Michael R. Lozeau

Law Office of Michael R. Lozeau

67 Juanita Way

San Francisco, California 94127

415-462-1964 / 415-462-6385 (fax)

mrlozeau@lozeaulaw.com

VIA ELECTRONIC SUBMISSION

November 13, 2023

Stephen L. Johnson, Administrator

Water Docket

Environmental protection Agency

Mailcode 4101T

1200 Pennsylvania Ave. NW

Washington, D.C. 20460

ow-docket@epa.gov

Re: Docket ID No. OW-2003-0063

Dear Administrator Johnson,

Thank you for this opportunity to comment on the Environmental
Protection Agency's proposed rule that attempts to justify a wholesale
exclusion for pesticide applicators from the Clean Water Act's National
Pollutant Discharge Elimination System ("NPDES") permitting program.
These comments are submitted on behalf of the California Sportfishing
Protection Alliance, Sierra Club California, Environmental Protection
Information Center, California Indian Basketweavers Association,
Pesticide Action Network - North America, Heal The Bay, Xerxes Society
for Invertebrate Conservation, Rachel Carson Council, Inc., Californians
For Alternatives To Pesticides, Humboldt Watershed Council, Salmon
Forever, Coast Action Group, The Endocrine Disruption Exchange, Inc.,
and California Oak Foundation, all of whom are deeply concerned with the
proposed exclusion and its likely impacts on their health and
recreational interests. EPA's effort to dissociate pesticides from the
statutory definition of "pollutant" is arbitrary as a matter of fact and
law.

Congress' desire to address potentially toxic discharges, including
specifically of pesticides, to waters of the United States was a
significant objective of its enactment of the CWA. EPA's proposal is
inconsistent with the Clean Water Act's major goals of eliminating
pollutants, assuring waters are fishable and swimmable and, most
relevant, "that the discharge of toxic pollutants in toxic amounts be
prohibited." 33 U.S.C. §§ 1251(a)(1)-(3). Senator Muskie, major drafter
and Senate manager of the CWA, expressly noted Congress' intent that the
CWA address toxic discharges, including pesticides:

> The seriousness of the toxics problem is just beginning to be
> understood. New cases are reported each day of unacceptable
> concentrations of materials in the aquatic environment, in fish and
> shellfish, and even in mother\'s milk. Empirical evidence has shown a
> statistical correlation between materials in New Orleans\' drinking
> water and cancer mortality rates; Kepone has destroyed the James
> River, one of America\'s most productive, and most historic rivers;
> PCB\'s are pervasive and have ruined the fishing in the Hudson River
> and the Great Lakes; carbon tetrachloride is only the most recent
> material to contaminate the Ohio River; the pesticide endrin has been
> found in Mississippi; [perhaps worst of all, are the ones we do not
> know yet]{.underline}. The more we find out, the more cause there is
> for concern. [It is imperative that these materials be
> controlled]{.underline}.

123 Cong.Rec. 39181 (1977) (emphasis added) (notably, endrin, at the
time of the CWA's enactment was a legal, registered pesticide). By
enacting a broad definition of pollutants, Congress intended to cover
potentially toxic discharges, including registered pesticides.

> **A. The CWA Intended To Expand The Pollutants Addressed By Its
> Immediate Statutory Precursor, The Rivers And Harbors Act Of 1899.**

When Congress enacted the CWA, it intended to carry forward and broaden
the types of pollutants then governed by the Rivers and Harbors Act.
EPA's proposal attempts to reverse that Congressional intention. Any
construction of the definition of "pollutant" in Section 1362 must be in
light of the existing judicial constructions of the Refuse Act's
definition of "refuse." Under the Refuse Act, "refuse" includes "Any
refuse matter of any kind or description whatever."\
The Supreme Court describes that section:

> Section 13 declares in simple absolutes that have been characterized
> as "almost an insult to the sophisticated wastes of modern technology"
> that "it shall not be lawful" to discharge or deposit into navigable
> waters of the United States "any refuse matter of any kind or
> description whatever" except as permitted by the Secretary of the
> Army. (footnote omitted).

*United States v. Pennsylvania Industrial Chemical Corp*., 411 U.S. 655,
669, 93 S.Ct. 1804, 1814, 36 L.Ed.2d 567 (1973). *See also Illinois v.
City of Milwaukee*, 406 U.S. 91, 101 (1972); *United States v. Republic
Steel Corp.*, 362 U.S. 482, 490-91 (1960); *U.S. v. Kennebec Log Driving
Co*., 399 F.Supp. 754, 757-58 (D.Me. 1975) ("Following the Supreme
Court\'s clear and unequivocal mandate in Standard Oil, the lower
federal courts have consistently read Section 13 in accordance with its
plain language and have declined to carve exceptions out of Section 13's
all-inclusive coverage of 'any refuse matter of any kind or description
whatever'"). Hence, "refuse" encompasses all discharged materials,
liquids or solids, with or without beneficial intentions.

The CWA's definition of pollutants starts from the Refuse Act's
definition of "refuse." As the Sixth Circuit has explained:

> The Refuse Act of 1899, 33 U.S.C. § 407, is itself a codification of
> prior legislation. It prohibits the discharge of "any refuse matter of
> any kind or description whatever other than that flowing from streets
> and sewers and passing therefrom, in a liquid state, into any
> navigable water . . ." . . . . When the definition of pollutant in §
> 1362(6) is read in the light of the judicial construction of § 407, it
> becomes apparent that the Congress expressly intended by the more
> generic language to include discharged gasoline, for the framers
> expressly intended that the definition would at least be as broad as
> the coverage of the Refuse Act.

*U.S. v. Hamel*, 551 F.2d 107, 110 (6^th^ Cir. 1977). The Fifth Circuit
agrees that the definition of "pollutants" is guided by existing
interpretations of the Refuse Act:

> Despite the absence of an indisputable catch-all (*e.g*., "any other
> waste whatever"), there is little doubt that the recitation of
> categories in the definition of "pollutant" is designed to be
> suggestive not exclusive. In the 1972 amendments, Congress meant to
> carry on the tradition of the Refuse Act, and that tradition was to
> construe the word "refuse" as condemning each and every variation of
> damage-inducing wastes that changing technologies could invent.

*Sierra Club, Lone Star Chapter v. Cedar Point Oil, Inc*., 73 F.3d 546,
(5^th^ Cir. 1996).

> **B. Pesticides Discharged To Waters Of The United States Are
> "Chemical Wastes" Without Regard To Any Beneficial Purpose.**

Even where a substance is discharged to water for beneficial purposes or
consistent with its "intended use," it is a pollutant if it falls within
the definition of that term set forth in the CWA. *See, e.g. Hudson
River's Fishermen Ass'n v. City of New York*, 741 F.Supp. 1088, 1101
(S.D.N.Y. 1990) ("\[r\]elying on the underlying goal of the Clean Water
Act, the Courts have read the definition of "pollutant" to encompass
substances not specifically enumerated but subsumed under the broad
generic terms such as 'chemical waste' and 'solid waste'"). "The CWA
defines pollutant broadly." *Northern Plains Resource Council v.
Fidelity Exploration and Development Co.*, 325 F.3d 1155, 1160 (9^th^
Cir. 2003). "Pollutant" is defined by the CWA as:

> dredged spoil, solid waste, incinerator residue, sewage, garbage,
> sewage sludge, munitions, chemical waste, 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).

The Ninth Circuit has held that pesticides discharged to water
consistent with their labeling requirements and for a beneficial use
(controlling weeds) were still "chemical wastes," *i.e.*, a "pollutant"
under the CWA.

> The active ingredient in Magnacide H is acrolein, a toxic chemical
> that is lethal to fish at a concentration at and below the level
> required to kill weeds in the irrigation canals, and which takes at
> least several days to break down into a nontoxic state. Although it
> would seem absurd to conclude that a toxic chemical directly poured
> into water is not a pollutant**,** we need not decide that issue
> because we agree with the district court that the residual acrolein
> left in the water after its application qualifies as a chemical waste
> product and thus as a "pollutant" under the CWA.

*Headwaters, Inc. v. Talent Irrigation Dist.*, 243 F.3d 526, 532-33
(9^th^ Cir. 2001). *See also Headwaters, Inc. v. Talent Irrigation
Dist.*, Civ. No. 98-6004-AA, slip op., p. 12 (D.Or. 1999), *affirmed in
part,* *vacated in part on other grounds*, 243 F.3d 526 (9^th^ Cir.
2001) ("Acrolein is a pollutant. While beneficial in killing weed and
other vegetation in the canals, is shown to be toxic to fish species and
other aquatic life at the recommended application levels"). *See also
Waterkeeper Alliance v. USEPA*, 399 F.3d 486, 494 (2d Cir. 2005) (noting
that "\[a\]ccording to the EPA, the pollutants associated with CAFO
waste principally include . . . pesticides . . . . *\[citing* National
Pollutant Discharge Elimination System Permit Regulation and Effluent
Limitations Guidelines and Standards for Concentrated Animal Feeding
Operations, 66 Fed.Reg. 2960, 2976-79 (proposed Jan. 12, 2001)\]);
*USPIRG v. Stolt Sea Farm*, 2002 WL 240386\*7 (D.Me. 2002) (pesticides
applied to fish pens that are released to waters of the United States
are pollutants); *USPIRG v. Atlantic Salmon of Maine*, 215 F.Supp.2d
239, 248 (D.Me. 2002).[^1] Hence, residual pesticides are a "chemical
waste," a specifically listed "pollutant" under the CWA.

EPA acknowledges that there are many instances of pesticide applications
that involve "residual product that is an inherent, inextricable element
of the pesticide application." 70 Fed. Reg. at 5098 n. 1. Indeed, the
entire second category of pesticide discharges that EPA is proposing for
exclusion consists entirely of such "residual product," *i.e.*, direct
deposit into waters of pesticides targeting land-based species. *Id*. at
5100. EPA thus acknowledges that, because of the inherent inefficiencies
associated with the use of pesticides, especially pesticides applied
aerially, directly into water or in areas exposed to storm water, such
residual product is the norm.

In regard to the application of aquatic pesticides even in compliance
with FIFRA mandated labels, some percent of the pesticide will never hit
the intended target and, hence, never has been put to its intended use.
When applied to water, some percent of a pesticide will hit nontarget
species, again an unintended use. *See, e.g.* Lee, G. F., "Developing a
Reliable Program to Monitor Water Quality Impacts of Aquatic
Pesticides," Report of G. Fred Lee & Associates, El Macero, CA (2004).
Likewise, aquatic pesticides will, to some extent, disperse beyond the
immediate area of the target organisms into the surrounding water
column. *Id*. In some instances, aquatic pesticides may migrate a
substantial distance from the initial target area. Some aquatic
pesticides applied consistent with the pesticide label will by-pass the
target species and deposit in sediment. *Id*.

In regard to land-based pesticide applications, pesticide drift is, with
current technologies, an inherent, inextricable element of both aerial
and ground applications of pesticides. *See* Susan Kegley, Ph.D., Anne
Katten, M.P.H. & Marion Moses, M.D., "Secondhand Pesticides: Airborne
Pesticide Drift in California" (CPR 2003) (attached). Whether in a
farming, logging, forest management, insect control or other context,
pesticides intended to target land-based species while avoiding waters,
will frequently result in the direct discharge of pesticides into
streams, rivers, lakes, storm drains, drainage ditches, canals and other
waters of the United States. *See, e.g. League of Wilderness Defenders
v. Forsgren*, 309 F.3d 1181, 1183 (9^th^ Cir. 2002). This remains true
even where water course buffers are employed.

These two examples above are not distinguishable from a third example,
which EPA correctly agrees is an example of pesticide discharges that
are wastes and hence pollutants under the CWA -- the use of pesticides
by homeowners and businesses consistent with the labeling directions
that result in contamination of storm water that is then discharged to a
storm drain which directs it to waters of the United States. EPA
acknowledges that such pesticide discharges are a pollutant under the
CWA that are properly controlled by a NPDES permit. 70 Fed. Reg. at 5099
n. 5. Of course, for over a decade now, thousands of industrial and
municipal storm water permits have treated pesticide discharges as a
critical pollutant that must be addressed by such NPDES permits. EPA's
proposed exclusion from the definition of pesticide residues resulting
from direct applications of pesticides to the Nation's waters is
inconsistent with its acknowledgement that pesticide residues entering
storm water discharges are pollutants and, hence, arbitrary and
capricious.

The simple fact is, all of the above are examples of pesticide
applications that result in the release of waste, whether categorized as
chemical, biological or some other type of waste. In its parsing out of
the term "chemical waste," EPA attempts to add additional qualifications
to the list of "pollutants" provided by Congress. EPA supplies a
definition of "waste" as meaning "that which is 'eliminated or discarded
as no longer useful or required after the completion of a process.'" 70
Fed. Reg. at 5099 (citing *The New Oxford American Dictionary* 1905
(Elizabeth J. Jewell & Frank Abate eds., 2001). EPA also applies a
definition of "waste" found in the *American Heritage Dictionary of the
English Language*: "an unusable or unwanted substance or material, such
as a waste product." 70 Fed. Reg. at 5099. However, when it enacted the
CWA, Congress did not provide a statutory definition of the term "waste"
that was conditioned on being discarded or unusable. Indeed, the Ninth
Circuit has applied an ordinary meaning that is somewhat broader than
the definitions of waste selected by EPA: "Waste" is defined as "any
useless or worthless byproduct of a process or the like; refuse or
excess material." *Northern Plains Resource Council*, 325 F.3d at 1161
(citing American Heritage Dictionary 1447 (1979)). Clearly, the residual
product acknowledged by EPA is a useless or worthless by-product of the
pesticide application process and "excess material" constituting a waste
in the ordinary meaning of that word.

Even applying EPA's proffered definitions does not lead to EPA's
conclusion that pesticides discharged according to FIFRA labels do not
include "waste." It cannot reasonably be argued that pesticides that are
discharged and never hit their intended targets but are allowed to
disperse into a water body have not been discarded, abandoned, given up,
"no longer useful or required," "unusable," or "unwanted." No matter how
one defines "waste," discharging pesticides always includes the
discharge of waste.

> **C. The Discharge Of Residual Pesticides Is "Industrial Waste."**

EPA's analysis ignores other pollutant categories identified by Congress
and which include discharges of pesticides. Discharges of pesticides,
including residual pesticide that will not hit the targeted species,
fall within the meaning of "industrial waste," another type of pollutant
listed by Congress. 33 U.S.C. § 1362(6). The Ninth Circuit recently
explained the ordinary meaning of the term "industrial waste" employed
by Congress in its definition of "pollutant":

> "Industrial" means "of, pertaining to, or derived from industry."
> American Heritage Dictionary 672 (1979). "Industry," in turn, is
> defined as "the commercial production and sale of goods and services."
> *Id.* "Waste" is defined as "any useless or worthless byproduct of a
> process or the like; refuse or excess material." *Id.* at 1447.
> Combining these ordinary meanings, "industrial waste" is any useless
> byproduct derived from the commercial production and sale of goods and
> services.

*Northern Plains Resource Council*, 325 F.3d at 1161. *See also NRDC v.
EPA*, 859 F.2d 156, 189 (D.C.Cir. 1988) ("\[u\]nder § 502(6) of the Act,
33 U.S.C. § 1362(6), the term 'pollutant' includes 'industrial,
municipal, and agricultural waste.' Any discharge to which a toxicity
limit could be applied would seem to fall within this broad
definition"). Because the pesticides at issue are commercial goods and
the pesticide applications that discharge pesticides into waters of the
United States are the use of those commercial goods, discharges of
pesticide, including inherent residual product, is the discharge of
"industrial waste," a pollutant specifically listed by Congress. As per
the D.C. Circuit's observation, this conclusion is bolstered by the
obvious applicability of toxicity limits to pesticide discharges.

> **D. Discharges Of Pesticides That Will Not Be Used Solely On Their
> Target Species Are "Solid Waste."**

Discharges of pesticides, including residual pesticide that will not hit
the targeted species, are "solid waste," another type of pollutant
listed by Congress. 33 U.S.C. § 1362(6). Although not defined in the
CWA, helpful guidance is found in the Resource Conservation and Recovery
Act, 42 U.S.C. § 6901 *et seq*., which defines "solid waste" as:

> any garbage, refuse, sludge from a waste treatment plant, water supply
> treatment plant, or air pollution control facility and other discarded
> material \... resulting from industrial, commercial, mining and
> agricultural operations, and from community activities \...

42 U.S.C. § 6903(27). As the Ninth Circuit Court of Appeal has recently
instructed us, "\[T\]he verb 'discard' is defined by dictionary and
usage as to 'cast aside; reject; abandon; give up.' 1 The New Shorter
Oxford English Dictionary 684 (4th ed.1993). We consider the term
'discard' in its ordinary meaning. . . ." *Safe Air For Everyone v.
Meier*, 373 F.3d 1035, 1041 (9^th^ Cir. 2004). Pesticides that are
discharged and allowed to disperse into the aquatic environment, *i.e.*,
EPA's "residual product," are abandoned or given up. Pesticide
discharges where such residues are inherent to their application are
"solid waste," an identified pollutant under the CWA.

> **E. Discharges By Municipal Entities Of Pesticides That Will Not Be
> Used Solely On Their Target Species Are "Municipal Waste."**

Many aquatic pesticide discharges that include pesticides that will not
hit their target species are "municipal wastes." An ordinary meaning of
"municipal waste" is any useless byproduct derived from municipal
activities and services. *See Northern Plains Resource Council*, 325
F.3d at 1161. Because many municipalities engage in applying pesticides
in and around waters of the United States or conduct aerial spraying of
insecticides, the resulting pesticide discharges to waters of the United
States, especially of residual pesticides, are "municipal wastes," an
identified pollutant under the CWA.

> **F. Direct Discharges Of Pesticides From Unavoidable Drift Associated
> With Agricultural Operations Are "Agricultural Waste."**

In many cases, pesticide discharges from drift of aerial and ground
applications are "agricultural wastes." Again taking guidance from the
Ninth Circuit's decision in *Northern Plains Resource Council*,
"agricultural waste" is any useless byproduct derived from operations
associated with agriculture. Agricultural pesticides discharged directly
to waters of the United States as a result of nearby field applications
are "agricultural wastes," an identified pollutant under the CWA.

G.  **Congress' Definition of "Pollution" Supports Including Pesticides
    Discharged Consistent With Labeling Instructions In The Definition
    Of "Pollutants."**

Congress' broad definition of pollution logically requires a comparably
broad reading of the definition of "pollutant. "Pollution" is the
"man-made or man-induced alteration of the chemical, physical,
biological, and radiological integrity of water." 33 U.S.C. § 1362(19).
The fact that discharges of pesticides consistent with their labeling
instructions will result in man-induced alterations to the chemical and
biological integrity of many waters, *i.e.*, "pollution," supports a
finding that pesticides are pollutants. *See Northern Plains Resource
Council*, 325 F.3d at 1162.

H.  **FIFRA And The CWA Do Not Overlap Nor Would Their Individual
    Application Result In Confusion.**

To the extent EPA relies on the notion that regulation of pesticides
pursuant to the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. § 136 *et seq*., is sufficient to meet the objectives of the CWA,
the courts already have judged that statute to be less protective of the
aquatic environment than the CWA and separately enforceable. *See
Headwaters*, 243 F.3d at 531-32 (unlike the CWA, FIFRA does not grant
permits for individual applications of pesticides, allows for toxic
affects even at recommended application rates, doesn't analyze local
impacts and applies a cost-benefit standard rather than water
quality-based standard); *No Spray Coalition v. City of New York*, 351
F.3d 602, 604-05 (2^nd^ Cir. 2003). Under FIFRA, monitoring necessary to
protect water quality and beneficial uses is not addressed. Lee, G. F.
and Jones-Lee, A., "Inadequate Regulation of Potential Water Quality
Impacts of Aquatic Pesticides," Report of G. Fred Lee & Associates, El
Macero, CA, June (2004); Lee, G. F., "Developing a Reliable Program to
Monitor Water Quality Impacts of Aquatic Pesticides," Report of G. Fred
Lee & Associates, El Macero, CA (2004); Lee, G. F. and Jones-Lee, A.,
"Developing Water Quality Monitoring Programs Associated with the Use of
Herbicides in the Control of Aquatic Weeds," Report of G. Fred Lee &
Associates, El Macero, CA (2003); Lee, G. F., "Comments on the Revised
Draft Statewide General National Pollutant Discharge Elimination System
Permit For The Discharge Of Aquatic Pesticides For Aquatic Weed Control
In Waters Of The United States, dated April 6, 2004," Comments Submitted
to the California State Water Resources Control Board by G. Fred Lee &
Associates, El Macero, CA, May (2004) (each of these studies are
included as attachments to this comment letter).

EPA's growing list of water bodies impaired by current and legacy
pesticides is perhaps the strongest evidence that FIFRA's pesticide
registration process is not designed to implement water quality
standards or criteria or otherwise achieve all of the goals of the CWA
to eliminate pollutant discharges, prevent toxicity and achieve
beneficial uses. *See* EPA Web site excerpt, attached hereto*.* By
treating FIFRA as a reasonable substitute for the CWA's NPDES permitting
program, EPA sacrifices the goals of the CWA in favor of the less water
quality protective goals of FIFRA.

Nor does EPA explain how an integrated program applying both FIFRA and
the CWA to their respective concerns - ultimately overseen by the same
agency - would result in confusion. Obviously, EPA is in a position to
assure consistency between the two programs. EPA's proposal would simply
have its Office of Pesticide ignore the requirements of the CWA and the
aquatic toxicity implications of pesticide applications authorized
solely by the FIFRA labeling requirements. By applying the CWA's
requirements, rather than avoid them, EPA would be in a better position
to assure FIFRA labeling requirements were as protective as possible.
EPA's proposal, which correctly acknowledges the individual state's
authority to implement NPDES permits with their own more stringent local
water quality requirements, free of any review by EPA's regional offices
or federal guidance, is the path of inconsistency and potential
confusion. *See* 70 Fed. Reg. at 5100 n. 9.

In conclusion, the proposed rule is fatally flawed and we respectfully
request that EPA withdraw the proposal. Thank you again for this
opportunity to submit comments.

Sincerely,

Michael R. Lozeau

Law Office of Michael R. Lozeau

On behalf of California Sportfishing Protection Alliance, Sierra Club
California, Environmental Protection Information Center, California
Indian Basketweavers Association, Pesticide Action Network - North
America, Heal the Bay, Xerxes Society for Invertebrate Conservation,
Rachel Carson Council, Inc., Californians For Alternatives To
Pesticides, Humboldt Watershed Council, Salmon Forever, Coast Action
Group, The Endocrine Disruption Exchange, Inc., and California Oak
Foundation

[^1]: A number of other courts also have rejected conditioning the
    presence of a "pollutant" on an analysis of the benefits of its use.
    *See Hudson River's Fishermen Ass'n*, 741 F.Supp. at 1101 ("It is
    indisputable that a pollutant is a pollutant no matter how useful it
    may earlier have been. Clearly, a chlorine residual, when discharged
    into navigable waters is regarded as a pollutant, even though its
    intended use is a beneficial one"); *Minnehaha Creek Watershed
    District v. Hoffman,* 597 F.2d 617, 627 (8th Cir.1979) ("no
    justification in the act for the \... determination that whether the
    discharge of a particular substance listed in § 502(6) constitutes
    the discharge of a 'pollutant' \... depends upon the purpose for
    which the discharge is made"); *Barcelo v. Brown*, 478 F.Supp 646,
    664 (D. Puerto Rico 1979), *affirmed in part, vacated in part*,
    *Romero-Barcelo v. Weinberger*, 642 F.2d 835 (1^st^ Cir. 1981)*,
    vacated in part on other grounds*, *Weinberger v. Romero-Barcelo*,
    456 U.S. 305 (1982) ("Defendant Navy is required to have an NPDES
    permit to cover the accidental or intentional release or firing of
    ordnance into \[coastal waters\]").