April 2010

OPP Tribal Consultation Revisions to the Certification of Pesticide Applicators regulation

40 CFR 171

Introduction: The Certification of Pesticide Applicators regulation establishes requirements to ensure the competency of applicators using Restricted Use Pesticides. Restricted Use Pesticides are products which, without the additional restriction to use by competent applicators, may pose

unreasonable adverse effects to human health or the environment.

The regulation has been in place, larg ely unchanged, since the early 1970s. The rule addresses

the certification of applicators in Indian Country, but there have been problems with this portion of the rule, identified by tribal pesticide program coordinators and regional tribal attorneys.

T he Agency plans to address these issues through the revisions to the rule, and is engaging in this consultation to discuss the options related to tribal certification for applicators in Indian Country.

Process: The Agency prepared a letter of invitation and a fact sheet on the Certification of Pesticide Applicators regulation for mailing to the federally

- recognized tribal contact s

. Approximately one thousand of these letters and fact sheets were mailed in early April prior to

the scheduled consultation c alls. An initial call was held with the Tribal Pesticide P rogram Council (TPPC) on April 7, to inform them of the consultation and provide an overview of the regulatory revisions.

The consultation calls were held on April 27 and 29. Twenty

- five tribal representatives attended

one or both calls. A summary of the call s is provided here.

EPA introduced the consultation process, noting that the regulatory process is continuing to move and this is the time for tribes to offer their comments and suggestions prior to proposal. There will be further opportunity after the proposed rule is published.

The background of the rule was presented , and led into discussion of the issues. The discussion

is summarized here.

Issue #1

The current rule offers tribes the following options for certification of applicators in Indian Country:

i. Tribes may establish their own tribal plan

ii. Tribes may enter into an agreemen t with a state to accept state certification

iii. Tribes may use an EPA implemented plan/program for Federal certification of applicators

1Tribes, because of valid concerns related to their sovereignty, often are reluctant to enter into an agreement with a state that would provide the states with permission to conduct inspections in Indian Country and to take e nforcement actions against individuals applying RUPs in Indian Country. Accordingly, Tribes have been unable or reluctant to enter into agreements with a state that would allow the Tribe to use the state certification plan but also provides the state with the authority to cover out

- of

- state applicators.

The Agency is considering proposing to offer certification programs run by the EPA Regional offices which would rely on state certifications to permit application in In dian Country. This would replace the option for direct agreement with states and the consequent issues with state inspections, as EPA would provide enforcement on Indian Country for those tribes which would

be included.

Tribal Comments:

1. The option for tribes to develop their own plans must be retained.

2. The proposed option, for EPA issuance of a certificate based on the state credential is a valid and acceptable approach.

3. Resources for tribes have been limited , inhibiting their ability to implement their own certification plans.

Issue #2

Should a federal national plan for tribal certification be developed , would tribes prefer to be automatically covered, or would they prefer to voice their option for coverage?

Tribal Comments:

1. N eed to consider and discuss before responding

2. Two respond ents stated that tribes would prefer to “opt in.” One stated that this approach would ensure that tribes would be aware of the program.

Issue # 3

Currently, the Agency cannot take an action against an applicator illegally applying an RUP in

Indian Countr y if there is not a plan in place. Should the Agency include language in the regulation to ensure that enforcement can cite an applicator for application in the absence of an approved plan?

Tribal Comments:

1. Yes. This requirement should be establishe d to protect health and the environment.

Several questions were raised and answered related to the existing program (with no bearing on the amendments to the regulation).

The Agency requested that additional comments be sent to Richard Pont (e mail and telephone

number were provided on the invitation letter).

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