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Court Cancels EPA Pesticide Exemption

(CN) - The Bush administration cannot exempt pesticides from federal permit requirements for pollutants, the 6th Circuit ruled. "The Clean Water Act is not ambiguous," Judge Cole wrote, rejecting the Environmental Protection Agency's attempt to bend the Act to fits its own rule.

The final rule, issued on Nov. 27, 2007, excluded pesticides from the Clean Water Act's permitting requirements, so long as the pesticides comply with the labeling requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

Environmental and industry groups challenged the rule, and the EPA argued that its decision was a "reasonable construction" of the Clean Water Act.

The Cincinnati-based federal appeals court disagreed.

"(I)t is a fundamental precept of this court that we interpret unambiguous expressions of Congressional will as written," Cole wrote.

The ruling is a victory for environmental and industry interests, who opposed the rule on vastly different grounds.

Environmentalists argued that the EPA had overstepped its authority by excluding "pesticide residuals" from the definition of pollutants, deeming pesticides a "nonpoint source pollutant," and exempting FIFRA-compliant pesticides from Clean Water Act requirements.

Industry petitioners argued that the final rule arbitrarily defines pesticides as pollutants based on their compliance with the FIFRA.

The 6th Circuit concluded that the Clean Water Act clearly establishes a list of pollutants that don't require permits, and pesticides are not on that list.

The court also rejected the EPA's attempt to introduce a temporal restraint to the meaning of the phrase "discharge of a pollutant." The agency insisted that pesticide residue is not subject to the permitting program, because "at the time of discharge ... the material in the discharge must be both a pollutant, and from a point source."

If the court adopted that interpretation, Judge Cole said, "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."

The court concluded that the final rule cannot stand.

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