Trifluralin. March 24, 2004. Restrictions of use near "salmon supporting waters" - Re: Washington Toxics Coalition et al. vs. EPA litigation. Federal Register.

FLUORIDE ACTION NETWORK PESTICIDE PROJECT

Trifluralin . March 24, 2004. Restrictions of use near "salmon supporting waters." Re: Washington Toxics Coalition et al. v. EPA Litigation. Federal Register.

http://www.epa.gov/fedrgstr/EPA-PEST/2004/March/Day-24/p6610.htm

Notice to Pesticide Retailers and State Agencies Regarding Washington Toxics Coalition et al. v. EPA Litigation

[Federal Register: March 24, 2004 (Volume 69, Number 57)]
[Notices]
[Page 13836-13838]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr04-51]
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ENVIRONMENTAL PROTECTION AGENCY
[OPP-2004-0095; FRL-7351-3]

Notice to Pesticide Retailers and State Agencies Regarding
Washington Toxics Coalition et al. v. EPA Litigation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: Pursuant to a January 22, 2004 Court Order, EPA has developed
a point of sale notification regarding urban use pesticide products
containing any of seven active ingredients. As further directed by the
January 22 Order, EPA is hereby notifying retailers of lawn and garden
pesticides in urban areas of California, Oregon and Washington through
which ``salmon supporting waters'' pass that they are to make the point
of sale notification whenever pesticide products containing these
active ingredients are sold. The notifications will be distributed to
retailers in these urban areas on or before April 5, 2004, by
defendant-intervenors in this case (numerous groups representing
pesticide registrants, growers and other pesticide users). Unit III. of
this Notice provides retailers with the names of the affected active
ingredients, information regarding the urban areas where the
notifications must be made, and information regarding how retailers can
obtain the point of sale notification if they have not received
notifications from defendant-intervenors by April 5, 2004. Finally, the
court further directed EPA to produce and provide copies of
[[Page 13837]]
the point of sale notification to state pesticide agencies, state fish
agencies and Land Grant University extension coordinators in the urban
areas and to request that they, in turn, provide this information to
certain Certified Applicators in California, Oregon and Washington. The
notifications will be distributed to these parties by EPA on or before
April 5, 2004. Until further judicial proceedings occur, EPA cannot
determine the extent to which the Order will remain effective. If,
however, the January 22, 2004 Order is stayed or modified, EPA intends
to provide notice on its Web site (See Unit I.B.3. of the SUPPLEMENTARY
INFORMATION for the Web site address).

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: williams.arty@epa.gov.

SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
This action is directed to certain pesticide product retailers and
registrants, state pesticide agencies, state fish agencies and Land
Grant University extension coordinators in California, Oregon and
Washington. This notice may also be of particular interest to persons
in California, Oregon and Washington who may wish to use a pesticide in
urban areas of those states through which ``salmon supporting waters''
pass. The Court has defined ``salmon supporting waters'' in its January
22, 2004 Order, which is available at http://www.epa.gov/espp. Since
other entities may also be interested, the Agency has not attempted to
describe all the specific entities that may be affected by this action.
If you have any questions regarding the applicability of this action to
a particular entity, consult the person listed under FOR FURTHER
INFORMATION CONTACT.

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-2004-0095. The
official public docket consists of the documents specifically
referenced in this action, any public comments received, and other
information related to this action. 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

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 in the United States District Court for
the Western District of Washington alleging that EPA had failed to
consult with the National Marine Fisheries Service (NMFS) on whether
certain pesticides posed jeopardy to 26 federally listed endangered and
threatened Pacific salmon and steelhead (salmon evolutionarily
significant units (ESUs)). Under the Endangered Species Act (ESA), EPA
must ensure that its registration of a pesticide 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 (FWS) or NMFS if a pesticide's
use may affect listed species or designated critical habitat for a
listed species.

On January 22, 2004, the District Court issued an Order granting
interim injunctive relief pending EPA's compliance with an earlier
Order of the Court that directed EPA to make effects determinations and
consult, as appropriate, with NMFS regarding the effects of pesticides
containing any of 55 active ingredients on threatened and endangered
Pacific salmon and steelhead. Because of EPA's review and effects
determinations made to date on many of these pesticides, the January 22
Order applied only to 38 of these pesticides. The Order (with some
exceptions) enjoins, vacates and sets aside EPA's authorization of use
of these 38 pesticides within 20 yards of salmon supporting waters for
ground applications and within 100 yards of salmon supporting waters
for aerial applications, 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.
In the Federal Register of February 17, 2004 (69 FR 7478) (FRL-7345-8),
EPA provided the notification and instruction ordered by the Court. The
Court also ordered EPA to develop and facilitate, on or before April 5,
2004, the availability of a point of sale notification in urban areas
in the three states for certain products containing any of seven active
ingredients. The Court Order further directed EPA to produce and
provide copies of the point of sale notification to state pesticide
agencies, state fish agencies and Land Grant University extension
coordinators in the urban areas and to request that they, in turn,
provide this information to certain Certified Applicators in
California, Oregon and Washington.

III. What Action is EPA Taking Today?

A. Notifications in Compliance with the Court Order of January 22, 2004
1. As directed by the January 22, 2004 Order, EPA has developed a
point of sale notification regarding pesticide products containing any
of the following seven active ingredients:

• 2,4-D
• Carbaryl
• Diazinon
• Diuron
• Malathion
• Triclopyr BEE
• Trifluralin

2. As further directed by the Court, EPA is hereby notifying
retailers of lawn
[[Page 13838]]
and garden pesticides in urban areas of California, Oregon and
Washington through which ``salmon supporting waters'' pass that they
are to make the point of sale notification whenever products containing
these seven active ingredients are sold. The Court's Order also
requires defendant-intervenors (groups representing pesticide
manufacturers, growers and other pesticide users) to distribute the
point of sale notifications to sales outlets in these urban areas on or
before April 5, 2004.

The January 22 Order does not direct defendant-intervenors to
distribute the point of sale notifications as ``labeling'' within the
meaning of section 2(p) of FIFRA. To the extent, however, that
intervenors or pesticide registrants wish to distribute the point of
sale notification developed by EPA as labeling, EPA will exercise its
enforcement discretion authority. This will allow defendant-intervenors
to distribute the notifications for the duration of the Court's
injunction without notifying EPA, without seeking or obtaining approval
from EPA and without the need for establishment registration or
reporting regarding the production of the notification. Further, EPA
will not take enforcement actions on the basis of misbranding under
FIFRA, solely with respect to the point of sale notification materials
that may be attached to or accompany any of the subject pesticide
products. Any labeling changes different from or in addition to the
point of sale notification developed by EPA remain subject to FIFRA's
labeling requirements and misbranding provisions, and the existing
procedures of 40 CFR parts 152 and 167.

3. Through this Notice, EPA is requesting that state pesticide
agencies, state fish agencies and Land Grant University extension
coordinators in urban areas of California, Oregon and Washington,
provide the point of sale notification to Certified Applicators
certified in any category that would permit the applicator to apply
pesticides in parks, golf courses and housing areas in the urban areas.
EPA will provide to the state pesticide agencies, state fish agencies
and Land Grant University extension pesticide coordinators in
California, Oregon and Washington, copies of the point of sale
notification on or before April 5, 2004.

B. Court's Definition of Urban Areas
The urban areas subject to the Order are defined by the Court as
all urbanized areas in California, Oregon and Washington with
populations of at least 50,000 people (as defined by the 2000 U.S.
Census) within a federally listed salmon ESU. These areas are
identified in exhibit 2 of the January 22, 2004 Order, which can be
accessed on EPA's Web site at http://www.epa.gov/espp.

C. Time Period for Which These Requirements are in Effect
1. As explained in detail in the January 22, 2004 Order, the Order
terminates automatically for a particular pesticide and salmon ESU upon
the occurrence of one of the following: (i) Completion by EPA of its
ESA section 7(a)(2) consultation obligation; (ii) the issuance by NMFS
of a biological opinion; (iii) a finding by EPA made for ESA section 7
compliance purposes that the pesticide is ``not likely to adversely
affect'' that particular salmon ESU, provided that NMFS has not
rejected or affirmatively failed to concur in that ``not likely to
adversely affect'' determination; or (iv) a finding by EPA made for ESA
section 7 compliance purposes that the pesticide will have ``no
effect'' on the particular salmon ESU. EPA's findings for particular
pesticides and salmon ESUs as of the January 22, 2004 Order are set
forth in exhibit 1 of that Order. As EPA makes additional effects
determinations, or as NMFS moves ahead in its review of EPA's
determinations, pesticide registrants, retailers and users should
review EPA's Web site, as well as any additional information updating
the Order, to ascertain the applicability of the Order, including the
requirement to make point of sale notifications, in their area.
2. On February 17, 2004, CropLife America and other defendant-
intervenors in the Washington Toxics Coalition case, appealed the
Court's Order. If further judicial proceeding occur that may affect the
Order, EPA intends to provide notice on its Web site at
http://www.epa.gov/espp.
D. Obtaining Additional Copies of Point of Sale Notifications
1. Any sales outlet of lawn and garden pesticide products subject
to the point of sale notification provisions in the January 22, 2004
Order, in these urban areas that have not received the point of sale
notifications from defendant-intervenors by April 5, 2004, may obtain
such materials from defendant-intervenors through the following Web
site: http://www.pestfacts.org.
2. Any state pesticide agency, state fish agency, or Land Grant
University extension coordinator subject to the request to distribute
the point of sale notification to certain Certified Applicators who
have not received the point of sale notifications from EPA by April 5,
2004, or who need additional copies of the point of sale notification,
may obtain such materials by contacting the person indicated in this
Notice under FOR FURTHER INFORMATION CONTACT.
E. 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, CO1-0132 (W.D. WA).
List of Subjects
Environmental protection, Endangered species.
Dated: March 18, 2004.
James Jones,
Director, Office of Pesticide Programs.
[FR Doc. 04-6610 Filed 3-19-04; 2:44 pm]
BILLING CODE 6560-50-S