Availability of Stipulated Injunction in Northwest Center for Alternatives to Pesticides v. EPA litigation, 53707-53708 [2014-21414]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 79, Number 175 (Wednesday, September 10, 2014)]
[Notices]
[Pages 53707-53708]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21414]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2014-0301; FRL-9915-79]


Availability of Stipulated Injunction in Northwest Center for 
Alternatives to Pesticides v. EPA litigation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: This notice announces to the public the availability of an 
Order (stipulated injunction) issued by the U.S. District Court for the 
Western District of Washington that, among other things, would 
reinstitute streamside no-spray buffer zones to protect endangered or 
threatened Pacific salmon and steelhead in California, Oregon, and 
Washington. The stipulated injunction, issued on August 15, 2014, 
settles litigation brought against EPA by the Northwest Center for 
Alternatives to Pesticides (NCAP) and others. These buffers were 
originally established by the same court in prior litigation brought 
against EPA by the Washington Toxics Coalition (WTC) and others. Like 
the original buffer zones, the limitations in this stipulated 
injunction are part of a court order but are not to be enforceable as 
labeling requirements under the Federal Insecticide, Fungicide and 
Rodenticide Act (FIFRA). The no-spray buffer zones will apply to the 
pesticides carbaryl, chlorpyrifos, diazinon, malathion, and methomyl. 
These buffers will remain in place until EPA implements any necessary 
protections for Pacific salmon and steelhead based on reinitiated 
consultations with the National Marine Fisheries Service (NMFS). EPA is 
reevaluating these pesticides in connection with its current FIFRA 
registration review process and the stipulated injunction reinstitutes 
the buffers in the interim.

FOR FURTHER INFORMATION CONTACT: Anita Pease, Environmental Fate and 
Effects Division (7507P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-
0001; telephone number: (703) 305-7695; email address: 
pease.anita@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you develop, 
manufacture, formulate, sell, and/or apply pesticide products, and if 
you are interested in the potential impacts of pesticide use on listed 
species. The following list of North American Industrial Classification 
System (NAICS) codes is not intended to be exhaustive, but rather 
provides a guide to help readers determine whether this document 
applies to them. Potentially affected entities may include:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).
     Other stakeholders who have an interested in potential 
impacts of pesticides on listed species.
    However, this action is directed to the public in general, and may 
be of particular interest to the parties in the NCAP v. EPA litigation, 
environmental organizations, professional and recreational fishing 
interests, other public interest groups, state regulatory partners, 
other interested federal agencies, pesticide registrants and pesticide 
users. Since other entities may also be interested, the Agency has not 
attempted to describe all the specific entities that may be affected by 
this action. If you have any questions regarding the applicability of 
this action to a particular entity, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

C. How can I get copies of this document and other related information?

    A copy of the stipulated injunction is available in the docket 
under docket identification (ID) number EPA-HQ-OPP-2014-0301.

II. Background

A. What action is the Agency taking?

    EPA is announcing the availability of a stipulated injunction 
issued on August 15, 2014, by the U.S. District Court for the Western 
District of Washington that, among other things, reinstitutes 
streamside no-spray buffer zones to protect endangered and threatened 
Pacific salmon and steelhead in California, Oregon, and Washington. The 
stipulated injunction settles litigation brought against EPA by NCAP 
and others. Like the original buffer zones, the limitations in this 
injunction are part of a court order but are not enforceable as 
labeling requirements under FIFRA. To view the interactive map 
displaying the areas where the buffer zones apply, go to www.epa.gov/espp/litstatus/wtc/uselimitation.htm. The interactive map is expected 
to be updated no later than September 30, 2014 to include the current 
list of chemicals subject to the restrictions, enhanced spatial 
resolution, and the most recent geospatial data depicting stream 
reaches where the buffer zones apply. The no-spray buffer zones apply 
to the pesticides carbaryl, chlorpyrifos, diazinon, malathion, and 
methomyl. These buffer zones will remain in place until EPA implements 
any necessary protections for Pacific salmon and steelhead based on 
reinitiated consultations with NMFS. EPA is reevaluating these 
pesticides in connection with its current FIFRA

[[Page 53708]]

registration review process and the stipulated injunction reinstates 
the buffers in the interim.
    The no-spray buffers in the proposed stipulated injunction extend 
300 feet from salmon supporting waters for aerial applications of the 
five pesticides and 60 feet for ground applications.
    Under this settlement agreement, there are three relevant use 
exemptions carried over from the WTC case:
    1. Public health vector control administered by public entities, 
such as the use of malathion by local governments for mosquito control.
    2. NMFS-authorized programs (i.e., where a NMFS finding or permit 
allows use within the buffers).
    3. Use of carbaryl under a Washington state-issued 24(c) 
registration for oyster beds in the estuarine mudflats of Willapa Bay 
and Grays Harbor.

B. What is the Agency's authority for taking this action?

    On November 29, 2010, NCAP and other environmental groups and 
fishing interests filed a lawsuit in the Federal District Court for the 
Western District of Washington alleging that EPA failed to comply with 
sections 7 and 9 of the ESA (16 U.S.C. 1536, 1538) with regard to the 
effects of six EPA-registered pesticides (carbaryl, carbofuran, 
chlorpyrifos, diazinon, malathion, and methomyl) on 28 Pacific salmonid 
species that are listed as endangered or threatened under the ESA 
(NCAP, et al. v. EPA, C10-01919 (W.D. Wash.)). Subsequent to the filing 
of the case, all carbofuran end-use product registrations were 
cancelled, effectively leaving only five pesticides at issue in the 
litigation.
    On February 21, 2013, in Dow Agrosciences LLC v. NMFS, 707 F.3d 462 
(4th Cir. 2013), the U.S. Court of Appeals for the 4th Circuit vacated 
the NMFS biological opinion addressing chlorpyrifos, diazinon, and 
malathion. Following that ruling, the Plaintiffs in the NCAP v. EPA 
litigation supplemented their original complaint to assert that in the 
absence of a valid biological opinion, EPA had failed to complete 
consultation on those three pesticides. In the fall of 2013, the 
intervenors, CropLife America and other pesticide industry and 
pesticide user groups, filed a motion to dismiss both that claim and 
claims that EPA's registration of the pesticides was in violation of 
the ``take'' provisions of section 9 of the ESA.
    On January 28, 2014, Judge Zilly denied intervenors' motion to 
dismiss these claims. Subsequent to that ruling, the parties filed a 
stipulated motion to stay the NCAP v. EPA litigation to allow the 
parties to discuss the potential for settlement.
    On June 6, 2014, EPA sought public comment on a proposed agreement 
with plaintiffs, in the form of a stipulated injunction, to reinstitute 
the no-spray buffers originally established in the WTC v. EPA 
litigation during the period that EPA develops new biological 
evaluations for salmonid species (which will be completed in connection 
with the development of EPA's national FIFRA registration reviews for 
these pesticides). Following review of the comments, most of which 
supported the proposed agreement, EPA filed the agreement with the 
Court and the Court entered the stipulated injunction on August 15, 
2014. These buffer zones will remain in place until EPA implements any 
necessary protections for Pacific salmon and steelhead based on 
reinitiated consultations with NMFS. In separate litigation, NCAP v. 
NMFS, C07-1791 (W.D. Wash.), NMFS has agreed to complete any 
consultation EPA reinitiates on chlorpyrifos, diazinon, and malathion 
by December 2017, and any consultation EPA reinitiates on carbaryl and 
methomyl by December 2018. These dates are intended to correspond with 
EPA's FIFRA registration review schedule for these pesticides.
    The stipulated injunction also requires EPA to provide notice of 
the reinstitution of the no-spray buffers zones to numerous groups, 
including certified applicators, state and local governments, federal 
agencies, user groups, extension services and land grant universities 
in affected portions of California, Oregon, and Washington. It also 
requires EPA to provide certain information to the public and pesticide 
users through the EPA Web site, including maps that highlight the 
stream reaches where the buffer zones apply. The stipulated injunction 
is available at https://www.regulations.gov/#!documentDetail;D=EPA-HQ-
OPP-2014-0301-0001.

List of Subjects

    Environmental protection, endangered species.

    Dated: August 28, 2014.
Marty Monell,
Acting Director, Office of Chemical Safety and Pollution Prevention, 
Office of Pesticide Programs.
[FR Doc. 2014-21414 Filed 9-9-14; 8:45 am]
BILLING CODE 6560-50-P