ELR Citation: ELR 20707
No(s). 00-9368 (2d Cir. Jun 5, 2001)

The court affirms a district court's dismissal of citizen suit claims in a lawsuit challenging an insecticide spraying program instituted by New York City to control the West Nile virus, a mosquito-borne disease. The district court refused to issue injunctive relief pursuant to the Resource Conservation and Recovery Act (RCRA). The court first holds that pesticides are not discarded solid wastes within the meaning of RCRA §1004(27) when sprayed into the air with the design of effecting their intended purpose of reaching and killing mosquitoes and their larvae. Moreover, while the city's use of the pesticide—spraying along city streets—was contrary to the labeling instructions, such use was not tantamount to disposal of a hazardous solid waste without a permit. Although such use would arguably violate the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), that statute does not contain a citizen suit provision, and FIFRA violations may not be streched into RCRA violations in order to fall within the scope of the RCRA citizen suit provision.

Counsel for Plaintiffs
Karl S. Coplan
Pace Environmental Litigation Clinic
78 N. Broadway, White Plains NY 10603
(914) 422-4343

Counsel for Defendants
George Gutwirth
Office of the Corporation Counsel
100 Church St., New York NY 10007
(212) 788-0303

Before Jacobs, Parker, and Katzmann, JJ.