In a final rule that was not preceded by a public comment period, the EPA removed language from the Code of Federal Regulations (CFR) added by the Agency’s 2006 NPDES Pesticides Rule.  Issued by the G.W. Bush EPA, that highly controversial action exempted the application of pesticides from National Pollutant Discharge Elimination System (NPDES) permitting requirements under two circumstances:

• When the application of the pesticide is made directly to waters of the United States to control pests that are present in the water, and
• When the application is made to control pests that are over or near waters of the United States where a portion of the pesticides will unavoidably be deposited to the water to target the pests.

The exemption from NPDES permitting was also contingent on applicator compliance with requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). 

35 years of policy

According to the EPA and supporters of the NPDES Pesticides Rule, the action simply codified 35 years of EPA policy.  Others disagreed.  Accordingly, petitions for review of the final rule were filed in 11 circuit courts. The cases were consolidated in the 6th Circuit Court of Appeals, which on January 7, 2009, ruled that NPDES permits are required for all biological and chemical pesticide applications that leave a residue in water when such applications are made in, over, or near waters of the U.S. (National Cotton Council, et al v. EPA).

On June 8, 2009, the court granted the EPA a stay of the decision until April 9, 2011, to provide the Agency and states time to develop and issue NPDES permits for this category and provide outreach and education to the regulated community. On March 28, 2011, the court granted EPA’s request to extend the stay until October 31, 2011.  The EPA issued its Pesticide General NPDES Permit to offer coverage for pesticide operators on October 31, 2011.  States with NPDES authority have also issued general permits for pesticide applications on or near waters.  On January 17, 2012, the 6th Circuit issued a mandate vacating the 2006 rule.

Administrative Procedures Act

The EPA says it did not provide an opportunity for public comment on removal of the 2006 rule language because it had no discretion in taking the action.  Under the Administrative Procedures Act (APA), an agency may issue a final rulemaking without providing notice and an opportunity for public comment when the agency finds and explains that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest.

“Based on the Court’s decision, the 2006 NPDES Pesticides Rule is no longer effective,” says the Agency.  “Therefore, the EPA is removing the rule from the CFR to conform to the Court’s decision.  Providing an opportunity for notice and comment is therefore unnecessary.  The EPA finds that this constitutes good cause under [the APA].”