[Federal Register Volume 69, Number 31 (Tuesday, February 17, 2004)]
[Pages 7478-7480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3364]



[OPP-2004-0037; FRL-7345-8]

Availability of Court Orders in Washington Toxics Coalition v. 
EPA Litigation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.


SUMMARY: This notice announces to the public the availability of Orders 
issued by a federal district court affecting certain aspects of the 
sale, distribution and use of pesticides and instructs certain entities 
about their responsibility to inform others of these Orders. In 
response to a citizen suit filed under the Endangered Species Act 
against EPA by the Washington Toxics Coalition and other public 
interest groups, the United States District Court for the Western 
District of Washington issued an Order granting interim injunctive 
relief on January 22, 2004. The Order (with some exceptions) enjoins, 
vacates and sets aside EPA's authorization of certain pesticides' uses 
within 20 yards for ground applications and 100 yards for aerial 
applications, adjacent to salmon supporting waters in California, 
Oregon and Washington, effectively establishing buffer zones around 
those waters. The Court also ordered EPA to notify a variety of 
entities in the affected states of this injunction, and of previous 
Orders issued by the Court in this case, and to instruct registrants 
and the affected states to inform certain persons who sell, distribute 
and use pesticides of the Order. Unit II. of this Notice provides in 
detail the list of persons and entities to whom this notification and 
instruction apply. Further, the Court ordered EPA to develop and 
facilitate the availability of a point of sale notification in urban 
areas in the three states, for certain products containing any of 7 
active ingredients. The Court's January 22 Order, which carries an 
effective date of February 5, 2004, and other related materials, 
including the Court's previous Orders, are available on EPA's web site 
(See Unit I.B.3. of the SUPPLEMENTARY INFORMATION for the web site 

FOR FURTHER INFORMATION CONTACT: Arty Williams, Field and External 
Affairs Division (7506C), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: 703-305-5239; fax number: 703-308-3259; e-mail 
address: [email protected].


I. General Information

A. Does this Action Apply to Me?

    This action is directed to certain pesticide registrants, states, 
certified applicators, and licensed pesticide dealers. This Notice may 
also be of particular interest to persons in California, Oregon and 
Washington who may wish to use a pesticide near salmon supporting 
waters. The Court has defined salmon supporting waters in its January 
22, 2004 Order. This action may also be of particular interest to 
distributors, retail sales businesses, and pesticide applicators in 
California, Oregon and Washington and registrants of pesticides 
containing the active ingredients subject to the Court's injunction. 
Since other entities may also be interested, the Agency has not 
attempted to describe all the specific entities that may be affected by 
this action. If you have any questions regarding the applicability of 
this action to a particular entity, consult the person listed under FOR 

[[Page 7479]]

B. How Can I Get Copies of this Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under docket identification (ID) number OPP-2004-0037. The 
official public docket consists of the documents specifically 
referenced in this notice, and other information related to this 
notice. Although a part of the official docket, the public docket does 
not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. The official 
public docket is the collection of materials that is available for 
public viewing at the Public Information and Records Integrity Branch 
(PIRIB), Rm. 119, Crystal Mall 2, 1921 Jefferson Davis Hwy., 
Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., 
Monday through Friday, excluding legal holidays. The docket telephone 
number is (703) 305-5805.
    2. Electronic access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility identified in Unit I.B.1. 
Once in the system, select ``search,'' then key in the appropriate 
docket ID number.
    3. EPA Web site. You may also find these documents on EPA's 
endangered species Web site at http://www.epa.gov/espp.

II. Background

A. What Action is the Agency Taking?

    EPA is notifying the public of certain Court Orders affecting 
pesticide use in California, Oregon and Washington. On January 30, 
2001, the Washington Toxics Coalition and a number of other public 
interest groups filed suit against the U.S. Environmental Protection 
Agency (WTC v. EPA) alleging EPA had failed to assess the potential of 
certain pesticides to harm federally listed endangered and threatened 
species, and to consult with the National Marine Fisheries Service 
(NMFS) on whether those pesticides posed jeopardy to 26 federally 
listed endangered and threatened Pacific salmon and steelhead. Under 
the Endangered Species Act, EPA must ensure that its registration of 
pesticides is not likely to jeopardize the continued existence of 
species listed as endangered and threatened, or to adversely modify 
habitat critical to those species' survival. In addition to the 
obligation to ensure that its actions do not jeopardize listed species, 
the Agency must consult, as appropriate, with the U.S. Fish and 
Wildlife Service or NMFS if a pesticide's use may affect listed species 
or designated critical habitat for a listed species.
    The Chief Judge of the United States District Court for the Western 
District of Washington issued an opinion on July 2, 2002, ordering EPA 
to review pesticides containing any of 55 active ingredients, for their 
potential effects on these listed species and to consult with NMFS as 
appropriate. EPA has reviewed over half of those pesticides and is 
consulting with NMFS on certain determinations. Chief Judge Coughenour 
issued the January 22, 2004 Order in response to the Plaintiffs' motion 
for injunctive relief to establish buffer zones as an interim measure 
to ``substantially reduce the likelihood of jeopardy'' to 26 species of 
Pacific salmon and steelhead, until EPA and, where appropriate, NMFS 
have completed an evaluation of the potential impacts of these 55 
pesticides on endangered Pacific salmon and steelhead.
    As of February 10, 2004, no stay request has been filed and no stay 
has been issued in either the District Court or the Court of Appeals. 
Accordingly, the Order became effective on February 5, 2004. Until 
further judicial proceedings occur, EPA cannot determine the extent to 
which the Order will remain effective. If, however, the Order remains 
in effect EPA intends to provide information on the above Web site that 
will assist pesticide users and others in understanding the 
requirements created by the January 22 Order, where and to whom those 
requirements apply, and when any of those requirements is lifted or 
    Because of EPA's reviews and effects determinations on many of the 
55 pesticides, the Court's Order effectively applies only to the 
following 38 pesticides:
    1. 1,3-Dichloropropene
    2. 2,4-D
    3. Acephate
    4. Azinphos-methyl
    5. Bensulide
    6. Bromoxynil
    7. Captan
    8. Carbaryl
    9. Carbofuran
    10. Chlorothalonil
    11. Chlorpyrifos
    12. Coumaphos
    13. Diazinon
    14. Diflubenzuron
    15. Dimethoate
    16. Disulfoton
    17. Diuron
    18. Ethoprop
    19. Fenamiphos
    20. Fenbutatin-oxide
    21. Lindane (gamma-BHC and HCH)
    22. Linuron
    23. Malathion
    24. Methamidophos
    25. Methidathion
    26. Methomyl
    27. Methyl parathion
    28. Metolachlor
    29. Metribuzin
    30. Naled
    31. Oxyfluorfen
    32. Pendimethalin
    33. Phorate
    34. Prometryn
    35. Propargite
    36. Tebuthiuron
    37. Triclopyr BEE
    38. Trifluralin
    In addition, as explained in detail in the Court's Order, the 
provisions concerning buffer zones do not apply to all uses of the 
above pesticides in all parts of California, Oregon and Washington. 
Rather, the Order applies only in certain circumstances. A 
determination of the applicability of the Order requires consideration 
of: (1) Which active ingredient is in the pesticide product; (2) how 
the pesticide product is intended to be used; and (3) where the product 
is intended to be used. Further, the Order provides that changes in 
certain circumstances would affect the applicability of the Order, for 
example, as EPA makes additional effects determinations, or as NMFS 
moves ahead in its review of EPA's determinations. Thus, a pesticide 
user should review, as close as possible to the time of intended use, 
the Order posted on EPA's Web site (http://www.epa.gov/espp), as well 
as any additional information updating the Order, to ascertain whether 
the provisions would affect a specific product, use, and location.
    In addition to provisions that, in effect, establish buffer zones 
around salmon supporting waters for certain pesticides and to 
provisions that require point of sale notification, the January 22, 
2004 Order contains provisions imposing requirements on EPA to inform 
the public and certain specific entities of this and other Orders. 
Accordingly, by issuance of this Notice, EPA hereby:

[[Page 7480]]

    1. Informs the public, registrants, states, certified applicators 
and licensed pesticide dealers of the Court's Orders in this case dated 
July 2, 2002; July 16, 2003; August 8, 2003; and January 22, 2004. EPA 
is posting the full text of these Orders on its web site at http://www.epa.gov/espp.
    2. Instructs registrants of the pesticides to which the January 22, 
2004 Order applies, to make pesticide distributors, wholesalers, 
retailers, brokers, dealers and others in privity with them, aware of 
the January 22, 2004 Order issued by the Court.
    3. Instructs the affected states to inform registrants, certified 
applicators, and licensed pesticide dealers of the January 22, 2004 

B. What is the Agency's Authority for Taking this Action?

    This action is taken pursuant to the January 22, 2004 Order of the 
Court in Washington Toxics Coalition, et al v. EPA, C01-0132 (W.D. WA).

List of Subjects

    Environmental protection, Endangered species.

    Dated: February 10, 2004.
James Jones,
Director, Office of Pesticide Programs.

[FR Doc. 04-3364 Filed 2-13-04; 8:45 am]