On January 7, 2009 the Sixth Circuit Court of Appeals issued a decision in The National Cotton Council of America v. EPA, ___ F.3rd____ (6th Cir. 2009). At issue in the case was a challenge to the final rule on the application of pesticides to waters. Two different groups of Petitioners—one representing environmental interest groups and the other representing industry interest groups—opposed the EPA’s Final Rule as exceeding the EPA’s interpretive authority. The procedural background of the case was very complicated as challenges to rules bypass the federal district courts and proceed directly to the circuit courts. Petitions were filed in nearly every circuit by both “Industry Petitioners” and “Environmental Petitioners” and were consolidated by the Judicial Panel on Multidistrict Litigation before the Sixth Circuit.

The three-judge panel for the Sixth Circuit rejected an EPA rule which found that pesticides would not constitute a pollutant if applied in accordance with all FIFRA requirements. The EPA based its rule on a finding that a chemical pesticide was not a “pollutant” under the Clean Water Act as it was being used for its intended purpose. The EPA also rejected the assertion that biological pesticides constituted “biologicla materials” and were thus regulated separately by the Clean Water Act. The EPA also concluded that excess or residual pesticides are “pollutants” but that the application itself was not a “discharge” as there was no “pollutant” at the time of the application.

In rejecting the EPA’s rule, the Sixth Circuit held that pesticides could be pollutants whether wastes or biological materials. For chemical pesticides the court noted that some chemicals might not leave any excess portion but “If, on the other hand, a chemical pesticide is known to have lasting effects beyond the pesticide’s intended object, then its use must be regulated under the Clean Water Act.” For biological pesticides, the court held that “Adding biological pesticides to water undeniably alters its biological integrity. Therefore, we find biological pesticides to be “biological materials” under the Clean Water Act.”

Second, the Sixth Circuit rejected the EPA’s argument that no permit was required for the pesticide residues remaining from a FIFRA application if the pesticide was not a pollutant at the time of application. Finally, the Sixth Circuit held that a pesticide residue or excess pesticide, even if treated distinct from a pesticide, was discharged from a point source.

A representative of CropLife America has been quoted by BNA as stating that the case is not a “game changer.” (Environment Reporter, January 9, 2009, p. 65).

The EPA and industry groups filed for a tw0-year stay so that the EPA and states with delegated Clean Water Act programs could develop rules complying with the case. Some industry groups have also filed for en banc review of the case. One issue that may be considered in a review is the limited application of the case to “point source” applications.

— James L. Pray (counsel for a Respondent and Intervenor in this case, Agribusiness Association of Iowa).