January 25, 2010

Mr. Jack Faulk

Water Permits Division U.S. Environmental Protection Agency

EPA East (4203M) 1200 Pennsylvania Avenue, NW Washington, DC 20460

Re: EPA Draft General Permit for Discharges from Pesticide Applications EPA PGP Working Draft 011310 pm.doc

Dear Mr. Faulk:

We appreciate the opportunity to provide input on the Pesticide General Permit (PGP) Working Draft dated January 13, 2010.

We do not understand the Environmental Prot ections Agency’s (EPA ’s) decisions not to appeal the 6 th Circuit Court of Appeals ruling that vaca ted EPA’s Aquatic Pesticide Rule or to develop national effluent guideline standards in li eu of the general permit approach. We believe it will be hard, if not impossible, to implement the proposed Pesticide Application permitting in a timely manner because of existing staffing, resour ce, and budgetary constraints. Currently our State Legislature is in session crafting a State budget that projects a $400 million deficit at the end of State Fiscal Year 2011 (starting July 1, 2010). The State constitution requires that Kansas end the year with a balanced budget. This is on top of State government already having taken 3 reductions during the course of the current Stat e Fiscal Year (2010). Additional new significant workloads have been created in other permit progra m areas as well that will need to be addressed by the National Pollutant Discharge Elimination System (NPDES) States. An example is the implementation of the new Construction and De velopment Effluent Guideline Standards. Without new EPA funding or resources, neither of these activities can/will be implemented in a timely manner. Since EPA has not developed nationa l regulations or efflue nt guideline standards addressing discharges from pesticide applicati ons and it has been EPA’s stance the current Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regul atory program was adequately addressing water quality protectio n, we would like for EPA to consider allowing States the freedom of developing their own general perm its that may not reflect the scope and detail provided in the current PGP Worki ng Draft. Our concern is that when the EPA Regional Offices review for approval the State developed pesticide general pe rmits, the EPA Headquarters PGP

DIVISION OF ENVIRONMENT Bureau of Water – Industrial Programs Section

CURTIS STATE OFFICE BUILDING, 1000 SW JACKSON ST., STE. 420, TOPEKA, KS 66612-1367

Voice 785-296-5547 Fax 785-296-0086 Email dcarlson@kdheks.govpermit will be employed as a “checklist” for comparison purposes. Where the State general permit does not mirror in concept or detail the EPA Headquarters’ PGP, Stat es will be expected to incorporate the same general requirements in some form. While the Court has ruled that discharges from pesticide appl ications requires NPDE S permit coverage, the Court has left open the details of that permitting to EPA and the NP DES States i.e., use of best professional judgment (BPJ) in lieu of promulgated re gulations or effluent guideline standards.

Was there ever consideration given for EPA Headquarters to simply issue these permits nationally (similar to the EPA Vessel General Permits), except for those states that desire to issue their own permits? Why shouldn’t this approach be considered?

In the event EPA determines they can’t or won’t issue their PGP nationally, states should be allowed the flexibility to issue their state PGP by rule.

On the permit cover page, there is a comment indicating the item is intended to exclude homeowners from coverage under this permit. Is it EPA’s intent to exempt the individual

homeowner from the need to secure an NPDES permit or to require th at an individual NPDES permit in lieu of the GPG be employed? Without regulations or effluent guideline standards in play, if it is EPA’s intent to exempt indivi dual homeowners from NPDES permitting, the cover page should clearly detail this and an y other exemptions that are intended.

1.1.1; first paragraph; third lin e: There appears to be some extra unneeded text i.e., “...

which leave a ...”.

1.1.2.1: Regarding the comment on what ha ppens when a waterbody becomes impaired after coverage by the GPG has been obtained, we suggest the permit remain in effect and the permitting authority issue an administrative action either terminating the activity, or continuing coverage under the GPG only if the permittee agr ees to additional requirements, provisions, or controls needed to address whatever the specifi c situation involves. If the permittee does not agree to the requirements in the administrative action, they would have to cease operations and go through the individual permit process that could take 2-3 months. It would be their call.

1.1.2.2: There is a major flaw and unint ended consequence resulting from EPA’s decision not to challenge the Court’s ruling. By definition we are issuing NPDES permits because there will be a discharge of pollutants from a point source to Water of the United States. Under the current water quality standards provisions, it has been an absolute stance by EPA that there shall be no discharge of new or increased po llutants to Tier 3 Waters. As such, neither an individual permit nor a general permit can be issued for this purpose. As such, use of pesticides

in, over, or near Tier 3 Waters could not be a llowed, from a water quality standpoint whether the

intent is to address an invasive species or prevent/address a public health threat. I don’t believe the definition provided in Appendix A for a “Decla red Emergency Situation” can be employed to override the current position EPA has already staked out regarding degradation of Tier 3 Waters.

2.1.2: The permit should elaborate on what EPA expects the maintenance activities to

include, if there are establis hed industry accepted practices.

All of 2.2: If the documentation of integrated pest management practices is already being required as a part of the FIFRA regulatory program, then those provisions are acceptable. If the documentation of the integrated pest management practices is only a requirement for this PGP, I see this as being good information, but in the real world will constitute a significant amount ofpaperwork on the part of the pe rmittee and paperwork that NPDE S States won’t have time to routinely review to any degree. The required paperwork will generate “documentation violations” from EPA compliance inspections. The paperwork w ould provide good evidence if pesticide misuse creates environmental problems or damage. With current State workloads, this paperwork would only be utilized for investigations of pesticide misuse or misapplication. Some credence should be given to pesticide applicat or licensing by federal and/or state pesticide licensing programs.

4.1: The permittee either needs a checklist form or a detailed listing as to what EPA expects to be documented, otherw ise this will lead to second- guessing between inspectors and permittees as to what should have been documented.

All of 5.0: If the documentation of a pest icide discharge management plan is already being required as a part of the FIFRA regulator y program, then these provisions are acceptable. If the documentation of the pestic ide discharge management plan is only a requirement for this PGP, I see this as being desirable, but in the real world will constitute a significant amount of paperwork on the part of the pe rmittee and paperwork that NPDE S States won’t have time to routinely review to any degree. The paperwork will generate “documentations violations” from EPA compliance inspections. The paperwork would provide evidence if pesticide misuse creates environmental problems or damage. With curre nt State workloads, th is paperwork would only be utilized for investigations of misuse or misapplication. Some cred ence should be given to pesticide applicator licensi ng by federal and/or state pe sticide licensing programs.

7.0 and 8.2: Requiring the submission of the 8-digit HUC identifier, if known is acceptable, but I would expect few operators/permitt ees to be able to provide this information.

Appendix F: NOI Form: Regarding the comme nt as to how to a ddress the “multiple location” concept where decisions may be made at the corporate office with the pest control being performed in the field offices, the permit should make a single entity/person responsible for the entire operations oversight. That entity/person needs to have day-to-day responsibility and working knowledge regarding application activities conducte d by the company. A single “designated felon” needs to be established.

Miscellaneous: EPA needs to consider placing requirements in the PGP addressing equipment cleaning along with the handling and disposal of the wash water and/or unused pesticides from the applicator(s).

Should you have any questions rega rding this letter, please feel free to give me a call at

(785) 296-5547.

Sincerely,

Donald R. Carlson, P.E., Chief Industrial Programs Section

Bureau of Water