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Appeals Court Rules on Pesticide Application

By Dan Flynn and Suzanna Schreck

Pesticide application made in accordance with existing law and regulations--the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and EPA's 2006 National Pollution Discharge Elimination System (NPDES) Rule--is lawful, according to a March 30 ruling by the U.S. Court of Appeals for the 2nd Circuit.

In Peconic Baykeeper v. Suffolk County Department of Public Works, the 2nd Circuit's ruling on pesticide application did not adhere to an earlier decision by the 6th Circuit.  That means the two appeals courts are in conflict, according to an analysis by the National Association of Wheat Growers.

In National Cotton Council v. EPA, decided by the U.S. Court of Appeals for the 6th Circuit last year, pesticide discharge was found to be a point source of pollution subject to additional regulation and permitting under the federal Clean Water Act.

The 6th Circuit decision has been worrisome for many in agriculture because it could require producers to obtain additional permitting for every crop protection application.  The EPA, state agencies, and producers have not yet implemented the permitting process necessary under the 6th Circuit decision, prompting the appeals court to issue a two year stay of the decision to give regulators a chance to figure out how to apply it.

The 2nd Circuit also held that applications under the protection of EPA's rule and applied in compliance with an EPA-approved Federal Insecticide, Fungicide and Rodenticide Act label is lawful as long as the rules remain in effect.  The 2nd Circuit ruling states that nothing changes the EPA rule until the stay currently in place related to the 6th Circuit ruling is lifted.  The use of crop protection products vital to agricultural production and public health is said not to be in immediate danger.

Both CropLife America and RISE--ag trade associations--argue that these conflicting decisions highlight the need for some Congressional action on the matter.  The Wheat Growers Association will be working with both organizations and EPA to gain information about these decisions and the path forward to make sure the necessary products are available for agricultural uses in a timely manner.

The 2nd Circuit also vacated a judgment by a lower court, which said Suffolk County's mosquito control applications were in compliance with the pesticide product labels.  This issue was sent back to the district court for review.

Conflicts at the appeals court level are often taken up by the U.S. Supreme Court.

Full post as published by Food Safety News on April 17, 2010 (boomark / email).