ER - Environment groups sue EPA

Environment groups sue EPA
by Nathan Rushton, 12/16/2006

Alleging that a ruling by the U.S. Environmental Protection Agency in November represents a departure from its duties under the federal Clean Water Act, several environmental groups announced this week that they have sued the EPA.

Baykeeper, along with five other groups, filed a suit in the U.S. Court of Appeals for the 9th Circuit to overturn the new rule, which they say re-defined the word “pollutant” to exclude pesticides.

The EPA announced Nov. 21 that it had issued a final rule clarifying two specific circumstances in which a Clean Water Act permit is not required before pesticides are applied.

Those include when pesticides are applied directly to water to control pests, such as mosquito larvae and aquatic weeds, and when pesticides are applied to control pests that are present over or near water where a portion of the pesticide will unavoidably be deposited to the water in order to target the pests effectively, according to the EPA news release.

Over concerns that certain types of aerial spraying and other direct applications of pesticides could contaminate creeks, rivers and wetlands, Baykeeper initiated the lawsuit, along with Eureka-based Californians for Alternatives to Toxics, California Sportfishing Protection Alliance, National Center for Conservation Science and Policy, Oregon Wild and Saint John’s Organic Farm.

Patty Clary of Californians for Alternatives to Toxics could not be reached in time for this article.

Deb Self, executive director of the bay watchdog group Baykeeper, which is the parent organization to the local Humboldt Baykeeper group, said Friday that pesticide contamination of waterways from pesticide spraying would be allowed without agency oversight under the new rule, which goes against the desires of federal lawmakers.

“Congress was quite clear in directing EPA to regulate pesticide pollution,” Self said. “Rather than enforcing laws as Congress wrote them, once again the Bush administration has simply interpreted the law to suit its purposes.”

Self said an important reason for having permits is that it’s the only opportunity for oversight and public involvement and review to enforce compliance.

With the change, Self said government agencies could apply any number of herbicides and pesticides, some of which are known to cause cancer, birth defects, reproductive damage, liver and kidney damage and central nervous system disorders.

A response from the EPA’s General Counsel to the lawsuit was requested, but was not available by deadline, according to Dale Kemery, press officer for the EPA’s Washington, D.C., office.

In a review of the matter, the EPA considered two rounds of public comments and concluded that the Clean Water Act does not require permits in the aforementioned situations.

“This clean water rule strengthens and streamlines efforts of public health officials and communities to control pests and invasive species while maintaining important environmental safeguards,” said EPA Assistant Administrator for Water Benjamin H. Grumbles in a November news release.

Western Environmental Law Center attorney Charlie Tebbutt, the lead counsel for the petitioners, said the EPA’s ignoring of the requirements of the Clean Water Act cannot go unchallenged.

The groups claim the EPA’s rule, if left in place, would put waters, fish, wildlife and human populations at greater risk without the opportunity for local input into specific polluting projects and by eliminating monitoring and reporting requirements. “This is not what the Clean Water Act intended,” Tebbutt continued.

According to a scheduling order received from the court, Tebbutt said the court is asking for a briefing from attorneys on the matter by March 1.

However, he said there are several other petitions challenging the same EPA ruling, including some from pesticide industry advocacy groups that say the EPA ruling does not go far enough in allowing all applications of pesticides in all circumstances.

Because of duplicate petitions, Tebbutt said the issue will likely go to a multi-district panel, which will randomly select a circuit court as the venue to hear the case.

Although he doesn’t see any particular advantage to where the case is heard because he said the ruling is “flatly invalid on its face” and should be overturned, Tebbutt said the 9th Circuit Court has more experience with the particular issue.

The EPA’s final ruling in November replaces its previously published Interim and Final Interpretive Statements on the application of pesticides to waters of the United States in compliance related to the Federal Insecticide, Fungicide and Rodenticide Act published Feb. 1, 2005, according to the Government Printing Office’s Federal Register.

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