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Toxic Dump Sites And Agraquest/Pam Marrone Case May Get Light In Davis, California Hearing
by David Greenwald
Friday Jan 9th, 2009 11:57 AM
A toxic dump site has recently been exposed in Davis, California and a hearing will be held. The issue of the dumping of toxic material at the Pam Marrone owned Agraquest may also come up in this public hearing.
http://davisvanguard.blogspot.com/2009/01/target-tcp-update-agendized-for-january.html

Virtual Vanguard-DJUSD Townhall Meeting

Listen to the audio here
THURSDAY, JANUARY 08, 2009

Target TCP Update Agendized for January 16 City-County Two-by-Two
Representatives from the City and the County will meet on January 16, to discuss among other issues, the issue of TCP that was found in test sites around the Target Superfund site. To date, the EPA has dismissed community based calls for further testing before construction begins at their site.

The City-County will have their 2-by-2 meeting on Friday January 16, 2009 at 9 AM in the conference room at the Davis County Office which is located a block from City Hall at 600 A Street. The item on Target and the issue of the TCP has been agendized for discussion. The 2-by-2 consists of two members from the Board of Supervisors and two members from the City Council. That will be the two Davis Supervisors, which means that this will be newly installed Supervisor Jim Provenza's first 2-by-2. Mayor Ruth Asmundson and Councilmember Don Saylor represent the city.

For some reason the agenda for these meetings is not readily available from the city. This is a public meeting and the public under the Brown Act ought to be informed about it. Thus there is no posted information on either the City's webpage or the County's webpage. It would be interesting to see where the meetings are posted and whether the city and county are in compliance with the Brown Act regarding posting and announcing such meetings. Regardless, even if this is within the letter of the law, it certainly seems to break the spirit of the law.

Here's a letter from Congressman Mike Thompson who seems unconcerned about the problem--further illustrating why it was a good thing that he was not selected as Secretary of the Interior.
Thank you for contacting me regarding elevated levels of trichloropropane (TCP) found at the 2nd Street construction site of the Target in Davis. I appreciate you sharing these concerns with me.

Rest assured that I am aware of the discovery of TCP at the construction site and agree that public safety - for residents, construction workers, future employees and shoppers - is of the utmost concern. I have been in contact with the Environmental Protection Agency (EPA) and the City of Davis about the concerns that have been expressed to me and I will continue to follow the issue. The EPA has explained that no contamination has been found at the building location and that the high concentrations of TCP are at the neighboring disposal basin and should be addressed soon as part of the final cleanup of the Superfund site.

Presently, remediation in the form of gravel/vapor barriers and air sampling is being conducted regardless of construction activity. Additionally, the EPA has an enforceable agreement with Target should more aggressive containment measures prove necessary. A strong EPA agreement with a responsible partner willing to conduct monitoring and remedial action as necessary is crucial to mitigate the risks from contaminants over the long term. For its part, the City of Davis has significant experience in managing matters of soil and groundwater contamination, most notably at the Fifth and G Streets site that now houses the US Department of Agriculture.

Again, thank you for your concern and vigilance on this issue. Please continue to contact me on all issues of importance to you and our district.

Sincerely,

MIKE THOMPSON
Member of Congress
http://www.mikethompson.house.gov
The problem that residents of Davis face at the moment is that the City Council has very limited jurisdiction over such matters. This goes back to the issue of Agraquest and possible health threats the community might face from environmental contamination at their Kennedy Place site. The city has limited ability to act on such things.

The county is far better situated on both issues to deal with it. However, the County Health Department summarily without investigation dismissed concerns about Agraquest, and now it appears they have done little with regards to the potential threat that residents adjacent to the Superfund site may face from exposure to TCP.

On Monday, the Sacramento Bee reported:
"The chemical has previously been found at the neighboring Frontier Fertilizer Superfund site along Second Street, near Interstate 80 and Mace Boulevard.

But nearby residents are now concerned it may be migrating northeast under the Target site, toward their homes."
Bonnie Arthur, the EPA Superfund project manager said the following:
"The chemical is known to cause cancer, she said. But she said it does not threaten the city's drinking water supply, which is drawn from deeper wells. "Nobody's drinking this water," she said."
However, members of the Frontier Fertilizer Superfund Oversight Group are not so sure that it is not a threat to drinking water if it continues to move and begins to leach into wells that lie at a deeper level.

The question is where is the county on all of this? They have a health department and they have the power to investigate these matters independent of the EPA. If this represents an actual health threat, it would seem that the county should step in.

But in both this and the Agraquest issue, the county has been silent.

It remains to be seen if a more aggressive Supervisor like Jim Provenza might be able to change some of this. January 16, 2009 will be a very important meeting on this matter, and residents concerned about this issue should try to attend, even though the meeting is happening during the work day when working people will have difficulty attending.

---David M. Greenwald reporting

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0004p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
THE NATIONAL COTTON COUNCIL OF
AMERICA, et al.,
Petitioners,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.

Nos. 06-4630; 07-3180/
3181/3182/3183/3184/3185/
3186/3187/3191/3236

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.

_____________________________________________________________

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
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 inaccordance 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. 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.

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 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=material&first=1&max_to_show=10&sort_type=alpha&result_place=1&search_id=VoPl-cVwRjA-2823&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 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 ttp://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.

__________________
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.
_________________________________

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.
-------------------------------------------------------------------------------------

The decision on 1/9/2009 from the UNITED STATES COURT OF APPEALS

**To view the decision go to http://caselaw.lp.findlaw.com/scripts/viewcase.pl?subject=Administrative+Law
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