Application of Pesticides to Waters of the United States in
Compliance With FIFRA
[Federal Register: November 27, 2006 (Volume 71, Number 227)]
[Rules and Regulations]
[Page 68483-68492]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27no06-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 122
[OW-2003-0063; FRL-8248-1]
RIN 2040-AE79
Application of Pesticides to Waters of the United States in
Compliance With FIFRA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today, EPA is issuing a regulation stating that the
application of a pesticide in compliance with relevant requirements of
the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does
not require a National Pollutant Discharge Elimination System (NPDES)
permit in two specific circumstances. The first circumstance is when
the application of the pesticide is made directly to waters of the
United States to control pests that are present in the water. The
second circumstance is when the application of the pesticide is made to
control pests that are over, including near, waters of the United
States. This rulemaking is based on the Agency's interpretation of the
definition of the term ``pollutant'' under the Clean Water Act (CWA) as
not including such pesticides.
This final rulemaking replaces EPA's previously published Interim
and Final Interpretive Statements on the Application of Pesticides to
Waters of the United States in Compliance with FIFRA. EPA's
Interpretive Statement, published February 1, 2005, described the
Agency's interpretation of the CWA with regard to the application of
pesticides regulated under FIFRA that are applied to or over, including
near, waters of the United States. On August 13, 2003, EPA provided
public notice of and solicited public comment on an Interim Statement
and incorporated that input into the Interpretive Statement. On
February 1, 2005, EPA published the Interpretive Statement and proposed
to codify its substance in EPA's NPDES regulations and solicited
comment on that proposed action. Today's final rule is the result of
this process.
DATES: These final regulations are effective on January 26, 2006.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OW-2003-0063. All documents in the docket are listed online at
http://www.regulations.gov. Although listed in the online docket, some
information is not publicly available, i.e., Confidential Business
Information (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
online or in hard copy at the Water Docket, EPA/DC, 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
Jeremy Arling, Water Permits Division, Office of Wastewater Management
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: 202-564-2218, e-mail address:
arling.jeremy@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
You may be affected by this action if you apply pesticides to or
over, including near, water. Potentially affected entities may include,
but are not limited to:
Table 1.--Entities Potentially Regulated by This Rule
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Examples of
Category NAICS potentially affected
entities
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Agriculture parties--General 111 Crop Producers of crops
agricultural interests, Production. mainly for food and
farmers/producers, forestry, fiber including
and irrigation. farms, orchards,
groves, greenhouses,
and nurseries.
113110 Timber The operation of
Tract Operations. timber tracts for
the purpose of
selling standing
timber.
[[Page 68484]]
113210 Forest Growing trees for
Nurseries reforestation and/or
Gathering of gathering forest
Forest Products. products, such as
gums, barks, balsam
needles, rhizomes,
fibers, Spanish
moss, ginseng, and
truffles.
221310 Water Operating irrigation
Supply for systems.
Irrigation.
Pesticide parties (includes 325320 Pesticide Formulation and
pesticide manufacturers, and Other preparation of
other pesticide users/ Agricultural agricultural pest
interests, and consultants). Chemical control chemicals.
Manufacturing.
Public health parties 923120 Government
(includes mosquito or other Administration establishments
vector control districts and of Public Health primarily engaged in
commercial applicators that Programs. the planning,
service these). administration, and
coordination of
public health
programs and
services, including
environmental health
activities.
Resource management parties 924110 Government
(includes State departments Administration establishments
of fish and wildlife, State of Air and Water primarily engaged in
departments of pesticide Resource and the administration,
regulation, State Solid Waste regulation, and
environmental agencies, and Management enforcement of air
universities). Programs. and water resource
programs; the
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 Government
Administration establishments
of Conservation primarily engaged in
Programs. 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 221 Utilities.... Provide electric
utilities). power, natural gas,
steam supply, water
supply, and sewage
removal through a
permanent
infrastructure of
lines, mains, and
pipes.
Other Parties................. 713910 Golf Golf course operators
courses and who have ponds for
country clubs. irrigation.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether
your facility is affected by this action, you should carefully examine
the applicability criteria in 40 CFR 122.23. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
II. Background
A. Clean Water Act and the Federal Insecticide, Fungicide, and
Rodenticide Act
Congress passed the Federal Water Pollution Control Act (1972),
also known as the Clean Water Act (CWA), to ``restore and maintain the
chemical, physical, and biological integrity of the nation's waters''
33 U.S.C. 1251(a). The CWA prohibits the discharge of any pollutant by
any person from a point source into a water of the United States,
except in compliance with certain other provisions of the Act,
including Section 402. 33 U.S.C. 1311(a). Section 402 in turn
authorizes EPA to issue permits under the National Pollutant Discharge
Elimination System (NPDES) permit program for such discharges. States
may also issue NPDES permits if authorized to do so by EPA. 33 U.S.C.
1342(a) and (b).
NPDES permits under the CWA are required only for point source
discharges of materials that are pollutants to waters of the United
States. Section 502(6) of the CWA defines ``pollutant'' to mean:
* * * 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.
33 U.S.C. 1362(6).\1\ In the more than 30 years that EPA has
administered the CWA, the Agency has never issued an NPDES permit for
the application of a pesticide to or over water to target a pest that
is present in or over the water. Nor has the Agency ever stated in any
general policy or guidance that an NPDES permit is required for such
applications.
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\1\ The remaining language of the definition of ``pollutant'' in
Section 502(6) is as follows, and is not relevant to today's action:
``The term does not mean (A) ``sewage from vessels'' within the
meaning of Section 312 of this Act; or (B) water, gas, or other
material which is injected into a well to facilitate production of
oil or gas, or water derived in association with oil or gas
production and disposed of in a well, if the well used either to
facilitate production or for disposal purposes is approved by
authority of the State in which the well is located, and if such
State determines that such injection or disposal will not result in
the degradation of ground or surface water resources.''
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EPA regulates the sale, distribution and use of pesticides in the
United States under the statutory framework of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) to ensure that when used in
conformance with FIFRA labeling directions, pesticides will not pose
unreasonable risks to human health and the environment. All new
pesticides must undergo a rigorous registration procedure under FIFRA
during which EPA assesses a variety of potential human health and
environmental effects associated with use of the product.
Under FIFRA, EPA is required to consider the effects of pesticides
on the environment by determining, among
[[Page 68485]]
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.'' 7 U.S.C. 136a(c)(5). In performing this
analysis, EPA examines the ingredients of a pesticide, the intended
type of application site and directions for use, and supporting
scientific studies for human health and environmental effects and
exposures. The applicant for registration of the pesticide must provide
data from tests done according to EPA guidelines. This process is
discussed in more detail below.
Several courts have recently addressed the question of whether the
CWA requires NPDES permits for pesticide applications. These cases have
resulted in some confusion among the regulated community and other
affected citizens about the applicability of the CWA to pesticides
applied to waters of the United States. In 2001, the U.S. Court of
Appeals for the Ninth Circuit held in Headwaters, Inc. v. Talent
Irrigation District (Talent) that an applicator of herbicides was
required to obtain an NPDES permit under the circumstances before the
court (described in detail in Section V.C. below). 243 F.3rd 526 (9th
Cir. 2001). The Talent decision caused considerable concern and
confusion among public health authorities, natural resource managers,
and others who rely on pesticides regarding their potential obligation
to obtain an NPDES permit when applying a pesticide consistent with
FIFRA and particularly about the impact of such a requirement on
accomplishing their mission of protecting human health and the environment.
In 2002, the Ninth Circuit in League of Wilderness Defenders et al.
v. Forsgren (Forsgren) held that the application of pesticides to
control gypsy moths in National Forest lands required an NPDES permit.
309 F.3d 1181 (9th Cir. 2002). The court in Forsgren did not analyze
the question of whether the pesticides applied were pollutants, because
it assumed that the parties agreed that they were. In fact, the United
States expressly reserved its arguments on that issue in its brief to
the District Court. Id. at 1184, n.2. The court instead analyzed the
question of whether the aerial application of the pesticide constituted
a point source discharge, and concluded that it did. Id. at 1185.
Since Talent and Forsgren, California, Nevada, Oregon, and
Washington, all of which are within the Ninth Circuit, have issued
permits for the application of certain types of pesticides (e.g.,
products to control aquatic weeds and algae and products to control
mosquito larvae). Other States have continued their longstanding
practice of not issuing permits to people who apply pesticides to
waters of the United States. These varying practices reflect the
substantial uncertainty among regulators, the regulated community, and
the public regarding how the Clean Water Act applies to pesticides that
have been properly applied and used for their intended purpose.
The Ninth Circuit recently addressed the Clean Water Act's
applicability to pesticide applications for a third time. In Fairhurst
v. Hagener, the court held that pesticides applied directly to a lake
in order to eliminate non-native fish species, where there are no
residues or unintended effects, are not ``pollutants'' under the CWA
because they are not chemical wastes. 422 F.3d 1146 (9th Cir. 2005).
Since Talent and Forsgren, other courts have addressed the
applicability of the CWA's NPDES permit requirements to pesticide
applications. In Altman v. Town of Amherst (Altman), the Second Circuit
vacated and remanded for further development of the record a District
Court decision holding that the Town of Amherst was not required to
obtain an NPDES permit to spray mosquitocides over waters of the United
States. 47 Fed. Appx. 62, 67 (2nd Cir. 2002). The United States filed
an amicus brief setting forth the Agency's views in the context of that
particular case. In its opinion, the Second Circuit stated that
``[u]ntil 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 NPDES
permits * * *--the question of whether properly used pesticides can
become pollutants that violate the CWA will remain open.'' Id. at 67.
B. Interim and Interpretive Statements
In August 2003, EPA first analyzed the applicability of the NPDES
permit program to pesticide applications in an administrative context
through an Interim Statement and Guidance. 68 FR 48385 (Aug. 13, 2003).
The Interim Statement presented EPA's position on the two circumstances
in which pesticides applied to waters of the United States consistent
with all relevant requirements of FIFRA are not ``pollutants'' under
the CWA and thus do not require an NPDES permit. Although the United
States previously addressed issues related to the Interim Statement in
several amicus briefs, including those filed in Talent and Altman,
those briefs reflected the government's evaluation of the law in the
context of specific factual situations, and did not result from
deliberative consideration through an administrative process. As such,
the amicus briefs did not represent EPA's legal position on the precise
questions at issue in the Interim Statement or in today's regulation.
EPA solicited public comments on its interpretation of the term
``pollutant'' in the Interim Statement as it relates to certain
pesticide applications. After considering the public comments, EPA
issued a final Interpretive Statement on January 25, 2005. EPA
simultaneously published a notice of proposed rulemaking to incorporate
the substance of the Interpretive Statement into EPA regulations and
solicited public comment on the proposed rulemaking. 70 FR 5093 (Feb.1,
2005). EPA has considered the comments received and is today taking
final action on the proposed regulation. The final regulation is
substantially similar to the proposed regulations, with certain
modifications described below.\2\
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\2\ On March 29, 2002, EPA issued an Interpretive Statement and
Regional Guidance on the Clean Water Act's Exemption for Return
Flows from Irrigated Agriculture, which clarified that the
application of an aquatic herbicide consistent with the FIFRA
labeling to ensure the passage of irrigation return flow is a
nonpoint source activity not subject to NPDES permit requirements
under the Clean Water Act. This regulation does not address the
March 2002 guidance.
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III. Summary of the Final Rule
EPA is revising the NPDES permit program regulations to add a
paragraph to the list of discharges in 40 CFR 122.3 that are excluded
from NPDES permit requirements. Specifically, today's regulation
excludes applications of pesticides to waters of the United States
consistent with all relevant requirements under FIFRA in two specific
circumstances as follows:
(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 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, where a portion of the pesticides will unavoidably be
deposited to waters of the United States in order to target the
pests effectively; for example, when insecticides are aerially
applied to a forest canopy where
[[Page 68486]]
waters of the United States may be present below the canopy or when
pesticides are applied over or near water for control of adult
mosquitoes or other pests.
Pesticides applied under these circumstances are not pollutants and
therefore are not subject to NPDES permitting requirements.
EPA's final rule is substantially similar to the rule proposed in
February 2005. EPA has modified the proposed regulatory text only to
clarify the types of pesticide applications covered in the second
circumstance (those to control pests present over, including near,
waters of the United States). Commenters raised concerns that the
second circumstance, as written in the proposed rule, could be
interpreted more broadly than the Agency intended (e.g. encompassing
drift from terrestrial pesticide applications). The final rule
clarifies that the applications in the second circumstance are those in
which it is unavoidable that some of the pesticides will be deposited
into water in order to effectively target the pests. In other words,
EPA is clarifying in the final rule that the regulation encompasses
only those applications to control pests over, including near, waters
of the United States, where the pesticide necessarily must enter the
water in order for the application to achieve its intended purpose.
Thus, the applications must first be intended to control pests over
(including near) a water of the United States. Second, it must be
unavoidable that the pesticide enter the water in order to target such
pests effectively. For example, EPA believes that wide-area forest
canopy insecticide applications can result in deposition to streams and
other waters of the U.S. which are either not visible to the aerial
applicator or not possible to avoid given the location of aerial
application, and that in such circumstances, it is unavoidable that the
pesticide enter the water in order to effectively target pests living
in the canopy. Likewise, mosquito adulticide applications can result in
some pesticide product entering the water because adult mosquitoes
generally live over and adjacent to waterbodies. Similarly, pesticide
applications to control non-native plants which grow at the water's
edge, such as purple loosestrife, are intended to be covered by this
provision, because when targeting plants at the water's edge, it is
unavoidable that some of the herbicide will enter the water. EPA notes
that the clarifying language in Sec. 122.3(h)(2) is not intended to
impose any additional requirements on pesticide applications beyond
relevant FIFRA requirements. In addition, it is not intended to address
applications of pesticides to terrestrial agricultural crops.
IV. Discussion
Today's rulemaking implements EPA's interpretation of the CWA's
definition of ``pollutant'' with respect to certain applications of
pesticides. Under the CWA, 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. 33 U.S.C. 1362(6).
The circumstances of pesticide applications covered under today's
rule are limited to the two types of applications described above, when
conducted in compliance with all relevant requirements of FIFRA. EPA
considers ``relevant requirements'' of FIFRA to mean those FIFRA
requirements that relate to water quality. For instance, violating a
requirement that the person mixing the pesticide must wear protective
clothing, while an unlawful act that can be enforced under FIFRA, is
not related to the protection of water quality, and therefore not a
relevant FIFRA requirement for purposes of today's regulation. However,
a labeling provision that governs application rates, active ingredient
concentrations and dilution requirements, buffer zones, application
locations, intended targets, times of day, temperature or other
application requirements, and thus concerns the amounts,
concentrations, and viability of substances that may potentially end up
in waters of the United States, is related to water quality. Relevant
FIFRA requirements may appear in product labeling, FIFRA regulation, or
other documents setting forth requirements applied pursuant to FIFRA.
The application of a pesticide from a point source to waters of the
United States requires an NPDES permit only if it constitutes the
discharge of a ``pollutant'' within the meaning of that term in the
CWA. EPA has evaluated whether pesticides regulated under and applied
consistent with relevant FIFRA requirements for the two circumstances
previously described fall within the terms in the CWA's definition of
``pollutant,'' and concludes that they do not. Pesticides are not
dredged spoil, solid waste, incinerator residue, sewage, garbage,
sewage sludge, munitions, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt or industrial, municipal,
and agricultural waste. See CWA section 502(6). In addition, as
described below, the terms, ``chemical waste'' and ``biological
materials,'' also do not encompass the types of pesticide applications
addressed in today's action.
First, such pesticides are not ``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). Pesticides applied consistent with relevant FIFRA
requirements are not ``wastes'' as that term is commonly defined--on
the contrary, they are products that EPA has evaluated and registered
for the purpose of controlling target organisms, and are designed,
purchased, and applied to perform that purpose. See Fairhurst v.
Hagener, 422 F.3d at 1150.
EPA also interprets the term ``biological materials'' not to
include biological pesticides applied consistent with relevant FIFRA
requirements. This interpretation is both reasonable and consistent
with Congressional intent, and is supported by relevant case law. It is
unlikely that Congress intended to include biological pesticides
applied in the circumstances described in today's rule within the Clean
Water Act's definition of ``pollutant.'' To do so would mean that
biological pesticides are pollutants, while chemical pesticides used in
the same circumstances are not. Since biologically and chemically based
pesticides applied consistent with relevant requirements adopted by EPA
under FIFRA are both EPA-evaluated products, treating them differently
under the Clean Water Act is not warranted. Moreover, at the time the
Act was adopted in 1972, chemical pesticides were predominant. It is
therefore not surprising that Congress failed to discuss whether
biological pesticides were to be covered by the Act. The fact that more
biological pesticides have been developed since passage of the Act in
1972 does not justify expanding the reach of the NPDES permit
requirement when there is no evidence that Congress intended the CWA to
regulate biological pesticides in a manner different from chemical
pesticides. Finally, biological pesticides in use today are generally
reduced-risk products that have a narrower range of potential adverse
environmental effects compared to many chemical pesticides. For this
reason it would not make sense, and would be inconsistent with the
goals of the Clean Water Act, to discourage the
[[Page 68487]]
use of biological pesticides by requiring applicators of these products
to obtain an NPDES permit when chemical pesticides have no such requirement.
In cases in which courts have found specific biological materials
to be ``pollutants'' under section 502(6) the substances at issue were
waste materials discharged from a point source. See Concerned Area
Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir.
1994) (liquid manure is solid waste, sewage, biological material, and
agricultural waste and is therefore a pollutant); USPIRG v. Atlantic
Salmon, 215 F.Supp. 2d 239, 247-49 (D. Maine 2002) (non-native fish
escaped from net pens and salmon feces and urine exiting net pens are
biological materials; pharmaceuticals in excess salmon feed exiting net
pens are chemical wastes), National Wildlife Federation v. Consumers
Power Co., 862 F.2d 580, 585 (6th Cir. 1988) (live fish, dead fish, and
fish remains released from hydro-electric facility's turbine are
biological materials), U.S. v. Plaza Health Laboratories, Inc., 3 F.3d
643, 646 (2d Cir. 1993), cert. denied 114 S.Ct. 2764 (1994) (discarded
vials of human blood are pollutants). In none of these cases, which
were cited by commenters, did a court find that a product applied for
its intended purpose consistent with applicable EPA requirements was a
``biological material'' and therefore a pollutant under the CWA.
The Ninth Circuit Court of Appeals in Assn. to Protect Hammersley,
Eld, and Totten Inlets (APHETI) v. Taylor Resources, Inc., 299 F.3d
1007, 1017 (9th Cir. 2002), cited to several of these cases as being in
accord with its finding that ``biological materials'' means the waste
product of a human or industrial process. The APHETI court based its
decision that mussel shells, mussel feces, and other materials emitted
from mussels grown on harvesting rafts are not pollutants on the
doctrine of ejusdem generis. The court found that the more specific
terms in the CWA's definition of ``pollutant'' support an understanding
of the more general term ``biological materials'' as waste material of
a human or industrial process. Id. at 1015. The court went on to
analyze Congress' intent in enacting the CWA and found that the purpose
of the statute further supported such an interpretation of biological
materials in that case. Id. at 1016.
Furthermore, EPA's interpretation that biological and chemical
pesticides are not pollutants is reasonable because both types of
pesticides must comply with FIFRA registration requirements. EPA
reviews and evaluates these pesticides and authorizes their use,
subject to the limitations and requirements of the EPA registration.
Today's action applies only to the specific categories of pesticide
applications addressed in the text of the regulation. EPA notes that
pesticides are waste materials, and therefore pollutants under the Act,
when contained in a waste stream, including storm water regulated under
section 402(p) or other industrial or municipal discharges. In those
circumstances, an NPDES permit may be required if the pesticides are
discharged into a water of the United States from a point source.
In addition, if there are residual materials resulting from
pesticides that remain in the water after the application and its
intended purpose (elimination of targeted pests) have been completed,
these residual materials are also pollutants under CWA section 502(6)
because they are wastes of the pesticide application. Such residuals
include excess amounts of pesticide that do not reach a target organism
and materials that remain after the application has completed its
intended task. These materials are waste materials, as that term is
commonly defined, because they are substances that are ``no longer
useful or required after the completion of a process.'' The New Oxford
American Dictionary 1905, supra. See also Fairhurst v. Hagener, 422
F.3d 1146.
However, pesticide applications under the circumstances described
above and consistent with FIFRA do not require NPDES permits, even if
the application leaves residual materials which are ``pollutants''
under the Act in waters of the United States. Section 301(a) of the CWA
prohibits the ``discharge of any pollutant'' except in compliance with
certain other provisions of the Act. The CWA defines ``discharge of a
pollutant'' to mean ``any addition of any pollutant to navigable waters
from any point source.'' Thus, at the time of discharge to a water of
the United States, the material in the discharge must be both a
pollutant, and from a point source. In this case, while the discharge
of the pesticide is from a point source (generally a hose or an
airplane), it is not a pollutant at the time of the discharge. The
material added by a pesticide applicator to or over, including near,
water is not a pollutant for the reasons stated above. Even though the
pesticide may become a ``pollutant'' at a later time (e.g., after the
pesticide product has served its intended purpose), a permit is not
required for its application because it did not meet both statutory
prerequisites (pollutant and point source) at the time of its discharge
into the water. Instead, the residual should be treated as a nonpoint
source pollutant, potentially subject to CWA programs other than the
NPDES permit program (e.g., listing and TMDL development pursuant to
CWA section 303(d)).
Today's action does not address drift over and into waters of the
United States from pesticide applications to land. As discussed below,
EPA has established a multi-stakeholder workgroup under one of its
federal advisory committees to explore policy issues relating to the
terrestrial application of pesticides that may drift into aquatic
environments. EPA also notes that today's discussion of the terms
``chemical waste'' and ``biological materials'' applies only for CWA
purposes and is not intended to address the use of those terms or
similar terms under any other statutes the Agency administers.
V. Public Comment
EPA first solicited comment on its interpretation of ``pollutant''
under the CWA with respect to certain pesticide applications on August
13, 2003. See 68 FR 48385 (Aug. 13, 2003). EPA provided a second
opportunity for public comment on its interpretation when it proposed
the regulation on which the Agency is today taking final action. See 70
FR 5093 (Feb. 1, 2005). EPA received many comments on its
interpretation during both comment periods, from a wide range of
interested parties including pesticide manufacturers and applicators,
public health control agencies, State agricultural agencies, State
environmental agencies, environmental groups, human health advocates,
farming interests, and other members of the public. Many commenters
supported EPA's interpretation, while others opposed it as inconsistent
with the CWA.
The record for today's action contains EPA's detailed responses to
comments received during both public comment periods. See Docket ID No.
OW-2003-0063 at http://www.regulations.gov. EPA is providing a summary
below of its responses to some of the significant comments received.
A. Scope of Regulation
Many of the commenters who supported EPA's proposed rule also
recommended that EPA broaden the scope of the final rule to cover all
pesticide applications, including agricultural applications over land,
that are conducted in accordance with the relevant requirements of
FIFRA. This final rule addresses only the following two circumstances
described in the proposed rule: The application of
[[Page 68488]]
aquatic pesticides directly to waters of the United States, and the
application of pesticides to control pests over, including near, such
waters.
In the meantime, EPA will continue to follow its long-standing
practice of not requiring NPDES permits for agricultural pesticide
applications that are conducted in compliance with relevant FIFRA
requirements. EPA is continuing to consider the applicability of the
CWA to situations other than those EPA is addressing in today's action
where pesticides applied in accordance with relevant FIFRA requirements
may reach and enter waters of the United States, including drift of
pesticides applied aerially over land. Therefore, EPA does not believe
it is appropriate to broaden the scope of the regulation to include
additional types of pesticide applications at this time.
To assist the Agency's consideration of these issues, EPA has
established a workgroup under the existing Pesticide Program Dialogue
Committee (PPDC) (an advisory committee chartered under the Federal
Advisory Committee Act (FACA)) to address issues involving pesticide
spray drift from agricultural and other applications. The goals of the
workgroup are the following: (1) Improving understanding of the
perspectives of all stakeholders regarding pesticide spray drift; (2)
finding common ground for further work toward minimizing both the
occurrence and potential adverse effects of pesticide spray drift; (3)
developing options for undertaking work where common ground exists; and
(4) exploring the extent of drift, even with proper usage, and the
range and effectiveness of potential responses to unacceptable levels
of off-target drift. The spray drift workgroup will provide advice to
EPA through the PPDC.
The PPDC is a FACA-authorized forum for a diverse group of
stakeholders to provide feedback to the Agency's pesticide program on
various pesticide regulatory, policy, and program implementation
issues. Topics of discussion at past meetings have included the
disclosure of inert ingredients, registration review, nonanimal
testing, antimicrobial pesticides, endangered species, reduced risk
pesticides, labeling, minor uses, ecological standards, fees for
service, experimental use permits, environmental marketing claims,
outreach to the public, and several implementation issues emanating
from the Food Quality Protection Act of 1996.
Members of the PPDC include representatives of environmental and
public interest groups, pesticide manufacturers and trade associations,
user and commodity groups, public health and academic institutions,
federal and State agencies, and the general public. Participants in the
Spray Drift workgroup reflect the range of stakeholder interests
represented on the full PPDC, and also include members with backgrounds
in water quality issues. By operating under the PPDC, the Spray Drift
workgroup will comply with FACA procedural requirements including
timely public notice of meetings, public access to meetings and
opportunity for the public to comment; public availability of documents
considered by the workgroup; and attendance of a federal officer or
employee at each meeting.
B. Sufficiency of FIFRA to Address Water Quality Impacts of Pesticide
Applications
Many commenters objected to the proposed rule on the basis that
EPA's regulation of pesticides under FIFRA does not adequately protect
water quality, and thus pesticide applications should require an NPDES
permit. These commenters alleged both legal and policy shortcomings of
FIFRA. They also asserted that EPA's interpretation is improper because
FIFRA does not preempt CWA requirements and because EPA lacks authority
to exempt categories of discharges from the CWA's prohibition against
discharges without an NPDES permit.
These commenters may have misinterpreted the legal interpretation
that provides the basis for today's action. First, EPA is not expressly
or by implication repealing any provision of the CWA in today's action,
nor is the Agency arguing that FIFRA registration preempts CWA section
301(a) or section 402(a). Moreover, EPA is not arguing that
registration under FIFRA or compliance with FIFRA requirements replaces
or satisfies an otherwise applicable requirement under the CWA to
obtain an NPDES permit. Nor is EPA exempting from section 301(a) or
section 402(a) any categories of pollutants, because the pesticide
applications at issue here are not pollutants under the Act. The
proscription in the CWA against discharging pollutants from point
sources to waters of the United States except in compliance with
section 402 continues to apply. Rather, EPA is exercising its authority
to interpret a term in a statute it administers. EPA is clarifying that
pesticides applied to or over, including near, water for their intended
purpose consistent with all relevant requirements under FIFRA in the
circumstances specified in the rule are not, at the time of
application, ``pollutants'' under the CWA, and therefore applications
are not discharges required to obtain permits.
EPA's review, evaluation, and registration of pesticides used in
these two circumstances further demonstrate that this is a reasonable
interpretation, consistent with Congressional intent. EPA's regulatory
programs under FIFRA provide support for the Agency's conclusion that
the pesticides applied to or over, including near, water are not wastes
(and therefore not pollutants) and serve as an indicator of when a
pesticide is being applied as a product for its intended, beneficial
purpose. Under FIFRA, EPA receives applications from people who wish to
sell and distribute pesticides. The Agency may approve and issue a
registration for a product if EPA determines that the product will not
cause ``unreasonable adverse effects on the environment,'' which is
defined as ``any unreasonable risk to man or the environment, taking
into account the economic, social and environmental costs and benefits
of the use of [a] pesticide * * *.'' FIFRA Section 3(c)(5). In other
words, the Agency may register a pesticide only if the product provides
economic, social, and environmental benefits that outweigh risks from
its use. As part of FIFRA registration, EPA may establish requirements,
which are typically contained in the label for the pesticide, to ensure
that when used, it will not cause unreasonable adverse effects on the
environment, including the aquatic environment. Thus, registration and
use of a pesticide in accordance with its approved labeling or other
relevant FIFRA requirements indicates that a pesticide is a product
intended to be used for a beneficial purpose that is authorized by EPA
and is not a waste. For these reasons, comments regarding the adequacy
of EPA's pesticide regulatory program do not pertain to the legal
interpretation of whether a pesticide is a ``chemical waste'' or a
``biological material'' for purposes of the definition of ``pollutant''
under the CWA.
Nonetheless, it is important to note that EPA disagrees with
commenters' concerns that EPA's registration process does not take into
account local conditions, existing water quality standards and use
designations, synergistic effects of multiple pesticides, inert
ingredients, non-target aquatic organisms, and the effect of multiple
applicators in the same area. The regulatory and non-regulatory tools
under FIFRA provide means of addressing water quality problems arising
from the use of pesticides. In
[[Page 68489]]
particular, the pesticide registration and re-registration processes
consider impacts on both human health from the presence of pesticides
in drinking water, and on aquatic resources (e.g., fish, invertebrates,
plants, and other species in fresh water, estuarine, and marine
environments). EPA requires a pesticide company to submit a substantial
body of data in support of an application for registration. EPA then
supplements this required database with information obtained through a
systematic search of the open literature on the ecotoxicity of
environmental substances. EPA compares the estimated environmental
concentrations expected to result from use of a pesticide with toxicity
values observed in required studies and studies from the open
literature. This database provides sufficient information to conduct
assessments of potential ecological and human health risks, including
the identification of toxicologically significant degradation products
and/or metabolites. For additional information on EPA's approach to
ecological risk assessment in general, and endangered and threatened
species in particular, see:
http://www.epa.gov/espp/consultation/ecorisk-overview.pdf.
C. EPA's Interpretation of the Term ``Pollutant'' Under the CWA
Some commenters claimed that EPA's interpretation of the term
``pollutant'' is inconsistent with the Clean Water Act, with relevant
case law, or with prior Agency statements. EPA disagrees with the
commenters and believes its interpretation of the term ``pollutant'' is
reasonable and consistent with the language and legislative intent of
the Clean Water Act. As described above, pesticides applied in the
circumstances addressed in today's regulation, in compliance with
FIFRA, for their intended purpose, are not pollutants under the Act.
EPA also disagrees with commenters that the term ``biological
materials'' can only be read to include biological pesticides applied
in the circumstances addressed by today's regulation--i.e., application
to or over waters of the United States consistent with relevant
requirements of FIFRA. EPA's analysis of the terms ``chemical waste''
and ``biological materials'' in the circumstances addressed by today's
regulation is described in more detail above.
In addition, the Ninth Circuit Court of Appeals recently held that
pesticides that do not generate a residue when applied directly to a
lake to eliminate a non-native fish species are not ``pollutants''
under the CWA because they are not chemical wastes. Fairhurst v.
Hagener, 422 F.3d 1146 (9th Cir. 2005). In so holding, the court
considered the plain meaning of the term ``chemical waste'' and noted
that its analysis was in accord with EPA's interpretation of the term
in its July 2003 Interim Statement, and that EPA's interpretation is
``reasonable and not in conflict with the expressed intent of
Congress.'' Id. at 1149-50. Today's regulation is based on the same
interpretation EPA first articulated in the Interim Statement, and is
consistent with the Fairhurst court's holding.
Moreover, EPA's interpretation is not inconsistent with Talent and
Forsgren as some commenters have asserted. As explained below, these
cases do not interpret the term ``pollutant'' as including the
pesticide applications addressed in today's rule.
In Headwaters v. Talent, the Ninth Circuit reversed the District
Court's dismissal of a CWA citizen suit against an irrigation district
alleging that application of the herbicide Magnacide H to irrigation
canals to control aquatic weeds and vegetation required an NPDES
permit. The District Court had concluded that the application of the
pesticide was adequately regulated under FIFRA, and further regulation
under the CWA was unnecessary. Headwaters v. Talent, No. 98-6004-AA
slip op. at 12 (D. Ore. Feb. 1, 1999). The Ninth Circuit found that
residual from the application of Magnacide H was a pollutant in this
case and that registration of the herbicide under FIFRA did not
preclude applicability of the CWA. Headwaters v. Talent, 243 F.3d at
532. This conclusion is consistent with EPA's interpretation. As
described above, EPA agrees that residual materials from pesticide
applications are ``pollutants'' under the Act. In addition, the
irrigation district in Talent failed to comply with a FIFRA
registration requirement to contain the herbicide-laden water in an
irrigation canal for a specified number of days. EPA's interpretation
codified in today's action is that pesticides applied in the
circumstances described in the rule are not ``pollutants'' where they
are applied consistent with relevant FIFRA requirements. Thus, EPA's
interpretation is consistent with the result reached by the Talent court.
In League of Wilderness Defenders v. Forsgren, the Ninth Circuit
held that the aerial application of insecticides over National Forest
lands in Washington and Oregon to control a predicted outbreak of the
Douglas fir tussock moth required an NPDES permit. However, the court
in Forsgren stated incorrectly that the parties in the case did not
dispute that the insecticides met the CWA definition of ``pollutant.''
League of Wilderness Defenders v. Forsgren, 309 F.3d at 1184, n.2. In
fact, the Forest Service in its brief before the District Court
reserved its arguments on that particular issue. Because the Ninth
Circuit erroneously assumed that the question of whether the
applications were pollutants was not in dispute, it did not analyze the
issue but simply stated that they were. Id. at 1185. The issue that the
Forsgren court did analyze in detail was whether the airplanes from
which the insecticides were sprayed are point sources under the CWA--a
different issue from that addressed in today's interpretation.\3\
---------------------------------------------------------------------------
\3\ EPA's General Counsel issued a memorandum on September 3,
2003, addressing the Agency's views on the effect of the Forsgren
decision. Specifically, EPA stated that it did not acquiesce outside
the Ninth Circuit with the court's decision regarding the
application of EPA regulation defining ``silvicultural point
source'' at 40 CFR 122.27(b)(1), and would continue to follow its
longstanding interpretation of the statute and these regulations.
Memorandum from Robert E. Fabricant to Regional Administrators,
``interpretive Statement and Guidance Addressing Effect of Ninth
Circuit Decision in League of Wilderness Defenders v. Forsgren on
Application of Pesticides and Fire Retardants,'' Sept. 3, 2003.
---------------------------------------------------------------------------
Commenters also claimed that EPA's interpretation is inconsistent
with the Clean Water Act because the purpose for which a pesticide is
applied is not relevant to the question of whether it is a pollutant
under the Act. The commenters pointed primarily to two cases--Hudson
River Fisherman's Assn. v. City of New York, 751 F.Supp. 1088
(S.D.N.Y.), affd., 940 F.2d 649 (2d Cir. 1991), and Minnehaha Creek
Watershed District v. Hoffman, 597 F.2d 617 (8th Cir. 1979)--as
supporting their assertion. However, both these cases are
distinguishable from EPA's interpretation.
In Minnehaha Creek, the court was interpreting the terms ``rock,
sand, [and] cellar dirt'' in the definition of ``pollutant'' in CWA
Section 502(6). The federal appellants in that case appealed a District
Court decision finding that the U.S. Army Corps of Engineers did not
have jurisdiction under CWA Section 404 over the placement of riprap
and the construction of dams in Minnehaha Creek and adjacent Lake
Minnetonka. The District Court's decision was based on its conclusion
that the creek and the lake were not navigable waters of the United
States and that while the riprap and construction materials were ``rock
and sand,'' the activities at issue in the case were not within the
purview of the Act because they did not significantly affect water
quality. Minnehaha Creek Watershed District v. Hoffman, 449 F.Supp 876,
886 (D. Minnesota 1978). The Eighth Circuit disagreed and held
[[Page 68490]]
that a significant alteration in water quality need not be demonstrated
for a substance to be a pollutant. Minnehaha Creek Watershed District
v. Hoffman, 597 F.3d at 626-27.
The Eighth Circuit stated in Minnehaha Creek that it found ``no
justification in the District Court's determination that whether the
discharge of a particular substance listed in s[ection] 502(6)
constitutes the discharge of a `pollutant' under the Act depends upon
the purpose for which the discharge is made.'' Id. at 627, emphasis
added. EPA notes that nowhere in its opinion does the District Court
reach such a conclusion. In any case, EPA is not concluding that the
question of whether a substance is a pollutant depends on the specific
purpose for which it is discharged. Rather, EPA is interpreting what
specific terms in section 502(6) mean in the context of certain
pesticide applications.
The Second Circuit Court of Appeals decision in Hudson River
Fishermen's Assn. v. City of New York is also distinguishable from the
circumstances addressed in today's rule. In that case, the District
Court held that discharges of chlorine and aluminum sulfate (alum floc)
from an aqueduct into a reservoir were discharges of pollutants
requiring an NPDES permit. First, this case involved the discharge of
alum floc from a point source at a point when it was a ``chemical
waste'' and, therefore, consistent with EPA's interpretation, properly
constituted a pollutant under the statute. Hudson River Fishermen's
Assn. v. City of New York, 751 F.Supp 1088, 1102. In contrast, today's
rule addresses certain pesticides which are being applied in compliance
with relevant FIFRA requirements and, for the reasons described above,
are not pollutants.
Moreover, the court's holding that chlorine was a pollutant also
referred to the chlorine in the aqueduct at the time it discharged into
the reservoir, not at the time it was first added to the water. The
court held that the chlorine was a pollutant, no matter how useful it
may earlier have been, citing to the Eighth Circuit's decision in
Minnehaha Creek. Id. at 1101. Similarly, EPA is not concluding that the
question of whether substances listed in section 502(6) are pollutants
depends on the purpose for which they are discharged. Rather, EPA is
interpreting what specific terms in section 502(6) (terms other than
those addressed in Minnehaha Creek) mean in the context of these two
types of pesticide applications.
Finally, while EPA's interpretation is not inconsistent with either
Hudson River or Minnehaha Creek, it is further supported by the Ninth
Circuit's decision in Fairhurst v. Hagener. In Fairhurst, the Ninth
Circuit specifically considered the purpose for which the pesticide was
applied--the same factor commenters claim is not relevant under Hudson
River and Minnehaha Creek--and the fact that it was applied consistent
with the product's FIFRA label, in concluding that it was not a
pollutant under the CWA. Fairhurst v. Hagener, 422 F.3d 1146, 1150
(``Because intentionally applied and properly performing pesticides are
not `pollutants,' a potential discharger is not required to secure an
NPDES permit for such pesticides before discharge.'')
Some commenters also claimed that EPA's interpretation is
inconsistent with positions taken by the government in several amicus
curiae briefs related to the issues addressed by the interpretation. As
mentioned above, these briefs reflected the government's evaluation of
the law in the context of the specific factual situations at issue and
did not result from the deliberative consideration through an
administrative process, as today's rule does. As such, the briefs were
not a comprehensive statement of EPA's legal position on the precise
questions addressed in today's rule, nor did they reflect the exercise
of EPA's legal and policy judgment after consideration of public
comments. See Memorandum from Ann R. Klee to Benjamin Grumbles and
Susan Hazen, ``Analysis of Previous Federal Government Statements on
Application of Pesticides to Waters of the United States in Compliance
with FIFRA,'' Jan. 24, 2005.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under Executive Order 12866 and any changes made in response to
OMB recommendations have been documented in the docket for this action.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This rule merely identifies 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 an 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 in 40 CFR 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 rule on small
entities, small entity is defined as: (1) A small business based on
Small Business Administration (SBA) size standards at 13 CFR 121.201;
(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 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
is identifying 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
[[Page 68491]]
that requires a NPDES permit under the Clean Water Act, this action
will not impose any requirement on any small entity.
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 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
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 rule does 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. Thus, today's 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 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 final rule does not have federalism implications. 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. EPA is merely identifying 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. 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 solicited comment on the proposed rule
from State and local officials. EPA additionally consulted with state
officials in the development of the final rule. Especially important
were consultations regarding the manner in which States in the Ninth
Circuit currently permit pesticides in response to the Talent decision
and how states use TMDLs and other authorities to address pesticide
residuals.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 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.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final 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.
EPA is merely identifying 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. Thus,
Executive Order 13175 does not apply to this rule. Moreover, in the
spirit of Executive Order 13175, and consistent with EPA policy to
promote communications between EPA and tribal governments, EPA
specifically solicited comment on the proposed rule from tribal officials.
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 Executive Order 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 Executive Order 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 regulation only interprets the
legal scope of the NPDES permit requirement under the CWA and does not
change how pesticide applications are addressed under FIFRA.
[[Page 68492]]
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)). The only effect of
this rule 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''), Public Law 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
rulemaking does not involve technical standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective January 26, 2007.
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: November 20, 2006.
Stephen L. Johnson,
Administrator.
? For the reasons set forth in the preamble, chapter I of title 40 of the
Code of Federal Regulations is 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.
? 2. Section 122.3 is amended by adding paragraph (h) to read as follows:
Sec. 122.3 Exclusions.
* * * * *
(h) The application of pesticides 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 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, where a
portion of the pesticides will unavoidably be deposited to waters of
the United States in order to target the pests effectively; 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 or near water for control of adult
mosquitoes or other pests.
[FR Doc. E6-20002 Filed 11-24-06; 8:45 am]
BILLING CODE 6560-50-P
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