JOE’S GOT ISSUES
Joseph M. Conlon
Technical Advisor, AMCA
The Clean Water Act
• Water Pollution Control Act – 1972
• Regulates discharge of pollutants into
waters of U.S.
• EPA has authority to regulate
• Section 301(a) prohibits pollutant
discharge unless permit issued IAW
section 402
Clean Water Act - Definitions
• Pollution: man-induced alteration of
chemical, physical, bio integrity of water
• Pollutant: chemical waste, biological
materials and agricultural waste
Clean Water Act - Definitions
• Point Source: discernible, confined and
discrete conveyance such as pipe, ditch
rolling stock, etc. from which a pollutant
may be discharged
• Does not include agricultural stormwater
discharges or return flows from irrigation
Clean Water Act – Civil Actions
• Any citizen - against any person, including
government entities alleged to be violating
effluent standards
• Against EPA Administrator if alleged
failure to perform duties under CWA
Headwaters vs. Talent Irrigation
• March 12, 2001 - 9th Circuit decision for
plaintiffs
• Magnacide H – acrolein
• Residual acrolein considered chemical waste
• EPA - enforcement low priority
Headwaters vs.Talent Irrigation
• FIFRA – nationally uniform labeling
system, but no permitting system for
individual application
• EPA approves pesticides with knowledge
that pesticides containing pollutants may be
discharged from point sources only
pursuant to obtaining NPDES permit
Altman vs. Town of Amherst
• Sept 26, 2002 – 2nd Circuit decision
• Application of adulticides (malathion,
resmethrin, permethrin) to wetlands w/o
NPDES permit
Is a Pesticide a Chemical Waste?
• Is it a chemical pesticide?
• Is it an aquatic pesticide?
• Is it applied for public benefit?
• Is it applied IAW FIFRA?
Rulemaking Petition
• Requested change in definition of
“pollutant”
• Requested change in definition of “discharge
of pollutant”
• Specifically exempt larvicides/adulticides
EPA Interim Guidance
• July 11, 2003 EPA issues guidance memo
• Pesticides applied IAW label not pollutants
• Addresses jurisdictional issues
• Talent was FIFRA violation
• Comments provided 14 October
Further Litigation
LWD vs. Forsgren
No Spray Coalition vs. NYC
Gem County - St. John’s Organic farm
Pesticide Program Dialogue Committee
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October 29-30, 2003
Bill Meredith – AMCA Representative
PPDC: 42 stakeholders
ESA Issues
Mosquito Product Labeling Issues
ESA Lawsuits
Cascade Resources Advocacy
Group (Ctr. For Biological
Diversity) v. EPA: failure to
consult PLUS alleging violations
of the Migratory Treaty Act
OR Nat. Res. Council v. EPA & OR DEQ:
claims fish species affected by aquatic
product - failure to consult
OR Nat. Res. Council v. Bureau of Rec.:
salmon and suckers harmed by fungicides
and aquatics in Klamath Basin irrigation
canals and adjacent crops
11 Enviros v.
USDA: failure to
consult in issuing
field test permits
for biopharming
Washington Toxics
Coalition v. EPA: salmonid
species, interim buffers for
40+ ais ag/professional use
only - 6 ais urban
NRDC v. EPA: suit
alleging EPA is not
doing enough to protect
endangered species in
Chesapeake Bay and
major Midwestern and
Southern rivers from
atrazine
Citizens Against Toxic
Substances v. EPA: salmon
and forestry plants in N.
California. EPA now
working on concurrences on
determinations with NMFS
and FWS
Center for Biological Diversity v.
EPA: Red legged frog in CA. Two
of four claims denied, further action
pending
Center for Biological Diversity and
Save Our Springs Alliance v. EPA:
Atrazine/Diazinon/Carbaryl –
alleges failure to note risks to Barton
Springs Salamander
Defenders of Wildlife v. EPA:
fenthion/mosquitoes – alleges
violation of Migratory Bird Act threatening certain protected
migratory and endangered birds
PPDC – ESA Issues
• Need enhanced communication
w/USFWS
• Ecological Risk Assessments
– Screening level for broad taxonomic groups
– Risk Quotients (RQ)
– If RQ high, then species-specific
• County Level Bulletins
– Specific areas
– Last resort
Risk Assessments – AMCA Concerns
• Who conducts risk assessments (RA)?
• Who funds RA?
• Will EPA, USFWS, NMFS be funded to
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perform roles?
Can RA be challenged?
How are priorities determined?
Which pesticides reviewed first?
ESA Rulemaking Proposal
• Habitat destruction and invasive species worst
threats
• USFWS & NMFS propose regulations for
improved consultation
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agree that EPA RA’s adequately protect ES
do not require separate reviews by agencies
To be periodically reviewed by agencies
reduces red tape and redundancy
• National Wilderness Institute supports proposal
– ESA lawsuits used to limit access to pesticides
– not used to protect species
Mosquitocide Labeling Issues
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Restricted Use designation
Separate Directions for Mosquito Control
“Use over water”
Hazard Statements
Lead Agency Consult
Calibration Requirements on Label
“Repeat as Needed”
Environmentalist Issues
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All adulticides need RU label
Spraying doesn’t stop WNV
No level of exposure is safe
Spray only when problem
quantified
• Source reduction & Pub Ed are the
answers
• Don’t allow registrants to specify
application intervals
The Future
• Challenges
– Washington NPDES Permit
– Lyndhurst et al.
– Gem County, venue