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Issue No. 12, Article 2/June 25, 2010

NPDES General Permit Comment Period (and Commentary)

The U.S. Environmental Protection Agency (EPA) has announced the public availability of a draft National Pollutant Discharge Elimination System (NPDES) permit for point source discharges from the application of pesticides to waters of the United States. This Pesticides General Permit (PGP) was developed in response to a decision by the Sixth Circuit Court of Appeals vacating EPA's 2006 rule that said NPDES permits were not required for applications of pesticides to U.S. waters. EPA estimates that the ruling will affect approximately 365,000 pesticide applicators nationwide, who perform 5.6 million pesticide applications annually.

The draft permit covers four categories of pesticide use: mosquito and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal control, and forest canopy pest control. It does not cover terrestrial applications to control pests on agricultural crops or forest floors. EPA is soliciting public comment = on whether additional use patterns should be covered by this general permit. EPA will accept written comments on the draft permit for 45 days after its publication in the Federal Register (through July 19).

Three public meetings, a public hearing, and a webcast will be held to present the proposed requirements of the permit, to explain the basis for those requirements, and to answer questions. The public meetings and hearing will be held in Albuquerque, New Mexico;Boise, Idaho; Boston, Massachusetts; and Washington, DC. The webcast is June 24, from 1:00 to 3:00 p.m. Eastern Standard Time--that's 12:00 to 2:00 for us Illinoisans--and registration is required.

NPDES permits are issued by the agency within each state that is responsible for enforcing the Clean Water Act. In Illinois, this is the Illinois Environmental Protection Agency (IEPA). The intent is that this PGP be used as a template by IEPA and similar agencies in other states, but state agencies can develop their own permits. The general-permit concept is intended to make the process easier for all involved. It's important to note that individual state permits may incorporate additional requirements, and they may interpret information differently than EPA does.

The PGP is also intended to cover pesticide applications near waters. EPA is interpreting this to refer to the unavoidable discharge to waters of the U.S. in order to target pests in close proximity to water, such as treating weeds along the bank of a ditch through which water is flowing. Stormwater runoff that may contain pesticides is not required to obtain NPDES permit coverage unless it was already required to do so exclusive of the National Cotton Council, et al. v. EPA court case. Existing NPDES stormwater permits for runoff from construction, industrial activities, and municipal separate storm sewers already consider pesticides as part of the permit development process.

In 1987, Congress amended the Clean Water Act to exempt agricultural stormwater and irrigation return flow from NPDES permitting requirements. The court's ruling does not affect these exemptions. EPA is seeking comment on whether additional pesticide application activities may involve unavoidable point source discharges to waters of the U.S. and whether this general permit should provide coverage for any such activities. If, after considering comments, EPA expands coverage of the permit, the effluent limitations for the additional use patterns would likely be similar to what is being proposed in the draft permit.

An overview of this issue and court case was published in the July/August 2009 Illinois Pesticide Review.

More information on the NPDES General Pesticide Permit, webcast, and public meetings is available at cfpub.epa.gov/npdes/home.cfm?program_id=410 and cfpub.epa.gov/npdes/index.cfm.--Phil Nixon, University of Illinois Extension entomologist (with additions and modifications from the Agriculture and Natural Resources News Forum and EPA websites)

Commentary

It seems that this EPA announcement, and the whole concept of requiring NPDES permits, has spurred considerably more questions than answers. We at the Pesticide Safety Education Program are currently unclear about the exact scope of the matter, and we encourage all pesticide applicators to participate in the public sessions, ask questions, and submit comments. I've seen similar announcements from grower groups and professional associations encouraging their members to do the same. Now is your chance to speak up because these matters could affect you.

Currently, the draft permit includes only four categories. If an application does not fall into one of these, it does not mean that an NPDES permit is not needed. With this comment period, EPA wants to know if they should include other areas (uses/additional use patterns). Discussions at various pesticide meetings this past year suggest that this could include drift from nearby agricultural applications. A recent article in the North Dakota Pesticide Quarterly had this to say: "The general permit is silent when it comes to agricultural uses, although most Clean Water Act experts agree that the court's ruling likely covers uses 'near' water. Some agricultural users also may want to be permitted to protect themselves from citizen lawsuits."

EPA's website reads, "Any use patterns not covered by this proposed draft permit would need to obtain coverage under an individual permit or alternative general permit if they involve pesticide application that result in point source discharges to waters of the United States." Would a revised version of the current PGP be considered an alternative general permit, or would it be an entirely different permit? If different, how would it be obtained? How is a farmer to know if an application could fall under the definition of a point source discharge? What is meant exactly by "waters of the U.S."? Hopefully, the webcast on June 24 will cover these important questions.

According to this draft, monitoring, IPM, equipment cleaning schedules, and mandatory calibration and maintenance would be required, which in itself is something applicators should pay careful attention to. These requirements could affect an operation's time investments and finances.

Operators will need to know if their applications will exceed an annual treatment area threshold. What is that threshold? It depends on the number of acres, the number of treatments, and the type of site. Those who know they will exceed it will have to file a notice of intent (NOI) and wait until its receipt is confirmed by EPA before they can apply the pesticide. Additional requirements, such as development of a Pesticide Discharge Management Plan and submission of annual reports, are included in the draft PGP for those who know they will exceed the threshold. Emergency pesticide applications can be performed without delay, but an NOI must then be filed.

The penalty for a violation of the Clean Water Act--intentional or not--could reach $37,500 per day. Comparatively, FIFRA violations are minimal. Producers in violation of the act could be driven out of business fairly quickly. How good is your relationship with your neighbors? Citizen lawsuits will be a very real concern for many.

At this time, the only clear recommendation I have for pesticide users is to get involved and become familiar with the issues at hand. Inclusion in the PGP may provide protection against citizen lawsuits, but the PGP process is quite involved. For details, read the draft permit at the web address given above. At 58 pages, it's no quick read; nor is the 116-page "Fact Sheet" (also on EPA's website). I guess these documents are shorter than the health care bill, but similarly, they won't be read in full by most. At the very least, check out the "Questions and Answers" section, which is only 8 pages long.

The 11-page Federal Register notice is filled with intermingled requests for comments on specific topics. For a bulleted list that's been paraphrased a bit by the Agricultural Retailers Association, see www.aradc.org (under "news"), or the direct link.

I predict that there will be a great reduction in the number of pesticide applications made to these four categories in the upcoming year. Some people will choose simply not to apply pesticides at all to avoid the new requirements. Others will choose to make only one application if they determine that two will exceed the threshold. It will be interesting to see the long-term effects of all of this.--Michelle Wiesbrook, Pesticide Safety Education Program, University of Illinois Extension

Authors:
Phil Nixon
Michelle Wiesbrook

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