No Spray Lawsuit Appeal to Second Circuit 2003

May 2, 2003

02-9484

UNITED STATES COURT OF APPEALS for the SECOND CIRCUIT

NO SPRAY COALITION, INC., NATIONAL COALITION AGAINST THE MISUSE OF PESTICIDES, INC., DISABLED IN ACTION, INC., SAVE ORGANIC STANDARDS NEW YORK by its President Howard Brandstein, VALERIE SHEPPARD, MITCHEL COHEN, ROBERT LEDERMAN, and EVA YAA ASANTEWAA

Appellants-Plaintiffs,

-against-

THE CITY OF NEW YORK, MICHAEL BLOOMBERG, as Mayor of the City of New York, THE DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK, THOMAS FRIEDEN, Commissioner of the Department of Health of the City of New York, THE OFFICE OF EMERGENCY MANAGEMENT OF THE CITY OF NEW YORK, and JOHN THOMAS ODERMATT, Commissioner of the Office of Emergency Management for the City of New York,

Appellees-Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

———BRIEF OF PLAINTIFFS-APPELLANTS

Pace Environmental Litigation Clinic
78 North Broadway
White Plains, NY 10603
(914) 422-4343 (914) 422-4437 (fax)
Attorney for Plaintiff-Appellant

Of counsel
Karl S. Coplan, Joel R. Kupferman
Legal Intern:
Christine N. Simmons

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT

JURISDICTIONAL STATEMENT

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

SUMMARY OF THE ARGUMENT

STANDARD OF REVIEW

ARGUMENT

  1. THE AERIAL AND GROUND DISCHARGE OF PESTICIDES FROM HELICOPTERS AND TRUCKS INTO WATER WITHOUT A PERMIT CONSTITUTES A VIOLATION OF THE CWA, 33 U.S.C. § 1311
    1. THE APPLICATION OF PESTICIDES OVER AND INTO WATERS OF THE UNITED STATES CONSTITUTES THE “ADDITION” OF PESTICIDES
    2. PESTICIDES DISCHARGED OVER AND INTO WATERS OF THE UNITED STATES CONSTITUTES THE DISCHARGE OF A “POLLUTANT”
    3. PESTICIDE SPRAYING OVER AND INTO WATERBODIES SURROUNDING NEW YORK CITY CONSTITUTES A DISCHARGE INTO “NAVIGABLE WATERS OF THE UNITED STATES”
    4. HELICOPTERS AND SPRAY TRUCKS ARE “POINT SOURCES” FOR PURPOSES OF THE CWA
    5. THE DISCHARGE OF PESTICIDES OVER AND INTO THE WATER BODIES SURROUNDING NEW YORK CITY WAS “WITHOUT A PERMIT” AS REQUIRED BY THE CWA
  2. PESTICIDE SPRAY DRIFT THAT IS DISCHARGED INTO WATER FROM ADJACENT LANDS WITHOUT A PERMIT CONSTITUTES A VIOLATION OF THE CWA, 33 U.S.C. § 1311
  3. PESTICIDES DISCHARGED OVER AND INTO WATER WITHOUT A PERMIT CONSTITUTES A VIOLATION OF THE CWA, 33 U.S.C. § 1311, REGARDLESS OF WHETHER ITS APPLICATION IS IN CONFORMITY WITH LABELING REQUIREMENTS UNDER FIFRA, 7 U.S.C. 136-136(Y)
  4. PESTICIDES DISCHARGED OVER AND INTO WATER WITHOUT A PERMIT CONSTITUTES A VIOLATION OF THE CWA WHEN ITS APPLICATION IS IN VIOLATION OF LABELING REQUIREMENTS UNDER FIFRA
  5. THE CLEAN WATER ACT HAS A “ZERO DISCHARGE” STANDARD, THUS ANY AMOUNT OF DISCHARGE CONSTITUTES A VIOLATION OF THE CWA

CONCLUSION

CERTIFICATE OF COMPLIANCE

STATUTORY ADDENDUM

PRELIMINARY STATEMENT

Plaintiff-Appellants, No Spray Coalition, Inc., National Coalition Against the Misuse of Pesticides, Inc., Disabled in Action, Inc., and Save Organic Standards New York [hereinafter No Spray Coalition, et. al. or Plaintiff-Appellants] submit this brief urging the Court to reverse the December 4, 2002 Judgment of the United States District Court for the Southern District of New York (Martin, J.) granting Defendants-Appellees’ motion for summary judgment dismissing the complaint. No Spray Coalition, Inc. v. City of New York, 2002 WL 31682387 (S.D.N.Y. 2002).

JURISDICTIONAL STATEMENT

Jurisdiction in the District Court was based upon the Clean Water Act’s citizen suit provision, § 505(a), 33 U.S.C. § 1365(a). Appellate jurisdiction is based on 28 U.S.C. § 1291, final decisions of district courts. The opinion of November 26, 2002, and judgment of December 4, 2002, is a final decision within the meaning of the section. On December 18, 2002, Plaintiffs-Appellants filed their Notice of Appeal from the above opinion and order, as allowed by Federal Rule of Appellate Procedure 4.

STATEMENT OF THE ISSUES

I. Whether the aerial and ground discharge of pesticides from helicopters and trucks into water without a permit constitutes a violation of Clean Water Act [hereinafter CWA] § 301, 33 U.S.C. § 1311?

II. Whether pesticide spray drift that is discharged into water from adjacent lands without a permit constitutes a violation of CWA § 301, 33 U.S.C. § 1311?

III. Whether pesticides discharged over and into water without a permit constitutes a violation of CWA § 301, 33 U.S.C. § 1311, regardless of whether its application is in conformity with labeling requirements under FIFRA, 7 U.S.C. § 136-136y?

IV. Whether pesticides discharged over and into water without a permit constitutes a violation of the CWA § 301, 33 U.S.C. § 1311, when its application is in violation of labeling requirements under FIFRA, 7 U.S.C. § 136-136y?

V. Whether the CWA has a “zero discharge” standard, and thus any amount of discharge constitutes a violation of the CWA?

STATEMENT OF THE CASE

This action was filed in 2000 against the City of New York to enjoin the spraying of pesticides for West Nile virus. The action asserted several violations of state and federal law, including: (1) the citywide use of pesticides was a disposal of a solid waste that created an imminent and substantial endangerment in violation of the Resource Conservation and Recovery Act [hereinafter RCRA] § 7002 (a)(1)(B); (2) the disposal was without a permit in violation of RCRA § 7002 (a)(1)(A); (3) the spraying by trucks and helicopters causes pesticides to be disposed of in water, both directly and through drift, and such disposal without a permit violates the CWA § 301 (a), 33 U.S.C. § 1311(a) and, (4) by failing to conduct an Environmental Impact Review and prepare an Environmental Impact Statement [hereinafter EIS], the Defendants-Appellees violated the State Environmental Quality Review Act [hereinafter SEQRA] and the City Environmental Quality Review [hereinafter CEQR].

On September 25, 2000, the Southern District of New York (J. Martin) denied Plaintiffs’ request for a preliminary injunction and dismissed the RCRA and SEQRA/CEQR claims, but left standing the CWA claim regarding the spraying of insecticide directly over the rivers, bays, sound, and ocean surrounding New York City. See 2000 WL 1401458 (S.D.N.Y.) (A-37). On appeal, this Court affirmed the denial of the preliminary injunction and the dismissal of the RCRA claim. See No Spray Coalition, Inc. v. The City of New York, 252 F.3d 148 (2d Cir. 2001) (A-51).

The Clean Water Act claim proceeded as a citizen suit brought under CWA § 505(a)(1). Plaintiffs filed a motion for summary judgment on May 17, 2002, for the Defendant’s violations of the CWA by their unpermitted and unlawful discharges of pollutants in the form of aerial and ground spraying of pesticides in and around New York City. Defendants cross-moved for summary judgment on July 12, 2002. The District Court denied Plaintiffs’ motion, and granted Defendant’s motion on November 26, 2002. (See Opinion and Order of the United States District Court, Southern District of New York (A-57)). On Defendant’s motion for summary judgment, the District Court held that so-called “incidental” spraying of insecticides directly over the rivers, bays, sound, and ocean surrounding New York City did not violate the CWA. The court further held that so-called “minor technical violations” of the Federal Insecticide, Fungicide, and Rodenticide Act [hereinafter FIFRA], if actionable at all, were actionable only if the action was commenced by the United States Attorney General or the Environmental Protection Agency [hereinafter EPA]. Within 30 days after the District Court granted Defendant’s motion for summary judgment, Plaintiffs filed the notice of appeal to this Court.

STATEMENT OF FACTS

In August 1999, several cases of viral encephalitis were reported in northern Queens County, New York City. Around the same time, an unusually high number of birds in the metropolitan area (particularly crows) were dying and showed symptoms of avian encephalitis. The viral agent for both outbreaks was ultimately attributed to be the West Nile virus. See West Nile Virus: A Briefing, City Health Information, New York City Department of Health [hereinafter NYCDOH], Vol.19, No.1 (May 2000)(A-97).

Defendants-Appellees, the City of New York, Rudolph Giuliani, as the Mayor of the City of New York, The Department of Health of the City of New York, Thomas Frieden, Commissioner of the Department of Health of the City of New York, The Office of Emergency Management of the City of New York, and John Thomas Odermatt, Commissioner of the Office of Emergency Management of the City of New York [hereinafter collectively Defendants-Appellees or the City] sprayed or authorized the spraying of pesticides from helicopters and trucks as a part of a aerial and ground spraying campaign throughout New York City to reduce the mosquito population. See Public Health Alert, NYCDOH Bureau of Communicable Disease, Urgent Update: Outbreak of St. Louis Encephalitis in NYC (September 13, 1999) (A-114); Press Release, NYCDOH First Round of Citywide Spraying for Mosquitoes Completed; Mosquito control Efforts in NYC Continue (September 15, 1999) (A-118); See Press Release, NYCDOH, Mayor Guiliani Provides Update on St. Louis Encephalitis; Second Round of Citywide Spraying to Begin This Evening (September 18, 1999) (A-103); Press Release, NYCDOH, St. Louis Encephalitus (SLE) Update (September 24, 1999) (A-121); Press Release, NYCDOH Bureau of Communicable Disease, West Nile Virus: Overview of West Nile Virus in New York City in 2000 available at http://www.ci.nyc.ny.us/html/doh/html/wnv/wnva-01.html (last visited May 16, 2002)(A-123); Press Release, NYCDOH, New York City Health Department Releases Summary of West Nile virus Activity in New York City for 2001 (December 11, 2001) (A-128). The City implemented the pesticide spraying campaign without a permit, having never applied for, nor been granted, a National Pollutant Discharge Elimination System [hereinafter NPDES] or State Pollutant Discharge Elimination System [hereinafter SPDES] permit. (See Affirmation of Joel Kupferman dated May 14, 2002 [hereinafter Kupferman Affirm.] ¶¶ 2,4 (A-445)).

The City’s campaign involved two rounds of citywide aerial spraying with the organophosphate pesticide “Malathion,” as well as the ground spraying of pyrethroid pesticides. See Press Release, NYCDOH, Mayor Guiliani Provides Update on St. Louis Encephalitis; Second Round of Citywide Spraying to Begin This Evening (September 18, 1999) (A-103). Although the City engaged in two rounds of citywide pesticide spraying, the West Nile virus episode was on the decline before the pesticide spraying had even commenced. See United States Center for Disease Control, Update: West Nile Virus Encephalitis – New York, 1999, Fig. 1, October 22, 1999 available at http://www.cdc.gov/epo/mmwr/preview/mmwrhtml/mm4841a3.html (last visited June 24, 2000) (A-105).

On July 17, 2000, NYCDOH announced that two dead crows found on Staten Island had tested positive for the West Nile virus. See Press Release, NYCDOH, West Nile Virus Confirmed in Two Dead Crows on Staten Island (July 17, 2000) (A-108). The City immediately resumed ground spraying of Staten Island with Anvil 10+10 [hereinafter Anvil], a pyrethroid pesticide. On July 23, 2000, the City announced that it had identified West Nile Virus in two dead birds in Woodhaven and Richmond Hill, Queens, and on the basis of this finding the City would spray Anvil in the areas of Brooklyn and Queens. See Press Release, NYCDOH, West Nile Virus Confirmed in Two Dead Birds in Woodhaven and Richmond Hill, Queens (July 23, 2000) (A-111). The City recommended spraying of pesticides despite the fact that there had not been any human cases of West Nile Virus at that point in 2000. Id.

Through the acts of their spray contractors, during 1999 and 2000, the City performed aerial and ground spraying of the pesticides malathion, anvil, and scourge. See Press Release, NYCDOH, First Round of Citywide Spraying for Mosquitoes Completed: Mosquito Control Efforts In New York City Continue (Sept. 15, 1999)(A-118); Press Release, NYCDOH, Mayor Guiliani Provides Update on St. Louis Encephalitis; Second Round of Citywide Spraying to Begin This Evening (September 18, 1999) (A-103). Pesticide spray contractors were under the City’s direct control when they discharged pesticides from helicopters and trucks throughout the City of New York. (See Defendants’ Responses and Objections to Plaintiffs’ First Request for Admissions, Response No. 1 (A-132)). During 1999 and 2000, the City sprayed pesticides directly over New York City [hereinafter NYC] water bodies without a permit in violation of the CWA. (See Deposition of Mr. Gerald Rivalsi taken on August 23, 2001 at 9, line 13 (A-162) [hereinafter Rivalsi Dep.]; Deposition of Mr. Gerard Robert Miller taken on June 27, 2001 at 10-32 (A-168) [hereinafter Miller Dep.]; Deposition of Ms. Susan Statkowski-Rivalsi taken on August 23, 2001 at 14, lines 16-19 (A-194) [hereinafter Statkowski-Rivalsi Dep.]; Deposition of Mr. Kent B. Smith taken on January 17, 2002 at 39, 45, (A-199) [hereinafter Smith Dep.]). In 1999, NYC Police pilots flew as observers on pesticide spray missions. (See Defendants’ Response to Interrogatory No. 1 of Plaintiffs’ Third Set of Interrogatories (A-222); Deposition of Sergeant John O’Hara taken on July 24, 2001 (A-225) [hereinafter O’Hara Dep.]; NYC Police Pilot Interrogatory Responses, [hereinafter Police Pilot Responses], Response No. 1 (A-237 to 3077)). NYC Police pilots were able to observe when the sprayers were turned on and off. (See Police Pilot Responses, Response No. 5 (A-237 to 307)). NYC Police pilots identified geographic areas, on maps, that were sprayed. (See O’Hara Dep. (A-225)); Police Pilot Responses, Response No. 3 (A-237 to 307)). The responses of NYC Police pilots establish that helicopters made passes over the designated spray areas with pesticide sprayers turned on. (See O’Hara Dep. at 24, line 18 (A-225); Police Pilot Responses, Response No. 6 (A-237 to 307)). Helicopters sprayed pesticides in a sweeping motion, flying back and forth in a grid type pattern, while passing over the designated spray areas. (See O’Hara Dep. at 23, lines 18-19 (A-225); Police Pilot Responses, Response No. 6 (A-237 to 307)). The entire area within the perimeter of the spray zone was to be sprayed with pesticide. (See O’Hara Dep. at 23, lines 18-19 (A-225)). There was no area within the perimeter of the zone that was not to be sprayed. (See O’Hara Dep. at 27, line 13 (A-225)).

The City produced maps that were used to guide all spray applicators, and their drivers or pilots who participated in the 1999 and 2000 spraying campaigns. (See Defendants’ Response and Objections to Plaintiffs’ First Request for Documents, Response No. 2 (Maps from Sept. 3, 1999 to Sept. 23, 1999 produced by J. Sondgeroth, North Fork Helicopter: NYCDOH 2000 Spray Maps) (A-314); Defendants’ Response and Objections to Plaintiffs’ First Request for Documents, Response No. 3 (Aerial ULV, August 17th through August 31st, 2000) (A-333); Agrotors’ Response to Subpoena Issued on March 28, 2001 (Agrotors’ Maps of Flight Locations) (A-341)).

Comparison of the spray maps, provided by the City, with United States Geological Survey [hereinafter U.S.G.S.] maps undisputedly establishes that during the 1999 and 2000 spraying campaign, the City sprayed pesticides directly over and into navigable waters of the United States. (See U.S.G.S. Maps, (A-353 to 366); Plaintiffs’ Expert Report of Ralph E. Huddleston, Jr., dated September 14, 2001, In the Matter of No Spray Coalition, Inc. v. City of New York, (A-367) [hereinafter Huddleston Report]; Compare Police Pilot Responses, Response No. 6 (A-237 to 307), and Defendants’ Response and Objections to Plaintiffs’ First Request for Documents, Response No. 2 (A-314) and Defendants’ Response and Objections to Plaintiffs’ First Request for Documents, Response No.3 (A-333), and Agrotors’ Response to Subpoena (A-341) with U.S.G.S. Maps (A-353 to 366)).

For example, areas sprayed with pesticide when Sgt. Mathew K. Rowley flew as an observer on September 11, 1999, included water bodies depicted on U.S.G.S. maps, including Prawls Creek, Great Fresh Kills, Little Fresh Kills, Neck Creek, Sawmill Creek, Main Creek (and adjacent wetlands), and Richmond Creek (and adjacent wetlands), all of which connect to Arthur Kill, in Staten Island, New York. (Compare Defendants’ Response and Objections to Plaintiffs’ Seventh Set of Interrogatories to Sgt. Mathew K. Rowley, Response No. 6 (A-251) with Arthur Kill, NY-NJ, U.S.G.S. 7.5 minute quadrangle, 1981 (A-354)). Many more specific comparisons of spray areas attested to by police officer observers with water bodies are detailed in Plaintiffs’ Statement of Undisputed Material Facts, ¶¶ 50-64 (A-67).

Aerial ULV spray maps of Staten Island, New York, were made at or near the time of spray activities by a reliable recording device, and were generated and kept during the regular course of business. (See Defendants’ Response and Objections to Plaintiffs’ First Request for Documents, Response No. 2 (Maps from Sept. 3, 1999 to Sept. 23, 1999 produced by J. Sondgeroth, North Fork Helicopter; NYCDOH 2000 Spray Maps) (A-314)); Defendants’ Second Amended Responses and Objections to Plaintiffs’ First Request for Admissions, Responses 15-8 (A-151)). The areas sprayed with pesticide on the Aerial ULV maps are indicated by bold rectangular boxes, and small square cross-hatchings. (See Defendants’ Response and Objections to Plaintiffs’ First Request for Documents, Response No. 2 (A-314)). Like the police testimony, the Aerial ULV maps clearly demonstrate that areas sprayed with pesticide included water bodies depicted on U.S.G.S. maps, including the Wetlands surrounding Richmond Creek, Main Creek, Neck Creek, and Sawmill Creek. Compare Aerial ULV, Aug. 17 to Aug. 31st 2000 Maps (A-314), with Arthur Kill, NY-NJ, U.S.G.S. 7.5 minute quadrangle, 1981 (A-354) and The Narrows, NY-NJ, U.S.G.S. 7.5 minute quadrangle, 1981 (A-361).

In 1999 and 2000, there were eyewitnesses to Defendants’ aerial spraying of pesticides directly over and into water bodies. (See Rivalsi Dep. at 9 (A-162); Miller Dep. at 32 (A-168); Statkowski-Rivalsi Dep. at 14, lines 16-9 (A-194)). In 1999, witnesses observed the City discharge pesticides directly over and into the water at the Harlem Yacht Club, in City Island, New York. (See Rivalsi Dep. at 9 (A-162); Statkowski-Rivalsi Aff. ¶¶ 7, 9 (A-194)). In 2000, a DEC employee observed the City discharge pesticides directly over and into the ponds and the wetlands on the DEC property at Mount Loretto, Staten Island, New York. (See Miller Dep. at 32 (A-168)).

In 2000, the City’s spray contractor, Clarke, Inc., set up its base of ground operations at 825 Bronx River Avenue. (See Smith Dep. at 23- 4 (A-199)). The City used the Bronx River Avenue property to store spraying equipment for its ground based spray campaign. (See Smith Dep. at 23-4 (A-199)). At times, there would be more than twenty-five trucks at the City’s ground base of operations at one time. (See Smith Dep. at 33, line 15 (A-199)). The City’s ground base of operations was located directly adjacent to the Bronx River. (See Smith Dep. (A-199)).

Daily operations at the Bronx River Avenue location began with the loading of trucks with Anvil 10+10, and then the truck drivers would test the spraying equipment. (See Smith Dep. at 31-8 (A-199)). Initially, the City’s drivers would get into their trucks, turn the sprayers on, and drive around the entire property along the side of the buildings. (See Smith Dep. at 32 (A-199)). But after neighboring residential tenants complained of the pesticide spraying, the City’s drivers were instructed to move their test spraying to the back of the property, next to the Bronx River. (See Smith Dep. at 32-5 (A-199)). After the testing of spray equipment was moved, the City’s drivers got into their trucks and tested the pesticide sprayers in a position where the sprayer was facing the Bronx River. (See Smith Dep. at 35, lines 14-23 (A-199)). The City’s drivers backed up to the Bronx River and turned their sprayers on for five or six minutes. (See Smith Dep. at 36-7 (A-199)). During the testing procedure, pesticide spray came off the back of the truck and would travel along the Bronx River toward the Hunts Point Food Market. (See Smith Dep. at 39 (A-199)). The City’s truck drivers discharged pesticide directly over and into the Bronx River. (See Smith Dep. at 39, A-199)). A truck driver also discharged pesticide directly over and into Long Island Sound, the Harlem River, and two small ponds in Crotona Park. (See Smith Dep. at 43-5 (A-199)). The City’s discharge of pesticides into NYC water bodies has had immediate adverse impacts on environmental health. On September 24, 1999, numerous bluegill sunfish were found dead in Clove Lake, Staten Island, New York. (See New York State Department of Environmental Conservation [hereinafter NYSDEC] Memorandum from Peter Furdyne to Ward Stone (January 21, 2000) [hereinafter NYSDEC Fish Kill Memo] (A-404). The NYSDEC directly attributed this fish kill to the presence of the toxic pesticide, Malathion. Id. Toxicological studies performed on the bluegill sunfish confirmed the presence of Malathion. (See The Illinois Department of Agriculture Animal Disease Laboratory Toxicology Report (November 19, 1999) [hereinafter Fish Kill Toxicology Report] (A-408)).

The pesticides discharged into NYC water bodies contain toxic chemical ingredients. See Fyfanon ULV Label (A-409); Fyfanon ULV Material Safety Data Sheet (A-412); Anvil 10+10 Label (A-414); Anvil 10+10 Material Safety Data Sheet (A-415); Scourge Label (A-422); Scourge Material Safety Data Sheet (A-424). This Court previously stated that “a pesticide is certainly a toxic substance.” See No Spray Coalition, Inc. v. City of New York, 2000 WL 1401458, *3 n.2 (S.D.N.Y. 2000) (A-37). The pesticides discharged are “pollutants” and “toxic pollutants” within the meaning of CWA § 502(6), (13), 33 U.S.C. 1362 (6), (13). The City has not applied for nor received a NPDES/SPDES permit for the discharge of a pollutant into navigable waters. (See Kupferman Affirm. ¶¶ 2,3 (A-445)).

The City’s discharges of pesticides harm the recreational and aesthetic interests of the members of No Spray Coalition, et. al., including individual NYC residents that recreate on or near NYC water bodies. (See Affidavit of Mitchel Cohen, sworn to on May 15, 2002, ¶¶ 14-22 (A-446) [hereinafter Cohen Aff.]; Affidavit of Jay Feldman, sworn to on May 10, 2002 , ¶¶ 6,7, 12 (A-456) [hereinafter Feldman Aff.]; Affidavit of Bryna Eill, sworn to on May 10, 2002 ¶¶ 14, 17, 18 (A-458) [hereinafter Eill Aff.]; Affidavit of Howard Brandstein, sworn to on May 10, 2002, ¶¶ 10, 11 (A-461) [hereinafter Brandstein Aff.]; Affidavit of Valerie Sheppard, sworn to on May 14, 2002, ¶¶ 1-7 (A-463) [hereinafter Sheppard Aff.]; Affidavit of Robert Lederman, sworn to on May 10, 2002, ¶¶ 9 (A-465) [hereinafter Lederman Aff.]; Affidavit of Eva Yaa Asantewaa, sworn to on May 10, 2002, ¶¶ 4, 11-13 (A-467) [hereinafter Yaa Asantewaa Aff.] ).

The City’s discharge of pesticides into NYC water bodies discourages the members of No Spray Coalition, et. al. from recreating on or near NYC water bodies. (See Feldman Aff., ¶¶ 6, 7, 12 (A-456); Eill Aff., ¶¶ 14, 17, 18 (A-458); Sheppard Aff., ¶¶ 1-7 (A-463); Lederman Aff., ¶¶ 9 (A-465); Yaa Asantewaa Aff., ¶¶ 4, 11-3 (A-467)). The City’s discharge of toxic pollutants has made NYC water bodies aesthetically offensive to the members of No Spray Coalition, et. al.. (See Sheppard Aff., ¶¶ 12 (A-463)). For these reasons, organizational Plaintiff-Appellants’ members, and individual Plaintiff-Appellants, enjoyment of the NYC water bodies for recreational or aesthetic purposes has been significantly reduced. (See Eill Aff., ¶¶ 14, 19 (A-458); Sheppard Aff., ¶¶ 9, 10 (A-463); Lederman Aff., ¶¶ 9-13 (A-465); Yaa Asantewaa Aff., ¶¶ 7, 11 (A-467)). As long as the City continues to implement its current pesticide application plans and consequently discharge pesticides directly over and into NYC water bodies in a manner consistent with the 1999 and 2000 campaign, the City will continue to cause the degradation of NYC water bodies, and harm the interests of No Spray Coalition, et. al.’s organizational members, as well as individual Plaintiff-Appellants.

SUMMARY OF ARGUMENT

The District Court’s granting of Defendants-Appellees’ motion for summary judgment dismissing the complaint was improper and should be reversed for the following reasons.

First, the Clean Water Act, a strict liability statute, prohibits the addition of any pollutant by any person into waters of the United States without a permit. CWA § 301(a), 33 U.S.C. § 1311(a). The City’s aerial and ground application of pesticides over and into waterbodies surrounding New York City is an addition of a pollutant into waters of the United States without a permit, and thus, a violation of the CWA. This Court, in Altman v. Town of Amherst, 190 F. Supp. 2d 467 (N.D.N.Y. 2001), directed the United States and the EPA, as amici curiae, to submit its views on whether a town needed to get a NPDES permit to apply pesticides for their intended purpose in or over water. (See Order of the Second Circuit requesting views of the United States (A-1086)). In response, the EPA opined that spraying of pesticides over water constituted the addition of a pollutant. (See Amicus Curiae Brief of the United States at 7, submitted for Altman v. Town of Amherst, 2002 WL 31132139 (2d Cir. 2001) (No. 01-7468)[hereinafter DOJ Altman Amicus Br.] (A-1086)). Similarly, the use of trucks and helicopters to spray pesticides over and into waters of the United States constitutes an addition of pollutants to the waters of the United States. In Hudson River Fisherman’s Assoc’n v. City of New York, 751 F.Supp.1088 (S.D.N.Y. 1990), the court held that a pollutant can still be a pollutant even if it was useful at an earlier time. Id. at 1101. Consequently, the City’s spraying of pesticides over and into waters of the United States is the discharge of a pollutant even if the pesticides were being spraying for a beneficial purpose. Furthermore, a pesticide can be considered a chemical waste if it is a chemical pesticide, not explicitly aquatic, yet intentionally applied to waters for a so-called public benefit and not in compliance with all applicable federal, state, and local legal requirements. (See DOJ Altman Amicus Br. at 15-17 (A-1086)). The waterbodies surrounding New York City are undisputedly “waters of the United States” as required by the CWA. The expert report of No Spray Coalition, et. al. establishes that the City discharged pesticides directly over and into waters of the United states by comparing the sworn interrogatory responses of NYC police pilots with U.S.G.S. maps of the NYC area to those areas sprayed by the City. (See Plaintiffs’ Expert Repot of Ralph E. Huddleston, Jr. dated Sept. 14, 2001, In the Matter of No Spray Coalition v. City of New York (A-367) [hereinafter Huddleston Report]). Spray trucks and helicopters are point sources for purposes of the CWA. This Court, in Concerned Area Residents for the Env’t v. Southview Farm, 34 F.3d 114, 119 (2d Cir. 1994) [hereinafter Southview Farm], held that vehicles can be point sources. Also, the DOJ, in an Amicus Curiae brief to this Court in the Altman case, stated that mist blowers and hydraulic sprayers are point sources. (See DOJ Altman Amicus Br. at 10 (A-1086)). The City has neither applied for, nor obtained a permit pursuant to CWA § 402, from the EPA, nor the New York State Department of Environmental Conservation. Hence, the aerial and ground spraying of pesticides over and into the waterbodies surrounding NYC is a violation of the CWA § 301, 33 U.S.C. § 1311.

Second, pesticide spray drift that is discharged into water from adjacent lands without a permit constitutes a violation of the CWA. CWA § 301, 33 U.S.C. § 1311. Indirect application of pesticides is a violation. According to the DOJ’s Amicus submitted in the Altman case, the “use of mist blowers and hydraulic sprayers to spray pesticides to spray pesticides in, on, or over waters of the United States … constitutes the addition of pesticides to waters of the United States.” (See DOJ Altman Amicus at 7 (A-1086)). In Southview Farm, this Court held that an animal feeding lot operation was a point source and consequently, that liquid manure, spread onto the land and which ran into nearby navigable waters was a violation of the CWA. Furthermore, in Concerned Area Residents for the Env’t v. Bosma Dairy, 65 F. Supp. 2d 1129 (E.D. Washington 1999), the court held that “any waterway where any water which might flow therein could reasonably end up in any body of water, to which or in which there is some public interest,” 34 F.3d 114, 115 (2d Cir. 1994) (emphasis added) (citing United States v. Phelps Dodge Corp., 391 F. Supp. 1181 (D. Ariz. 1975). Thus, pesticide drift caused by the City’s discharge of pesticides directly over the waterbodies surrounding NYC is a violation of the CWA § 301, 33 U.S.C. § 1311.

Third, pesticides discharged over and into water without a permit constitutes a violation of CWA § 301, 33 U.S.C. § 1311, regardless of whether its application is in conformity with labeling requirements under FIFRA, 7 U.S.C. 136-136(y). Approval of the registered pesticide does not mean “a user’s compliance with the pesticide label instructions would satisfy all other federal environmental laws,” Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 531 (9th Cir. 2001).

Fourth, a pesticide discharged over and into water without a permit constitutes a violation of the CWA, when its application is in violation of FIFRA labeling requirements. The aquatic application of malathion, anvil 10+10, and scourge is directly contrary to the permitted uses of the labels.

Fifth, the CWA has a “zero discharge” standard, thus any amount of discharge without a permit constitutes a violation of the CWA. See Natural Resources Defense Council v. Costle, 568 F.2d 1369, 1374 (1972). The CWA does not allow for so-called “technical violations” as the lower Court incorrectly held. Therefore, the City’s discharge of even very small amounts of pesticide into waters of the United States is a violation of the CWA.

In sum, the City’s aerial and ground pesticide spraying campaigns constitute a violation of the CWA for which the City is strictly liable.

STANDARD OF REVIEW

The granting of the Defendants-Appellees’ summary judgment motion is reviewed de novo. See Erickson v. Pierce County, 960 F2d 801, 805 (9th Cir. 1992). Fed. R. Civ. Pro. 56(c) mandates that the Court determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.

ARGUMENT

“The [CWA] is a comprehensive water quality statute designed to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’” PUD No. 1 of Jefferson County v. Washington Dep’t of Ecology, 511 U.S. 700, 704 (1994)(citing 33 U.S.C. § 1251(a)). The CWA declares that the discharge of any pollutant by any person into waters of the United States is unlawful, unless in compliance with specific provisions. 33 U.S.C. § 1311(a). The EPA and state agencies with EPA-approved permit programs may issue an NPDES or SPDES permit under § 402 of the CWA, allowing the discharge of pollutants into waters of the United States, notwithstanding the general prohibition of Section 301(a). Id. at § 1342.

I. THE AERIAL AND GROUND DISCHARGE OF PESTICIDES FROM HELICOPTERS AND TRUCKS INTO WATER WITHOUT A PERMIT CONSTITUTES A VIOLATION OF THE CWA, 33 U.S.C. § 1311.

As explained above, the CWA, § 301(a), mandates that “[e]xcept as in compliance with [specific provisions] of this Act, the discharge of any pollutant by any person shall be unlawful.” CWA § 301(a), 33 U.S.C. § 1311(a). Section 502(12) defines “discharge of pollutant” as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A) (emphasis added). Thus, the plain language of the CWA prohibits (A) the addition of any pollutant (B) into navigable water (C) from any point source (D) without a permit. See CWA § 301(a), 33 U.S.C. § 1311(a); CWA § 502(12), 33 U.S.C. § 1362(12); see also Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir. 2001). Violators of this provision are strictly liable. See Connecticut Fund for the Env’t v. Upjohn Co., 660 F. Supp. 1397, 1409 (D. Conn. 1987).

Therefore, in determining whether pesticide application over and into waterbodies surrounding New York City is covered by § 301(a), the following issues must be addressed: (a) whether the application of pesticides in, on, or over waters of the United States constitutes the “addition” of pesticides; (b) whether pesticides discharged in, on, or over waters of the United States constitutes the discharge of a “pollutant”; (c) whether the pesticide spraying over and into water bodies surrounding New York City constitutes a discharge into “navigable waters of the United States”; (d) whether helicopters and spray trucks are “point sources” for purposes of the CWA; and (e) whether the discharge of pesticides over and into the water bodies surrounding New York City was “without a permit” as required by the CWA.

Two recent decisions from the Ninth Circuit Court of Appeals have established that discharge of pesticides in a manner which reaches surface waters requires a CWA permit whether or not such application violates FIFRA labeling requirements. Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532-33 (9th Cir. 2001) (aquatic herbicide applied directly to water requires CWA permit); League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1184 (9th Cir. 2002) (aerial application of insecticides over streams and rivers requires CWA permit). Similarly, in applying the required CWA analysis to pesticide spray activities, this Court, in Altman v. Town of Amherst, 47 Fed. Appx. 62, 2002 WL 31132139 (2d Cir. 2002), outlined a number of important questions that must be explored, including: “(1) whether the [areas sprayed] were ‘waters of the United States’ within the meaning of the CWA; (2) whether the spraying, application, or discharge of the pesticides at issue constituted the deliberate discharge of ‘pollutants’ into waters of the United States from a point source under the CWA, requiring an SPDES permit prior to spraying; (3) whether the pesticides used were properly used for their intended purpose; and (4) whether any of the particular pesticides sprayed, applied, or discharged are, in the circumstances presented, ‘pollutants’ under the CWA.” Id. at 67, *5.

The Altman case is of particular significance, as several factual similarities exist between Altman and the instant case. In the Altman case, the Town of Amherst sprayed pesticides for mosquito control in wetland areas without an NPDES/SPDES permit as required by the CWA. Id. at 63, *1. In the Amicus Curiae brief written by the United States, the Department of Justice explained that the pesticide application in question could indeed constitute the discharge of a pollutant into a navigable water from a point source without a permit and thus a violation of the CWA if four requirements were not met, including: (1) whether the pesticide is a chemical pesticide; (2) whether the pesticide is an aquatic pesticide; (3) whether the pesticide is applied for the intended purpose of providing public benefits; and (4) whether the pesticide is applied in compliance with all applicable federal, state, and local legal requirements, including those that arise under FIFRA. (See DOJ Altman Amicus Br. at 15-17 (A-1086)).

A. The application of pesticides over and into waters of the United States constitutes the “addition” of pesticides.

Neither the CWA nor its legislative history explicitly defines what constitutes the “addition” of a pollutant. Absent a showing of congressional intent to the contrary, words in a statute should be given their plain and ordinary meaning. See Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982); Caminetti v. United States, 242 U.S. 470, 485-86 (1917). “Addition” ordinarily means “the action or process of adding something to something else.” THE NEW OXFORD AMERICAN DICTIONARY 18 (Elizabeth J. Jewell & Frank Abate eds., 2001). Generally, courts defer to EPA’s definition of “addition” as consistent with the ordinary meaning. See, e.g., Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 174-75 (D.C. Cir. 1982); Borden Ranch P’ship v. Army Corps of Eng’rs, 261 F.3d 810, 815 (9th Cir. 2001); United States v. Deaton, 209 F.3d 331, 335 (4th Cir. 2000).

From the perspective of the United States Department of Justice, “the use of mist blowers and hydraulic sprayers to spray pesticides in, on, or over waters of the United States … constitutes an addition of pesticides to waters of the United States.” (See DOJ Altman Amicus Br. at 14-15 (A-1086)). In that case, plaintiffs alleged that the Town of Amherst sprayed pesticides for mosquito control in wetland areas without an NPDES permit as required by the CWA. Altman, 2002 WL 31132139, *1.

In the instant case, the City of New York routinely sprayed pesticides over and into waters of the United States using trucks and helicopters equipped with sprayers. (See Huddleston Report, at 3, ¶¶ 1 (A-367); Miller Dep. at 19 (A-168); Rivalsi Dep. at 10 (A-162); Statkowski-Rivalsi Dep. at 14 (A-194); Smith Dep. at 31, 38 (A-199)).

Since the spray equipment used by the Town of Amherst, specifically mist blowers and hydraulic sprayers, is of a similar type as that used in the instant case, and the spraying of pesticides was over and into waters of the United States, such spraying is an addition for purposes of the CWA. See Altman, 2002 WL 31132139.

B. Pesticides discharged over and into waters of the United States constitutes the discharge of a “pollutant.”

The CWA, section 502(6), defines “pollutant” to mean: [D]redged 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.

33 U.S.C. § 1362(6).

Legislative history shows “pollutant” should be interpreted broadly. S. REP. NO. 92-414, at 76 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3736, 3742 (referring to the Refuse Act’s basic formula requiring that a permit be acquired “before any material can be added to the navigable waters” (emphasis added)).

Section 502(6) lists several types of pollutants, including “chemical wastes” and “solid wastes.” 33 U.S.C. § 1362(6) Because there is a presumption that all words in a statute are intended to serve a useful purpose, the word “wastes” should be given effect. See United States v. Menasche, 348 U.S. 528, 538-39 (1955).

In Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001), the Court held that the residue from acrolein, a toxic chemical that is lethal to fish, is a chemical waste and, hence, a pollutant for purposes of the CWA. Id. at 532. In that case, Talent Irrigation District [hereinafter TID] operated a system of irrigation canals. Id. at 528. The canals obtained and diverted water from a variety of surface streams and other bodies of water. Id. To control the growth of aquatic weeds and vegetation in the canals, TID used an aquatic herbicide, Magnacide H. Id. Every two weeks from late spring to early fall, TID applied Magnacide H to the canals with a hose from a tank on top of a truck. Headwaters, 243 F.3d at 528. The active ingredient in Magnacide H is acrolein, an acutely toxic chemical that kills fish and other wildlife. Id. at 532. In fact, acrolein is lethal to fish at concentrations at and below the levels required to kill weeds in irrigation canals. Id. Additionally, acrolein takes at least several days to break down into a non-toxic state. Id. at 528. TID did not have, nor had ever applied for, an NPDES or SPDES permit. The Court reasoned that “[a]lthough it would seem absurd to conclude that a toxic chemical directly poured into water is not a pollutant, we need not decide that issue because we agree … that residual acrolein left in water after its application qualifies as a chemical waste product and thus as a ‘pollutant’ under the CWA,” Headwaters, 243 F.3d at 533.

In Hudson River Fisherman’s Ass’n v. City of N.Y., 940 F.2d 649 (2d Cir. 1991) aff’g 751 F. Supp. 1088 (S.D.N.Y. 1990), this Court affirmed the Southern District of New York’s holding that “[i]t is indisputable that a pollutant is a pollutant no matter how useful it may have earlier been,” Hudson River Fisherman’s Ass’n v. City of N.Y, 751 F. Supp. at 1101. In that case, the City of New York violated the CWA by discharging chlorine and alum floc into a tunnel which discharged into a reservoir without first obtaining a permit. Id. The court held that chlorine is indeed a pollutant, by reasoning that: (1) “chlorine inhibits much of the life in the aquatic food chain and can even kill fish eggs or small fish at certain times of the year and at certain concentrations,” and (2) that even “the EPA, the agency charged with the administration of the [CWA], in its published regulations and guidelines cites chlorine as an example of a ‘pollutant’” Id. at 1101-02 (citing 49 Fed. Reg. 37998, 38028 (1984)). Consequently, the chlorine residual was found to be a “pollutant” even though its intended use was beneficial.

As mentioned above, the Department of Justice in its Amicus Curiae Brief in Altman recommended that four objective considerations be taken into account in conjunction with one another when determining whether a pesticide is a “chemical waste” and therefore a “pollutant,” (See DOJ Altman Amicus Br. at 14-15 (A-1086)). The four conditions include: (1) whether the pesticide is a chemical pesticide; (2) whether the pesticide is an aquatic pesticide; (3) whether the pesticide is applied for the intended purpose of providing public benefits; and (4) whether the pesticide is applied in compliance with all applicable federal, state, and local legal requirements, including those that arise under FIFRA. Id. A pesticide is a chemical waste when the four conditions are not met. Under this approach, the City’s application of Malathion, Anvil 10 + 10, and Scourge into waters constitute chemical wastes, and thus, pollutants for purposes of the CWA.

First, Malathion, Anvil 10+10, and Scourge are undeniably chemical pesticides. (See Fyfanon ULV Label (A-409); Fyfanon ULV Material Safety Data Sheet (A-412); Anvil 10+10 Label (A-414); Anvil 10+10 Material Safety Data Sheet (A-415); Scourge Label (A-422); Scourge Material Safety Data Sheet, A-424)).

Second, neither Malathion, Anvil 10+10, nor Scourge are aquatic pesticides. In fact, the specimen label for Malathion states “[t]his product is toxic to fish.” (See Fyfanon ULV Label (A-409)). The label for Anvil 10+10 states “for terrestrial uses, do not apply directly to water.” (See Anvil 10+10 Label (A-414)). The label for Scourge states “[t]his product is toxic to fish and birds… [f]or terrestrial uses, do not apply directly to water, or to areas where surface water is present or to intertidal areas.” (See Scourge Label (A-422)).

Third, the pesticides were not applied for the intended purpose of providing public benefits. In order to meet this requirement, the pesticide application must be for the predominant purpose of providing a public health benefit, such as the protection of the public water supply. In its amicus brief, the DOJ specifically explains that inadvertent application does not meet this requirement. (See DOJ Altman Amicus Br. at 16 (A-1086)). Applying vegetative pesticides to water bodies surrounding NYC is not for the predominant purpose of protecting health because the aquatic application is inadvertent. This Court has indicated for purposes of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k, that a pesticide is not a solid waste “until after it has served its intended purpose.” See No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001). A similar rationale should be followed here. The DOJ adopted this argument stating, “[a]lthough the CWA and RCRA are distinct statutory schemes, the Second Circuit’s rationale (i.e. that a pesticide is not a waste until after it has served its intended purpose) is certainly apposite in this instance.” (See DOJ Altman Amicus Br. at 12 (A-1086)). All of the pesticides used by the City are meant to act in the air; once they hit the water they no longer serve their intended use.

Lastly, the pesticide applied is not in compliance with all applicable federal, state, and local legal requirements, including those that arise under the Federal Insecticide, Fungicide, and Rodenticide Act. FIFRA is a federal program regulating pesticides. FIFRA requires EPA, as the registering authority, to analyze the potential environmental impacts of a pesticide in order to ensure that the pesticide satisfies the requirements of FIFRA. 7 U.S.C. § 136a(c)(5). Pesticides will only be registered for an approved use if EPA determines that (A) its composition is such as to warrant the proposed claims for it, (B) that its labeling complies with FIFRA requirements, (C) that it will perform its intended function without unreasonable adverse effects on the environment, and (D) when used in accordance with widespread practice, that it will not generally cause unreasonable adverse effects on the environment. Id.

The City’s pesticide spraying over and into water bodies surrounding NYC is not in compliance with either FIFRA or the CWA. The application is a discharge of a pollutant into waters of the United States without a permit, and thus constitutes a violation of the CWA. The application is also a violation of FIFRA, due to misuse in violation of the approved uses according to the pesticide labels. Because compliance with applicable legal requirements ensures that the pesticide at issue serves an intended, lawful purpose, the pesticide spraying at issue does not comply with all legal requirements. Each of the pesticide labels in question specifically precludes application directly over water bodies.

In sum, three of the four requirements are answered in the negative, hence, the spraying of Malathion, Anvil 10 + 10, and Scourge directly over and into NYC waterbodies constitutes the “discharge” of a “chemical waste” and thus the “addition” of a “pollutant” for purposes of the CWA.

C. The pesticide spraying over and into water bodies surrounding New York City constitutes a discharge into “navigable waters of the United States.”

The CWA defines “navigable waters” as “waters of the United States.” 33 U.S.C. § 1362(7). The EPA has clarified the definition to include, in relevant part: “(a) all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide … (e) tributaries of waters identified in paragraph (a) … ” 40 C.F.R. § 122.22. The Supreme Court has recognized that “Congress chose to define the waters covered by the Act broadly,” and that they “intended to abandon traditional notions of ‘waters’ and include in that term ‘wetlands’ as well.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132 (1985). In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001) [hereinafter SWANCC], the Court limited its holding in Bayview Homes, insofar as it applies to wetlands that are not adjacent to or tributary to navigable waters. The SWANCC Court simply held that isolated, freestanding water bodies without a connection to navigable waters are not within the jurisdiction of the CWA as they are not waters of the United States. Id. at 166. (See Huddleston Report at 3, ¶¶ 1, (A-367)). The Huddleston report compares the sworn interrogatory responses of NYC police pilots with U.S.G.S. maps of the NYC area and identifies water bodies sprayed as well as the waters hydrologically connected to those waters that Defendants-Appellees’ discharged pesticides over and into. (See Huddleston Report (A-367)). The report also establishes that “navigable waters of the United States,” within the meaning of CWA § 502(7), are located within the areas indicated by the City as aerial spray zones. (See Huddleston Report (A-367)). Additionally, the report shows that tributaries, marshlands, and wetlands that are hydrologically connected to waters of the United States are also located in areas that were identified by the City as areas within aerial spray zones. (See Huddleston Report (A-367)).

Although the City claims that those doing the aerial spraying were instructed to turn off the sprayers when they were within 300 feet of a body of water and those involved in the ground spraying were directed to cease spraying when they came within 100 feet of water, eye witness testimony, police pilot interrogatories, the City’s own spray maps, and the expert report of No Spray Coalition show that these instructions were not followed. (See Rivalsi Dep. at 9 (A-162); Miller Dep. at 32 (A-168); Statkowski-Rivalsi Dep. at 14, lines 16-9 (A-194); NYC Police Pilot Interrogatory Responses (A-237 to 307); U.S.G.S. Maps (A-353 to 366); Huddleston Report, A-367)).

In sum, evidence presented by No Spray Coalition, et. al. clearly establishes that areas sprayed with pesticides included waters of the United States as well as waters with a hydrological connection to waters of the United States within the meaning of the CWA § 502(7) and consistent with the SWANCC decision.

D. Helicopters and spray trucks are “point sources” for purposes of the CWA.

Section 502(14) defines the term “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe … or vessel or other floating craft from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14) (emphasis added). A conveyance is “the action or process of transporting someone or something from one place to another.” THE NEW OXFORD AMERICAN DICTIONARY 376 (Elizabeth J. Jewell & Frank Abate eds., 2001). A discernable conveyance is one that can be perceived or recognized. See id. at 485 (definition of “discern”).

The Supreme Court has adopted a broad interpretation of the term “point source.” In Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), plaintiffs brought a citizen suit to stop the discharge of ordnance into waters surrounding Puerto Rico. The Court upheld a ruling that aircraft are “point sources” because “the release of ordnance from aircraft or from ships into navigable waters is a discharge of pollutants.” Id. at 310.

The Southern District has stated that “[t]he concept of a point source was designed to further the scheme [of the CWA] by embracing the broadest possible definition of any identifiable conveyance from which pollutants might enter waters of the United States.” Long Island Soundkeeper Fund, Inc. v. New York Athletic Club, Inc., 1999 U.S. Dist. LEXIS 3383, 40 (S.D.N.Y. 1995) (citing Dague v. City of Burlington, 935 F.2d 1343, 1354-55 (2d Cir. 1991).

Courts and the EPA have interpreted “point source” to include spraying devices. In Concerned Area Residents for the Env’t v. Southview Farm, this Court held that “vehicles themselves were point sources.” 34 F.3d 114, 119 (2d Cir. 1994). Also relevant is the determination by the DOJ that mist blowers and hydraulic sprayers are point sources as they “are the means for conveying pesticides into and over the water and, therefore, are point sources.” (See DOJ Altman Amicus Br. at 10 (A-1086)).

In Concerned Area Residents for the Env’t v. Bosma Dairy, 65 F. Supp 2d 1129 (E.D. Wash. 1999), the court held that spray guns are point sources within the meaning of the CWA. The court in League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1184-85 (9th Cir. 2002) found that an airplane fitted with tanks and mechanical spraying apparatus is a “point source.” In that case, Forsgren and the U.S. Forest Service underwent an annual program of aerial pesticide spraying in order to combat a predicted outbreak of the Douglas Fir Tussock Moth, which kills Douglas Fir trees. Id. at 1183. The court reasoned that because the equipped airplane could be considered both a “discrete conveyance” and a “floating craft from which pollutants are or may be discharged,” the airplane is a point source for purposes of the CWA. Id. at 1185. In Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526, 532 (9th Cir. 2001), the court held that a hose connected to a truck can be considered a point source. In the case at hand, trucks and helicopters sprayed pesticides over and into water bodies of NYC. Trucks and helicopters equipped with spraying equipment are no different than many of the machines previously determined by this and several other courts as being “point sources.” Trucks and helicopters are machines that transport pesticides from one place (i.e. a storage tank) to another (i.e. the waters of the United States) and as such are “discernible conveyances.” Therefore, trucks and helicopters at issue are point sources within the meaning of the CWA.

E. The discharge of pesticides over and into the water bodies surrounding New York City was “without a permit” as required by the CWA.

The City has neither applied for, nor obtained a permit pursuant to § 402 of the CWA, 33 U.S.C. § 1342, from the EPA, nor the NYSDEC, for the discharge of Malathion, Anvil 10+10, or Scourge into NYC water bodies. After requesting the City to produce a copy of a NPDES or SPDES permit for their discharge of pesticides into waters of the United States, the City failed to do so, as such a permit does not exist. On October 26, 1999, in response to a Freedom Of Information Law request, No Spray Coalition, et. al. received notification from the NYSDEC that the City had not been issued a SPDES permit. (See Kupferman Affirm., ¶¶ 2,3, (A-445)).

II. PESTICIDE SPRAY DRIFT THAT IS DISCHARGED INTO WATER FROM ADJACENT LANDS WITHOUT A PERMIT CONSTITUTES A VIOLATION OF THE CWA, 33 U.S.C. § 1311.

The Court below incorrectly held that “the unintended drift of miniscule particles of the City’s pesticide spray into the waters surrounding NYC … is the natural consequence of the use of the pesticides for the very purpose for which they were approved by the EPA,” and thus, not a violation of the CWA. No Spray Coalition, Inc., v. City of New York, 2000 WL 1401458, *2 (S.D.N.Y. 2000) (A-37). This reasoning is misplaced for several reasons.

Where a pollutant discharged from a point source ultimately ends up in navigable waters after it courses through the environment, it violates the CWA. Several courts have found violations in similar situations. As noted above, the recent case of Altman v. Town of Amherst, 2002 WL 31132139 (2d Cir. 2001), is of particular significance. In its amicus brief, the DOJ opined that the “use of mist blowers and hydraulic sprayers to spray pesticides in, on, or over waters of the United States … constitutes the addition of pesticides to waters of the United States.” (emphasis added) (See DOJ Altman Amicus Br. at 7 (A-1086)). The Town of Amherst also used aerial and ground spraying to discharge pesticides. This Court, in Concerned Area Residents for the Env’t v. Southview Farm, 34 F.3d 114 (2d Cir. 1994), also found that a farm that sprayed its fields with manure were in violation of the CWA. The fields drained into navigable waters; therefore, the manure reached the waters indirectly and unintentionally. Thus, because the farmer was found to be adding pollutants to waters of the United States, even indirect and unintentional spraying constitutes a discharge. In Concerned Area Residents for the Env’t v. Bosma Dairy, 65 F. Supp 2d 1129, 1145 (E.D. Wash 1999), the court declared that the scope of the CWA controls discharges “into any waterway where any water which might flow therein could reasonably end up in any body of water, to which or in which there is some public interest,” (emphasis added) (citing United States v. Phelps Dodge Corp., 391 F. Supp. 1181 (D.C. Ariz. 1975)). In that case, the owner of a dairy farm discharged pollutants into a joint drain which traversed the property, flowed into a canal, then emptied into a river were discharges to waters of the United States. The court goes on to state, “Congress intended to create a very broad grant of jurisdiction in the CWA, extending to any aquatic features within the reach of the commerce clause power” (citing Leslie Salt Co. v. United States, 896 F.2d 354, 357 (9th Cir. 1990)). Thus, even attenuated discharges constitute the discharge of a pollutant into navigable waters.

Hence, the pesticide spray drift that is discharged into water from adjacent lands without a permit constitutes a violation of the CWA.

III. PESTICIDES DISCHARGED OVER AND INTO WATER WITHOUT A PERMIT CONSTITUTES A VIOLATION OF THE CWA, 33 U.S.C. § 1311, REGARDLESS OF WHETHER ITS APPLICATION IS IN CONFORMITY WITH LABELING REQUIREMENTS UNDER FIFRA, 7 U.S.C. 136-136Y.

As stated by the court in Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526, 531 (9th Cir. 2001), “[t]o resolve whether a FIFRA label controls whether a permit is required under the CWA, [the court] must interpret the two statutes ‘to give effect to each … while preserving their sense and purpose.” The court further explains, “[w]hen two statutes are capable of co-existence, it is the duty of the courts … to regard each as effective.” Id. (quoting Resource Invs., Inc. v. U.S. Army Corps of Eng’rs, 151 F.3d 1162, 1165 (9th Cir. 1988)).

The CWA and FIFRA are different statutes; however, the purposes of the CWA and FIFRA are complementary to one another. Id. at 531. The protective purpose of the CWA is “[to restore and maintain] the chemical, physical and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a). In achieving its purpose, the CWA requires that an NPDES permit be obtained before any pollutant can be discharged into navigable waters from a point source. See 33 U.S.C. § 1342(a)(1). FIFRA’s purpose is similar in that it seeks to protect human health and the environment from harm caused by pesticides. In doing so, FIFRA establishes a nationally uniform pesticide labeling system that requires all pesticides sold in the United States to be registered and all users to comply with the national label. See 7 U.S.C. § 136a, 136j.(a)(2)(G). Thus, although differences exist, satisfaction of one does not automatically satisfy the other. As noted above, the Headwaters case involved the application of Magnacide H to irrigation canals in order to control the growth of weeds. In an Amicus Brief filed by the United States in that case, the EPA states, “[i]n approving the registration of Magnacide H, EPA did not warrant that a user’s compliance with the pesticide label instructions would satisfy all other federal environmental laws.” Headwaters, 243 F.3d at 531.

Therefore, the registration and labeling of a pesticide under FIFRA does not preclude the need for a permit under the CWA. Id. at 532. In fact, approval of the registered pesticide does not mean “a user’s compliance with the pesticide label instructions would satisfy all other federal environmental laws.” Id. at 531.

Furthermore, this Court has held that a chemical can be deemed a “pollutant” even when its intended use is beneficial. See Hudson River Fisherman’s Assoc’n v. City of New York, 751 F.Supp.1088, aff’d 940 F. 2d 649 (2d Cir. 1991).

IV. PESTICIDES DISCHARGED OVER AND INTO WATER WITHOUT A PERMIT CONSTITUTES A VIOLATION OF THE CWA WHEN ITS APPLICATION IS IN VIOLATION OF LABELING REQUIREMENTS UNDER FIFRA.

The aquatic application of Malathion, Anvil 10+10, and Scourge is directly contrary to the permitted use on the labels. Neither Malathion, Anvil 10+10, or Scourge are aquatic pesticides. In fact, the specimen label for Malathion states “[t]his product is toxic to fish.” (See Fyfanon ULV Label (A-409)). The label for Anvil 10+10 states “for terrestrial uses, do not apply directly to water.” (See Anvil 10+10 Label (A-414)). The label for Scourge states “[t]his product is toxic to fish and birds; [f]or terrestrial uses, do not apply directly to water, or to areas where surface water is present or to intertidal areas.” (See Scourge Label (A-422)).

Aquatic pesticides are produced and labeled for aquatic application; hence, aquatic application is part of the intended purpose of applying such pesticides. Proper application of aquatic pesticides are less likely to cause an unanticipated adverse impact upon the chemical, physical, and biological integrity of navigable waters. See 33 U.S.C. § 1251(a).

The Anvil 10+10 label indicates that it is to be used for “residential and recreational areas where adult mosquitoes are present in annoying numbers in vegetation surrounding parks, woodlands, swamps, marshes, overgrown areas and golf courses,” (emphasis added) (See Anvil 10+10 Label (A-414)). The court below consistently ignores the “in vegetation” requirement and wrongly assumes that the “insecticides were approved for use in ‘swamps and marshes’ and thus the EPA clearly anticipated their use over protected waters.” See No Spray Coalition, Inc. v. City of New York, 2002 WL 31682387, *2 n.1 (S.D.N.Y. 2002), 33 Envtl. L. Rep. 20, 123 (A-57). This is a clear misinterpretation of the approved use. Application over and into NYC waterbodies is not “in vegetation surrounding…swamps [and] marshes.”

The court also incorrectly cites a letter from the Director of the Bureau of Pesticides Management at the NYSDEC in quoting that “the aerial application of adulticides is acceptable over water including flood waters and does not constitute a misuse of the product.” Id. at 2. The court conveniently ignores later clarification in the letter stating, “[h]owever, EPA would consider it to be a violation of FIFRA if the ground application is not directed toward shrubbery or vegetation at specific sites listed on the label and/or if significant damage to non-target organisms occurs in water near those sites and such damage can be linked to the pesticide application.” (See Letter to Mrs. Maureen Serafini from Kenneth S. Stoller dated June 5, 2002 (A-1046)). If the City argues that the application to NYC waterbodies is unintentional, then the application is not directed toward shrubbery or vegetation and can be considered a violation of FIFRA. Additionally, the evidence presented by No Spray Coalition, et. al. shows that significant damage to non-target organisms did in fact occur in water near application sites and such damage can be linked to the pesticide application. (See NYSDEC Fish Kill Memo (A-404)). The NYSDEC directly attributed this fish kill to the presence of the toxic pesticide, Malathion. Id. Toxicological studies performed on the bluegill sunfish confirmed the presence of Malathion. (See Fish Kill Toxicology Report (A-408)).

V. THE CLEAN WATER ACT HAS A “ZERO DISCHARGE” STANDARD, THUS ANY AMOUNT OF DISCHARGE CONSTITUTES A VIOLATION OF THE CWA.

The CWA does not allow for “minor technical violations;” therefore, the lower Court’s reasoning that the “incidents on which Plaintiffs’ rely are just the type of technical violations which the court indicated would not be actionable” is misplaced. See No Spray Coalition, Inc. v. City of New York, 2002 WL 31682387, *3 (S.D.N.Y. 2002), 33 Envtl. L. Rep. 20, 123 (A-57)

First, the CWA is a strict liability statute. “Any discharge of a pollutant without a permit … is unlawful.” Natural Resources Defense Council v. Costle, 568 F.2d 1369, 1374 (D.C. Cir. 1977) (emphasis added) (citing H. R. NO. 92-911 (1972)). Legislative history clearly shows that Congress intended the NPDES permit to be the only means by which a discharger from a point source may escape the total prohibition of § 301(a). See 117 Cong.Rec. 38800 (1971)(statement of Sen. Muskie) and Congressional Reference Serv., A Legislative History of the Water Pollution Control Act Amendments of 1972, at 1259 (Senate Public Works Comm. Print 1973). As stated by the court in Piney Run Preservation Assoc’n v. County Comm’rs of Carroll County, 268 F.3d 255, 265, “[t]he primary exception to the blanket liability imposed by the CWA is the NPDES permitting system.” See also Natural Resources Defense Council v. Costle, 568 F.2d 1369, 1374 (D.C. Cir. 1977) (stating “[t]he legislative history makes clear that Congress intended the [NPDES] permit to be the only means by which a discharger from a point source may escape the total prohibition of § 301(a).”

Courts have thus characterized the absolute prohibition of pollutants without a permit established by CWA § 301 as a “zero discharge” standard. See, e.g., Driscoll v. Adams, 181 F.3d 1285, 1288 (11th Cir. 1999); Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 567 (5th Cir. 1996); Natural Resources Defense Council v. Texaco Ref. & Mktg., 20 F. Supp. 2d 700, 708 (D. Del. 1998). Thus, even a “minor” discharge of pesticides into water without a permit constitutes a violation of the CWA.

Second, the CWA does not contemplate “technical violations.” There is no mention within the CWA for a blanket exception for “technical violations” without a permit. To do so would be contrary to the idea of a strict liability statute. According to Senate Report No. 92-414, “section 301 clearly establishes that … no one has the right to pollute, that pollution continues because of technological limits, not because of any inherent rights to use the nation’s waterways for the purpose of disposing of wastes.” S. REP. NO. 92-414(1971). For these reasons, the City’s discharge of any amount of pesticides, even a so-called “minor technical violation,” into waters of the United States is a violation of the CWA.

CONCLUSION For the foregoing reasons, the District Court’s denial of Plaintiff-Appellants’ motion for Summary Judgment and granting of Defendant-Appellees’ motion for summary judgment was in error and should be reversed.

Dated: White Plains, New York
May 2, 2003

Respectfully Submitted,

PACE ENVIRONMENTAL LITIGATION CLINIC

By: ______________________________
Karl S. Coplan
78 North Broadway
White Plains, New York 10603
(914) 422-4343; (914) 422-4437 (fax)

New York Environmental Law and Justice Project
351 Broadway, 4th Floor
New York, New York 10013-3902
(212) 766-9910
(917) 414-1983

Of Counsel:
Karl S. Coplan, Esq.
Joel R. Kupferman, Esq.

Legal Interns:
Christine Simmons

Attorneys for Plaintiffs-Appellants

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing brief of Plaintiff-Appellants, No Spray Coalition, et. al., with a word count of 11,123 words, complies with the type-volume limitation of the Fed. R. App. P. 32(a)(7)(B) because this brief contains 11,123 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief also complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced Microsoft Word version 98 in 12 point, Times New Roman.

_______________________________ Karl S. Coplan, Esq. Attorney for Plaintiffs-Appellants Dated: May 2nd, 2003

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