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Environmental Update
Stephanie Pullen Brown is Associate Director of U.S. EPA's Toxics & Pesticides Enforcement Division, Office of Regulatory Enforcement, Office of Enforcement and Compliance Assurance, in Washington, D.C. The views articulated herein are not necessarily those of U.S. EPA. Ms. Brown may be reached at brown.stephanie@epa.gov.
"Other Shoe May Drop" Soon on Clean Water Act Liability for Pesticide Spraying
In a ruling reportedly on its way to appeal, the federal district court for the Southern District of New York has further confounded the issue of whether Clean Water Act (CWA) obligations attach to a local government that employs aerial and/or ground spraying of pesticides to control the deadly mosquito-borne West Nile virus, or any other pesticide-borne disease. In No Spray Coalition v. City of New York, the U.S. District Court for the Southern District of New York has twice ruled to allow such spraying, issuing its most recent ruling in November 2002. Notably, the Second Circuit also sided with the city in this case, denying an injunction against the city in 2001. Last September, however, the Second Circuit issued an apparently contrary ruling in a case out of the federal district court for the Western District of New York, Altman v. Town of Amherst, New York, where the town had conducted generally comparable pesticide spraying as in No Spray Coalition. Furthermore, the Southern District's November 2002 opinion in No Spray Coalition is oddly silent on the Second Circuit's Altman decision-although both cases appear to implicate the same general facts and questions regarding CWA's applicability. Thus, the stage appears set for the Second Circuit to soon revisit the question of whether pesticide spraying applications on or near water bodies subject to the Clean Water Act give rise to the obligation to obtain an National Pollutant Discharge Elimination System (NPDES) permit.
In No Spray Coalition, environmentalists sought a preliminary injunction to bar pesticide spraying by the city. Plaintiffs claimed, in pertinent part, that spray drift was illegal under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the Resource Conservation and Recovery Act (RCRA), and CWA. The U.S. Environmental Protection Agency (EPA) had approved the pesticide for use where adult mosquitoes are present in vegetation surrounding "swamps, marshes," and other areas.
In September 2000, the Southern District denied the injunction and dismissed the FIFRA and RCRA claims, but reserved the CWA claim pending discovery. See 2000 WL 1401458 (S.D. N.Y. Sept. 25, 2000). In so doing, the court ruled that FIFRA does not provide a private cause of action-and that spray drift which has yet to reach mosquitoes is not "discarded" and, thus, not susceptible to injunctive relief via RCRA's citizen suit provision. In a caveat to users, however, the court said "use of a pesticide for a purpose or in a manner well beyond that for which it was approved could result in a violation of . . . the Clean Water Act or RCRA. For example, if a pilot, who had finished spraying pesticide, dumped any remaining pesticide into a navigable stream. . . ." (Emphasis added.) Plaintiffs appealed.
In 2001, the Second Circuit affirmed, per curiam. See 252 F.3d 148 (2d Cir. 2001). The appeals court found that inasmuch as material is not "discarded" until after it has served its intended purpose, pesticides are not discarded when sprayed into the air to reach and kill mosquitoes. Therefore, there was no RCRA liability. The court also stated that since FIFRA was not enforceable by a private right of action, plaintiffs could not use RCRA's citizen suit provision to vindicate FIFRA.
In November 2002, the Southern District granted the city's motion for summary judgment against plaintiffs' Clean Water Act claim. See 2002 WL 31682387 (S.D. N.Y. Nov. 26, 2002). In this proceeding, plaintiffs alleged incidents of inadvertent and intentional spraying over the Bronx River, marinas, ponds, and other water bodies. The court ruled that since the pesticide label authorized use on swamps and marshes, it was "far from clear" that the spraying alleged would be inconsistent with the EPA-approved use-and, even assuming a FIFRA violation, no private cause of action accrued. Furthermore, the court rejected plaintiffs' claim that the city's failure to spray in strict compliance with the approved label gave rise to a CWA private cause of action.
The last "Environmental Update" column (Winter 2002-03) discussed two recent rulings that, unlike No Spray Coalition, are unfavorable to towns involved in pesticide spraying. In the Second Circuit's September 2002 Altman ruling, the court vacated the Western District's grant of summary judgment to a town that had argued it did not need an NPDES permit to spray a mosquitocide in freshwater wetlands. 2002 WL 31132139 (2d Cir. 2002), vacating and remanding, 190 F. Supp. 2d 467 (W.D. N.Y. 2001). In Headwaters, Inc. v. Talent Irrigation District, the Ninth Circuit found that compliance with FIFRA labeling requirements did not absolve an irrigation district from the obligation to obtain an NPDES permit. 243 F.3d 526 (9th Cir. 2001). Also, the Headwaters panel called upon EPA to clarify its "ambiguous stance" regarding whether an NPDES permit is required for the proper use of pesticides released to CWA water bodies.
Thus, local governments that conduct otherwise proper pesticide spraying operations without an NPDES permit may face Clean Water Act liability.