Waterkeeper Alliance v. EPA ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0004p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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THE NATIONAL COTTON COUNCIL OF
Petitioners, --
AMERICA, et al.,
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Nos. 06-4630; 07-3180/
,
3181/3182/3183/3184/3185/
> 3186/3187/3191/3236
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v.
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UNITED STATES ENVIRONMENTAL
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PROTECTION AGENCY,
Respondent. -
N
On Petition for Review of Final Action of the
United States Environmental Protection Agency.
Nos. OW-2003-0063; 40 CFR Part 122.
Argued: April 29, 2008
Decided and Filed: January 7, 2009
Before: GUY, SUHRHEINRICH, and COLE, Circuit Judges.
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COUNSEL
ARGUED: Charles Tebbutt, WESTERN ENVIRONMENTAL LAW CENTER, Eugene,
Oregon, for Petitioners. Alan D. Greenberg, UNITED STATES DEPARTMENT OF
JUSTICE, Denver, Colorado, for Respondent. Claudia M. O’Brien, LATHAM &
WATKINS, Washington, D.C., Kirsten L. Nathanson, CROWELL & MORING,
Washington, D.C., for Intervenors. ON BRIEF: Charles Tebbutt, WESTERN
ENVIRONMENTAL LAW CENTER, Eugene, Oregon, Lauren E. Brown,
WATERKEEPER ALLIANCE, Irvington, New York, Daniel E. Estrin, PACE
ENVIRONMENTAL LITIGATION CLINIC, White Plains, New York, Reed W. Super,
MORNINGSIDE HEIGHTS LEGAL SERVICES, INC., COLUMBIA UNIVERSITY
SCHOOL OF LAW, New York, New York, Charles C. Caldart, NATIONAL
ENVIRONMENTAL LAW CENTER, Seattle, Washington, Steven Schatzow, LAW
1
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OFFICES OF STEVEN SCHATZOW, Washington, D.C., for Petitioners. Alan D.
Greenberg, UNITED STATES DEPARTMENT OF JUSTICE, Denver, Colorado, for
Respondent. Claudia M. O’Brien, Kenneth W. Weinstein, Davis B. Tyner, LATHAM &
WATKINS, Washington, D.C., Kirsten L. Nathanson, Ellen Steen, CROWELL &
MORING, Washington, D.C., for Intervenors. Elliot Silverman, McDORMOTT WILL &
EMERY LLP, Irvine, California, for Amicus Curiae.
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OPINION
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COLE, Circuit Judge. These proceedings involve a final regulation issued by the
Environmental Protection Agency (the “EPA”) under the Clean Water Act, 33 U.S.C. § 1251
et seq. The Clean Water Act regulates the discharge of “pollutants” into the nation’s waters
by, among other things, requiring entities that emit “pollutants” to obtain a National
Pollutant Discharge Elimination System (“NPDES”) permit. Id. §§ 1311(a), 1342. On
November 27, 2007, the EPA issued a Final Rule concluding that pesticides applied in
accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (the “FIFRA”) are
exempt from the Clean Water Act’s permitting requirements. See 71 Fed. Reg. 68,483 (Nov.
27, 2006) (the “Final Rule”). Two different groups of Petitioners—one representing
environmental interest groups and the other representing industry interest groups—oppose
the EPA’s Final Rule as exceeding the EPA’s interpretive authority. The EPA defends the
Final Rule by arguing that the terms of the Clean Water Act are ambiguous and that the Final
Rule is a reasonable construction of the Clean Water Act entitled to deference from this
Court. We cannot agree. The Clean Water Act is not ambiguous. Further, it is a
fundamental precept of this Court that we interpret unambiguous expressions of
Congressional will as written. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842-43 (1984). Therefore, we hold that the EPA’s Final Rule is not a reasonable
interpretation of the Act and VACATE the Final Rule.
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I. BACKGROUND
A. The Regulatory Background
1. The Clean Water Act
Congress enacted the Clean Water Act “to restore and maintain the chemical,
physical and biological integrity of the Nation’s waters.” Nat’l Wildlife Fed’n v. Consumers
Power Co., 862 F.2d 580, 582 (6th Cir. 1988) (quoting 33 U.S.C. § 1251(a)). The goal of
the Clean Water Act is to achieve “water quality which provides for the protection and
propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.”
33 U.S.C. § 1251(a)(2). Thus, the Act provides that “the discharge of any pollutant by any
person shall be unlawful.” Id. § 1311(a). “Pollutant” is a statutorily defined term that
includes, at least, “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water.” Id. § 1362(6). The Supreme Court has held that
this list is not exhaustive and that “pollutant” should be interpreted broadly. Rapanos v.
United States, 547 U.S. 715, 724 (2006).
The Clean Water Act prohibits the discharge of any “pollutant” into navigable waters
from any “point source” unless the EPA issues a permit under the NPDES permitting
program, 33 U.S.C. §§ 1311(a), 1342, where a “point source” is “any discernible, confined,
and discrete conveyance . . . from which pollutants are or may be discharged.” Id.
§ 1362(14). The permitting program constitutes an exception to the Clean Water Act’s
prohibition on pollutant discharges into the Nation’s waters. Id. §§ 1311(a), 1342; 40 C.F.R.
§ 122.3. Thus, if a party obtains a permit, the discharge of pollutants in accordance with that
permit is not unlawful. Id.
Before a permit is issued, the EPA, or a state agency that has been approved by the
EPA, evaluates the permit application to ensure that the discharge of a pollutant under the
proposed circumstances will not cause undue harm to the quality of the water. See 33 U.S.C.
§ 1342. In addition to granting permits for specific discharges, the EPA and state authorities
may also grant general permits that allow for the discharge of a specific pollutant or type of
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pollutant across an entire region. Id. For example, prior to the EPA’s adoption of the Final
Rule, the State of Washington had issued a general permit to allow for the application of all
aquatic pesticides in the State. See Acquatechnex v. Washington Dep’t of Ecology, PCHB
1
No. 02-090, 2002 WA ENV LEXIS 87, *2-5 (Pollution Control Hr’gs Bd. Dec. 24, 2002).
As a result, users of aquatic pesticides in Washington could discharge those pesticides
covered by the rule without obtaining a permit. These general permits “greatly reduce
[the] administrative burden by authorizing discharges from a category of point sources
within a specified geographic area.” S. Florida Water Mgmt. Dist. v. Miccosukee Tribe
of Indians, 541 U.S. 95, 108 n.* (2004) (citing 40 C.F.R. § 122.28(b)(2)(v)). “Once [the]
EPA or a state agency issues such a [general] permit, covered entities, in some cases,
need take no further action to achieve compliance with the NPDES besides adhering to
the permit conditions.” Id.
2. The Federal Insecticide, Fungicide, and Rodenticide Act
The EPA also regulates the labeling and sale of pesticides under the Federal
Insecticide, Fungicide, and Rodenticide Act. Under the FIFRA, all pesticides sold in the
United States must be registered with the EPA. See 7 U.S.C. § 136 et seq. The EPA
approves an insecticide for registration only when it finds that the chemical, “when used
in accordance with widespread and commonly recognized practice . . .[,] will not
generally cause unreasonably adverse effects on the environment.” No Spray Coalition
v. City of New York, 351 F.3d 602, 604-05 (2d Cir. 2003) (quoting 7 U.S.C.
§ 136a(c)(5)(D)). Under the FIFRA, the EPA issues a “label” for each registered
pesticide, indicating the manner in which it may be used; the statute makes it unlawful
“to use any pesticide in a manner inconsistent with its labeling.” Id. (quoting 7 U.S.C.
§ 136j(a)(2)(6)).
1
The State of California’s State Water Resources Control Board (the “Board”) also issued a
general permit that covered all aquatic pesticide discharges, as long as the discharger certified that
alternative options had been evaluated and that any impact the pesticide application had on the water
quality would be reported to the Board. General Permit No. CAG990003, 2001 Cal. ENV LEXIS 12, at
*1, 3-4, 19-21 (July 19, 2001).
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For nearly thirty years prior to the adoption of the Final Rule, pesticide labels
issued under the FIFRA were required to contain a notice stating that the pesticide could
not be “discharge[d] into lakes, streams, ponds, or public waters unless in accordance
with an NPDES permit.” EPA’s Policy and Criteria Notice 2180.1 (1977). Despite
amendments made to the FIFRA’s labeling requirements over the years, pesticide labels
have always included a notice about the necessity of obtaining an NPDES permit. See
EPA’s Policy and Criteria Notice 2180.1 (1984); Pesticide Registration (“PR”) Notice
93-10 (July 29, 1993); PR Notice 95-1 (May 1, 1995); see also EPA-738-7-96-007 (Feb.
1996), available at http://www.epa.gov/oppsrrd1/REDs/factsheets/3095fact.pdf,
(Pesticide Reregistration notification for 4, 4- Dimethyloxazolidine) (referring to the
labeling requirement described in the PR Notice).
3. The Regulatory Framework Under the Final Rule
Under the Clean Water Act, pollutants may only be discharged according to a
permit unless they fit into one of the exceptions listed in the federal regulations at 40
C.F.R. § 122.3. The Final Rule revises the regulations by adding pesticides to these
exceptions as long as they are used in accordance with the FIFRA’s requirements. 71
Fed. Reg. at 68,485, 68,492. Specifically, the Final Rule states that pesticides applied
consistently with the FIFRA do not require an NPDES permit in the following two
circumstances:
(1) The application of pesticides directly to waters of the
United States in order to control pests. Examples of such
applications include applications to control mosquito
larvae, aquatic weeds, or other pests that are present in
waters of the United States.
(2) The application of pesticides to control pests that are
present over waters of the United States, including near
such waters, where a portion of the pesticides will
unavoidably be deposited to waters of the United States
in order to target the pests effectively; for example, when
insecticides are aerially applied to a forest canopy where
waters of the United States may be present below the
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canopy or where pesticides are applied over or near water
for control of adult mosquitoes or other pests.
40 C.F.R. § 122.3(h).
Although the EPA, through its Final Rule, takes the position that pesticides are
not generally pollutants, it makes an exception for “pesticide residuals,” which
“include[] excess amounts of pesticide.” 71 Fed. Reg. at 68,487. “Pesticide residuals”
are those portions of the pesticide that “remain in the water after the application and its
intended purpose (elimination of targeted pests) have been completed . . . .” Id. The
EPA concedes that pesticide residue (unlike pesticides generally) is a pollutant under the
Clean Water Act because it is “waste[] of the pesticide application.” Id. Nonetheless,
the EPA contends that pesticide residue is not subject to the NPDES permitting program
because “at the time of discharge to a water of the United States, the material in the
discharge must be both a pollutant, and from a point source.” Id. According to the EPA,
the residue cannot be subject to the permitting program because by the time it becomes
a pollutant it is no longer from a “point source.” Since no “point source” is at play, the
EPA reasons, pesticide residue is a “nonpoint source pollutant” and therefore not subject
to the permitting requirements. Id.
B. Procedural Background
Timely petitions for review of the Final Rule were filed in the First, Second,
Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits by either
the “Industry Petitioners”2 or the “Environmental Petitioners.”3 The petitions for review
were consolidated in this circuit by an order of the Judicial Panel on Multidistrict
2
Agribusiness Association of Iowa, BASF Corporation, Bayer CropScience LP, CropLife
America, Delta Council, Eldon C. Stutsman, Inc., FMC Corporation, Illinois Fertilizer & Chemical
Association, The National Cotton Council of America, Responsible Industry for a Sound Environment,
Southern Crop Production Association, and Syngenta Crop Protection, Inc., LP.
3
Baykeeper, Californians for Alternatives to Toxics, California Sportfishing Protection Alliance,
National Center for Conservation Science and Policy, Oregon Wild, Saint John’s Organic Farm,
Waterkeeper Alliance, Inc., Peconic Baykeeper, Inc., Soundkeeper, Inc., Environmental Maine, and Toxics
Action Center.
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Litigation, under 28 U.S.C. §§ 1407 and 2112(a)(3). The self-titled “Industry
Intervenors”4 filed a motion to intervene in support of the Final Rule.5
Environmental Petitioners filed a timely motion to dismiss the petitions because
of lack of subject matter jurisdiction or, alternatively, to transfer the cases to the Ninth
Circuit. Industry Petitioners, the EPA, and Industry Intervenors opposed this motion.
The Environmental Petitioners have also filed a complaint challenging the Final Rule in
the Northern District of California in order to preserve review of the Final Rule in the
event this Court grants their motion to dismiss. On July 24, 2007, we denied the motion
to transfer and deferred the decision on the question of subject matter jurisdiction.
II. JURISDICTION
Environmental Petitioners contend that this dispute should be dismissed for lack
of subject matter jurisdiction, arguing that original review of the Final Rule by the courts
of appeals is not covered by the grant of original jurisdiction set forth in the Clean Water
Act, 33 U.S.C. § 1369(b)(1). Environmental Petitioners are correct that “Congress did
not intend court of appeals jurisdiction over all EPA actions taken pursuant to the Act.”
Lake Cumberland Trust, Inc. v. EPA, 954 F.2d 1218, 1222 (6th Cir. 1992) (quoting Boise
Cascade Corp. v. EPA, 942 F.2d 1427, 1431 (9th Cir. 1991)). However, we conclude
that, at a minimum, §1369(b)(1)(F) encompasses the action before us.
Under 33 U.S.C. § 1369(b)(1)(F), a party may challenge EPA actions “issuing
or denying any permit under [33 U.S.C.] section 1342 . . .” in the appropriate circuit
court. The Clean Water Act’s permitting program is set forth in § 1342. The
jurisdictional grant of § 1369(b)(1)(F) authorizes the courts of appeals “to review the
regulations governing the issuance of permits under section 402, 33 U.S.C. § 1342, as
well as the issuance or denial of a particular permit.” Am. Mining Cong. v. EPA, 965
F.2d 759, 763 (9th Cir. 1992). Thus, in Natural Resources Defense Council, Inc. v. EPA,
4
Industry Intervenors include each of the Industry Petitioners listed above as well as American
Farm Bureau Federation and American Forest & Paper Association.
5
American Mosquito Association submitted a brief as amicus curiae in support of the Final Rule.
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966 F.2d 1292, 1296-97 (9th Cir. 1992), the court held that it had jurisdiction to review
an EPA rule exempting uncontaminated storm-water discharge from the permitting
regulations. The Natural Resources court concluded that it had “the power to review
rules that regulate the underlying permit procedures.” Id. at 1297 (citing NRDC v. EPA,
656 F.2d 768, 775 (D.C. Cir. 1981) and E.I. du Pont de Nemours & Co. v. Train, 430
U.S. 112, 136 (1976)). The Final Rule before us today likewise regulates the permitting
procedures, and we therefore conclude that jurisdiction is proper under § 1369(b)(1)(F).
III. DISCUSSION
A. Standard of Review
Our review of agency decisions has two components. First, we determine
whether the agency’s chosen action complies with Chevron. 467 U.S. at 842-45; see
United States v. Mead Corp., 533 U.S. 218, 227 (2001); Riverkeeper, Inc. v. EPA
(“Riverkeeper II”), 475 F.3d 83, 95 (2d Cir. 2007). When conducting Chevron review
of the Final Rule, we “examine the [Final Rule] against the statute that contains the
EPA’s charge.” Riverkeeper, Inc. v. EPA (“Riverkeeper I”), 358 F.3d 174, 183 (2d Cir.
2004). Here, we must determine whether “the intent of Congress is clear as to the
precise question at issue.” Nations Bank of N.C., N.A. v. Variable Annuity Life Ins. Co.,
513 U.S. 251, 257 (1995); Chevron, 467 U.S. at 842. “In making [this] threshold
determination under Chevron, a reviewing court should not confine itself to examining
a particular statutory provision in isolation. Rather, the meaning—or ambiguity—of
certain words or phrases may only become evident when placed in context.” Nat’l Ass’n
of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2534 (2007). If the intent
of Congress is clear, “that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.” Chevron, 467
U.S. at 842-43. If, and only if, the statute is silent or ambiguous regarding the question
at issue, we then move to step two of Chevron review and ask whether “the agency’s
answer is based on a permissible construction of the statute.” Id. at 843. If the agency’s
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“interpretation is reasonable, we must defer to its construction of the statute.” Wachovia
Bank, N.A. v. Watters, 431 F.3d 556, 562 (6th Cir. 2005).
The second part of our review would require us to consider the Final Rule under
the standards set forth by the Administrative Procedure Act section 10(2)(e), 5 U.S.C.
§ 706(2) (the “APA”), under which we are required to “hold unlawful and set aside
agency action, findings, and conclusions” that, among other criteria, are found to be
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious where
the agency has relied on factors that Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency experience.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983);
see also Citizens Coal Council, 447 F.3d at 890. When conducting this form of review,
we ensure that the agency “examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action including a rational connection between the facts and the
choice made.” Motor Vehicle Mfrs., 463 U.S. at 43. “The court is required to make a
‘searching and careful review’ in its assessment of the agency action, but ‘the ultimate
standard of review is a narrow one.’” Citizens Coal Council, 447 F.3d at 890 (quoting
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
B. The Parties’ Positions
1. The Petitioners
Environmental Petitioners argue: (1) that the EPA exceeded its authority under
the Clean Water Act in issuing a rule that excludes pesticides from the definition of
“pollutant” under 33 U.S.C. § 1362(6); (2) that the EPA exceeded its authority under the
Clean Water Act when it determined that, while pesticides are discharged by point
sources, the residue of these pesticides is nonetheless a “nonpoint source pollutant”; and
(3) that the EPA may not exempt FIFRA-compliant applications of pesticides from the
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requirements of the Clean Water Act. Industry Petitioners, on the other hand, argue that
the Final Rule is arbitrary and capricious because it treats pesticides applied in violation
of the FIFRA as pollutants, while it treats the very same pesticides used in compliance
with the FIFRA as non-pollutants. In other words, the Industry Petitioners complain that
whether something constitutes a pollutant should not hinge upon compliance with the
FIFRA.
2. The EPA
As described above, the EPA’s Final Rule exempts from the NPDES permitting
program pesticides that are applied directly to the Nation’s waters, or near such waters,
in order to control pests. 40 C.F.R. § 122.3(h). The EPA says that its Final Rule
exempts both pesticides generally and “pesticide residue,” which includes “excess
pesticide.” 71 Fed. Reg. at 68,487.
The EPA provides two reasons that its Final Rule is reasonable. First, the EPA
argues that the Clean Water Act as it applies to pesticides is ambiguous. The EPA
contends that it reasonably determined that pesticides applied according to the FIFRA
requirements are not pollutants and therefore are not subject to the NPDES permitting
program. The EPA reasons that “Congress defined the term ‘pollutant’ in the Clean
Water Act to mean one of 16 specific items.” (EPA Br. at 22.) Of these sixteen, the EPA
states that pesticides, which are either chemical or biological in nature, may only be
considered to be “chemical wastes” or “biological materials.” 71 Fed. Reg. at 68,486.
The EPA argues that pesticides are not “chemical wastes” in the ordinary dictionary
definition of the word “waste,” because waste is that which is “eliminated or discarded
as no longer useful or required after the completion of a process.” Id. (quoting The New
Oxford American Dictionary 1905 (Elizabeth J. Jewell & Frank Abate eds., 2001)).
Rather than being wastes, the EPA reasons that pesticides applied according to the
FIFRA’s labeling requirements “are products that the EPA has evaluated and registered
for the purpose of controlling target organisms, and are designed, purchased, and applied
to perform that purpose.” Id. The EPA next concludes that pesticides applied in
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accordance with the FIFRA are not “biological materials” because to find otherwise
would lead to the anomalous result “that biological pesticides are pollutants, while
chemical pesticides used in the same circumstances are not.” Id.
The EPA’s second argument attempts to justify its Final Rule as applied to
pesticide residue. In contrast to pesticides generally, which the EPA contends are not
pollutants, the EPA concedes that pesticide residue and excess pesticide are pollutants
within the meaning of the Clean Water Act because “they are wastes of the pesticide
application.” 71 Fed. Reg. at 68,487. The EPA also concedes that pesticides are
discharged from a point source. Id. at 68,487-88. Nonetheless, the EPA concludes that
no permit is required for pesticide applications that result in excess or residue pesticide
because it interprets the Clean Water Act as requiring permits only for discharges that
are “both a pollutant, and from a point source” at the time of discharge. Id. at 68,487.
C. Analysis
1. Are Pesticides Unambiguously “Pollutants” Within the Meaning of the
Act?
The first question under Chevron is whether the Clean Water Act unambiguously
includes pesticides within its definition of “pollutant.” Under this first step, this Court
determines “whether Congress has directly spoken to the precise question at issue.” 467
U.S. at 842. This is determined by “employing traditional tools of statutory
construction.” Id. The meaning of a statute “is determined by reference to the language
itself, the specific context in which that language is used, and the broader context of the
statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); see also Dole
v. United Steelworkers of Am., 494 U.S. 26, 35 (1990) (“Our ‘starting point is the
language of the statute,’ . . . but ‘in expounding a statute, we are not guided by a single
sentence or member of a sentence, but look to the provisions of the whole law, and to its
object and policy.’”) (citations omitted). If Congress’s intent is clear from the statutory
language, then “that intent must be given effect.” Chevron, 467 U.S. at 842-43.
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As noted above, the Clean Water Act defines “pollutant” as “dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded equipment, rock,
sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”
33 U.S.C. § 1362(6). This Court has previously concluded that the “broad generic
terms” included in the definition of “pollutant” demonstrate Congress’s intent to capture
more than just the items expressly enumerated. United States v. Hamel, 551 F.2d 107,
110 (6th Cir. 1977) (concluding that the Clean Water Act covers, at a minimum, those
pollutants covered under the Refuse Act, which applies to “all foreign substances” not
explicitly exempted from coverage); see also, e.g., Cedar Point Oil Co., 73 F.3d at 565
(“[T]he breadth of many of the items in the list of ‘pollutants’ tends to eviscerate any
restrictive effect.”); No Spray Coalition, Inc., 2005 U.S. Dist. LEXIS 11097, at *17
(citing S. Rep. No. 92-414 at 76 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3742).
However, we need not consider the term’s breadth today. Rather, we find the plain
language of “chemical waste” and “biological materials” in § 1362(b) to be
unambiguous as to pesticides. This Court must, therefore, give effect to the Congress’s
expressed intent. See Chevron, 467 U.S. at 842-43.
a. Chemical Waste
Generally, a court should give a word in a statute its “ordinary, contemporary,
common meaning, absent an indication Congress intended [it] to bear some different
import.” Grand Traverse Band of Ottawa & Chippewa Indians v. Office of U.S.
Attorney, 369 F.3d 960, 967 (6th Cir. 2004) (quoting Williams v. Taylor, 529 U.S. 420,
431-32 (2000)). The EPA refers the Court to The New Oxford American Dictionary
(Jewell & Abate eds. 2001), which defines waste as “eliminated or discarded as no
longer useful or required after the completion of a process.” Id. at 1905. Industry
Petitioners point the Court to Black’s Law Dictionary (8th ed. 2004), which defines
waste as “[r]efuse or superfluous material, esp. that after a manufacturing or chemical
process.” Id. at 1621. Similarly, the Ninth Circuit has accepted the American Heritage
Dictionary’s definition of waste as “any useless or worthless byproduct of a process or
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the like; refuse or excess material.” N. Plains Res. Council v. Fidelity Exploration &
Dev. Co., 325 F.3d 1155, 1161 (9th Cir. 2003); Fairhurst v. Hagener, 422 F.3d 1146,
1149 (2005).
Under any of these definitions of “waste,” “chemical waste” for the purposes of
the Clean Water Act would include “discarded” chemicals, “superfluous” chemicals, or
“refuse or excess” chemicals. As such, under a plain-meaning analysis of the term, we
cannot conclude that all chemical pesticides require NPDES permits. Rather, like our
sister circuit in Fairhurst, we conclude that: so long as the chemical pesticide “is
intentionally applied to the water [to perform a particular useful purpose] and leaves no
excess portions after performing its intended purpose[] it is not a ‘chemical waste,’” 422
F.3d at 1149, and does not require an NPDES permit. Id.
On the other hand, as Environmental Petitioners argue and the EPA concedes,
excess pesticide and pesticide residue meet the common definition of waste. To this
extent, the EPA’s Final Rule is in line with the expressed intent of Congress, as the Rule
defines these pesticide residues as pollutants “because they are wastes of the pesticide
application.” 71 Fed. Reg. at 68,487. The EPA aptly states:
[P]esticides applied to land but later contained in a waste stream,
including storm water regulated under the Clean Water Act, could trigger
the requirement of obtaining an NPDES permit . . . . In addition, if there
are residual materials resulting from pesticides that remain in the water
after the application and its intended purpose has been completed, the
residual materials are pollutants because they are substances that are no
longer useful or required after the completion of a process.
(EPA Br. 29-30.) This Court agrees.
Therefore, at least two easily defined sets of circumstances arise whereby
chemical pesticides qualify as pollutants under the Clean Water Act. In the first
circumstance, a chemical pesticide is initially applied to land or dispersed in the
air—these pesticides are sometimes referred to as either “terrestrial pesticides” or
“aerial pesticides” and include applications “above” or “near” waterways. At some point
following application, excess pesticide or residual pesticide finds its way into the
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navigable waters of the United States. Pesticides applied in this way and later affecting
the water are necessarily “discarded,” “superfluous,” or “excess” chemical. Such
chemical pesticide residuals meet the Clean Water Act’s definition of “chemical waste.”
In the second circumstance, a chemical pesticide is applied directly and
purposefully to navigable waters to serve a beneficial purpose—such pesticides are often
referred to as “aqueous” or “aquatic” pesticides. As contemplated by the EPA, if
residual aquatic pesticide “remain[s] in the water after the application and [the
pesticide’s] intended purpose has been completed,” then the residue would likewise
qualify as a “chemical waste.” (EPA Br. 29-30.) As such, these chemical wastes would
unambiguously fall within the ambit of the Clean Water Act.
This second scenario, of course, leads to the inevitable quandary that both non-
waste aqueous pesticide and pesticide residual are applied to water at the same moment,
which then gives rise to the question of how the EPA can regulate and permit the
residual. However, this problem is more theoretical than practical. In reality, whether
or not a particular chemical pesticide needs to be regulated can be easily answered by
both the EPA’s and industry’s experience with that pesticide. If, as was the case in
Fairhurst, a chemical such as antimycin leaves no excess portions after performing its
intended purpose, then that chemical’s use need not be regulated. See Fairhurst, 422
F.3d at 1149. 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. See also Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532-33
(9th Cir. 2001).
b. Biological Materials
Continuing our review under Chevron, we must examine the “ordinary,
contemporary, [and] common meaning” of “biological materials.” Grand Traverse
Band, 369 F.3d at 967. Environmental Petitioners point out that Webster’s Third New
International Dictionary (Gove ed. 1993) defines “material” as “of, relating to, or
consisting of matter” and “the basic matter from which the whole or the great part of
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something is made.” Id. at 1392. The Oxford English Dictionary provides that
“material” is “that which constitutes the substance of a thing (physical or non-
physical); a physical substance; a material thing.” OED Online, available at
http://dictionary.oed.com/cgi/entry/00303279?query_type=word&queryword=materi
al&first=1&max_to_show=10&sort_type=alpha&result_place=1&search_id=VoPl-c
VwRjA-12823&hilite=00303279. The plain, unambiguous nature of this language
compels this Court to find that matter of a biological nature, such as biological
pesticides, qualifies as a biological material and falls under the Clean Water Act if it is
“discharged into water.” 33 U.S.C. § 1362(6).
The EPA points to Ninth Circuit case law that holds that “mussel shells and
mussel byproduct are not pollutants” under the Clean Water Act. Ass’n to Protect
Hammersley, Eld & Totten Inlets v. Taylor, 299 F.3d 1007, 1016 (9th Cir. 2002). The
Hammersley court found the Clean Water Act to be “ambiguous on whether ‘biological
materials’ means all biological matter regardless of quantum and nature.” Id. While that
case is distinguishable, we choose a more limited analysis.6 We see our obligation not
as defining the outermost bounds of “biological materials,” but rather simply as deciding
whether biological pesticides fit into the ordinary meaning of “biological materials.”
The term “biological materials” cannot be read to exclude biological pesticides
or their residuals. The EPA’s Final Rule treats biological pesticides no differently from
chemical pesticides, exempting both from NPDES permitting requirements in certain
circumstances. See 71 Fed. Reg. at 68,492. We find this interpretation to be contrary
to the plain meaning of the Clean Water Act. In 33 U.S.C. § 1362, Congress
purposefully included the term “biological materials,” rather than a more limited term
such as “biological wastes.” Congress could easily have drafted the list of pollutants in
the Clean Water Act to include “chemical wastes” and “biological wastes.” But, here,
the word “waste” does not accompany “biological materials.” Thus, if we are to give
6
The Hammersley court based its conclusion on the fact that shells and shell byproduct of
shellfish-farming facilities are the result of natural biological processes, not the result of a transforming
human process. See Hammersley, 299 F.3d at 1016-17.
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meaning to the word “waste” in “chemical waste,” we must recognize Congress’s intent
to treat biological and chemical pesticides differently.
This interpretation is consistent with the precedent of this Court and others. In
National Wildlife Federation v. Consumer Power Co., 862 F.2d 580 (6th Cir. 1988), we
determined that “[m]illions of pounds of live fish, dead fish and fish remains annually
discharged in Lake Michigan by [a] facility are pollutants within the meaning of the
[Clean Water Act], since they are “biological materials.” Likewise, the District Court
of Maine determined that “salmon feces and urine that exit the net pens and enter the
waters are pollutants as they constitute ‘biological materials’ or ‘agricultural wastes.’”
United States Pub. Interest Research Group v. Atl. Salmon of Maine, 215 F. Supp. 2d
239, 247 (D. Me. 2002) (citing Higbee v. Starr, 598 F. Supp. 323, 330-31 (D. Ark. 1984)
aff’d, 782 F.2d 1048 (8th Cir. 1985)). Biological pesticides similarly must be considered
“biological materials.” Biological pesticides consist of artificial concentrations of
viruses, bacteria, fungi, plant materials, and/or other biological materials. See Pesticides:
Glossary, U.S. EPA, available at http://www.epa.gov/pesticides/glossary. Congress
defined “pollution” as “the man-made or man-induced alteration of the chemical,
physical, biological, and radiological integrity of water.” 33 U.S.C. § 1362(19). Adding
biological pesticides to water undeniably alters its biological integrity. Therefore, we
find biological pesticides to be “biological materials” under the Clean Water Act.
2. Are Chemical Pesticide Residuals Added to the Water by “Point
Sources?”7
The EPA further defends its Final Rule by arguing that excess pesticide and
residue pesticide are not discharged from a “point source.” In other words, though
excess and residue pesticides have exactly the same chemical composition and are
discharged from the same point source at exactly the same time as the original pesticide,
and though excess and residue pesticides would not enter the Nation’s waterways but for
7
This analysis is not necessary for biological pesticides because, as discussed above, both
biological pesticides and their residuals are pollutants under the Clean Water Act. Because biological
pesticides are discharged from a “point source” they must be regulated under the Act.
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the discharge of the original pesticide, the EPA concludes that excess and residue
pesticides are not discharged from a “point source” because at the moment of discharge
there is only pesticide. This is so, according to the EPA, because excess and residue
pesticides do not exist until after the discharge is complete, and therefore “should be
treated as a nonpoint source pollutant.” 71 Fed. Reg. at 65,847.
The Clean Water Act defines “point source” as “any discernible, confined, and
discrete conveyance,” including a variety of mechanisms such as “container,” “rolling
stock,” or “vessel or other floating craft.” 33 U.S.C. § 1362(14). The EPA and the
courts agree that pesticides are applied by point sources. See 71 Fed. Reg. at 65,847;
League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1185 (9th Cir. 2002);
Headwaters, 243 F.3d at 528. The EPA argues that, at the time of discharge, the
pesticide is a nonpollutant, and the excess pesticide and pesticide residues are not
created until later, presumably after they are already in the water. Therefore, according
to the EPA, pesticides at the time of discharge do not require permits because they are
not yet excess pesticides or residue pesticides. But there is no requirement that the
discharged chemical, or other substance, immediately cause harm to be considered as
coming from a “point source.” Rather, the requirement is that the discharge come from
a “discernible, confined, and discrete conveyance,” 33 U.S.C. § 1362(14), which is the
case for pesticide applications.
The EPA offers no direct support for its assertion that a pesticide must be
“excess” or “residue” at the time of discharge if it is to be considered as discharged from
a “point source.” This omission of authority is understandable, as none exists. The
Clean Water Act does not create such a requirement. Instead, it defines “discharge of
a pollutant” as “any addition of any pollutant to navigable waters from any point
source.” 33 U.S.C. § 1362(12). The EPA’s attempt at temporally tying the “addition”
(or “discharge”) of the pollutant to the “point source” does not follow the plain language
of the Clean Water Act. Injecting a temporal requirement to the “discharge of a
pollutant” is not only unsupported by the Act, but it is also contrary to the purpose of the
permitting program, which is “to prevent harmful discharges into the Nation’s waters.”
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Defenders of Wildlife, 127 S. Ct. at 2525. If the EPA’s interpretation were allowed to
stand, discharges that are innocuous at the time they are made but extremely harmful at
a later point would not be subject to the permitting program. Further, the EPA’s
interpretation ignores the directive given to it by Congress in the Clean Water Act,
which is to protect water quality. As the EPA itself recognizes, “Congress generally
intended that pollutants be controlled at the source whenever possible.” 73 Fed. Reg.
at 33,702 (citing S. Rep. No. 92-414, p. 77 (1972)). Here, it is certainly possible for
pesticide residue to be controlled at its source because the discharge of the pesticide
introduces such residue into the water.
The EPA’s newly asserted temporal element also runs contrary to its own recent
interpretation of the Clean Water Act’s term “addition.” See 73 Fed Reg. 33,697 (June
13, 2008). The EPA determined that transfers of water from one body of water to
another do not constitute the “addition” of a pollutant to the new body of water, and in
doing so clarified its understanding of the term “addition.” 73 Fed Reg. 33,697. The
EPA explained:
Given the broad definition of “pollutant,” transferred (and receiving)
water will always contain intrinsic pollutants, but the pollutants in
transferred water are already in “the waters of the United States” before,
during, and after the water transfer. Thus, there is no “addition”; nothing
is being added “to” “the waters of the United States” by virtue of the
water transfer, because the pollutant at issue is already part of “the waters
of the United States” to begin with.
....
As noted above, EPA’s longstanding position is that an NPDES pollutant
is “added” when it is introduced into a water from the “outside world” by
a point source. Gorsuch, 693 F.2d at 174-75.
Id. at 33,701. Given the EPA’s understanding of “addition” of a pollutant as stated
above, it is clear that under the meaning of the Clean Water Act, pesticide residue or
excess pesticide—even if treated as distinct from pesticide—is a pollutant discharged
from a point source because the pollutant is “introduced into a water from the ‘outside
world’ by” the pesticide applicator from a “point source.” See id. This interpretation
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coincides with the method of determining whether a discharge is from a “point source”
that the Supreme Court recently cited with approval: “For an addition of pollutants to
be from a point source, the relevant inquiry is whether—but for the point source—the
pollutants would have been added to the receiving body of water.” Miccosukee, 541
U.S. at 103 (quoting Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 280
F.3d 1364, 1368 (11th Cir. 2002)). It is clear that but for the application of the pesticide,
the pesticide residue and excess pesticide would not be added to the water; therefore, the
pesticide residue and excess pesticide are from a “point source.”
3. May the Final Rule Stand?
For all of these reasons, we conclude that the statutory text of the Clean Water
Act forecloses the EPA’s Final Rule. The EPA properly argues that excess chemical
pesticides and chemical pesticide residues, rather than all chemical pesticides, are
pollutants. However, the Final Rule does not account for the differences between
chemical and biological pesticides under the language of the Clean Water Act. Further,
because the Act provides that residual and excess chemical pesticides are added to the
water by a “point source” there is no room for the EPA’s argument that residual and
excess pesticides do not require an NPDES permit. The “point source” from which the
residue originates is easily discernable and necessarily must “be controlled at the
source.” See 73 Fed. Reg. at 33,702. Given all of the above in combination with the
EPA’s interpretation that “[p]oint sources need only convey pollutants into navigable
waters to be subject to the Act,” id. at 33,703, dischargers of pesticide pollutants are
subject to the NDPES permitting program in the Clean Water Act. As such, the EPA’s
Final Rule cannot stand. Because the Clean Water Act’s text bars the Final Rule we
make no determination regarding the validity of the issuance of the Final Rule under the
APA, nor do we analyze the relationship between the Clean Water Act and the FIFRA.
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CONCLUSION
For the foregoing reasons, Environmental Petitioners’ petitions are GRANTED
in part and DENIED in part, and Industry Petitioners’ petitions are DENIED in whole.
We VACATE the Final Rule.