Two related Petitions for a Writ of Certiorari have been filed by two industry groups to request a review of a Sixth Circuit decision issued on January 7, 2009 (The National Cotton Council of America v. EPA, ___ F.3rd____ (6th Cir. 2009)). I have a more detailed description of the Sixth Circuit decision in this blog:
The separate petitions are 09-533 CropLife America, et al. v. Baykeeper, et al. and 09-547, American Farm Bureau Federation, et al. v. Baykeeper, et al.
As a quick summary, 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 â€œIf, on the other hand, a chemical pesticide is known to have lasting effects beyond the pesticideâ€™s intended object, then its use must be regulated under the Clean Water Act.â€ For biological pesticides, the court held that â€œAdding biological pesticides to water undeniably alters its biological integrity. Therefore, we find biological pesticides to be â€œbiological materialsâ€ under the Clean Water Act.â€
Second, the Sixth Circuit rejected the EPAâ€™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.
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.
â€“ James L. Pray (counsel for a Respondent and Intervenor in this case at the circuit court level, Agribusiness Association of Iowa).