Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Proposed Rules 5093

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This proposed 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Particulate matter, and 

Reporting and recordkeeping 

requirements.

Dated: January 21, 2005. 

Ronald A. Kreizenbeck, 

Acting Regional Administrator, EPA Region 

10.

[FR Doc. 05–1867 Filed 1–31–05; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 122 

[OW–2003–0063; FRL–7866–5] 

RIN 2040–AE72 

Application of Pesticides to Waters of 

the United States in Compliance With 

FIFRA

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rulemaking and notice 

of interpretive statement. 

SUMMARY: On August 13, 2003, the 

Environmental Protection Agency (EPA) 

published a notice in the Federal 

Register soliciting public comment on 

an Interim Statement and Guidance to 

address issues pertaining to coverage 

under the Clean Water Act (CWA) of 

pesticides regulated under the Federal 

Insecticide, Fungicide, and Rodenticide 

Act (FIFRA) that are applied to or over 

waters of the United States. The 

interpretation addressed two sets of 

circumstances for which EPA has 

determined that the application of a 

pesticide to waters of the United States 

consistent with all relevant 

requirements of FIFRA does not 

constitute the discharge of a pollutant 

that requires a National Pollutant 

Discharge Elimination System (NPDES) 

permit under the CWA. EPA is 

announcing today the interpretive 

statement developed after consideration 

of public comments. In this notice, EPA 

is also proposing to revise the NPDES 

permit program regulations to 

incorporate the substance of the 

interpretive statement.

DATES: Comments on this action must be 

received or postmarked on or before 

midnight April 4, 2005.

ADDRESSES: Submit your comments, 

identified by Docket ID No. OW–2003–

0063, by one of the following methods: 

(1) Federal eRulemaking Portal:

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

(2) Agency Web site: http://

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

(3) E-mail: ow-docket@epa.gov,

Attention Docket ID No. OW–2003–

0063. 

(4) Mail: Send the original and three 

copies of your comments to: Water 

Docket, Environmental Protection 

Agency, Mailcode 4101T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460, Attention Docket ID No. OW–

2003–0063. 

(5) Hand Delivery: Deliver your 

comments to: EPA Docket Center, EPA 

West, Room B102, 1301 Constitution 

Avenue, NW., Washington, DC, 

Attention Docket ID No. OW–2003–

0063. Such deliveries are only accepted 

during the Docket’s normal hours of 

operation. 

Instructions: Direct your comments to 

Docket ID No. OW–2003–0063. EPA’s 

policy is that all comments received 

will be included in the public docket 

without change and may be made 

available online at http://www.epa.gov/

edocket, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the Federal 

regulations.gov Web sites are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit 

EDOCKET on-line or see the Federal 

Register of May 31, 2002 (67 FR 38102). 

For additional instructions on 

submitting comments, go to section B.1. 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at the Water Docket in the EPA 

Docket Center, EPA West, Room B102, 

1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Water Docket is (202) 566–2426.

FOR FURTHER INFORMATION CONTACT: For 

additional information contact Louis 

Eby, Water Permits Division, Office of 

Wastewater Management (4203M), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460; telephone number: (202) 

564–6599, e-mail address: 

eby.louis@epa.gov; or William Jordan, 

Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460; telephone number: (703) 

305–1049, e-mail address: 

jordan.william@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Action Apply to Me? 

You may be potentially affected by 

this action if you apply pesticides to or 

5094 Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Proposed Rules 

over, including near, water. Potentially affected entities may include, but are 

not limited to:

Category NAICS Examples of potentially affected entities 

Agriculture parties—General agricultural interests, farmers/producers, forestry, and 

irrigation.

111 Crop Production ............... Producers of crops mainly for food and fiber including farms, orchards, groves, greenhouses, and nurseries. 

112511 Finfish Farming and 

Fisher Hatcheries.

Producers of farm raised finfish (e.g., catfish, trout, goldfish, 

tropical fish, minnows) and/or hatching fish of any kind. 

112519 Other Animal Aquaculture.Producers engaged in farm raising animal aquaculture (except 

finfish and shellfish). Alligator, frog, or turtle production is included in this industry. 

113110 Timber Tract Operations.The operation of timber tracts for the purpose of selling standing 

timber. 

113210 Forest Nurseries 

Gathering of Forest Products.

Growing trees for reforestation and/or gathering forest products, 

such as gums, barks, balsam needles, rhizomes, fibers, 

Spanish moss, ginseng, and truffles. 

221310 Water Supply for Irrigation.Operating irrigation systems. 

Pesticide parties (includes pesticide manufacturers, other pesticide users/interests, 

and consultants).

325320 Pesticide and Other 

Agricultural Chemical Manufacturing.

Formulation and preparation of agricultural pest control chemicals. 

Public health parties (includes mosquito or 

other vector control districts and commercial applicators that service these).

923120 Administration of Public Health Programs.Government establishments primarily engaged in the planning, 

administration, and coordination of public health programs 

and services, including environmental health activities. 

Resource management parties (includes 

state departments of fish and wildlife, 

state departments of pesticide regulation, 

state environmental agencies, and universities).

924110 Administration of Air 

and Water Resource and 

Solid Waste Management 

Programs.

Government establishments primarily engaged in the administration, regulation, and enforcement of air and water resource 

programs; the administration and regulation of water and air 

pollution control and prevention programs; the administration 

and regulation of flood control programs; the administration 

and regulation of drainage development and water resource 

consumption programs; and coordination of these activities at 

intergovernmental levels. 

924120 Administration of Conservation Programs.Government establishments primarily engaged in the administration, regulation, supervision and control of land use, including recreational areas; conservation and preservation of natural resources; erosion control; geological survey program administration; weather forecasting program administration; and 

the administration and protection of publicly and privately 

owned forest lands. Government establishments responsible 

for planning, management, regulation and conservation of 

game, fish, and wildlife populations, including wildlife management areas and field stations; and other administrative matters relating to the protection of fish, game, and wildlife are included in this industry. 

Utility parties (includes utilities) ................... 221 Utilities ............................. Provide electric power, natural gas, steam supply, water supply, 

and sewage removal through a permanent infrastructure of 

lines, mains, and pipes. 

Other Parties ................................................ 713910 Golf courses and 

country clubs.

Golf course operators who have ponds for irrigation. 

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed could also be affected. 

Other stakeholders and members of the 

public concerned about the application 

of pesticides to and over, including 

near, waters of the U.S. may also have 

an interest in 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. 

B. 1. Submitting CBI. Do not submit 

this information to EPA through 

EDOCKET, regulations.gov or e-mail. 

Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information in a disk or CD 

ROM that you mail to EPA, mark the 

outside of the disk or CD ROM as CBI 

and then identify electronically within 

the disk or CD ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

2. Tips for Preparing Your Comments.

When submitting comments, remember 

to: 

i. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

ii. Follow directions—The agency 

may ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

iii. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

iv. Describe any assumptions and 

provide any technical information and/

or data that you used. 

v. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Proposed Rules 5095

vi. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

vii. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

viii. Make sure to submit your 

comments by the comment period 

deadline identified.

II. Background and Public Comments 

EPA issued an Interim Statement and 

Guidance addressing two circumstances 

in which the Agency interprets the 

CWA as not requiring NPDES permits 

for the application of pesticides to and 

over waters of the United States, 

because such materials are not 

‘‘pollutants’’ as that term is defined in 

the CWA. The first situation addressed 

in the Interim Statement and Guidance 

was the application of pesticides 

directly to waters of the United States in 

order to control pests (for example, 

mosquito larvae or aquatic weeds that 

are present in the water). The second 

situation was the application of 

pesticides to control pests that are 

present over waters of the United States 

that results in a portion of the pesticide 

being deposited to waters of the United 

States (for example, when pesticides are 

aerially applied to a forest canopy 

where waters of the United States may 

be present below the canopy or when 

insecticides are applied for control of 

adult mosquitos). Although the Interim 

Statement and Guidance was effective 

when issued, EPA provided public 

notice and solicited public comment. 68 

FR 48385; August 13, 2003. 

EPA received many comments on the 

Interim Statement and Guidance, 

including comments supporting EPA’s 

interpretation as well as comments 

opposing it. In general, most 

commenters who supported EPA’s 

interpretation agreed that it was the best 

interpretation of the CWA’s definition of 

‘‘pollutant,’’ and that the issuance of the 

Interim Statement and Guidance would 

facilitate application of pesticides in a 

manner consistent with relevant FIFRA 

requirements to serve important public 

health purposes. The comments 

opposing EPA’s interpretation disagreed 

with the Agency’s interpretation of the 

Act and expressed concerns about the 

environmental effects of pesticides 

applied to and over waters of the United 

States. EPA has considered the 

comments received on the Interim 

Statement and will continue to do so in 

the context of today’s proposed 

rulemaking. The Agency will formally 

respond to all public comments 

received on the Interim Statement and 

during the public comment period for 

today’s proposed rule. Therefore, it is 

not necessary to resubmit comments 

that were previously submitted on the 

Interim Statement and Guidance. 

While EPA will formally address all 

the comments when it promulgates a 

final regulation, the Agency addresses 

here two issues raised by public 

comments. Some commenters expressed 

concern that the Agency was not 

adopting this interpretation through a 

rulemaking proceeding; a subset of these 

comments argued that failure to go 

through rulemaking violated the 

Administrative Procedure Act (APA); 

other commenters urged EPA to undergo 

rulemaking in order to provide greater 

legal certainty to pesticide applicators. 

EPA disagrees with those commenters 

who contended that the APA 

rulemaking requirements apply to 

today’s Interpretive Statement. The 

Interpretive Statement, like the Interim 

Statement and Guidance, is an 

‘‘interpretative’’ rule under 5 U.S.C. 

553(b) since it interprets the meaning of 

the term ‘‘pollutant’’ in section 502(6) of 

the CWA as applied to certain pesticide 

applications. Therefore, it is exempt 

from notice and comment rulemaking 

requirements under the APA. Consistent 

with its status, the document is entitled 

an ‘‘Interpretive Statement.’’

EPA agrees, however, with those 

commenters who emphasized the 

importance of providing clarity and 

greater legal certainty to parties who 

apply pesticides under the 

circumstances addressed by the Interim 

Statement and Guidance. Therefore, 

EPA is proposing to codify the 

substance of today’s Interpretive 

Statement into EPA’s NPDES 

regulations. 

Second, several other commenters 

argued that EPA’s interpretation in the 

Interim Statement and Guidance is a 

significant departure from previous 

statements in amicus briefs the Agency 

filed in Headwaters, Inc., v. Talent 

Irrigation District, 243 F.3d 526 (9th Cir. 

2001), and in Altman v. Town of 

Amherst, 47 Fed. Appx. 62 (2d Cir. 

2002). EPA believes that, in some 

respects, these commenters have 

incorrectly characterized past 

government positions in these cases, 

consequently overstating the differences 

between the Interpretive Statement and 

the positions in those cases. Neither the 

CWA itself nor EPA’s regulations 

address the question of whether 

pesticides are ‘‘chemical wastes’’ or 

‘‘biological materials’’ under section 

502(6) of the Act when used for their 

intended purpose and in conformity 

with relevant requirements of FIFRA. 

Moreover, EPA does not have a 

longstanding interpretation of the 

statute or its regulations that resolves 

this issue. Nonetheless, EPA’s position 

on these issues has evolved since the 

briefs were filed in these cases. EPA 

believes that its revised thinking best 

accords with Congressional intent 

reflected in the language, structure and 

purposes of the CWA. A more detailed 

explanation is contained in a January 

24, 2005, memorandum from EPA’s 

General Counsel titled ‘‘Analysis of 

Previous Federal Government 

Statements on Application of Pesticides 

to Waters of the United States in 

Compliance with FIFRA,’’ which is 

available in the docket for this rule at 

http://www.epa.gov/edocket.

III. Summary of Revisions to 

Interpretive Statement 

EPA is issuing an Interpretive 

Statement that is substantially similar to 

the Interim Statement and Guidance. 

The Interpretive Statement contains the 

following changes from the Interim 

Statement and Guidance: 

• EPA has modified the description of 

the first circumstance addressed in the 

statement to include other pests in 

addition to mosquito larvae and aquatic 

weeds, since pesticide applications 

directly to waters of the United States 

may target organisms other than the two 

identified in the Interim Statement and 

Guidance; 

• EPA has modified the description of 

the second circumstance addressed in 

the statement to refer to pesticides 

(rather than insecticides) that are 

applied over water, and to refer to other 

pests in addition to mosquitos, since 

pesticide applications to control pests 

present over waters of the United States 

may target organisms other than 

mosquitos; 

• EPA has modified the second 

circumstance to clarify that the 

reference to pests ‘‘over water’’ includes 

pests near water, since organisms 

targeted by pesticides covered by the 

Interpretive Statement are often found 

near as well as in, on or above waters; 

• EPA has clarified that ‘‘relevant 

requirements’’ under FIFRA for 

purposes of this document refers to 

requirements relevant to protection of 

water quality; and 

• Today’s statement only specifically 

analyzes the applicability of NPDES 

permitting requirements to pesticide 

applications in the two circumstances 

identified therein. The Interpretive 

Statement now references, however, 

several other interpretive statements 

previously issued by the Agency and 

also notes that it has been and will 

continue to be the operating approach of 

the Agency that the application of 

agricultural and other pesticides in 

accordance with relevant FIFRA 

5096 Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Proposed Rules 

requirements is not subject to NPDES 

permitting requirements. 

The full text of the Interpretive 

Statement is included below in section 

VI. 

IV. Summary of Proposed Rule 

EPA is also proposing to revise the 

NPDES permit program regulations to 

incorporate the substance of the 

Interpretive Statement. The proposed 

revision would add a paragraph to 40 

CFR 122.3’s list of discharges that are 

excluded from NPDES permit 

requirements. The new paragraph 

would exclude applications of 

pesticides to waters of the United States 

consistent with all relevant 

requirements under FIFRA in the two 

circumstances described in the 

Interpretive Statement. As is explained 

in the Interpretive Statement, the 

pesticides are not pollutants under these 

circumstances and, therefore, are not 

discharges of pollutants subject to 

NPDES permitting requirements. 

EPA is soliciting public comment 

today on the proposed regulatory 

language. The Agency will formally 

respond to all public comments 

received on the Interim Statement 

during the comment period on today’s 

proposed rule. Therefore, it is not 

necessary to resubmit comments that 

were previously submitted on the 

Interim Statement and Guidance. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, (58 FR 

51735 (October 4, 1993)) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to Office of Management and 

Budget (OMB) review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

It has been determined that this 

proposed rule is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 and, therefore, is 

not subject to OMB review. 

B. Paperwork Reduction Act

This proposed action would not 

impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. If promulgated, it would 

merely identify two circumstances in 

which the application of a pesticide to 

waters of the United States consistent 

with all relevant requirements under 

FIFRA does not constitute the discharge 

of a pollutant that requires a NPDES 

permit under the Clean Water Act. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information; processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An Agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations are listed 

in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s proposed rule on small 

entities, small entity is defined as: (1) A 

small business based on Small Business 

Administration (SBA) size standards; (2) 

a small governmental jurisdiction that is 

a government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. Because EPA proposes to 

identify two circumstances in which the 

application of a pesticide to waters of 

the United States consistent with all 

relevant requirements under FIFRA 

does not constitute the discharge of a 

pollutant that requires a NPDES permit 

under the Clean Water Act, this 

proposed action will not impose any 

burden on any small entity. We 

continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Proposed Rules 5097

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that this 

proposed rule to change an NPDES 

deadline would not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

The proposed rule would not impose 

any additional costs to these entities. 

Thus, today’s proposed rule is not 

subject to the requirements of sections 

202 and 205 of the UMRA. For the same 

reason, EPA has determined that this 

rule contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Thus, today’s proposed rule is not 

subject to the requirements of section 

203 of UMRA.

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This proposed rule does not have 

federalism implications. If promulgated, 

it will not have substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government, as 

specified in Executive Order 13132. 

Thus, Executive Order 13132 does not 

apply to this rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled, 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’

This proposed rule does not have 

tribal implications. It will not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes, 

as specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to this rule. 

EPA specifically solicits additional 

comment on this proposed rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) is determined to be ‘‘economically 

significant’’ as defined under E.O. 

12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. This 

regulation is not subject to Executive 

Order 13045 because it is not 

economically significant as defined 

under E.O. 12866, and because the 

Agency does not have reason to believe 

the environmental health and safety 

risks addressed by this action present a 

disproportionate risk to children. The 

proposed rule only interprets the legal 

scope of NPDES permits requirement 

under the CWA and does not change 

how pesticide applications are 

addressed under FIFRA. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule would not be 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not a significant 

regulatory action under Executive Order 

12866. The only effect of this proposed 

rule would be is to identify two 

circumstances in which the application 

of a pesticide to waters of the United 

States consistent with all relevant 

requirements under FIFRA does not 

constitute the discharge of a pollutant 

that requires a NPDES permit under the 

Clean Water Act. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Pub. L. 104–

113, Section 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standard bodies. 

The NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. This proposed 

rulemaking does not involve technical 

standards.

VI. Today’s Interpretive Statement 

The text of the final Interpretive 

Statement follows: 

Memorandum 

Subject: Interpretive Statement on 

Application of Pesticides to Waters of 

the United States in Compliance with 

FIFRA. 

From: Benjamin H. Grumbles (signed 

and dated January 25, 2005). Assistant 

Administrator for Water (4101). 

Susan Hazen (signed and dated 

January 25, 2005). Acting Assistant 

Administrator for Prevention, Pesticides 

and Toxic Substances (7101). 

To: Regional Administrators, Regions 

I–X. 

The Environmental Protection Agency 

(EPA) is issuing this interpretation of 

the Clean Water Act (CWA) to address 

issues regarding coverage under the 

CWA of pesticides regulated under the 

Federal Insecticide, Fungicide and 

Rodenticide Act (FIFRA) that are 

applied to or over, including near, 

waters of the United States. This 

Memorandum is issued to address the 

question of whether National Pollutant 

Discharge Elimination System (NPDES) 

permits under section 402 of the CWA 

are required for the applications of 

pesticides described below that comply 

with relevant requirements of FIFRA. 

EPA provided public notice of and 

solicited public comment on its 

interpretation of the CWA with regard to 

5098 Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Proposed Rules 

1As described in this Interpretive Statement, 

pesticides designed and registered for application to 

or over, including near, water are not considered to 

be pollutants requiring an NPDES permit under the 

CWA, regardless of whether the pesticides targets 

are in the water itself or over, including near, the 

water. If applied in accordance with all relevant 

requirements under FIFRA, EPA considers these 

pesticides to be products that are applied to 

perform their intended purpose of controlling target 

organisms and, therefore, are neither ‘‘chemical 

wastes’’ nor ‘‘biological materials’’ within the 

meaning of section 502(6) of the CWA. This 

includes any residual product that is an inherent, 

inextricable element of the pesticide application. 

For purposes of this Interpretive Statement, EPA 

considers the portion of a pesticide application that 

does not reach a target organism and any pesticide 

remaining in the water after the application is 

complete to be residual product, and not a pollutant 

requiring an NPDES permit, only if the product had 

been applied in accordance with all relevant 

requirements under FIFRA. However, the Agency 

continues to review whether and under what 

unique circumstances the material might later 

become a waste and, therefore, a pollutant. See also 

n.5, infra. If such residuals were to present a water 

quality problem, they could be addressed through 

nonregulatory planning and grant processes under 

the CWA. 

The Agency’s interpretation is not inconsistent 

with the result in the Ninth Circuit’s decision in 

Headwaters, Inc. v. Talent Irrigation District, 243 F. 

3d 526 (9th Cir. 2001), because in the factual 

situation described by the district court, in EPA’s 

view, the application did not comply with relevant 

FIFRA requirements and, therefore, was not the 

type of activity addressed by this Interpretive 

Statement.

2 In an amicus brief filed by the United States in 

the Talent case, the Agency did not address EPA’s 

interpretation of the circumstances in which 

pesticides applied to or over water are ‘‘pollutants’’

under the CWA’s definition of that term. Rather, the 

Talent brief accepted the District Court’s factual 

findings that a ‘‘person’’ had discharged a 

‘‘pollutant’’ from a ‘‘point source’’ into ‘‘navigable 

waters’’ but then disputed the District’’ Court’s legal 

determination that, even in these circumstances, the 

discharge did not require a CWA permit because the 

FIFRA label for the particular pesticide did not 

reference the NPDES permitting requirement. In 

contrast, this Interpretive Statement addresses the 

specific and distinct legal question of whether 

pesticides applied in the two specific circumstances 

discussed above are pollutants to begin with, and 

concludes they are not, provided the use of the 

pesticide complies with all relevant FIFRA 

requirements.

this question. See 68 FR 48385 (Aug. 13, 

2003). After considering the comments 

received in response to that notice, EPA 

is issuing this Interpretive Statement. 

The application of a pesticide to or 

over, including near, waters of the 

United States consistent with all 

relevant requirements under FIFRA 

does not constitute the discharge of a 

pollutant that requires a NPDES permit 

under the Clean Water Act in the 

following two circumstances: 

(1) The application of pesticides 

directly to waters of the United States in 

order to control pests. Examples of such 

applications include applications to 

control mosquito larvae, aquatic weeds 

or other pests that are present in the 

waters of the United States. 

(2) The application of pesticides to 

control pests that are present over 

waters of the United States, including 

near such waters, that results in a 

portion of the pesticides being 

deposited to waters of the United States; 

for example, when insecticides are 

aerially applied to a forest canopy 

where waters of the United States may 

be present below the canopy or when 

pesticides are applied over, including 

near, water for control of adult 

mosquitos or other pests. 

It is the Agency’s position that these 

types of applications do not require 

NPDES permits under the Clean Water 

Act if the pesticides are applied 

consistent with all relevant 

requirements under FIFRA (i.e., those 

relevant to protecting water quality).1

Applications of pesticides in violation 

of the relevant requirements under 

FIFRA would be subject to enforcement 

under any and all appropriate statutes 

including, but not limited to FIFRA and 

the Clean Water Act.

EPA will continue to review the 

variety of other circumstances beyond 

the two described above in which 

questions have been raised about 

whether applications of pesticides that 

enter waters of the U.S. are regulated 

under the CWA, including other 

applications over land areas that may 

drift over and into waters of the U.S. 

Through a proposed rule in the 

Federal Register, EPA will solicit 

comment on incorporating the 

substance of this Interpretive Statement 

in the NPDES permit program 

regulations in 40 CFR part 122. 

Notwithstanding that action, however, 

the application of pesticides in 

compliance with relevant FIFRA 

requirements is not subject to NPDES 

permitting requirements, as described in 

this Interpretive Statement. 

Background and Rationale 

In this Interpretive Statement, the 

Agency construes the Clean Water Act 

in a manner consistent with how the 

statute has been administered for more 

than 30 years. EPA does not issue 

NPDES permits solely for the direct 

application of a pesticide to target a pest 

that is present in or over a water of the 

United States, nor has it ever stated in 

any general policy or guidance that an 

NPDES permit is required for such 

applications. 

It has been and will continue to be the 

operating approach of the Agency that 

the application of agricultural and other 

pesticides in accordance with label 

directions is not subject to NPDES 

permitting requirements.

In Headwaters, Inc. v. Talent 

Irrigation District, the U.S. Court of 

Appeals for the Ninth Circuit held that 

an applicator of herbicides was required 

to obtain an NPDES permit under the 

circumstances before the court. 243 

F.3rd 526 (9th Cir. 2001).2 The Talent

decision caused public health 

authorities, natural resource managers 

and others who rely on pesticides great 

concern and confusion about whether 

they have a legal obligation to obtain an 

NPDES permit when applying a 

pesticide consistent with FIFRA and, if 

so, the potential impact such a 

requirement could have on 

accomplishing their own mission of 

protecting human health and the 

environment. Since Talent, only a few 

states have issued NPDES permits for 

the application of pesticides. Most state 

NPDES permit authorities have opted 

not to require applicators of pesticides 

to obtain an NPDES permit. In addition, 

state officials have continued to apply 

pesticides for public health and 

resource management purposes without 

obtaining an NPDES permit. These 

varying practices reflect the substantial 

uncertainty among regulators, the 

regulated community and the public 

regarding how the Clean Water Act 

applies to the use of pesticides.

There has been continued litigation 

and uncertainty following the Talent

decision. One such case is Altman v. 

Town of Amherst (Altman), which was 

brought against the Town of Amherst for 

not having obtained an NPDES permit 

for its application of pesticides to 

wetlands as part of a mosquito control 

program. EPA filed an amicus brief in 

that case setting forth the agency’s views 

in the context of that particular case. In 

September 2002, the Second Circuit 

remanded the Altman case for further 

consideration and issued a Summary 

Order that stated, ‘‘Until the EPA 

articulates a clear interpretation of 

current law among other things, 

whether properly used pesticides 

released into or over waters of the 

United States can trigger the 

requirement for an NPDES permit [or a 

state-issued permit in the case before 

the court] the question of whether 

properly used pesticides can become 

pollutants that violate the Clean Water 

Act will remain open.’’ 46 Fed. Appx. 

62, 67 (2d Cir. 2002). 

This Memorandum provides EPA’s 

interpretation of how the CWA 

currently applies to the two specific 

circumstances listed above. Under those 

circumstances, EPA has concluded that 

the CWA does not require NPDES 

permits for a pesticide applied 

Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Proposed Rules 5099

3EPA discusses the positions taken in Talent and 

Altman in greater detail in a Memorandum issued 

by EPA’s General Counsel on January 24, 2005, 

titled ‘‘Analysis of Previous Federal Government 

Statements on Application of Pesticides to Waters 

of the United States in Compliance with FIFRA.’’

4This Interpretive Statement addresses 

circumstances when a pesticide is not a ‘‘pollutant’’

that would be subject to NPDES permit 

requirements when discharged into a water of the 

United States. It does not address the threshold 

question of whether these or other types of 

pesticide applications constitute ‘‘point source’’

discharges to waters of the United States. On March 

29, 2002, EPA issued a Memorandum titled 

‘‘Interpretive Statement and Regional Guidance on 

the Clean Water Act’s Exemption for Return Flows 

from Irrigated Agriculture.’’ This statement clarified 

that the application of an aquatic herbicide 

consistent with the FIFRA label to ensure the 

passage of irrigation return flow is a nonpoint 

source activity not subject to NPDES permit 

requirements under the CWA. Additionally, on 

September 13, 2003, EPA’s General Counsel issued 

a Memorandum titled ‘‘Interpretive Statement and 

Guidance Addressing Effect of Ninth Circuit 

Decision in League of Wilderness Defenders v. 

Forsgren on Application of Pesticides and Fire 

Retardants.’’ That Memorandum reaffirmed EPA’s 

long-standing interpretation of its regulations that 

silvicultural activities such as pest and fire control 

are nonpoint source activities that do not require 

NPDES permits. Both these documents remain in 

effect and are available at http://www.epa.gov/

npdes/agriculture.

5Where, however, pesticides are a waste, for 

example when contained in stormwater regulated 

under section 402(p) of the CWA or other industrial 

or municipal discharges, they are pollutants and 

their discharge by a point source to a water of the 

U.S. may be controlled in an NPDES permit.

6Taken to its literal extreme, such an 

interpretation could arguably mean that activities 

such as fishing with bait would constitute the 

addition of a pollutant.

7Further, some pesticide products may elude 

classification as strictly ‘‘chemical’’ or ‘‘biological.’’

8EPA’s interpretation of section 502(6) with 

regard to biological pesticides should not be taken 

to mean that EPA reads the CWA generally to 

regulate only wastes. EPA notes that other terms in 

section 502(6) may or may not be limited in whole 

or in part to wastes, depending on how the 

substances potentially addressed by those terms are 

created or used. For example, ‘‘sand’’ and ‘‘rock’’

can either be discharged as waste or as fill material 

to create structures in waters of the U.S., and 

Congress created in section 404 of the Act a specific 

regulatory program to address such discharges. See 

67 FR 31129 (May 9, 2002) (subjecting to the section 

404 program discharges that have the effect of 

filling waters of the U.S., including fills constructed 

for beneficial purposes). The question in any 

particular case is whether a discharge falls within 

one of the terms in section 502(6), in light of the 

factors relevant to the interpretation of that 

particular term. As discussed above, the factors 

critical to EPA’s interpretation concerning 

biological pesticides are consistency with section 

502(6)’s treatment of chemical pesticides and 

chemical wastes, and how the general term 

‘‘biological materials’’ fits within the constellation 

of other, more specific terms in section 502(6), 

which to a great extent focuses on wastes.

consistent with all relevant 

requirements under FIFRA.3

Many of the pesticide applications 

covered by this memorandum are 

applied either to address public health 

concerns such as controlling mosquitos 

or to address natural resource needs 

such as controlling non-native species 

or plant matter growth that upsets a 

sustainable ecosystem or blocks the flow 

of water in irrigation systems. Under 

FIFRA, EPA is charged to consider the 

effects of pesticides on the environment 

by determining, among other things, 

whether a pesticide ‘‘will perform its 

intended function without unreasonable 

adverse effects on the environment,’’

and whether ‘‘when used in accordance 

with widespread and commonly 

recognized practice [the pesticide] will 

not generally cause unreasonable 

adverse effects on the environment.’’

FIFRA section 3(c)(5). 

The application of a pesticide to 

waters of the U.S. would require an 

NPDES permit only if it constitutes the 

‘‘discharge of a pollutant’’ within the 

meaning of the Clean Water Act.4 The 

term ‘‘pollutant’’ is defined in section 

502(6) of the CWA as follows:

The term ‘‘pollutant’’ means 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.

EPA has evaluated whether pesticides 

applied consistent with FIFRA fall 

within any of the terms in section 

506(2), in particular whether they are 

‘‘chemical wastes’’ or ‘‘biological 

materials.’’ EPA has concluded that they 

do not fall within either term. First, EPA 

does not believe that pesticides applied 

consistent with FIFRA are ‘‘chemical 

wastes.’’ The term ‘‘waste’’ ordinarily 

means that which is ‘‘eliminated or 

discarded as no longer useful or 

required after the completion of a 

process.’’ The New Oxford American 

Dictionary 1905 (Elizabeth J. Jewell & 

Frank Abate eds., 2001); see also The 

American Heritage Dictionary of the 

English Language 1942 (Joseph P. 

Pickett ed., 4th ed. 2000) (defining 

waste as ‘‘[a]n unusable or unwanted 

substance or material, such as a waste 

product’’). Pesticides applied consistent 

with FIFRA are not such wastes; on the 

contrary, they are EPA-evaluated 

products designed, purchased and 

applied to perform their intended 

purpose of controlling target organisms 

in the environment.5 Therefore, EPA 

concludes that ‘‘chemical wastes’’ do 

not include pesticides applied 

consistent with FIFRA.

EPA also interprets the term 

‘‘biological materials’’ not to include 

pesticides applied consistent with 

FIFRA. We think it unlikely that 

Congress intended EPA and the States to 

issue permits for the discharge into 

water of any and all material with 

biological content.6 With specific regard 

to biological pesticides, moreover, we 

think it far more likely that Congress 

intended not to include biological 

pesticides within the definition of 

‘‘pollutant.’’ This interpretation is 

supported by multiple factors.

EPA’s interpretation of ‘‘biological 

materials’’ as not including biological 

pesticides avoids the nonsensical result 

of treating biological pesticides as 

pollutants even though chemical 

pesticides are not. Since all pesticides 

applied in a manner consistent with the 

relevant requirements under FIFRA are 

EPA-evaluated products that are 

intended to perform essentially similar 

functions, disparate treatment would, in 

EPA’s view, not be warranted, and an 

intention to incorporate such disparate 

treatment into the statute ought not to 

be imputed to Congress.7 Moreover, at 

the time the Act was adopted in 1972, 

chemical pesticides were the 

predominant type of pesticide in use. In 

light of this fact, it is not surprising that 

Congress failed to discuss whether 

biological pesticides were covered by 

the Act. The fact that more biological 

pesticides have been developed since 

passage of the 1972 Act does not, in 

EPA’s view, justify expanding the Act’s 

reach to include such pesticides when 

there is no evidence that Congress 

intended them to be covered by the 

statute in a manner different from 

chemical pesticides. Finally, many of 

the biological pesticides in use today are 

reduced-risk products that produce a 

more narrow range of potential adverse 

environmental effects than many 

chemical pesticides. As a matter of 

policy, it makes little sense and would 

be inconsistent with the environmental 

purposes of the CWA to discourage the 

use of these products by treating them 

as subject to CWA permitting 

requirements when chemical pesticides 

are not. Caselaw also supports this 

interpretation. Ass’n to Protect 

Hammersley, Eld, and Totten Inlets v. 

Taylor Resources, 299 F.3d 1007, 1016 

(9th Cir. 2002) (application of the 

esjudem generis canon of statutory 

interpretation supports the view that the 

CWA ‘‘supports an understanding of 

* * * ‘‘biological materials,’’ as waste 

material of a human or industrial 

process’’).8

Under EPA’s interpretation, whether a 

pesticide is a pollutant under the CWA 

turns on whether or not it is a chemical 

waste or biological material within the 

meaning of the statute, and this can only 

be determined by considering the 

manner in which the pesticide is used. 

Where a pesticide is used for its 

intended purpose and its use complies 

5100 Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Proposed Rules 

9EPA’s Talent brief suggested that compliance 

with FIFRA does not necessarily mean compliance 

with the CWA, and pointed out one difference 

between CWA and FIFRA regulation, i.e., 

individual NPDES permits could address local 

water quality concerns that might not be 

specifically addressed through FIFRA’s national 

registration process. The position EPA is 

articulating in this memo would not preclude states 

from further limiting the use of a particular 

pesticide in accord with their authorities under 7 

U.S.C. 136v(a) and Wisconsin Public Intervenor v. 

Mortier, 501 U.S. 597, 613–614 (1991), to the extent 

otherwise authorized by Federal and state law. 

Furthermore, under section 510 of the CWA, States 

and other governmental entities are not precluded 

from adopting more stringent requirements to 

address local water quality concerns.

with all relevant requirements under 

FIFRA, EPA has determined that it is 

not a chemical waste or biological 

material and, therefore, is not a 

pollutant subject to NPDES permitting 

requirements. That coverage under the 

Act turns on the particular 

circumstances of its use is not 

remarkable. Indeed, when asked on the 

Senate floor whether a particular 

discharge would be regulated, the 

primary sponsor of the CWA, Senator 

Muskie (whose views regarding the 

interpretation of the CWA have been 

accorded substantial weight over the 

last four decades), stated:

I do not get into the business of defining 

or applying these definitions to particular 

kinds of pollutants. That is an administrative 

decision to be made by the Administrator. 

Sometimes a particular kind of matter is a 

pollutant in one circumstance, and not in 

another. Senate Debate on S. 2770, Nov. 2, 

1971 (117 Cong. Rec. 38,838).

Here, to determine whether a 

pesticide is a pollutant under the CWA, 

EPA believes it is appropriate to 

consider the circumstances of how a 

pesticide is applied, specifically 

whether it is applied consistent with 

relevant requirements under FIFRA. 

Rather than interpret the statutes so as 

to impose overlapping and potentially 

confusing regulatory regimes on the use 

of pesticides, this interpretation seeks to 

harmonize the CWA and FIFRA.9 Under 

this interpretation, a pesticide 

applicator is assured that complying 

with relevant requirements under 

FIFRA will mean that the activity is not 

also subject to the distinct NPDES 

permitting requirements of the CWA. 

However, like an unpermitted discharge 

of a pollutant, application of a pesticide 

in violation of relevant FIFRA 

requirements would be subject to 

enforcement under any and all 

appropriate statutes including, but not 

limited to, FIFRA and the CWA.

Please feel free to call us to discuss 

this memorandum. Your staff may call 

Louis Eby in the Office of Wastewater 

Management at (202) 564–6599 or 

William Jordan in the Office of Pesticide 

Programs at (703) 305–1049.

List of Subjects in 40 CFR Part 122 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control.

Dated: January 26, 2005. 

Stephen L. Johnson, 

Deputy Administrator.

For the reasons set forth in the 

preamble, chapter I of title 40 of the 

Code of Federal Regulations is proposed 

to be amended as follows:

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

1. The authority citation for part 122 

continues to read as follows:

Authority: The Clean Water Act, 33 U.S.C. 

1251 et seq.

Subpart A—[Amended] 

2. Section 122.3 is amended by 

adding paragraph (h) to read as follows:

§ 122.3 Exclusions.

* * * * *

(h) The application of pesticides to 

waters of the United States consistent 

with all relevant requirements under 

FIFRA (i.e., those relevant to protecting 

water quality), in the following two 

circumstances: 

(1) The application of pesticides 

directly to waters of the United States in 

order to control pests. Examples of such 

applications include applications to 

control mosquito larvae, aquatic weeds 

or other pests that are present in the 

waters of the United States. 

(2) The application of pesticides to 

control pests that are present over 

waters of the United States, including 

near such waters, that results in a 

portion of the pesticides being 

deposited to waters of the United States; 

for example, when insecticides are 

aerially applied to a forest canopy 

where waters of the United States may 

be present below the canopy or when 

pesticides are applied over, including 

near, water for control of adult 

mosquitos or other pests.

[FR Doc. 05–1868 Filed 1–31–05; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 442 

[OW–2004–11; FRL–7866–8] 

RIN 2040–AE65 

Effluent Limitations Guidelines, 

Pretreatment Standards, and New 

Source Performance Standards for the 

Transportation Equipment Cleaning 

Point Source Category

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to amend 

the Effluent Limitations Guidelines, 

Pretreatment Standards, and New 

Source Performance Standards for the 

Transportation Equipment Cleaning 

Point Source Category. This action 

proposes to correct a typographical error 

in the regulatory language of the 

Pretreatment Standards for New Sources 

in the existing regulation which refers to 

‘‘any existing source’’ when it should 

say ‘‘any new source.’’

In the ‘‘Rules and Regulations’’

section of the Federal Register, we are 

amending the regulatory language of the 

Pretreatment Standards for New Sources 

in the existing regulation as a direct 

final rule without prior proposal 

because we view this as a 

noncontroversial revision and anticipate 

no adverse comment. We have 

explained our reasons for this revision 

in the preamble to the direct final rule. 

If we receive no adverse comment, we 

will not take further action on this 

proposed rule. If we receive adverse 

comment, we will withdraw the direct 

final rule and it will not take effect. We 

will address all public comments in a 

subsequent final rule based on this 

proposed rule. We will not institute a 

second comment period on this action. 

Any parties interested in commenting 

must do so at this time. 

The regulatory text for the proposal is 

identical to that for the direct final rule 

published in the Rules and Regulations 

section of this Federal Register. For 

further supplementary information, see 

the direct final rule.

DATES: Written comments must be 

received by April 4, 2005.

ADDRESSES: Submit your comments, 

identified by Docket ID No. OW–2004–

11, by one of the following methods: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http://

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment