Regulatory Alert

Carmen Haworth
Carmen@aradc.org
(202) 457-0825

EPA Releases Draft General NPDES Permit for Aquatic Pesticide Applications

Washington, DC (June 2, 2010) – The Environmental Protection Agency (EPA) released the draft National Pollutant Discharge Elimination System (NPDES) permit for point source discharges from the application of pesticides to waters of the United States.

EPA developed the general permit in response to a decision by the Sixth Circuit Court of Appeals (National Cotton Council, et al. v. EPA).  The court vacated EPA’s 2006 rule that exempted FIFRA-compliant aquatic pesticide applications from the Clean Water Act requirements.  Due to the Sixth Circuit’s decision, by April 9, 2011, aquatic pesticide applications will require NPDES permits.

EPA's draft permit regulates four pesticide use patterns: (1) mosquito and other flying insect pest control, (2) aquatic weed and algae control, (3) aquatic nuisance animal control, and (4) forest canopy pest control.

Terrestrial pesticide applications to control pests on agricultural crops are not included in the draft permit. 

Any use patterns not covered by this proposed draft permit would need to obtain coverage under an individual permit if they involve pesticide application that result in point source discharges to waters of the United States.

EPA estimates that the Sixth Circuit's ruling will affect approximately 365,000 pesticide applicators nationwide that perform 5.6 million pesticide applications annually.

Timeline

EPA will accept public comments through July 19, 2010.

EPA intends to issue a final general permit by December 2010. Once finalized, the general permit will provide coverage for discharges where EPA is the NPDES permitting authority- states of Alaska, Massachusetts, New Hampshire, Oklahoma, and certain areas of Texas.  EPA is also the permitting authority in America Samoa, Guam, Midway and Wake islands, and the Northern Marianna Islands, and Indian Country lands in several states.  If your business is located in the other 44 states, your state NPDES authorities will issue the permits.

Relevant Documents

Public Meetings, Webcast, and Hearing on the Draft Permit

EPA will hold three public meetings, a public hearing, and a webcast on the draft NPDES permit. At the meetings, any person may provide written or oral statements and data pertaining to the draft permit. These events are scheduled:

  • Albuquerque, New Mexico:  Public meeting on Monday, June 14, 2010 from 12:00 p.m. to 3:00 p.m., at the CNM Workforce Training Center, Room 101, 5600 Eagle Rock Avenue, N.E., Albuquerque, New Mexico.
  • Boise, Idaho: Public meeting on Wednesday, June 16, 2010 from 12:00 p.m. to 3:00 p.m., at the Bureau of Reclamation, rooms 206 & 219, 1150 North Curtis Road, Boise, Idaho.
  • Boston, Massachusetts:  Public meeting on Monday, June 21, 2010 from 1:00 p.m. to 4:00 p.m., at EPA Region 1, 5 Post Office Square, Suite 100, Conference Room 1529, Boston, Massachusetts.
  • Washington, D.C.: Public hearing on Wednesday, June 23, 2010 from 10:00 a.m. to 1:00 p.m., at the EPA East Building, Room 1531, 1301 Constitution Avenue, NW, Washington, D.C. If you would like to present a statement at the public hearing, please contact Virginia Garelick at 202-564-2316 to register your intent to provide a public statement. Speakers will be given up to three minutes (or as time allows) to provide their comments on a first come first served basis. Any additional comments will need to be provided in writing.  EPA will consider all comments received and will include copies of such in the Administrative Record.
  • NPDES Pesticides Webcast: Thursday, June 17, 2010, from 1:00 p.m. to 3:00 p.m. (Eastern Standard Time). For information on how to register and attend the webcast, see EPA's Web site at www.epa.gov/npdes/training.

Comments Requested

Since this is the first general permit for these types of discharges, EPA specifically requests comments on this section for the following questions:

  • What types of government agencies/departments have the responsibility or are mandated to perform pest control? Are they already required to implement integrated pest management (IPM)? What specific IPM practices do they already perform?
  • Are there private commercial entities that apply pesticides below the threshold that should be expected to implement IPM? If so, who are these and what IPM practices should they be required to implement? Are any private commercial entities that apply pesticides below the threshold currently implementing IPM practices? Is the use of annual treatment area thresholds an appropriate mechanism for establishing technology-based effluent limitations and if so, are the thresholds provided in the draft general permit appropriate?
  • Are there more specific IPM procedures that EPA can incorporate into this permit to better
    define IPM expectations of permittees above or below the threshold? Would an EPA-developed IPM template be practical and help? If so, what should be included? Are there industry-specific templates already available?
  • Will requiring IPM of small public or private entities not already required to implement IPM under this draft general permit force them to go out of business or choose not to spray at the expense of public health or the environment?
  • How much do the IPM procedures required in this permit cost?
    Are entities above the thresholds already doing these practices? If not, what would be the consequences/costs of these requirements?
  • EPA is soliciting comment on the water quality based effluent limitations in this proposed permit, and whether other parameters or narrative requirements would be appropriate.
  • EPA is requesting comment on the value, feasibility and safety of visual monitoring during application and of post application surveillance monitoring.
  • EPA is considering having the largest of the large applicators provide ambient sampling data. How large would be appropriate for such a requirement? Should these data be used to enhance the cycle of information EPA will use in assessing the selected BMPs rather than compliance? What types of monitoring requirements are appropriate for each of the four pesticide use categories covered under this permit? What would be the cost of monitoring? What are the best monitoring methodologies when sampling for the residues of chemical pesticides? What sampling approaches accommodate issues of safety and accessibility? What timing and frequencies are best in these situations?
  • Any operator required to submit an NOI is also required to submit an annual report that contains, among other things, a compilation of pesticides applied, quantities applied, locations where pesticide applications were made during the previous calendar year, and information on any adverse incidents or corrective actions resulting from discharges covered under this permit. EPA is interested in comment on the scope of operators required to submit annual reports and the type, level of detail, and practical utility of the information being requested.

ARA will submit comments to the Docket on the draft NPDES permit.  If you have relevant information to any of the questions, please forward your comments and docket comments to Carmen Haworth, ARA staff, at Carmen@aradc.org.

More information on the draft NPDES permit is available on EPA's website.