Court Ruling Hazardous For Biopesticide Industry
April 21, 2009 The Biopesticide Industry Alliance (BPIA) and CropLife America released a power point presentation in which they explained in detail why the recent Sixth circuit court ruling impeding agricultural sprays presents a major threat to biopesticides. The two groups join many other agricultural industry organizations in protesting the federal court ruling, which was made during the case of the National Cotton Council vs. the Environmental Protection Agency (EPA).
The ruling states that all biological pesticides are biological materials, which makes them pollutants. In the Clean Water Act (CWA), Congress categorized chemical and biological products separately, calling the former “chemical waste” and the latter “biological material.” The Sixth circuit panel disregarded EPA’s view that interpreting “biological materials” to include biological pesticide applications covered by CWA would be illogical and inconsistent with the purposes of the statute.
If the decision is allowed to stand, the following types of pesticide applications would be among the total applications affected:
● Aquatic, aerial & terrestrial agriculture applications.
● Use of herbicides used for vegetation control along federal, state, county and municipal roads.
● Rights of way management along railroad and electric transmission corridors.
● Home and garden fertilizer applications.
The ruling would have serious repercussions for the agriculture industry including:
● All aquatic applications would require National Pollutant Discharge Elimination System (NPDES) permits.
● Potential for terrestrial applications to require NPDES permits.
● Increased potential liability for applicators under the CWA citizen-action provisions.
● Environmental groups can sue applicators for failure to obtain NPDES permit or failure to comply with permit.
The power point presentation concluded with the following arguments against the ruling:
● EPA’s rule was correct that pesticides approved for use under FIFRA are beneficial products and are not “waste” or pollutants, and therefore do not require permits under CWA.
● The ruling ignores the reach of FIFRA in covering the environmental effects of pesticides, including in water.
● The ruling limits the scope of the stormwater exemption in CWA.
● Decision reverses 30 years of EPA interpretation of CWA.