Diflubenzuron, Oxyfluorfen, Trifluralin
Availability of Court Orders in Washington Toxics Coalition v. EPA Litigation.
February 17, 2004, US Federal Register

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

This order applies to 38 pesticides, including the fluoridated Diflubenzuron, Oxyfluorfen, Trifluralin.


[Federal Register: February 17, 2004 (Volume 69, Number 31)]
[Page 7478-7480]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[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
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: mailto: <williams.arty@epa.gov>.

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]

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