SFIREG – EPA Region II Comments for EPA - Draft NPDES Pesticide Permit

Scope of the Permit :

• We believe EPA has accounted for all the products and use patterns that should fall under the scope of the court decision. It appears that th e discussion of what cons titutes “near” is not necessary as, in the context of the EPA Rule v acated by the court decision, near only refers to applications where the pesticide has to be applied over water to effectively target the pest, where a portion of the pesticides will “unavoidably” be deposited to waters. This should not include applications where the ta rget pest is on land and the on ly way a residue may enter the water is by accidental drift. Applications up to and along the edge of waters, such as along roadsides, can “avoidably” be prevented from de positing in the water so that they should not fall under the scope. These would have to be considered under non-point source pollution. With land applications, there wi ll be residues from runoff from applications greater than 100 ft and those that occur up to the water’s edge and it will not be possible to make a distinction as to the source of the residues, wh ether it is non-point or point source pollution.

• There is still much debate as to over what th reshold, whether it is an total annual amount of pesticide applied or some total annual acreage treated, EPA will require a Notice of Intent (NOI) for NPDES permit coverage. Both have lo gistical problems as multiple applications in the same treated area over a period of time will repeatedly result in short-term residues, but these will dissipate before the next applica tion, lessening the overall impact. One time large-scale applications are sp read out over a wider area and may not necessarily have any more adverse impacts to non-target species beyond the treated area, especially with monocultures of invasive aquatic weeds. Pesticide labels have directions to limit the number of applications or not to exceed a total am ount of product in a season. Labels also have

Environmental Hazard statements to limit the potential for non-target impacts which serve as effective BAT. FIFRA already provides fo r BAT through the product registration process which already minimizes adverse incidents. The court decision does not analyze the relationship between CWA and FIFRA so there is still something to be said how FIFRA provides the necessary oversight for BAT.

• Agricultural applications to water, i.e., cra nberries, were discussed but not included in the “BAT-IPM Plan-Recordkeeping Nov 23.doc” document, provided by EPA.

Comments on the EPA draft document “BAT-IPM Plan-Recor dkeeping Nov 23.doc” :

• It needs to be clear who decides, and w ho follows up on, what the effective amount and lowest number of applications is, in Section 2.0 (in italics below) of the BAT-IPM document. This is already accomplished through economic decisions made by the permitee and those responsible for the application. Pesticides are expensive. Section 2.0 Technology-Based Effluent Limitatio ns: Minimize Pesticide Discharges into Waters of the United States.

1. Use the effective amount of pesticide product per application and lowest number of application per season necessary to control the target pest.

• The two items from Section 2.0 (b elow in italics) are functiona lly already part of the FIFRA developed pesticide label directi ons necessary to achieve the targ et dosage rate. It would bemore appropriate to simply state “Follow th e label directions” fo r BAT. Anything beyond that may be superfluous. 2. Perform regular maintenance activities to minimize potential for leaks, spills, and unintended/accidental release of pestic ides from both pesticide containers and application equipment to waters of the United States. 3. Calibrate and maintain equipment to ensu re effective pesticide application and pest

control.

• It needs to be clear who determines what the “action threshold” is for each target pest, and how that determination is to be made, in the BAT-IPM document.

• It needs to be clear who determines the “effec tiveness” of the treatment, and what this is based on, in the BAT-IPM document.

• There are education requiremen ts in the BAT-IPM document. Sounds like a good idea but in most cases permitees should not be the one s responsible for education. Training of applicators in pesticide safety and protecting th e environment is already a component of State pesticide certification. Educating the public is the role of organizations such as Cooperative Extension, State agencies, and environmental commissions.

• Having BAT requirements specified in each use patterns general permit should not automatically result in a requirement for re porting which would be onerous for everyone involved. Instead, each permitee should have documentation avai lable that can be used to prove their compliance with the BAT if or when they are inspected.

• It is unclear from the reporting and monitori ng conditions what level of follow-up is required by states and in what time frame.

Comments on IPM :

• Some of the examples of IPM cited are appropr iate, some are impractical and some aren’t IPM. Pest ID, using the lowest dosage rate for efficacy, and application timing are practical

IPM activities. Calibration and maintenan ce of equipment may be BMPs but are not necessarily IPM. Alternative pest control methods are some important components of IPM but in many cases, with pest control in and around water, are not feasible. For nuisance aquatic plant control, weed harv esters are very expensive and re sult in a solid waste disposal problem. For larval mosquito control, wate r management and predator fish introduction require the hurdle of regulatory permits and are expensive, with government budgets currently very tight. Source reduction is also problematic. For aquatic plants and algae, eliminating septic systems by sewering and re ducing fertilizer use by landowners are great

ideas but out of the control of most permitees. Advocating th e use of chemicals to reduce nutrients such as alum is a bad idea as they ar e not pesticides and should not be referenced in this manner. It might be better to not us e the IPM acronym and instead develop a set of BATs for each use pattern which lists the minimum requirements needed for using the general permit. These would be a combina tion of common sense requirements such as maintenance and calibration pest ID and then mo re specific items on the timing of treatments

for most efficacious results the lowest effectiv e dosage rate and practical source reduction methods and alternative treatment protocols. This is often what is already achieved through

FIFRA and economic decisions.

• If the application does not resu lt in residues that exceed a WQ standard, then do they get a pass on certain BAT or IPM? For NPDES, does all this kick in only if they violate aneffluent limit? We have not seen what constitutes “Corrective Action” in the Draft General

Permit.

• It is likely that EPA will have very generic IPM requirements in a General Permit leaving the specifics for each NOI, which will be project specific and very burdensome on the states and permitees. It is not clear wh ich State program (i.e., Pesticides, Water) will implement permit conditions, and follow up on reporting and monitoring. How will EPA determine what the appropriate level of detail is required in the BAT/IPM that each state implements?

General Comments :

• It is understood that there will be some short te rm non-target impacts, w ithin the treated area, with any pesticide applic ation, to achieve the necessary effi cacy on the target pest. So how does one balance efficacy with minimizing non-targ et impacts when designing BAT? This is already predetermined through the oversight provided by FI FRA through product registration and efficacy data generated by the Registra nt. Anything above or below the labeled application rate may be a viol ation of State regulations.

• The court decision vacates the EPA rule in th e context of “Pesticide residuals” or those portions of the pesticide that “remain in the water after the application and its intended purpose (elimination of targeted pe sts) have been completed.” This does not address at what point the intended purpose of a pesticide ends an d at what point does it become a residue or a pollutant.

• There is still much needed to define residues in the context of the con centration of pesticide needed for efficacy, relative to the breakdown time of the product. This will be product specific rather that based on a particular type or method of application. This does not account for products such as SONAR (fluridone) that require extended contact time with the target species, perhaps upwards of 30-60 days. The direct applicati on of any pesticide for effect may exceed a water quality standard for a discreet time period, some much longer than

others.

• How does adverse effects monitoring, perhap s weeks after an app lication, provide a connection to the actual pesticide applica tion? Product registration under FIFRA already provides adequate modeling for residues and adverse effects, based on use patterns.

• Some herbicides take a long time to show efficac y. It would be very product specific as to what time to best monitor for efficacy and adverse effects.

• Best Available Technology Economically Achievable . It has not been discussed how BAT

economics fit in. It would be co st prohibitive to ask for certa in types of monitoring or IPM planning for some lake associations and mo squito control districts. How is this determination made? On the qua lity of the resources potentially impacted? The scope of the project? The permitees ability to pay? Many of the public agencies that fall under the scope of this permit are already strapped for money.

• The Notice of Intent filing requirement for the pesticide general permit should be limited to the "Service Requestor" (incl uding agencies, land or lake managers, land owners) and not include the pesticide applicators, or a subset of applicators. The pesticide applicator is a specialist and may have a limite d function within an overall pest control program. The applicator does not necessarily have a role in overall pest co ntrol planning, Integrated Pest Management planning, or in follow-up monitorin g, unless he is specifi cally contracted by theService Requestor to perform these functions. The lead responsibility for these elements of the overall permit resides with the Service Requestor.

• It would be beneficial for EPA to allow states to use EPA’s e-NOI/posting system until states can build/update their own NOI systems.

• The water quality requirement should clearly stat e that the standard applies to the residual after mixing zone for monitoring.