
before midnight October 14, 2003.
ADDRESSES: Public comments regarding this notice may be submitted
electronically, by mail, or through hand delivery/courier. Comments may
be submitted by mail to: Water Docket, Environmental Protection Agency,
Mail Code 4101T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460,
Attention Docket ID No. OW-2003-0063. For additional information on
other ways to submit comments, see SUPPLEMENTARY INFORMATION, How May I
Submit Comments?
FOR FURTHER INFORMATION CONTACT: For additional technical information
contact Louis Eby, Office of Wastewater Management, at (202) 564-6599,
or Arty Williams, Office of Pesticide Programs, at (703) 305-5239.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OW-2003-0063. The official public docket is
the collection of materials that is available for public viewing at the
Water Docket in the EPA Docket Center, EPA West, Room B102, 1301
Constitution Avenue, NW., Washington, DC. The EPA Docket 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
[[Page 48386]]
for the telephone number for the Water Docket is (202) 566-2426.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the docket
facility identified in section I.A.1.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
B. How and To Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
required to consider these late comments.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket, and made
available in EPA's electronic public docket. 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.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket
, and follow the online instructions for submitting comments.
(To access EPA's electronic public docket from the EPA Internet Home
Page, select ``Information Sources,'' ``Dockets,'' and ``EPA
Dockets.'') Once in the system, select ``search,'' and then key in
Docket ID No. OW-2003-0063. The system is an ``anonymous access''
system, which means EPA will not know your identity, e-mail address, or
other contact information unless you provide it in the body of your
comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to ow-
docket@epa.gov, Attention Docket ID No. OW-2003-0063. In contrast to
EPA's electronic public docket, EPA's e-mail system is not an
``anonymous access'' system. If you send an e-mail comment directly to
the Docket without going through EPA's electronic public docket, EPA's
e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in section I.B.2. These
electronic submissions will be accepted in WordPerfect or ASCII file
format. Avoid the use of special characters and any form of encryption.
2. By Mail. Please submit an original and three copies of your
written comments and enclosures to: Water Docket, Environmental
Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, Attention Docket ID No. OW-2003-0063.
3. By Hand Delivery or Courier. Deliver your comments to: EPA
Docket Center, EPA West, Room B102, 1301 Constitution Avenue, NW.,
Washington, DC, 20004, Attention Docket ID No. OW-2003-0063. Such
deliveries are only accepted during the Docket's normal hours of
operation as identified in section I.A.1.
C. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and
Federal Register citation related to your comments.
[[Page 48387]]
II. Text of the Memorandum
The text of the Memorandum follows:
MEMORANDUM
SUBJECT: Interim Statement and Guidance on Application of Pesticides
to Waters of the United States in Compliance with FIFRA
FROM: G. Tracy Mehan, III (signed and dated, July 11, 2003)
Assistant Administrator for Water (4101) Stephen L. Johnson (signed
and dated, July 11, 2003) 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
jurisdictional issues under the CWA pertaining to pesticides
regulated under the Federal Insecticide, Fungicide and Rodenticide
Act (FIFRA) that are applied to waters of the United States. This
Memorandum is issued, in part, in response to a statement by the
U.S. Court of Appeals for the Second Circuit in Altman v. Town of
Amherst that highlighted the need for EPA to articulate a clear
interpretation of whether National Pollutant Discharge Elimination
System (NPDES) permits under section 402 of the CWA are required for
applications of pesticides that comply with relevant requirements of
FIFRA. EPA will solicit comment on this interim statement through
the Federal Register prior to determining a final agency position.
Until that position is made final, however, the application of
pesticides in compliance with relevant FIFRA requirements is not
subject to NPDES permitting requirements, as described in this
statement.
EPA will continue to review the variety of circumstances in
which questions have been raised about whether applications of
pesticides to waters of the U.S. are regulated under the CWA. As EPA
determines the appropriate response to these circumstances, we will
develop additional guidance. This memorandum addresses two sets of
circumstances for which EPA believes 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 an NPDES permit under the Clean Water Act:
(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 or
aquatic weeds 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 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 insecticides are applied over water for control of
adult mosquitos.
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 of
FIFRA. Applications of pesticides in violation of the relevant
requirements of FIFRA would be subject to enforcement under any and
all appropriate statutes including, but not limited to FIFRA and the
Clean Water Act. This interpretation also does not preclude or
nullify any existing authority vested with States or Tribes to
impose additional requirements on the use of pesticides to address
water quality issues to the extent authorized by federal, state or
tribal law.
Background and Rationale
In this interim statement and guidance, 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.
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).\1\
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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\1\ In an amicus brief filed by the United States in the Talent
case, EPA stated that compliance with FIFRA does not necessarily
mean compliance with the Clean Water Act. However, the government's
Talent brief did not address the question of how pesticide
application is regulated under the Clean Water Act or the
circumstances in which pesticides are ``pollutants'' under the CWA.
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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. 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 consistent with all
relevant requirements of FIFRA. This interpretation is consistent
with the circumstances before the Ninth Circuit in Talent and with
the brief filed by the United States in the Altman case.\2\
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\2\ While the court's analysis in Talent did not turn on whether
the pesticide application at issue was consistent with the
requirements of FIFRA, the factual situation described in the
court's opinion constitutes a violation of the applicable FIFRA
label because the pesticide applicator failed to contain the
herbicide-laden water for the requisite number of days. In its
amicus brief in the Altman case, EPA described factors relevant to
the determination whether a pesticide may be subject to the CWA, and
those factors are consistent with the analysis and interpretation of
the Act described below.
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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. 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.\3\ The term
``pollutant'' is defined in section 502(6) of the CWA as follows:
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\3\ This Memorandum 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.
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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
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
[[Page 48388]]
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.\4\ Therefore, EPA
concludes that ``chemical wastes'' do not include pesticides applied
consistent with FIFRA.
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\4\ 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
require a permit when discharged to a water of the U.S.
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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.\5\ 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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\5\ 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 requirements of 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.\6\ 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 for such
products to be 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'').\7\
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\6\ Further, some pesticide products may elude classification as
strictly ``chemical'' or ``biological.''
\7\ 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 the manner in which it used, i.e., whether
its use complies with all relevant requirements of FIFRA. 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 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.\8\ Under this
interpretation, a pesticide applicator is assured that complying
with environmental 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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\8\ 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 state or tribal authorities from further limiting the use
of a particular pesticide to address any unique and geographically
limited water quality issue to the extent authorized by Federal,
State, or tribal law.
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Solicitation of comment on this Interim Statement and Guidance
In the near future, the Agency will seek public comment on this
interim statement and guidance in the Federal Register. The Agency
will review all comments and determine whether changes or
clarifications are necessary before issuing final interpretation and
guidance.
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 Arty Williams in the Office of Pesticide Programs
at (703) 305-5239.
Dated: August 5, 2003.
G. Tracy Mehan, III,
Assistant Administrator, Office of Water.
Dated: August 5, 2003.
Susan B. Hazen,
Principal Deputy Assistant Administrator, Office of Prevention,
Pesticides and Toxic Substances.
[FR Doc. 03-20529 Filed 8-12-03; 8:45 am]
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