EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

United States Environmental Protection Agency (EPA) National Pollutant Discharge Elimination System (NPDES)

DRAFT PESTICIDE GENERAL PERMIT (PGP) FOR POINT SOURCE

DISCHARGES TO WATERS OF THE UNITED STATES

FROM THE APPLICATION OF PESTICIDES

AUTHORIZATION TO DISCHARGE UNDER THE

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM

In compliance with the provisions of the Clean Water Act (CWA), as amended (33

U.S.C. 1251 et seq. ), any operator of a point source discharge of pollutants associated with the application of pesticides who:

• Is eligible for permit co verage under Part 1.1,

• Is located in an area identified in Appe ndix C where this permit is available, and

• Is an enterprise identified by any prim ary business activity in the 2007 North American Industry Classification System (NAICS)]

is authorized to discharge in accordance with the requirements of this permit.

This permit becomes effective on [April 9, 2011].

This permit and the authorization to discharge expire at midnight, [April 8, 2016].

, Director, Office of Ecosystem Protection EPA Region 1

, Director, Division of Environmental Planning

and Protection EPA Region 2

, Division Director, Caribbean Environmental

Protection Division EPA Region 2

, Director, Water Protection Division EPA Region 3

, Director EPA Region 4 , Director, Water Division EPA Region 5

, Director, Water Quality Protection Division EPA Region 6

, Director EPA Region 7

, Director EPA Region 8

, Director, Water Division EPA Region 9

, Director, Office of Water and Watersheds EPA Region 10 Comment [jrf1]: This item is

intended to exclude homeowners from being eligible for coverage under this

p ermit.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.



### Table of Contents
1.0 Coverage under This Permit 2.0 Technology-Based Effluent Limitations 3.0 Water Quality-Based Effluent Limitations 4.0 Site Monitoring 5.0 Pesticide Discharge Management Plan

6.0 Corrective Action 7.0 Annual Reporting 8.0 Recordkeeping 9.0 EPA Contact Information and Mailing Addresses 10.0 State, Territorial, and Tribal Requirements

Appendix A - Definitions and Acronyms Appendix B - Standard Permit Conditions Appendix C - Areas Covered Appendix D - Endangered Species Procedures Appendix E - Historic Properties Preservation Procedures Appendix F - Notice of Intent Form Appendix G - Notice of Termination FormEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

1 1.0 Coverage under This Permit

1.1 Eligibility.

1.1.1 Activities Covered. This permit is available to operators of discharges to waters of the United States (U.S.) from the application of (1) biological pesticides and (2) chemical pesticides which leave a for the following pesticide use patterns:

• Mosquito and Other Aquatic Nuisance Insect Control - management of all public health/nuisance pests which develop during a portion of their life cycle in standing or flowing water. Public health/nuisance pests in this use category include but not limited to mosquitoes and black flies.

• Aquatic Weed and Algae Control - management of weeds and algae in water, including but not limited to lakes, ponds, rivers, streams, irrigation canals, and drainage systems (ditches, canals, etc).

• Area-Wide Pest Control - management of a diverse pest spectrum (insects, weeds, and/or pathogens) in wide range of diverse habitats where a portion of the pesticides will unavoidabl y be deposited to water to target the pests effectively. Habitats in this use category include but are not limited to rangeland, forests, urban, and ditch banks. Area wide application means management of a pest (e.g., gypsy moths, Mormon crickets, grasshoppers, etc.) to contain an infestation and in area greater than 15 contiguous acres.

• Aquatic Nuisance Animal Control - management of invasive or other nuisance species in water, including but not limited to lakes, ponds, rivers, and streams. Aquatic nuisance animals in this use category include, but are not limited to fish, lampreys, and mollusks.

The scope of activities encompassed by these pesticide use patterns is described in greater detail in Parts 2.2.1, 2.2.2, 2.2.3, and 2.2.4.

1.1.2 Limitations on coverage

1.1.2.1 Discharges to Water Quality Impaired Waters. An operator is not eligible for coverage under this permit for discharges to waters of the U.S. identified as impaired for the pesticide or its degradates for which the water is impaired. Impaired waters are those which have be en identified by a State, Territory, Tribe or EPA pursuant to Section 303(d) of the CWA as not meeting applicable State, Territorial, and Tr ibal water quality standards. Impaired waters include both waters with EPA-approved and EPA-established Total Maximum Daily Loads (TMDLs) and those for which EPA has not yet approved or established a TMDL. ( http://www.epa.gov/OWOW/tmdl/ ).

1.1.2.2 Discharges to Waters Designated as Tier 3 for Antidegradation Purposes. You are not eligible for coverage under this permit for discharges to waters designated by a State, Territory, or Tribe as Tier 3 (outstanding natural Comment [ T M2]: Everything in this permit by its design targets licensed applicators who use Restricted Use Pesticides, not General Use Products (i.e. homeowners included).

Comment [ T M3]: Insert “navigable” as per Clean Water Act.

Comment [ T M4]: Insert word

“residue”.

Comment [ T M5]: and ditch bank

control.

Comment [ T M6]: mediterranian fruit fly added too?

Comment [ T M7]: This needs to be greatly increased ... almost any agricultural application would fit under this definition. Suggest increasing to 15,000 acres.

Comment [jrf8]: What if waterbody becomes impaired after coverage is obtained? Application would have to immediately stop. Can we add a provision that allows EPA to continue coverage under the permit until some time later when an individual permit can

be issued?EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

2 resource waters) for anti-degradation purposes under 40 CFR 131.13(a)(3) (see list of Tier 3 waters on EPA’s website at http://cfpub.epa.gov/npdes/stormwater/antideg.cfm ).

1.1.2.3 Discharges Currently or Previously Covered by another Permit. You are not eligible for coverage under this permit if any of the following circumstances apply:

• Discharges currently covered under another NPDES permit

• Discharges covered within five years prior to the effective date of this permit by an individual permit or alternative general permit where that permit established site-specific numer ic water quality-based limitations

• Discharges from activities where any NPDES permit has been or is in the process of being denied, terminated , or revoked by EPA (this does not apply to the routine reissuance of permits every five years).

1.1.2.4 Endangered and Threatened Species and Critical Habitat Protection.

(Note to reviewer: This section is included merely as an example of the type of ESA requirements included in other general permits. EPA is continuing consultation with the Fish and Wildlife Service and National Marine Fisheries Service on specific ESA-related requirements.)

Coverage under this permit is available only if your discharges and discharge-related activities will not adversely affect any species that are federally-listed as endangered or threatened (“listed”) under the Endangered Species Act (ESA) and will not result in the adverse modification or destruction of habitat that is federally-designated as “critical habitat”

under the ESA. You must meet one of the cr iteria below, following the procedures in Appendix E:

Criterion A. No federally-listed threatened or enda ngered species or their designated critical habitat are likely to occur in the “action area” as defined in Appendix A; or

Criterion B. Consultation between a Federal agency and the U.S. Fish and Wildlife Service

and/or the National Marine Fisher ies Service (together, the “Ser vices”) under section 7 of the

ESA has been concluded. Consultations can be either formal or informal, and would have occurred only as a result of a separate federal action (e.g., during application for an individual wastewater discharge permit or the issuance of a wetlands dredge and fill permit).

The consultation must have addressed the effect s of your discharges and discharge-related activities on federally-listed threatened or endangered species and federally-designated critical habitat, and must have resulted in either:

i. a biological opinion finding no jeop ardy to federally-listed species or destruction/adverse modification of federally-designated critical habitat; or

ii. written concurrence from the Service(s) with a finding that the discharges and discharge-related activities are not likely to ad versely affect federally-listed species or federally-designated critical habitat; or Comment [jrf9]: Should we allow biological pesticides to be covered under this permit for Tier 3 waters given that biological pesticides, by definition, have a nontoxic mode of action. May further

p romote their use.

Comment [ T M10]: What if a pesticide by definition is completely

nontoxic?

Comment [jrf11]: Should the permit state that pesticide drift, as defined in App A, is not eligible for coverage?

Comment [ T M12]: The county

bulletins that show critical habit should adequately address this. Simplify and state that applicators are to refer to the relevant county bulletin.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

3 Criterion C. Your activities are authorized through the issuance of a permit under section 10 of the ESA, and authorization addresses the ef fects of the discharges and discharge-related activities on federally-listed species and fe derally-designated critical habitat; or

Criterion D. Coordination between you and the U.S. Fish and Wildlife Service and/or the

National Marine Fisheries Service has been concluded. The coordination must have addressed the effects of the discharges and discharge-related activities on federally-listed threatened or endangered species and federally-d esignated critical habitat. The result of the coordination must be a written statement from the Service concluding that authorizing your discharges and discharge-related activities is consistent with the determination that the issuance of the PGP is not likely to adversely a ffect federally-listed threatened or endangered species and federally-designated critical habi tat. Any conditions or prerequisites deemed necessary to achieve consistency with the “not likely to adversely effect” determination become eligibility conditions for PGP coverage, and permit requirements under Part 2.3; or

Criterion E. Authorizing your discharges and discha rge-related activities is consistent with

the determination that the issuance of the PGP is not likely to adversely affect any federallylisted endangered and threatened (“listed”) species or designated critical habitat (“critical habitat”). To support your determination that you meet Criterion E, you must provide, with your NOI, the following supporting documentation for your determination: (1) a list of the federally-listed threatened or endangered species or their designated critical habitat that are likely to occur in the “action area”; (2) a list of the potential pollutants in your discharge; and (3) your rationale supporting your determination that you meet Criterion E, including appropriate measures to be undertaken to avoid or eliminate the likelihood of adverse effects;

or

Criterion F. The discharges and discharge-relate d activities were already addressed in another operator’s valid certifi cation of eligibility that included these discharges and

activities and there is no reason to believe that federally-listed species or federally-designated critical habitat not considered in the prior certification may be pres ent or located in the “action area”. To certify eligibility under this crite rion there must be no lapse of coverage in the other operator’s certification. By certifying eligibility under this criterion, you agree to comply with any measures or controls upon which the other operator's certification was based. You must comply with any applicable terms, conditions, or other requirements developed in the process of meeting the eligibility requirements of the criteria in this section to remain eligible for coverage under this pe rmit. If your certification is based on another operator’s certification under Criterion E, that certification is valid only if you have documentation showing that the other operator had certified under Criterion E, and you provide EPA with the supporting information re quired of existing dischargers in Criterion E (above, under subparagraph (i)) in your NOI form.

1.2 Authorization to Discharge under This Permit

1.2.1 How to Obtain Authorization. To obtain authorization under this permit an

operator, must

• Meet the eligibility requirements identified in Part 1.1, and Comment [ T M13]: Would this entail an additional 90 – 180 days for FR publication? comment via DOI/FWS

director ....

Comment [ T M14]: Would use of only designated habitat criteria as currently designated be most appropriate? This would likely be the easiest methods for many to comply w/ the ESA within this permit.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

4 • If you are an operator identified in Part 1.2.2, submit a complete and accurate Notice of Intent (NOI).

Operators meeting the eligibility provisi ons outlined in Part 1.1 and who are not required to submit an NOI, as identified in Part 1.2.2, are authorized to discharge after April 9, 2011 in compliance with applicable requirements of this permit.

The permit covers all employees, agents, and contractors of an operator who has filed an NOI. An NOI provides coverage for that permittee for all

activities identified on the NOI for the durat ion of this permit unless coverage is otherwise terminated pursuant to Parts 1.2.5 or 1.3.

1.2.2 Operators Required to Submit a Notice of Intent (NOI). The following operators are required to submit a Notice of Intent to obtain coverage under this general permit for discharges resulting from the application of pesticides:

• Any federal, state, or local government agency,

• Any public utility, including privately-owned, for profit utilities (i.e., establishment engaged in providing any of the following utility services: electric power, natural gas, steam supply, water supply, and sewage and stormwater removal);

• Any entity specifically tasked with managing property for the control of pests on lands not otherwise owned by said entity (e.g., homeowner’s association, lake association;

• Any commercial/business establishment, including farms or ranches, which are not part of a small business enterprise, as defined by the U.S. Small Business Administration in 13 CFR 121.201, based on the enterprise’s average annual receipts or average employment of the enterprise for the fiscal year preceding coverage under this permit. This includes commercial (“for-hire”) pesticide applicators that exceed the small business threshold described above; and

• Any other entity that has reason to believe it will exceed any one of the following annual (i.e., calendar year) thresholds for any of the four use patterns covered under this general permit:EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

5 Pesticide Use Pattern Treatment Area

Annual Threshold Water-Treatment Area

Annual Threshold Mosquitoes and Other Aquatic Nuisance

Insects 640 acres 160 acres Aquatic Weeds and Algae - Waters of the U.S. - Conveyances to Waters of the U.S. NA

NA 160 acres or 10 linear miles 1

50 linear miles 1

Area-Wide Pests

- Ditch banks - Forestry/Other area-wide applications NA

640 acres 50 linear miles 1

160 acres Aquatic Nuisance Animals NA 160 acres

1 Calculated based on area treated per side of waterbody or conveyance. For example, treating both sides of a ten mile ditch is equal to twenty miles of treatment area.

Any operator required to submit an NOI may do so for each establishment separately or may include multiple establ ishments within the enterprise on one

NOI form.

An operator may submit an NOI to EPA using either the electronic Notice of Intent (eNOI) system (accessible at www.epa.gov/npdes/eNOI ) or the paper form included in Appendix F of this permit to the address listed in Part 9.0. EPA strongly encourages operators to prepare and submit their NOI using eNOI. EPA will post on the Internet, at www.epa.gov/npdes/noisearch , all NOIs received. Late NOIs will be accepted, but authorization to discharge

will not be retroactive. NOI submissions must be in accordance with the

deadlines in Part 1.2.3.

1.2.3 Discharge Authorization Date. On April 9, 2011 and thereafter, you must be covered under an NPDES permit to discharge a pollutant from a point source to waters of the U.S. as a result of the application of a pesticide. Operators required to submit an NOI, as identified in Part 1.2.2, are authorized to discharge under this permit as follows: Comment [ T M16]: Are dry streams or depressions that temporarily hold water for brief periods of time considered

bodies of water? We have a Use restriction for a WY Dept. of Ag product that EPA specifically exempts these “as

bodies of water”.

Comment [ T M15]: Increase 10 times

amount stated.

Comment [ T M17]: Increase 10 times

amount stated.

Comment [jrf18]: Are these threshold numbers appropriate? Should the basis be annual or total for the permit term? Should they be based on treatment area or water treatment area or something

else?

Comment [ T M19]: Define this term

as the 6 th circuit court specifically

addressed “waters of the US.

Comment [ T M20]: Should this be April 11, 2011?EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

6 Category NOI Deadline 1 Discharge Authorization Date 2

Operators making a determination, prior to commencement of discharge, that they will exceed an annual

threshold identified in Part 1.2.2 At least 10 days prior

to commencement of discharge 10 days after EPA receipt of complete and accurate NOI

Operators making a determination, after commencement of discharge, that they will exceed an annual

threshold identified in Part

1.2.2. At least 10 days prior to exceeding an annual threshold during any 12-month period Original authorization expires

when threshold is exceeded if a complete and accurate NOI has not been received by this time. Permittee is reauthorized 10 days after EPA receipt of complete and

accurate NOI. Other operators required to

submit an NOI At least 10 days prior

to commencement of discharge 10 days after EPA receipt of complete and accurate NOI

Operators commencing discharge in response to a declared emergency situation , as defined in Appendix A. No later than 30 days

after commencement of discharge 3 Immediately, for activities conducted in response to declared emergency situation

1.2.4 Continuation of this Permit. If this permit is not reissued or replaced prior to the expiration date, it will be administratively continued in accordance with 40 CFR 122.6 and remain in force and effect. If you were authorized to discharge under this permit prior to the expiration date, any discharges authorized under this permit will automatically remain covered by this permit

until the earliest of:

1. Your authorization for coverage unde r a reissued permit or a replacement of this permit following your timely and appropriate submittal of a complete NOI requesting authorization to discharge under the new permit and compliance with the requirements of the NOI; or

2. The processing and posting of your Notic e of Termination consistent with Part 1.2.5.1; or

1 Timing for NOI submittal is based on an operator determ ination that they will exceed a treatment area annual threshold during the calendar year, not on the time when the threshold is actually exceeded. For example, many large operators know today that they will ex ceed the threshold the first year. For those operators, NOIs are due prior to commencement of any discharge under this permit.

2 Based on a review of your NOI or other information, EPA may delay your authorization for further review, notify you that additional effluent limitations are necessary, or may deny coverage under this permit and require submission of an application for an individual NPDES perm it, as detailed in Part 1.3. In thes e instances, EPA will notify you in writing of the delay, of the need for additional effluent limits, or of the request for submission of an individual NPDES permit application.

3 In the event that a discharg e occurs prior to your submitting an NOI, you mu st comply with all other requirements of this permit immediately. Comment [ T M21]: Double check this is clarified in Appendix A.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

7 3. The issuance or denial of an individual permit for a discharge resulting from application of a pesticide that would otherwise be covered under this permit;

4. A formal permit decision by EPA not to reissue this general permit, at which time EPA will identify a reasonable time period for covered dischargers to seek coverage under an alternative general permit or an individual permit. Coverage under th is permit will cease when coverage under another permit is granted/authorized.

1.2.5 Terminating Coverage

1.2.5.1 Submitting a Notice of Termination. To terminate permit coverage, an operator who is required to submit an NOI as identified in Part 1.2.2, must submit a complete and accurate Notice of Termination either electronically (strongly encouraged) at www.epa.gov/npdes/eNOI or using the paper Notice of Termination form included in Appendi x G of this permit, to the address

listed in Part 9.0. Your authorization to discharge under this permit terminates at midnight of the day that a complete Notice of Termination is processed and posted on EPA’s website ( www.epa.gov/npdes/noisearch ). If you submit a Notice of Termination without meeting one or more of the conditions identified in Part 1.2.5.2, then your Notice of Termination is not valid. You are responsible for meeting the terms of this permit until your authorization is terminated. If you met the threshold for having to submit annual reports pursuant to Part 7.0, you must file an annual report for the portion of the year up through the date of your termination. The annual report is due no later than 45 days after your termination date.

1.2.5.2 When to Submit a Notice of Termination. You must submit a Notice of termination within 30 days after one or more of the following conditions have

been met:

1. A new operator has taken over responsibil ity of your pest control activities covered under an existing NOI, or

2. You have ceased all discharges from the application of pesticides for which you obtained permit coverage and you do not expect to discharge during the remainder of the permit term for any of the use patterns as identified in Part 1.1.1; or

3. You have obtained coverage under an individual permit or an alternative general permit for all discharges requ ired to be covered by an NPDES permit, unless you obtained coverage un der authority of Part 1.3.1, in which case coverage under this permit will terminate automatically. Comment [jrf22]: Does this make it

clear when an NOT can be filed?EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

8 1.2.5.3 Operators covered under this permit that are not required to submit an NOI are terminated from permit coverage when they no longer have a discharge from the application of pesticides.

1.3 Alternative Permits

1.3.1 EPA Requiring Coverage under an Alternative Permit. EPA may require you to apply for and/or obtain author ization to discharge under either an individual NPDES permit or an alternative NPDES general permit in accordance with 40 CFR 122.64 and 124.5. If EPA requires you to apply for an individual NPDES permit, EPA will notify you in writing that a permit application is required. This notificati on will include a brief statement of the reasons for this decision and will provide application information. In addition, if you are an operator whose discharges are authorized under this permit, the notice will set a deadline to file the permit application, and will include a statement that on the effective date of the individual NPDES permit, or the alternative general permit as it applies to you, coverage under this general permit will terminate. EPA may grant additional time to submit the application if you submit a request setting forth reasonable grounds for additional time. If you are covered under this permit and fail to submit an individual NPDES permit applica tion as required by EPA, then the applicability of this permit to you is term inated at the end of the day specified by EPA as the deadline for application submittal. EPA may take appropriate enforcement action for any unpermitted discharge.

1.3.2 Permittee Requesting Coverage under an Alternative Permit. You may request to be excluded from coverage under this general permit by applying for an individual permit. In such a case, you must submit an individual permit application in accordance with the requirements of 40 CFR 122.26(c)(1)(ii), with reasons supporting the request, to EPA at the applicable EPA Regional Office listed in Part 9 of this permit. The request may be granted by issuance of an individual permit or authorization of coverage under an alternative general permit if your reasons are warranted.

When an individual NPDES permit is issued to you or you are authorized under an alternative NPDES ge neral permit to discharge a pollutant to a water of the U.S. as a result of a pesticide application, your authorization to discharge under this permit is terminated on the effective date of the individual permit or the date of authori zation of coverage under the alternative general permit.

1.4 Severability. Invalidation of a portion of this permit does not necessarily render the whole permit invalid . EPA’s intent is that the permit is to remain in effect to the extent possible; in the event that any part of this permit is invalidated, EPA will advise the regulated community as to the effect of such

invalidation.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

9 2.0 Technology-Based Effluent Limitations

2.1. Minimize Pesticide Discharges into Waters of the United States. You must implement control measures to minimize the discharge resulting from application of pesticides. The term “minimize” means to reduce and/or eliminate discharges to waters of the U.S. to the extent achievable using control measures (e.g., best management practices) that are technologically available and economically practicable and achievable. To minimize discharges resulting from application of pesticides, all permittees must do the following:

2.1.1. Use the lowest effective amount of pesticide product per application and optimum frequency of pesticide applicat ions necessary to control the target pest, consistent with minimization of the potential for development of pest resistance;

2.1.2. Perform regular maintenance activities to minimize potential for leaks, spills, and unintended/accidental release of pest icides from pesticide containers to waters of the U.S.; and

2.1.3. Maintain application equipment in proper operating condition by calibrating and cleaning/repairing such equipment on a regular basis to ensure effective pesticide application and pest control.

2.2. Integrated Pest Management (IPM) Practices.

This Part applies to pesticide applications performed by:

- Any public entity (e.g., as identified by category code 92 in the 2007 NAICS), and government establishments engaged in other sectors including but not limited to category codes 22 (Utilities) and 71 (Arts, Entertainment, and Recreation) in the 2007 NAICS, including any pesticide applicator hired by such entity, and - Any operator who exceeds any pesticide use threshold established in Part 1.2.2 including any pesticide applicator hired by such operator, but excluding from the calculation any pesticide applications covered under an NOI when hired by a public entity.

Operators that discharge pollutants as a result of the application of pesticides for the sole purpose of pesticide res earch and development, as defined in Appendix A, are not required to implemen t Part 2.2. for discharges resulting from those pesticide research and devel opment activities but only to the extent those requirements may compromise the research design. Comment [jrf23]: Should the permit elaborate on maintenance activity expectations of 2.12 and 2.1.3?

Comment [ T M24]: Short answer is no. The permit cannot hope to address all current and emerging technologies.

Comment [ T M25]: Already covered very well in current training and licensing of certified applicators.

Comment [ T M26]: Delete IPM requirements as part of the permit. Certification , training, and experience all give the applicators this background on how to do. Certification of Applicators under FIFRA already require display of knowledge for pest identification, biology, methods for management, proper pesticide use, safety, calibration, etc. Applicators show competency by examination and achieving a passing

score.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

10 You must implement control measures to minimize the discharge resulting from application of pesticides. EPA ge nerally does not mandate the specific control measures you must implement to meet the technology-based effluent limits. To meet the effluent limits below, you are required to evaluate, select, and implement site-specifi c control measures that reduce and/or eliminate discharges of pesticides to waters of the United States to the extent technologically available and economical ly practicable a nd achievable.

Note: Part 5 of this permit requires you to document your evaluation of control measures to meet the effluent limits. See Part 5, Pesticide Discharge Management Plan for specific documenta tion requirements. See fact sheet for examples of control measures and for further clarification.

2.2.1. Mosquito and Other Aquatic Nuisance Insect Control

This Part applies to discharges from the application of pesticides for mosquito and other aquatic nuisance insect control as defined in Part 1.1.1.

2.2.1.1. Identify the Problem . Prior to the first pesticide application covered under this permit that will result in a discharge to waters of the U.S., and at least once each year thereafter during whic h you will have a discharge, you must do the following for each treatment area, as defined in Appendix A:

2.2.1.1.1 Establish densities for larval and adult mosquito or aquatic nuisance insect populations which serve as action threshold for implementing pest management strategies;

2.2.1.1.2 Identify target mosquito or aquatic nuisance insect species to develop a species-specific control strategy base d on developmental and behavioral considerations for each species;

2.2.1.1.3 Identify known and potential breeding sites for source reduction, larval control program, and habitat management; and

2.2.1.1.4 Analyze existing surveillance data to identify new/unidentified sources of mosquito or aquatic nuisance insect production as well as sites that have recurring pest problems.

In the event site data are not available within the past year, you must document why the site data are not availa ble and the data you used to meet the permit conditions in 2.2.1.1. (See Pa rt 5, Pesticide Discharge Management Plan)

2.2.1.2 Pest Management . Prior to the first pesticide application covered under this permit that will result in a discharge to waters of the U.S., and at least once each year thereafter during which you w ill have a discharge, you must select and implement for each treatment area efficient and effective means of pest management that most successfully minimize discharges resulting from application of pesticides to control mosquitoes or other aquatic nuisanceEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

11 insects, including the use of pesticide and non-pesticide methods. In developing your pest management strategies, you must evaluate the following management options considering impact to water quality, non-target organisms, pest resistance, feasibility, and cost effectiveness:

• No action

• Prevention

• Mechanical/physical methods

• Cultural methods

• Biological control agents

• Pesticides

2.2.1.3 Pesticide Use. If a pesticide is selected for managing mosquitoes or aquatic nuisance insects and application of the pe sticide will result in a discharge to waters of the U.S., you must:

2.2.1.3.1 Conduct larval and/or adult surveillance prior to each pesticide application to

assess the treatment area and to dete rmine when pre-established conditions (pest action threshold) are met which necessitate the need for pest

management;

2.2.1.3.2 Assess environmental conditions prior to each pesticide application (e.g. temperature, precipitation, and wind speed in the treatment area) to identify conditions which support development of pest populations and are suitable for control activities;

2.2.1.3.3 Minimize the impact on the environment and non-target organisms by applying the pesticide only when the action thresholds have been met or disease is present;

2.2.1.3.4 Use larvicides as the primary pesticide fo r mosquito or aquatic nuisance insect control;

2.2.1.3.5 Use adulticides only where the adult action threshold has been met and/or under emergency condition (e.g. flooding, disease outbreak); and

2.2.1.3.6 Do not apply adulticides over waters of the U.S., except when necessary to target areas where adult mosquitoes or insect pests are present, and when weather conditions will facilitate movement of pesticide product away from the water to minimize discharges into the water.

2.2.2 Aquatic Weed and Algae Control

This Part applies to discharges from th e application of pest icides for aquatic weed and algae control as defined in Part 1.1.1.

2.2.2.1 Identify the Problem. Prior to the first applicat ion covered under this permit that will result in a discharge to waters of the U.S., and at least once each year thereafter during which you will have a discharge, you must do the following for each treatment area, as defined in Appendix A: Comment [jrf27]: Should the permit

include more details for each of these options?

Comment [ T M28]: No. Applicators by the very nature of what they do already evaluate the situations at hand. Question is “who” is to do this? The landowner already has done most of these, the applicator may be the landowner or a hired contractor who may hold the NOI, and is not present to do the “IPM” strategies prior to doing the actual application. NEEDS CLARIFICATION.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

12 2.2.2.1.1 Identify areas with weed or algae proble ms and characterize the extent of the problem, including, for example, water use goals not attained (e.g. wildlife habitat, fisheries, vege tation, and recreation);

2.2.2.1.2 Identity target weed species as necessary for pest control;

2.2.2.1.3 Identify possible sources of the problem (e.g., nutrients, invasive species, etc);

and

2.2.2.1.4 Establish past or present pest weed densities which serve as action threshold(s) for implementing pest management strategies.

In the event site data are not available within the past year, you must document why the site data are not availa ble and the data you used to meet the permit conditions in 2.2.2.1. (See Pa rt 5, Pesticide Discharge Management Plan)

2.2.2.2 Pest Management. Prior to the first pesticide application covered under this permit that will result in a discharge to waters of the U.S., and at least once each year thereafter during which you w ill have a discharge, you must select and implement for each treatment area efficient and effective means of pest management that most successfully minimize discharges resulting from application of pesticides to control aquatic weeds or algae, including pesticide and non-pesticide methods. In developi ng your pest management strategies, you must evaluate the following management options considering impact to water quality, impact to non-target organi sms, pest resistance, feasibility, and

cost effectiveness:

• No action

• Prevention

• Mechanical/physical methods

• Cultural methods

• Biological control agents

• Pesticides

2.2.2.3 Pesticide Use. If a pesticide is selected to manage weeds or algae and application of the pesticide will result in a discharge to waters of the U.S., you

must:

2.2.2.3.1 Conduct surveillance prior to each pestic ide application to assess the treatment area and to determine when pre-estab lished conditions (pest action threshold) are met which necessitate the need for pest management;

2.2.2.3.2 Conduct surveillance after each pesticide application to determine effectiveness of the treatment; and

2.2.2.3.3 Minimize the impact on the environment and non-target organisms by applying the pesticide only when the action threshold has been met and/or under an emergency condition (e.g. invasive species).

2.2.3 Area-Wide and Ditch Bank Pest ControlEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

13 This Part applies to discharges from the application of pesticides for area-wide and ditch bank pest control as defined in Part 1.1.1.

2.2.3.1 Identify the Problem . Prior to the first applic ation covered under this permit that will result in a discharge to waters of the U.S., and at least once each year thereafter during which you will have a discharge, you must do the following for each treatment area, as defined in Appendix A:

2.2.3.1.1 Establish target pest densities which serve as an action threshold for implementing pest management strategies;

2.2.3.1.2 Identify target species to develop a species-specific control strategy based on developmental and behavioral considerations for each species; and

2.2.3.1.3 Identify current distribution of the target pest and assess potential distribution

in the absence of control measures.

In the event site data are not available within the past year, you must document why the site data are not availa ble and the data you used to meet the permit conditions in 2.2.3.1. (See Pa rt 5, Pesticide Discharge Management Plan)

2.2.3.2 Pest Management. Prior to the first pesticide application covered under this permit that will result in a discharge to waters of the U.S., and at least once each year thereafter during which you w ill have a discharge, you must select and implement for each treatment area efficient and effective means of pest management that most successfully minimize discharges resulting from application of pesticides to control area-wide pests, including pesticide and non-pesticide methods. In developing your pest management strategies, you must evaluate the following management options considering impact to water quality, impact to non-target organisms, pest resistance, feasibility, and cost

effectiveness:

• No action

• Prevention

• Mechanical/physical methods

• Cultural methods

• Biological control agents

• Pesticides

2.2.3.3 Pesticide Use. If a pesticide is selected to manage area wide pests and application of the pesticide will result in a discharge to waters of the U.S., you

must:

2.2.3.3.1 Conduct surveillance prior to each appli cation to assess the treatment area and to determine when pre-established conditions (pest action threshold) are met which necessitate the need for pest management;

2.2.3.3.2 Conduct surveillance after each pesticide application to determine effectiveness of the treatment;EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

14 2.2.3.3.3 Assess environmental conditions (e.g. temperature, precipitation, and wind speed in the treatment area) to identify conditions which support target pest development and are conducive for treatment activities;

2.2.3.3.4 Minimize the impact on the environment and non-target organisms by considering the restrictions, applica tion timing, and application method in addition to applying the pesticide only when the action thresholds have been

met;

2.2.3.3.5 Use pesticides against the most susceptible developmental stage; and

2.2.3.3.6 Use pesticides only where the action threshold has been met and/or under emergency condition (e.g. invasive species).

2.2.4 Aquatic Nuisance Animal Control

This Part applies to discharges from th e application of pest icides for aquatic

nuisance animal control as defined in Part 1.1.1.

2.2.4.1 Identify the Problem. Prior to the first applicat ion covered under this permit that will result in a discharge to waters of the U.S., and at least once each year thereafter during which you will have a discharge, you must do the following for each treatment area, as defined in Appendix A:

2.2.4.1.1 Identify areas with aquatic nuisance animal problems and characterize the extent of the problems, including, for example, water use goals not attained (e.g. wildlife habitat, fisherie s, vegetation, and recreation);

2.2.4.1.2 Identify target aquatic nuisance animal species as necessary for pest control;

2.2.4.1.3 Identify possible sources of the problem (e.g., nutrients, invasive species); and

2.2.4.1.4 Establish past or present aquatic nuisanc e animal densities which serve as an action threshold for implementing pest management strategies.

In the event site data are not available with the past year, you must document why the site data are not available and the data you used to meet the permit conditions in 2.2.4.1. (See Part 5, Pesticide Discharge Management Plan)

2.2.4.2 Pest Management. Prior to the first pesticide application covered under this permit that will result in a discharge to waters of the U.S., and at least once each year thereafter during which you w ill have a discharge, you must select and implement for each treatment area efficient and effective means of pest management that most successfully minimize discharges resulting from application of pesticides to control aquatic nuisance animals, including pesticide and non-pesticide methods. In developing your pest management strategies, you must evaluate the following management options considering impact to water quality, impact to non-target organisms, pest resistance, feasibility, and cost effectiveness:

• No action.

• Prevention

• Mechanical/physical methodsEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

15 • Cultural methods

• Biological control agents

• Pesticides

2.2.4.3 Pesticide Use. If a pesticide is selected for managing aquatic nuisance animals and application of the pesticide wi ll result in a discharge to waters of the U.S., you must:

2.2.4.3.1 Conduct surveillance prior to each appli cation to assess the treatment area and to determine when pre-established conditions (pest action threshold) are met which necessitate the need for pest management;

2.2.4.3.2 Conduct surveillance after each pesticide application to determine effectiveness of the treatment; and

2.2.4.3.3 Minimize the impact on the environment and non-target organisms by considering site restrictions, applicat ion timing, and application method in addition to applying the pesticide only when the action threshold has been

met.

3.0 Water Quality-Based Effluent Limitations

Your discharge must be controlled as necessary to meet applicable numeric and narrative state, territory, or tribal water quality standards.

If at any time you become aware, or EPA determines, that your discharge

causes or contributes to an exceedance of applicable water quality standards, you must take corrective action as required in Part 6.0.

EPA may impose additional water qualit y-based limitations or require you to obtain coverage under an individual permit if information in your NOI, required reports, or other sources indi cates that your discharges are not controlled as necessary to meet applicable water quality standards.

4.0 Site Monitoring

4.1 Monitoring Requirements For All Permittees. You must monitor the amount of pesticide applied to ensure that you are using the lowest amount to effectively control the pest, consistent with minimization of the potential for development of pest resistance. You must also monitor your pesticide application activities to ensure you are performing regular maintenance activities and to ensure that your application equipment is in proper operating condition to minimize the potential for leaks, spills, and unintended/accidental release of pesticides to waters of the United States. Additionally, you must monitor your pesticide application activities to ensure that the application equipment is in proper operating condition by calibrating, cleaning, and repairing equipment on a regular basis. This will ensure effective pesticide application and pest control. Comment [ T M29]: this is all common sense and already covered in applicator certification training and refreshed at a number of industry group / association meetings and re-certification courses.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

16 4.2 Visual Monitoring Requirements. You must conduct a visual assessment:

 During the treatment activity when y ou are making a pesticide application, other than by aircraft or road vehicle, during daylight hours

 During any post-application surveillance or efficacy check that you choose

to conduct.

Visual assessments will consist of spot checks in the area to and around where pesticides are applied for possible and observable adverse impacts, as defined in Appendix A, caused by application of pesticides, including but not limited to the unanticipated deat h or distress of non-target organisms and disruption of wildlife habitat, recreationa l or municipal water use.

4.3 Additional Monitoring

EPA may notify you of additional discharge monitoring requirements. Any such notice will clearly state the reasons for the monitoring and the details of the monitoring and any associated repor ting and recordkeeping requirements. For example, EPA may require additional monitoring when the Agency

determines:

 Your discharge likely contributed to a reported adverse incident

 The product you are using contains a pesticide for which additional controls may be necessary

 The product you are using raises e nvironmental impact concerns

 More information about your pesticide use is needed to modify or determine more appropriate effluent limitations

 You are not in compliance with the conditions of this permit

 A change has occurred in the availab ility of demonstrated technology or practices for the reduction of discharges from the application of pesticides

 Additional requirements may be necessary in light of threatened or endangered species.

Should EPA exercise its authority to require additional monitoring requirements, you will receive a written explanation of the additional requirements and the basis for them. The notice will include a reasonable timeframe in which to discuss these new requirements with EPA. Unless EPA establishes a new timeframe in writing, after that time period has passed, the written notice will state that the new requirements will become active and enforceable permit conditions. The written notice will explain that the discharger may either accept the new re quirements or elect to apply for an alternative permit as described in 1.3.2.

5.0. Pesticide Discharge Management Plan Comment [ T M30]: Revise to clarify. We need to be cautious to not imply the applicator is to visit the field after application, puts individual at risk for a label violation of the Re-entry interval or

the Worker Protection Standards.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

17 If you exceed a treatment area annual thre shold, as identified in Part 1.2.2, you must prepare a Pesticide Discharge Management Plan (PDMP) for discharges from all treatment areas c overed under this permit. One PDMP may cover one or more treatment areas fo r each use pattern. This PDMP must be prepared within 90 days of your determination that you have reason to believe you will exceed any threshold identified in Part 1.2.2. The PDMP does not contain effluent limitations; the limitations are contained in Parts 2.0 and 3.0 of the permit. The PDMP is intended to document the evaluation and selection of control measures. The additional documentation requirements (see Part 8, Recordkeeping) are inte nded to document the implementation (including inspection, maintenance, monitoring, and corrective action) of the permit requirements. In your PDMP, you may refer to procedures in other documents that meet the requirements of this permit. If you reference other documents, such as a pre-existing integr ated pest management (IPM) plan that you already follow, you must keep a copy of relevant portions of those documents with your PDMP and make it av ailable for review consistent with

Part 5.3.

5.1 Contents of Your Pesticide Discharge Management Plan

Your PDMP must contain the following elements:

1. Pesticide Discharge Management Team

2. Problem Description

3. Control Measures Description

4. Pest Surveillance

5. Schedules and Procedures

• Spill Prevention and Response Procedures

• Equipment Maintenance Procedures

• Adverse Incident Response Plan

• Pesticide Monitoring

6. Documentation to Support Eligibility Considerations under Other Federal

Laws.

7. Signature Requirements.

5.1.1 PDMP Team. You must identify the persons (by name or title) that comprise the team as well as their individual responsibilities, including:

a. Person(s) responsible for managing pest s in relation to the treatment area described below;

b. Person (s) responsible for developing and revising the PDMP;

c. Person (s) responsible for taking corr ective actions where required; and

d. Person (s) responsible for pesticide applications. If pesticide applicator isunknown at the time of plan development, indicate whether or not a forhire applicator will be used.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

18 5.1.2 Problem Description. You must document the following:

a. Treatment Area Description, includi ng geographic boundaries and waters of the U.S. to which the plan applies, and a general location map (e.g., USGS quadrangle map, a portion of a city or county map, or other map) that identifies the geographic boundaries of the area to which the plan applies and location of the treatment area and waters of the U.S;

b. Pest Management Objective;

c. Target Pest;

d. Action threshold(s)

e. The water quality standards applicable to waters to which there will be a discharge; and

f. Source of the data used to meet conditions in Parts 2.2.1.1, 2.2.2.1., 2.2.3.1., and 2.2.4.1.

5.1.3 Description of Control Measures. Control measures can be actions (including processes, procedures, schedules of activities, prohibitions on practices and other management practices), or structural or installed devices to minimize discharges of pesticides to wate rs of the United States . They can be just about anything that “does the job” of minimizing pesticides being discharged, and of meeting applicable limits. In the PDMP, you must document the pest management tools that you will evaluate and the criteria you will use to select control measures that minimize discharges resulting from the application of pesticides. The evaluation must include the followingmanagement tools and considering impact to water quality, impact to nontarget organisms, pest resistance , feasibility, and cost effectiveness:

a. No action

b. Prevention

c. Mechanical/physical methods

d. Cultural methods

e. Biological control agents

f. Pesticides

1. Name of pesticide product(s) evaluated and corresponding EPA Registration number(s);

2. Procedures for determining the lowest effective amount of pesticide product per application and the op timum frequency of pesticide applications to effectively control the target pest; consistent with steps to minimize the development of pest resistance; and

3. For mosquito control and aquatic nuisance insect control, you must document why larviciding is not the primary pesticide to effectively manage mosquitoes or insects [See Part 2.2.1.3.4.]

5.1.4 Pest Surveillance. You must document your procedures for conducting preand post-application pest surveillance. Comment [ T M31]: What level? Best professional judgement is what I heard. Preventive action by use of a pesticide is often more effective and provides for less impact to the environment.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

19 5.1.5 Schedules and Procedures. You must document the following schedules and procedures in your PDMP:

5.1.5.1 Spill Prevention and Response Schedu les and Procedures – Schedules and procedures for preventing and responding to spills and leaks. You must identify and document the following:

• Maintenance activities and performance schedule to minimize potential for leaks, spills, and unintended/accidental release of pesticides from pesticide containers;

• Course of action or responses to any spill;

• Chain of command notification for spill, both internal to your agency/organization and external;

• State/Federal contacts with phone number;

• Name, location, and telephone of ne arest emergency me dical facility;

• Name, location, and telephone of nearest hazardous chemical responder (including police a nd fire department); and

• Name and telephone number for the National Pesticide

Telecommunications Network at 800-858-7378.

5.1.5.2 Equipment Maintenance Schedules and Procedures – Schedules and procedures for maintaining the applic ation equipment in proper operating condition, including calibrating, cleaning, and repairing the equipment.

5.1.5.3 Adverse Incident Response Procedures - Procedures for responding to adverse incident resulting from pesticide applications. You must identify and document the following:

• Course of action and timing of res ponses to any incident resulting from pesticide applications;

• Chain of command notification for the incident, both internal to your agency/organization and external;

• State/Federal contacts with phone numbers;

• Name, location, and telephone of ne arest emergency medical facility;

• Name, location, and telephone of ne arest hazardous chemical responder (including police and fire department); and

• How you will disseminate to those involved in making pesticide applications the name and a desc ription of the National Pesticide Telecommunications Network, as well as the telephone number for NPTN (800-858-7378).

5.1.5.4 Pesticide Monitoring Schedules and Procedures – You must document the procedures for monitoring consistent with the requirements in Part 4.0 including:

 The process for determining the location of any monitoring;

 A schedule and procedures for any monitoring;

 The person (or position) responsi ble for conducting monitoring; and

 Procedures for documenting any inci dents of noncompliance observed.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

20 5.1.6 Documentation to Support Eligibility Considerations Under Other Federal Laws. [will include any ESA-related documentation requirements]

5.1.7 Signature Requirements. You must sign and date your PDMP in accordance with Appendix B, Subsection B.11.

5.2 Pesticide Discharge Management Plan Modifications. You must modify your PDMP whenever necessary to address any of the triggering conditions for corrective action in Part 6.1. Keeping the PDMP up-to-date will help to ensure that any condition that triggered the corrective action does not reoccur. When a review following the triggering conditions in Part 6.1 indicates that changes to your control measures are necessary to meet the effluent limits (or other conditions) in this permit, you must modify the PDMP to reflect changes implemented. Changes to your PDMP must be made in accordance with the corrective action deadlines in Part 6.2, and must be signed and dated in accordance with Appendix B, Subsection B.11

You must review your PDMP at a minimum once per year or whenever necessary to update the pest management strategies at your treatment area(s).

5.3 Pesticide Discharge Management Plan Availability. You must retain a copy of the current PDMP, along with all supporting maps and documents, at the address provided on the NOI. The PDMP and all supporting documents must be immediately available to EPA; a State, Territorial, Tribal, or local agency governing pesticide applications; and representatives of the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS) upon request. EPA may provide access to portions of your PDMP to a member of the public upon request . Confidential Business Information (CBI) may be withheld from the public, but may not be withheld from those staff cleared for CBI review within EPA, FWS, or NMFS.

6.0 Corrective Action

6.1 Situations Requiring Revision of Control Measures. If any of the following situations occur, you must review and, as necessary, revise the selection and implementation of your control measures to ensure that the situation is eliminated and will not be repeated in the future:

• An unauthorized release or discharge (e.g., spill, leak, or discharge not authorized by this or another NPDES permit) occurs;

• You become aware, or EPA determines , that your control measures are not adequate/sufficient for the discharge to meet applicable water quality standards;EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

21 • Your monitoring activities, as require d in part 4.1, determine that you

failed to:

- Use the lowest amount of pesticide to effectively control the pest, consistent with minimization of the potential for development of pest resistance;

- Perform regular maintenance activities to ensure that your application equipment is in proper operating co ndition to minimize the potential for leaks, spills, and unintended/acci dental release of pesticides to waters of the United States; and

- Calibrate, clean, and repair equipment on a regular basis to ensure that the application equipment is in proper operating condition.

• An inspection or evaluation of your activities by an EPA official, or local, State, Territorial or Tribal entity, determines that modifications to the control measures are necessary to meet the non-numeric effluent limits in this permit, or

• You observe or are otherwise made awar e of an adverse incident for which symptoms are unusual or unexpected during the normal course of treatment, as described in Part 4.2.

6.2. Corrective Action Deadlines. If you determine that changes to your control measures are necessary to eliminate any situation identified in Part 6.1, such changes must be made before the next pesticide application that results in a discharge, or as soon as practicable. This time interval is not a grace period, but is a schedule considered reasonable for documenting your findings and for making repairs and improvements. The schedule is included in this permit to ensure that any condition prompting th e need for repair and improvement is not allowed to persist indefinitely.

6.3 Adverse Incident Documentation and Reporting

6.3.1 Twenty-Four (24) Hour Adverse Incident Notification

If you become aware or have been informed of an adverse incident, as defined in Appendix A, which may have resulted from a discharge from your pesticide application, you must immediately notify your EPA Incident Reporting Contact, as identified at www.epa.gov/npdes/aquaticpesticides . This notification must be made by telephone within 24 hours of you becoming

aware of the adverse incident.

When providing the 24-hour notice identified above, notification for any adverse incident must include at least the following information:

• The caller’s name a nd telephone number;

• Permittee name and mailing address;

• If covered under an NOI, the NOI NPDES tracking number; Comment [ T M32]: Cell phone and radio coverage is not available in the mountainous back country. The FS and contracted commercial applicators do use horses and pack in to treat invasives and other noxious weeds. 24 hours may or may not be compatible in those situation. As long as the event was contained and

the best remedial actions taken to lessen the event, then do we need to worry if the

notification is made in 24 hours or not.

If an event occurred on a weekend or the EPA employee was out of the office, the likelihood of the EPA employee getting the message will exceed 24 hours anyway at no fault of the applicator.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

22 • The name and telephone number of a contact person, if different than the person providing the 24-hour notice;

• How and when you became aware of the adverse incident;

• Description of the location of the adverse incident;

• Description of the adverse incident identified, including the EPA pesticide registration number for each product you applied in the area of the adverse incident; and

• Description of any steps you have taken or will take to contain any

adverse effects.

6.3.2 Fourteen (14) Day Adverse Incident Written Report. Within 14 days of becoming aware of an adverse incident reported pursuant to Part 6.3.1, you must provide a written report of the adverse incident to the appropriate EPA Regional address listed in Part 9 and to the State Lead Agency for pesticide registration (see http://npic.orst.edu/state1.htm ) Your adverse incident report must include at least the following information:

• Name of permittee, mailing address, and telephone number

• If the permittee submitted an NOI, the NOI NPDES tracking number

• Name, address, email address (if any) , and telephone number of contact

person

• Date and time permittee became aware of the incident

• Date of incident (if appropriate, list start and end dates)

• Date and time you contacted EPA notifying the Agency of the adverse

incident.

• Location of incident, including approximate range, area, and magnitude of impact

• Names of any waters affected and appearance of affected waters (e.g., sheen, color, clarity, etc)

• EPA Product Registration Number of the pesticide that allegedly caused

the incident

• Product use purpose

• A brief description of the circumstances of the incident including species affected, number of individual and appr oximate size of de ad or distressed organisms

• Symptoms or adverse effects

• Magnitude of the effect (e.g. aquatic square area or total stream distance affected)

• Pesticide application rate, intended use si te (e.g., banks, above, or direct to water), and method of application

• Description of the habitat and the ci rcumstances under which the incident occurred (including any available ambient water data for pesticides applied)

• If plants were impacted, the type of plant life affected (i.e., crop, forest, orchard, home garden, ornamental foliage, etc)EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

23 • If laboratory tests were performed, indicate what test(s) were performed and provide a summary of the test results.

• Actions to be taken to prevent recurrence of incident.

• All documentation listed in Part 6.3.1.

6.4 Other Corrective Action Documentation. For situations identified in Part 6.1, other than for adverse incidents, you must document the situation triggering corrective action within 24 hours of you becoming aware of that situation and retain a copy of this documentation on-site. This documentation must include the following information:

• Identification of the condition triggering the need for corrective action review, including any ambient water qu ality monitoring that assisted in determining that discharges did not meet water quality standards;

• A brief description of the circumstances of the situation; and

• Date the problem was identified.

Within 14 days of you becoming aware of any condition listed in Part 6.1, other than for adverse incidents, you must document and retain the following

information:

• Summary of corrective action taken or to be taken;

• Notice of whether PDMP modifications are required as a result of the identified situation;

• Date corrective action initiated; and

• Date corrective action completed or expected to be completed.

7.0 Annual Reporting

If you exceed a treatment area annual thre shold, as identified in Part 1.2.2, you must submit an annual report to EPA. This annual report must include information for the calendar year dur ing which you were covered under this permit, with the first annual report required for the first calendar year, or portion of the calendar year, you exceeded the treatment area threshold under this permit. The annual report must contain the following information:

• Permittee’s name

• NPDES permit tracking number(s)

• Permittee’s mailing address

• Contact person name, title, e-mail a ddress (if any), and phone number

• For each use pattern (see Part 1.1.1):

o EPA product registration number(s) for each product used,

o Amount of each product used,

o Locations and names of waters to which pesticides are discharged (including any 8-digit HUC identifiers, if known)

o Pests controlled Comment [ T M33]: “Insert upon availability” ?? Test results in most

cases are NOT available at the end of 14 days, it may take months to get final results. Some compounds are harder to detect in the laboratory than others, and some compounds do not have a ready laboratory analyte that works well or at all for detection and new methods may need to be developed.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

24 EPA strongly recommends that you submit this report electronically using the Annual Reporting Form provided as Appendix H. You must submit the annual report to EPA no later than Februa ry 15 of the following year for all pesticide activities covered under this permit occurring during the previous calendar year. If you did not have any discharges from pesticide applications during any year, you are not required to submit an annual report for that year. The appropriate address for the report are Identified in Part 11.0. Permittees exceeding a treatment area annual thres hold within 30 days of the end of the calendar year are not required to submit an annual report for that first partial year but must submit annual reports thereafter, with the first annual report submitted also including information from the first partial year. Once a permittee meets the obligation to submit an annual report, it must submit an annual report each year thereafter for the duration of coverage under this general permit.

8.0 Recordkeeping

8.1 . All permittees are required to keep the following documentation:

• A copy of this permit (an electronic copy is also acceptable)

• A copy of any Adverse Incident Reports (See Part 6.0)

These records must be accurate and co mplete to demonstrate your compliance with the conditions of this permit:

8.2 . Permittees who are required to implement IPM practices, Part 2.2, are required to keep the following records at the address provided on the NOI:

• Pest Management Log for the pestic ide applications you perform. The Pest Management Log must be comple ted and maintained to demonstrate your compliance with the conditions of this permit. You must retain a copy of the current Pesticide Management Log at the address provided on the NOI. You must maintain records of the following information:

• Permittee’s name

• NPDES permit tracking number(s)

• The name(s) of the record keeper;

• Times and date(s) of pest management activities;

• Target Pest;

• Pest management strategies used and what action threshold has been met;

• Pesticide used:

• Names and amounts of pesticides used, including EPA registration numbers;

• Locations and names of waters to which pesticides are applied (any 8- digit HUC identifiers or map coordinates, if known);

• Surveillance method used;

• Any observed impacts to non-target organisms resulting from your pesticide discharge as required in Part 4, Site Monitoring; Comment [ T M34]: Redundant of records already kept by applicators.

Delete all of Section 8.2.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

25 • When the application equipment was calibrated, cleaned, and repaired, if applicable;

• For mosquito control and aquatic nuisance insect control, if applicable, why larviciding is impractical; and

• Any monitoring information required in Part 4.0.

8.3. Permittees who are required to de velop a Pesticide Discharge Management Plan and required to submit an annual report must keep the following records at the address provided on the NOI:

• A copy of your annual reports;

• A Pesticide Discharge Management Plan (PDMP) as detailed in Part 5.0

8.4 If you are required to submit an NOI, as identified in Part 1.2.2, you are required to keep the following documentation at the address provided on the

NOI:

• A copy of the NOI submitted to EPA along with any correspondence exchanged between you and EPA specific to coverage under this permit;

• A copy of the acknowledgment letter you received from the NOI Processing Center or eNOI system assigning your permit tracking number;

• For operators required to submit an NOI after the date on which you were authorized to discharge (i.e., after commencing discharge under this permit, you determined you were likely to exceed an annual threshold), the date on which you made the dete rmination that you had reason to believe you will exceed an annual threshold during any calendar year.

8.5. You must retain copies of documentation outlined in Part 8.1 and, if applicable, Part 8.2, Part 8.3 (includi ng any modifications made to the PDMP during the term of this permit), and Part 8.4 for a period of at least 3 years from the date that your coverage under this permit expires or is terminated.

9.0 EPA Contact Information and Mailing Addresses

Notices of Intent and Notices of Termination should be submitted using EPA’s eNOI system ( www.epa.gov/npdes/eNOI ), if possible. Otherwise, a paper copy of these notices may be sent to EPA Headquarters at the address

listed in Part 9.1.

Paper copies of any reports required in Pa rt 7 (Annual Report) must be sent to EPA Headquarters at the a ddress listed in Part 9.1

All Incident Reports under Part 6.3 must be sent within 14 days of you becoming aware of the adverse incident to the EPA Regional offices (see Part 9.2) and to the State Lead Agency for pesticide regulation (see http://npic.orst.edu/state1.htm ).EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

26 All other written correspondence concerning discharges in any State, Territory, Indian Country land, or from any Federal facility covered under this permit and directed to the EPA, including individual permit applications, must be sent to the address of the appropri ate EPA Regional Office listed below in

Part 9.2.

Note: If EPA notifies dischargers (eithe r directly, by public notice, or by making information available on the Internet) of other reporting options that become available at a later date (e.g ., electronic submission), operators may take advantage of those options to satisfy the reporting requirements of this permit.

9.1 EPA Headquarters Addresses

Via U.S. mail :

U.S. Environmental Protection Agency Office of Water, Water Permits Division Mail Code 4203M, ATTN: NPDES Pesticides 1200 Pennsylvania Avenue, NW Washington, D.C. 20460

Or Via Overnight/Express Delivery :

U.S. Environmental Protection Agency Office of Water, Water Permits Division Room 7420, ATTN: NPDES Pesticides 1201 Constitution Avenue, NW Washington, D.C. 20004

Phone number: 202-564-9545

9.2 EPA Regional Addresses

9.2.1 Region 1 : Connecticut, Massachusetts, New Hampshire, Rhode Island, Vermont, and Maine.

U.S. EPA Region 1 Office of Ecosystem Protection One Congress Street - CIP5 Post O ffice Square – Mail code OEP 06-1 Boston, MA 02114 02109-3912

9.2.2 Region 2: New Jersey, New York, Puerto Rico, and Virgin Islands.

For Puerto Rico and the Virgin Islands U.S. EPA Region 2EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

27 Caribbean Environmental Protection Division Environmental Management Branch Centro Europa Building 1492 Ponce de Leon Avenue, Suite 417 San Juan, PR 00907-4127

For New Jersey and New York: U.S. EPA Region 2

Division of Environmental Planning and Protection 290 Broadway New York, NY 10007-1866

9.2.3 Region 3: Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia.

U.S. EPA Region 3 Water Protection Division (3WP40)

1650 Arch Street Philadelphia, PA 19103

9.2.4 Region 4: Alabama, Florida, Georgi a, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee.

U.S. EPA Region 4 Water Management Division

Atlanta Federal Center 61 Forsyth Street SW Atlanta, GA 30303

9.2.5 Region 5: Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin.

U.S. EPA Region 5

Water Division NPDES Programs Branch

77 W. Jackson Blvd.

Mail Code WN16J Chicago, IL 60604

9.2.6 Region 6: Arkansas, Louisiana, Oklahoma, Texas, and New Mexico (except see Region 9 for Navajo lands, and see Region 8 for Ute Mountain Reservation lands).

U.S. EPA Region 6

P.O. Box 50625 Dallas, TX 75205

9.2.7 Region 7: Iowa, Kansas, Missouri, Nebraska.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

28 U.S. EPA - Region 7

901 N. 5th St. Kansas City, KS 66101

9.2.8 Region 8: Colorado, Montana, North Dakota, South Dakota, Wyoming, Utah (except see Region 9 for Goshute Reservation and Navajo Reservation lands), the Ute Mountain Reservation in New Mexico, and the Pine Ridge Reservation in

Nebraska.

U.S. EPA Region 8

8P-W-WW 1595 Wynkoop St. Denver, CO 80202- 1129

9.2.9 Region 9: Arizona, California, Hawaii, Nevada, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Goshute Reservation in Utah and Nevada, the Navajo Reservation in Utah, New Mexico, and Arizona, the Duck Valley Reservation in Idaho, Fort McDermitt Reservation in Oregon.

U.S. EPA Region 9 Water Management Division, WTR-5

75 Hawthorne St. San Francisco, CA 94105

9.2.10 Region 10: Alaska, Idaho, Oregon (except see Region 9 for Fort McDermitt Reservation), Washington.

U.S. EPA Region 10

Office of Water and Watersheds OWW-130

1200 6th Avenue Suite 900 Seattle, WA 98101

10. Permit Conditions Applicable to Spe cific States, Territories, and Indian Country Lands

(Specific permit conditions will be added to the final permit based on CWA §401 and CZMA certification informati on provided by states, territories, or tribes, for areas and activities covered under this permit.)EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

29 Appendix A. Definitions, Abbreviations, and Acronyms

A.1. DEFINITIONS

Active ingredient – any substance (or group of structurally similar substances if specified by the Agency) that will prevent, destroy, repel or mitigate any pest, or that functions as a plant regulator, desiccant, or defoliant within the meaning of FIFRA sec. 2(a),. [40 CFR 152.3] Active ingredient also means a pesticidal substance that is intended to be produced and used in a livi ng plant, or in the produce thereof, and the genetic material necessary for the production of such a pesticidal substance. [40 CFR 174.3]

Adverse incident – means an incident, which you have observed upon inspection or of which you otherwise become aware, in which :

(1) A person or non-target organism may have been exposed to a pesticide residue, and

(2) The person or non-target organism suffered a toxic or adverse effect, or is reasonably likely to suffer a delayed or chronic adverse effect in the future.

The phrase “toxic or adverse effects” includes effects on non-target plants, fish or wildlife that are unusual or unexpected as a resu lt of exposure to a pesticide residue, and may include:

 Distressed or dead juvenile and small fishes

 Washed up or floating fish

 Fish swimming abnormally or erratically

 Fish lying lethargically at water surface or in shallow water

 Fish that are listless or nonresponsive to disturbance

 Stunting, wilting, or desiccation of non- target submerged or emergent aquatic plants

 Other dead or visibly distressed non-target aquatic organisms (amphibians, turtles, invertebrates, etc.)

The phrase, “toxic or adverse effects,” also includes any adverse effects to humans (e.g., skin rashes) or domesticated animals tempora lly and spatially related to exposure to a pesticide residue (e.g., vomiting, lethargy).

However, reporting of adverse incidents is not required in the following situations:

(1) the permittee is aware of facts that clearly establish that the reported toxic effect, or reported exposure, did not or will not occur. Comment [ T M35]: Non-targets will be taken, and under the pesticide label are legal to take if that “non-target” pest species is taken incidental to the use of that product while applying to control the target pest. Covered in the immediate following sections 3 & 4 ?

Comment [ T M36]: Need to incorporate Fish & Wildlife Service

definition of “Incidental Take”. Even in the best of circumstances, doing everything legal and by the label, may

result in an incidental take of a nontarget.

Comment [ T M37]: This permit is to address discharges to water, not human health and safety.

Comment [ T M38]: Rotenone is

labeled to kill fish and will take nontargets, it is unavoidable.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

30 (2) The permittee has been notified in writing by EPA that the reporting requirement has been waived for this incident or category of incidents, and the permittee has not been notified in writing by the Agency that the waiver is rescinded.

(3) The adverse incident involves only a toxic effect to non-target plants, which were at the use site at the time the pesticide was applied, and pesticide labeling provides adequate notice of such a risk.

(4) It concerns an adverse effect to pest s not specified on the label, provided that such pests are similar to pests specified on the label.

Best Management Practices (BMPs) – schedules of activities, practices (and prohibitions of practices), structures, vege tation, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants to waters of the U.S. BMPs also include treatment requireme nts, operating procedures, and practices to control spillage or leaks, or drainage from raw material storage. [40 CFR 122.2]

Biological pesticides (also called biopesticides) - include microbial pesticides, biochemical pesticides and plan t-incorporated protectant (PIP). Microbial pesticide means a microbial agent intended for preventing, destroying, repelling, or mitigating any pest, or intended for use as a plant regulator, defoliant, or dessicant, that (1) is a eucaryotic microorganism including, but not li mited to, protozoa, algae, and fungi; (2) is a procaryotic microorganism, including, but not limited to, Eubacteria and Archaebacteria; or (3) is a parasitically repl icating microscopic element, including but not limited to, viruses. [40 CFR 174.43] Biochemical pesticide mean a pesticide that (1) is a naturally-occurring substance or structurally-similar and functionally identical to a naturally-occurring substance; (2) has a history of exposure to humans and the environment demonstrating minimal toxicity, or in the case of a synthetically-derived biochemical pesticides, is equivalent to a naturally-occurring substance that has such a history; and (3) Has a non-toxic mode of action to the target pest(s). [40 CFR 158.2000(a)] Plant-incorporated protectant mean s a pesticidal substance that is intended to be produced and used in a living plant, or in the produce thereof, and the genetic material necessary for production of such a pe sticidal substance. It also includes any inert ingredient contained in the plant, or produce thereof. [40 CFR 174.3]

Chemical pesticides

– all pesticides not otherwise classified as biological pesticides.

Control Measure – refers to any BMP or other method used to meet the effluent limitations to minimize the discharge of pollutants to waters of the U.S.

Declared Emergency Situation – Any event defined by public declaration by a federal agency, state, or local government of a pest problem that is determined to require control by the application of a pesticide beginning less than ten days after identification of the need for pest control. This public declaration may be based on: (1) Significant risk to human health; (2) Significant economic loss; orEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

31 (3) Significant risk to: (i) Endangered species, (ii) Threatened species, (iii) Beneficial organisms, or (iv) The environment. [40 CFR 166]

Director – a Regional Administrator of the Environmental Protection Agency or an authorized representative. [excerpted from 40 CFR 122.2]

Discharge – when used without qualification, means the "discharge of a pollutant.” [40 CFR 122.2]

Discharge of a pollutant – any addition of any “pollutant” or combination of pollutants to “waters of the United States” from any “poi nt source,” or any addition of any pollutant or combination of pollutants to the waters of the “contiguous zone” or the ocean from any point source other than a vessel or other floa ting craft which is being used as a means of transportation. This includes additions of pollutants into waters of the United States from:

surface runoff which is collected or channele d by man; discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. [excerpted from 40 CFR 122.2]

EPA Approved or Established Total Maximum Daily Loads (TMDLs) – “EPA Approved TMDLs” are those that are devel oped by a State and approved by EPA. “EPA Established TMDLs” are those that are issued by EPA.

Enterprise – a business organization consisting of one or more establishments specified under common ownership or control. The ente rprise and establishment are the same for single-establishment enterprises. Each establishment of an enterprise is assigned a NAICS code based on its own primary business activity.

Establishment – generally a single physical location where business is conducted or where services or industrial operations are performed (e.g., factory, mill, store, hotel, movie theater, mine, farm, airline termin al, sales office, warehouse, or central administrative office).

Facility or Activity – any NPDES “point source” (inc luding land or appurtenances thereto) that is subject to regulation under the NPDES program. [40 CFR 122.2]

Federal Facility – any buildings, installations, structures, land, public works, equipment, aircraft, vessels, and other vehicles an d property, owned by, or constructed or manufactured for the purpose of le asing to, the federal government.

For-Hire Applicator - Includes persons who make contractual pesticide applications for which they or their employer receives compensa tion (e.g., lawn care firms, pest control companies).EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

32 Hydrologic Unit Code (or HUC) - The United States is divided and sub-divided into successively smaller hydrologic units which are classified into four levels: regions, subregions, accounting units, and cataloging units. The hydrologic units are arranged within each other, from the smallest (cataloging units ) to the largest (regions). Each hydrologic unit is identified by a unique hydrologic unit code (HUC) consisting of two to eight digits based on the four levels of classification in the hydrologic unit system. (http://water.usgs.gov/GIS/huc.html)

Impaired Water (or “Water Quality Impaired Water” or “Water Quality Limited Segment”) – A water is impaired for purposes of this permit if it has been identified by a State, Territory, Tribe or EPA pursuant to Section 303(d) of the Clean Water Act as not meeting applicable State, Territorial, or Tr ibal water quality standards (these waters are called “water quality limited segments” under 40 CFR 30.2(j)). Impaired waters include both waters with approved or established TMDLs, and those for which a TMDL has not yet been approved or established.

Indian Country – (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through th e reservation; (b) all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, a nd whether within or without the limits of a State, and (c) all Indian allotments, the Indi an titles to which have not been extinguished, including rights-of-way running through the same. This definition includes all land held in trust for an Indian tribe. [18 U.S.C. 1151; 40 CFR 122.2]

Inert Ingredient - any substance (or group of structurally similar substances if designated by the Agency), other than an active ingredient, which is intentionally included in a pesticide product,. [40 CFR 152.3] Inert ingredient also means any substance, such as a selectable marker, other than the active ingredient, where the substance is used to confirm or ensure the pr esence of the active ingredient, and includes, the genetic material necessary for the production of the substance, provided that genetic material is intentionally introduced into a liv ing plant in addition to the active ingredient. [40 CFR 174.3]

Integrated Pest Management – a holistic approach to managing pests by combining biological, cultural, physical, and chemical tool s in a way that balances economic, health,

and environmental risks and benefits.

Minimize - to reduce and/or eliminate pesticide discharges to waters of the United States through the use of control measures and to the extent technologically available and economically practicab le and achievable.

North American Industry Classification System (NAICS) – developed under the direction and guidance of the U.S. Office of Management and Budget (OMB) as the standard for use by Federal statistical agencies in classifying business establishments forEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

33 the collection, tabulation, presentation, and anal ysis of statistical data describing the U.S. economy. NAICS is scheduled to be reviewed every 5 years for potential revisions with the most recent version being completed in 2007. Under NAICS, an establishment is generally a single physical location where bus iness is conducted or where services or industrial operations are performed (e.g., factor y, mill, store, hotel, movie theater, mine, farm, airline terminal, sales office, warehous e, or central administrative office). An enterprise, on the other hand, may consist of more than one location performing the same or different types of economic activities. Each establishment of that enterprise is assigned a NAICS code based on its own primary business activity. Ideally, the primary business activity of an establishment is determined by relative share of production costs and/or capital investment. In practice, other variables, such as revenue, value of shipments, or employment, are used as proxies. For this permit, the U.S. Environmental Protection Agency uses revenue or value of shipment s to determine an establishment's primary business activity. Details of NAICS are available on the Internet at http://www.census.gov/eos/www/naics/index.html

.

Operator – any entity with a discharge resulting from a pesticide application that meets either of the following two criteria: (i) The entity has operational control over the decision to perform pesticide applications that result in discharges, including the ability to modify those decisions; and/or (ii) The entity has day-to-day operational c ontrol of activities which are necessary to ensure compliance with the permit (e.g., they ar e authorized to direct workers to carry out activities required by the permit).

Person – an individual, association, partnership, corporation, municipality, State or Federal agency, or an agent or employee thereof.

Pest – Consistent with 40 CFR 152.5, any orga nism under circumstances that make it deleterious to man or the environment, if it is:

(a) Any vertebrate animal other than man;

(b) Any invertebrate animal, including but not limited to, any insect, other arthropod, nematode, or mollusk such as a slug and snail, but excluding any internal parasite of living man or other living animals;

(c) Any plant growing where not wanted, incl uding any moss, alga, liverwort, or other plant of any higher order, and any plant part such as a root; or

(d) Any fungus, bacterium, virus, or other microorganism, except for those on or in living man or other living animals and those on or in processed food or processed animal feed, beverages, drugs (as defined in FFDCA sec. 201(g)(1)) and cosmetics (as defined in FFDCA sec. 201(i)).

5. Pesticide – means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, (2) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant, and (3) any nitrogenEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

34 stabilizer, except that the term ‘‘pesticide’’ shall not include any article that is a ‘‘new animal drug’’ within the meaning of sect ion 201(w) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(w)), that has b een determined by the Secretary of Health

and Human Services not to be a new animal drug by a regulation es tablishing conditions of use for the article, or that is an animal feed within the meaning of section 201(x) of such Act (21 U.S.C. 321(x)) bearing or c ontaining a new animal drug. The term ‘‘pesticide’’ does not include liquid chemical st erilant products (including any sterilant or subordinate disinfectant claims on such produc ts) for use on a critical or semi-critical device, as defined in section 201 of the Fede ral Food, Drug, and Cosmetic Act (21 U.S.C. 321). For purposes of the preceding sentence , the term ‘‘critical device’’ includes any device which is introduced directly into the human body, either into or in contact with the bloodstream or normally sterile areas of the body and the term ‘‘se mi-critical device’’ includes any device which contacts intact mucous membranes but which does not ordinarily penetrate the blood barrier or ot herwise enter normally sterile areas of the body. [FIFRA Section 2(u)]

The term pesticide applies to insecticides, herbicides, fungicides, rodenticides, and various other substances used to control pests. The definition encompasses all uses of pesticides authorized under FIFRA incl uding uses authorized under sections 3 (registration), 5 (experimental use permits), 18 (emergency exemptions), 24(c) (special local needs registrations), and 25(b) (exemptions from FIFRA).

Note: drugs used to control diseases of humans or animals (such as livestock and pets) are not considered pesticides; such drugs are regulated by the Food and Drug Administration. Fertilizers, nutrients, and other substances used to promote plant survival and health are not considered plant gr owth regulators and thus are not pesticides. Biological control agents, except for cert ain microorganisms, are exempted from regulation as pesticides under FIFRA. (Bio logical control agents include beneficial predators such as birds or ladybugs that eat insect pests, parasitic wasps, fish, etc).

This permit uses the term “pesticide” when referring to the “pesticide, as applied.” When referring to the chemical in the pesticide product with pesticidal qualities, the permit uses the term “active ingredient.”

Pesticide drift - the physical movement of pesticide droplets or particles through the air from the target site to any non-target site . Pesticide spray and dust drift occurs duringapplication or soon thereafter. [Under stable atmospheric conditions (such as nearground temperature inversion), drift can also occur after the application has been completed.] Pesticide drift does not include the movement of pesticide caused by other types of migration such as windblown soil par ticles or volatilization from the application site after application.

Pesticide Product– a pesticide in the particular fo rm (including composition, packaging, and labeling) in which the pesticide is, or is intended to be, distributed or sold. The term includes any physical apparatus used to deliver or apply the pesticide if distributed or sold with the pesticide.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

35 Pesticide Research and Development – Activities undertaken on a systematic basis to gain new knowledge (research) and/or the ap plication of research findings or other scientific knowledge for the creation of new or significantly improved products or processes (experimental development). These types of activities are generally categorized under the four-digit code of 5417 under the 2007 NAICS.

Pesticide Residue – includes that portion of a pesticide application that is discharged from a point source to waters of the US and no longer provides pestic idal benefits. It may include the pesticide and its degradates of the pesticide.

Point source – any discernible, confined, and disc rete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged. This term

does not include return flows from irrigated agriculture or agricultural stormwater runoff. [40 CFR 122.2]

Pollutant – dredged spoil, solid waste, incinera tor residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wa stes, biological materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt , and industrial, municipal, and agricultural waste discharged into water. For purposes of this definition, a “biological pesticide” is considered a “biological material,” and any “pesticide residue” resulting from use of a “chemical pesticide” is considered a “chemical waste.” [excerpted from 40 CFR 122.2]

Public entity - A Federal, State, city, district, or other public body including a school district, university, public utility (e.g., electric, water, gas), a special district such as a mosquito control district, or a similar entity; an Indian tribe or authorized Indian tribal organization (e.g., as identified by category co de 92 in the 2007 NAICS, and government establishments engaged in other sectors in cluding but not limited to category codes 22 (Utilities) and 71 (Arts, Entertainment, and Recreation) in the 2007 NAICS).

Responsible entity – the person making the decision to control pests for which a discharge will occur that requires NPDE S permit coverage under this permit.

Tier 2 Waters – For antidegradation purposes, pursuant to 40 CFR 131.12(a)(2), Tier 2 waters are characterized as having water qu ality that exceeds the levels necessary to support protection and propagation of fish, she llfish, and wildlife and recreation in and on the water, consistent with CWA 101(a)(2). That water quality shall be maintained and protected unless the State, Territory, or Tribe finds that allowing lower water quality is necessary to accommodate important ec onomic or social development.

Tier 3 Waters – For antidegradation purposes, pursuant to 40 CFR 131.12(a)(3), Tier 3 waters are identified by States, Territories, or Tribes as having high quality waters constituting an Outstanding Natural Resource Water (ONRW), such as waters of NationalEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

36 Parks and State Parks, wildlife refuges, and waters of except ional recreational or ecological significance. That high water qual ity shall be maintained and protected.

Total Maximum Daily Loads (TMDLs) – A TMDL is a calculation of the maximum amount of a pollutant that a wa ter body can receive and still meet water quality standards, and an allocation of that amount to the pollutant's sources. A TMDL includes wasteload allocations (WLAs) for point source discharges; load allocations (LAs) for nonpoint sources and/or natural background, and must include a margin of safety (MOS) and

account for seasonal variations . [See section 303(d) of the Clean Water Act and 40 CFR 130.2 and 130.7]

Treatment Area – The area of land, including any wate rs, to or over which pesticides are being applied at a concentration adequate to cause the intended effect of controlling targeted pests within that area.

Water of the United States – is as defined is as defined at 40 CFR 122.2.

Water Quality Impaired – See ‘Impaired Water’.

Water Quality Standards – A water quality standard define s the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses. Water quality standards also include an antidegradation policy and implementation pr ocedures. See P.U.D. o. 1 of Jefferson County et al v. Wash Dept of Ecology et al, 511 US 701, 705 (1994). States, Territories, Tribes and EPA adopt water quality standards to protect public health or welfare, enhance the quality of water and serve the purposes of the Clean Water Act (See CWA sections 101(a)2 and 303(c)). Water quality standards al so include an antidegradation policy and implementation procedures. See P.U.D. o. 1 of Jefferson County et al v. Wash Dept of Ecology et al, 511 US 701, 705 (1994). Where necessary, EPA has the authority to promulgate federal water quality standards.

Water-Treatment area – The surface area of a water to or over which pesticides are being applied at a concentration adequate to cause the intended effect of controlling targeted pests within that area.

“You” and “Your” – as used in this permit are intended to refer to the permittee, the operator, or the discharger as the context indicates and that party’s activities or responsibilities.

A.2. ABBREVIATIONS AND ACRONYMS

BAT – Best Available Technology Economically Achievable BMP – Best Manage ment Practice BPJ – Best Professional Judgment

BPT – Best Practicable Contro l Technology Currently Available CERCLA – Comprehensive Environmental Response, Compensation and Liability ActEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

37 CWA – Clean Water Act (or the Federal Wa ter Pollution Control Act, 33 U.S.C. §1251 et

seq ) EPA – U. S. Environmental Protection Agency ESA – Endangered Species Act FIFRA – Federal Insecticide, Fungicide, and Rodenticide Act, 7 USC 136 et seq.

FWS – U. S. Fish and Wildlife Service HUC – Hydrologic Unit Code IPM – Integrated Pest Management NAICS – North American Industry Classification System NEPA – National Environmental Policy Act

NHPA – National Historic Preservation Act

NMFS – U. S. National Marine Fisheries Service

NOI – Notice of Intent

NOT – Notice of Termination NPDES – National Pollutant Discharge Elimination System NRC – National Response Center NRHP – National Register of Historic Places ORW – Outstanding Resource Water SARA – Superfund Amendments and Reauthorization Act

SHPO – State Historic Preservation Officer

THPO – Tribal Historic Preservation Officer TMDL – Total Maximum Daily Load WQS – Water Quality StandardEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

38 Appendix B

Standard Permit Conditions

Standard permit conditions in Appendix B are consistent with the general permit provisions required under 40 CFR 122.41.

B.1 Duty To Comply.

You must comply with all conditions of this permit. Any permit noncompliance

constitutes a violation of the Clean Water Ac t and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or for denial of a permit renewal application.

A. You must comply with effluent standards or prohibitions established under section 307(a) of the Clean Water Act for toxic pollutants within the time provided in the regulations that establish these standards, even if the permit has not yet been modified to incorporate the requirement.

B. Penalties for Violations of Permit Conditions: The Director will adjust the civil and administrative penalties listed below in accordance with the Civil Monetary Penalty Inflation Adjustment Rule (61 FR 252, December 31, 1996, pp. 69359- 69366, as corrected in 62 FR 54, March 20, 1997, pp.13514-13517) as mandated by the Debt Collection Improvement Act of 1996 for inflation on a periodic basis. This rule allows EPA’s penalties to keep pace with inflation. The Agency is required to review its penalties at least onc e every 4 years thereafter and to adjust them as necessary for inflation according to a specified formula. The civil and administrative penalties follo wing were adjusted for inflation starting in 1996.

1. Criminal Penalties

.

1.1 Negligent Violations . The CWA provides that any person who negligently violates permit conditions implementing Sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to criminal penalties of not less than $2,500 nor more than $25,000 per day of violation, or imprisonment of not more than one year, or both. In the case of a second or subsequent conviction for a negligent violation, a person shall be subject to criminal penalties of not more than $50 ,000 per day of violation or by imprisonment of not more than two years, or both.

1.2. Knowing Violations. The CWA provides that any person who knowingly violates permit conditions implementing Sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or both. In the case of a second or subsequent conviction for aEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

39 knowing violation, a person shall be subject to criminal penalties of not more than $100,000 per day of violation, or imprisonment of not more than 6 years, or both.

1.3 Knowing Endangerment. The CWA provides that any person who knowingly violates permit conditions implementing Sections 301, 302, 306, 307, 308, 318, or 405 of the Act and who knows at that time that he or she is placing another person in imminent danger of death or serious bodily injury shall upon conviction be subject to a fine of not more than $250,000 or by imprisonment of not more than 15 years, or both. In the case of a second or subsequent conviction for a knowing endangerment violation, a person shall be subject to a fine of not more than $500,000 or by imprisonment of not more than 30 years, or both. An organization, as defined in section 309(c)(3)(B)(iii) of the Act, shall, upon conviction of violating the imminent danger provision be subject to a fine of not more than $1,000,000 and can fined up to $2,000,000 for second or subsequent

convictions.

1.4. False Statement. The CWA provides that any person who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this permit shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years, or both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment is a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or both. The Act further provides that any person who knowingly makes any false statement, representation, or certification in any record or other document submitted or required to be maintained under this permit, including monitoring reports or reports of compliance or non-compliance shall, upon conviction, be punished by a fine of not more than $10,000 per violation, or by imprisonment for not more than 6 months per violation, or by both.

2. Civil Penalties. The CWA provides that any person who violates a permit condition implementing Sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to a civil penalty not to exceed the maximum amounts authorized by Section 309(d) of the Act and the Federal Civil Penalties Inflation Adjustment Act (28 U.S.C. § 2461 note) as amended by th e Debt Collection Improvement Act (31 U.S.C. § 3701 note) (currently $37,5 00 per day for each violation).

3. Administrative Penalties. The CWA provides that any person who violates a permit condition implementing Sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to an administrative penalty, as follows

3.1. Class I Penalty. Not to exceed the maximum amounts authorized by Section 309(g)(2)(A) of the Act and th e Federal Civil Penalties InflationEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

40 Adjustment Act (28 U.S.C. § 2461 note) as amended by the Debt Collection Improvement Act (31 U.S.C. § 3701 note) (currently $11,000 per violation, with the maximum amount of any Class I penalty assessed not to exceed $37,500).

3.2 Class II Penalty. Not to exceed the maximum amounts authorized by Section 309(g)(2)(B) of the Act and the Federal Civil Penalties Inflation Adjustment Act (28 U.S.C. § 2461 note) as amended by the Debt Collection Improvement Act (31 U.S.C. § 3701 note) (currently $11,000 per day for each day during which the violation continues, with the maximum amount of any Class II penalty not to exceed $157,500).

B.2 Duty to Reapply.

If you wish to continue an activity regulated by this permit after the expiration date of this permit, you must apply for and obtain authorization as required by the new permit

once EPA issues it.

B.3 Need to Halt or Reduce Activity Not a Defense.

It shall not be a defense for you in an enforcement action that it would have been necessary to halt or reduce the permitted activ ity in order to maintain compliance with the conditions of this permit.

B.4 Duty to Mitigate.

You must take all reasonable steps to minimize or prevent any discharge in violation of this permit which has a reasonable likelihood of adversely affecting human health or the

environment.

B.5 Proper Operation and Maintenance.

You must at all times properly operate and main tain all facilities and systems of treatment and control (and related appurtenances) whic h are installed or used by you to achieve compliance with the conditions of this permit. Proper operation and maintenance also includes adequate laboratory co ntrols and appropriate quality assurance procedures. This provision requires the operation of backup or au xiliary facilities or similar systems which are installed by you only when the operation is necessary to achieve compliance with the conditions of this permit.

B.6 Permit Actions.

This permit may be modified, revoked and reissued, or terminated for cause. Your filing of a request for a permit modification, revocat ion and reissuance, or termination, or a notification of planned changes or anticipa ted noncompliance does not stay any permit

condition.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

41 B.7 Property Rights.

This permit does not convey any property rights of any sort, or any exclusive privileges.

B.8 Duty to Provide Information.

You must furnish to EPA or an authorized representative (including an authorized contractor acting as a representative of EPA) , within a reasonable time, any information which EPA may request to determine whethe r cause exists for modifying, revoking and reissuing, or terminating this permit or to determine compliance with this permit. You must also furnish to EPA or an authorized representative upon request, copies of records required to be kept by this permit.

B.9 Inspection and Entry.

You must allow EPA or an authorized repres entative (including an authorized contractor acting as a representative of EPA), upon pres entation of credentials and other documents as may be required by law, to: A. Enter upon your premises where a regulat ed facility or activity is located or conducted, or where records must be kept under the conditions of this permit;

B. Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;

C. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operati ons regulated or required under this permit; and

D. Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Clean Water Act, any substances or parameters at any location.

B.10 Monitoring and Records.

A. Samples and measurements taken for the purpose of monitoring must be representative of the volume and na ture of the monitored activity.

B. You must retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least three years from the date the permit expires or the date the permittee’s authorization is terminated. This peri od may be extended by request of EPA at any time.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

42 C. Records of monitoring information must include: 1. The date, exact place, and time of sampling or measurements;

2. The individual(s) who performed the sampling or measurements;

3. The date(s) analyses were performed

4. The individual(s) who performed the analyses;

5. The analytical techniques or methods used; and

6. The results of such analyses.

D. Monitoring must be conducted accordi ng to test procedures approved under 40 CFR Part 136, unless other test procedures have been specified in the permit.

E. The Clean Water Act provides that any person who falsifies, tampers with, or knowingly renders inaccurate any monitori ng device or method required to be maintained under this permit shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years, or both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment is a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or both.

B.11 Signatory Requirements.

A. All applications, including NOIs, must be signed as follows:

1. For a corporation: By a responsib le corporate officer. For the purpose of this subsection, a responsible corporate officer means: (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or a ny other person who performs similar policy- or decision-making functions for the corporation, or (ii) the manager of one or more manufacturi ng, production, or operating facilities, provided, the manager is authorized to make management decisions which govern the operation of the regulated fa cility including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehe nsive measures to assure long term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for permit application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

2. For a partnership or sole proprietorship: By a general partner or the proprietor, respectively; orEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

43 3. For a municipality, state, federal, or other public agency: By either a principal executive officer or ranking elected official. For purposes of this subsection, a principal executive offi cer of a federal agency includes (i) the chief executive officer of the agency, or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit or the agency (e.g., Regional Administrator of EPA).

B. Your Pesticide Discharge Management Plan (PDMP), including changes to your PDMP to document any corrective actions taken as required by Part 4.0, and all reports submitted to EPA, must be signed by a person described in Appendix B, Subsection 11.A above or by a duly authorized representative of that person. A person is a duly authorized representative only if:

1. The authorization is made in wri ting by a person described in Appendix B, Subsection 11.A; 2. The authorization specifies eith er an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of superintendent, position of equivalent responsibility, or an individual or po sition having overall responsibility for environmental matters for the company. (A duly authorized representative may thus be either a named individual or any individual occupying a named position); and 3. The signed and dated written aut horization is included in the PDMP. A copy must be submitted to EPA, if requested.

C. All other changes to your PDMP, and other compliance documentation required under this permit, must be signed and dated by the person preparing the change or

documentation. D. Changes to Authorization. If an authorization under Appendix B, Subsection B.11 11.B is no longer accurate because the appl ication activities have been purchased by a different entity, a new NOI satisfying the requirements of Subsection B.11 11.B must be submitted to EPA. However, if the only change that is occurring is a change in contact information or a change in the operator’s address, the operator need only make a modification to the existing NOI submitted for authorization.

E. Any person signing documents in accordance with Appendix B, Subsections A.11 11.A or B.11 11.B above must include the following certification:

“I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information contained therein. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information contained is, toEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

44 the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fi ne and imprisonment for knowing

violations.”

F. The CWA provides that any person who knowingly makes any false statement, representation, or certification in an y record or other document submitted or required to be maintained under this permit, including monitoring reports or reports of compliance or non-compliance sh all, upon conviction, be punished by a fine of not more than $10,000 per violation, or by imprisonment for not more than 6 months per violation, or by both.

B.12 Reporting Requirements.

A. Anticipated noncompliance. You must gi ve advance notice to EPA of any planned changes in the permitted facility or ac tivity which may result in noncompliance with permit requirements.

B. Transfers. This permit is not transferable to any person except after notice to EPA. Where a facility wants to change the name of the permittee, the original permittee (the first owner or operators) must submit a Notice of Termination pursuant to Part 1.3. The new owner or operator must submit a Notice of Intent in

accordance with Part 1.2.3 and Table 1- 2. See also requirements in Appendix B,

Subsections 11.B and 11.D.

C. Pesticide Monitoring Reports. This pe rmit does not require permittees to report monitoring results on a routine basis; how ever, EPA may, pursuant to Part 4.5, require certain permittees to monitor and report such results.

1. When required, monitoring data must be submitted to EPA using EPA’s online eNOI system ( www.epa.gov/npdes/eNOI ) or, if you cannot access eNOI, monitoring results should be reported on a Discharge Monitoring Report (DMR) form, available at www.epa.gov/npdes , and submitted to

EPA at the address identified in Part 9.1.

2. If you monitor any pollutant more frequently than required by the permit using test procedures approved under 40 CFR Part 136 or as specified in the permit, the results of this mo nitoring must be included in the calculation and reporting of th e data submitted to EPA.

3. Calculations for all limitations wh ich require averaging of measurements must use an arithmetic mean unless otherwise specified by EPA in the permit.

D. Compliance schedules. Reports of co mpliance or noncompliance with, or any progress reports on, interim and final re quirements contained in any complianceEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

45 schedule of this permit must be submitted no later than 14 days following each

schedule date.

E. Twenty-four hour reporting.

1. You must report any noncompliance which may endanger health or the environment. Any information must be provided orally within 24 hours from the time you become aware of the circumstances. A written submission must also be provided within five days of the time you become

aware of the circumstances. The written submission must contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates a nd times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, el iminate, and prevent reoccurrence of the noncompliance.

2. The following shall be included as information which must be reported within 24 hours under this paragraph.

a. Any upset which exceeds any effluent limitation in the permit

b. Violation of a maximum daily discharge limit for any numeric effluent limitation. (See 40 CFR 122.44(g).)

3. EPA may waive the written report on a case-by-case basis for reports under Appendix B, Subsection B.12.F.2 if the oral report has been

received within 24 hours.

F. Other noncompliance. You must report all instances of noncompliance not reported under Appendix B, Subsections 12.D, 12.E, and 12.F, at the time monitoring reports are submitted. The repor ts must contain the information listed in Appendix B, Subsection 12.F.

G. Other information. Where you become aware that you failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to th e Permitting Authority, you must promptly

submit such facts or information.

B.13 Upset.

A. Definition. Upset means an exceptional incident in which there is unintentional and temporary noncompliance with technolo gy based permit effluent limitations because of factors beyond your reasonable control. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatm ent facilities, lack of preventive maintenance, or careless or improper operation. See 40 CFR 122.41(n)(1).EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

46 B. Effect of an upset. An upset constitutes an affirmative defense to an action brought for noncompliance with such tec hnology based permit effluent limitations if the requirements of Appendix B, S ubsection 14.C are met. No determination made during administrative review of cl aims that noncompliance was caused by upset, and before an action for noncomp liance, is final administrative action subject to judicial review. See 40 CFR 122.41(n)(2).

C. Conditions necessary for a demonstration of upset. See 40 CFR 122.41(n)(3). A permittee who wishes to establish the affirmative defense of upset must demonstrate, through properly signed, contemporaneous operating logs, or other

relevant evidence that:

1. An upset occurred and that you can identify the cause(s) of the upset;

2. The permitted facility was at the time being properly operated; and

3. You submitted notice of the upset as required in Appendix B, Subsection 12.F.2.b (24 hour notice).

4. You complied with any remedial measures required under Appendix B,

Subsection 4. D. Burden of proof. In any enforcement proceeding, you, as the one seeking to establish the occurrence of an upset, have the burden of proof. See 40 CFR 122.41(n)(4).EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

47 Appendix C

Areas Covered

1. EPA Region 1: CT, MA, ME, NH, RI, VT

Where EPA is Permitting Authority

-Commonwealth of Massachuset ts, including Indian country -Indian country within the State of Connecticut -State of New Hampshire -Indian country within the State of Rhode Island

-Federal Facilities in the State of Vermont

2. EPA Region 2: NJ, NY, PR, VI

Where EPA is Permitting Authority -Indian country within the State of New York

-The Commonwealth of Puerto Rico

3. EPA Region 3: DE, DC, MD, PA, VA, WV

Where EPA is Permitting Authority

-The District of Columbia

-Federal Facilities in the State of Delaware

4. EPA Region 4: AL, FL, GA, KY, MS, NC, SC, TN

Where EPA is Permitting Authority -Indian country within the State of Alabama. -Indian country within the State of Florida. -Indian country within the State of Mississippi. -Indian country within the State of North Carolina.

5. EPA Region 5: IL, IN, MI, MN, OH, WI

Where EPA is Permitting Authority -Indian country within the State of Michigan -Indian country within the State of Minnesota -Indian country within the State of WisconsinEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

48 6. EPA Region 6: AR, LA, OK, TX, NM (except see Region 9 for Navajo lands, and see Region 8 for Ute Mountain Reservation lands)

Where EPA is Permitting Authority -Indian country within the State of Louisiana -The State of New Mexico, including Indian country within the State of New Mexico, except Navajo Reservation Lands (see Regi on 9) and Ute Mountain Reservation Lands (see Region 8) -Indian country within the State of Oklahoma -Discharges in the State of Oklahoma that are not under the authority of the Oklahoma Department of Environmental Quality, including activities associated with oil and gas exploration, drilling, operati ons, and pipelines (includes SIC Groups 13 and 46, and SIC codes 492 and 5171), and point source discharges associated with agricultural production, services, and silviculture (includes SIC Groups 01, 02, 07, 08, 09). -Discharges in the State of Texas that are not under the authority of the Texas Commission on Environmental Quality (formerly TNRCC), including activities associated with the exploration, development, or production of oil or gas or geothermal resources, including transportation of cr ude oil or natural gas by pipeline. -Indian country within the State of Texas.

7. EPA Region 7: IA, KS, MO, NE (except see Region 8 for Pine Ridge Reservation Lands)

Where EPA is Permitting Authority -Indian country within the State of Iowa -Indian country within the State of Kansas -Indian country within the State of Nebras ka, except Pine Ridge Reservation lands (see Region 8)

8. EPA Region 8: CO, MT, ND, SD, WY, UT (except see Region 9 for Goshute Reservation and Navajo Reservation Lands), the Ute Mountain Reservation in NM, and the Pine Ridge Reservation in NE.

Where EPA is Permitting Authority -Federal Facilities in the State of Colorado, except those located on Indian country -Indian country within the State of Colorado, as well as the portion of the Ute Mountain

Reservation located in New Mexico -Indian country within the State of Montana -Indian country within the State of North Dakota -Indian country within the State of South Dakota, as well as the portion of the Pine Ridge Reservation located in Nebraska (see Region 7) -Indian country within the State of Utah, except Goshute and Navajo Reservation lands (see Region 9) -Indian country within the State of WyomingEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

49 9. EPA Region 9: CA, HI, NV, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Goshute Reservation in UT and NV, the Navajo Reservation in UT, NM, and AZ, the Duck Valley Reservation in ID, and the Fort

McDermitt Reservation in OR.

Where EPA is Permitting Authority

-The Island of American Samoa -Indian country within the State of Arizona, as well as Navajo Reservation lands in New Mexico (see Region 6) and Utah (See Region 8) -Indian country within the State of California

-The Island of Guam

-Johnston Atoll -Midway Island and Wake Island

-Commonwealth of the Northern Mariana Islands -Indian country within the State of Nevada, as well as the Duck Valley Reservation in Idaho, the Fort McDermitt Reservation in Oregon (see Region 10) and the Goshute Reservation in Utah (see Region 8)

10. EPA Region 10: AK, WA, ID (except see Region 9 for Duck Valley Reservation Lands), and OR (except see Region 9 for Fort McDermitt Reservation).

Where EPA is Permitting Authority -The State of Alaska, including Indian country -The State of Idaho, including Indian countr y within the State of Idaho, except Duck Valley Reservation lands (see Region 9) -Indian country within the State of Oregon, except Fort McDermitt Reservation lands (see Region 9) -Federal Facilities in the State of Washington, except those located on Indian country -Indian country within the State of WashingtonEPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

50 Appendix D - Endangered Species Procedures [To be determined]

Appendix E - Historic Properties Preservation Procedures [To be determined]EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

51 Appendix F - Notice of Intent Form

Notice of Intent (NOI) to Comply with the Terms of General NPDES Permit for Discharges of Aquatic Pesticides to Waters of the United States

I. Notice of Intent Status:

Please mark whether this is the first time requesting coverage under this General Permit or if this is a change of information for a discharge already covered under this General Permit. If this is a change of information, please supply the NPDES permit number for the discharge.

(Mark only one item) 1.  New Operator

2.  Change of Information:

___________________ NPDES Permit Tracking #

II. Operator Information:

Operator Name: _____________________________________________________ IRS Employer Identification Number (EIN): __ __ - __ __ __ __ __ __ __

Mailing address Street: ______________________________________________________ City: _______________________________ State: ______ Zip Code: ___________ Telephone: ____________________ E-mail ______________________________ Contact Name: _____________________________________________________ Keep a copy as a record of permit. You may submit an NOI either using EPA’s electronic NOI (eNOI) system (accessible at www.epa.gov/npdes/eNOI ) or using this paper form and submitting it to:

U.S. Environmental Protection Agency Water Permits Division (Mail Code 4203M) 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460

Comment [jrf39]: How best do we incorporate the “mulitiple location” concept into the NOI form to account for the fact that decisions may be made at a corporate office but pest control is performed by field offices.EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

52 Please complete this page for each establishment for which coverage under EPA’s Pesticide General Permit is desired for your operation.

III. Operator Information:

Establishment # ___ of ## ___ 1. Establishment Name: ____________________________________________________ 2. Mailing address: a. Street: ______________________________________________________ b. City: _______________________________ c. State: ______ d. Zip Code: ___________ e. Contact Name: ________________________________________________ f. Telephone: ____________________ g. E-mail ______________________________ h. Check all that apply:

□ Federal facility

□ Indian country land i. 6-digit NAICS code for primary industry activity of this establishment: _______

3. Location of NPDES Records for this establishment (check one):

□ Same as operator address □ Same as Establishment address

□ Other: Street: _____________________________________________________ City: ___________________ State: ________ Zip Code: ____________

4. Pesticide Use Patterns for this establishment (check all that apply):

□ Mosquitoes and Other Aquatic Nuisance Insects

□ Aquatic Weeds and Algae

□ Area Wide Pests

□ Aquatic Nuisance Animals

5. For each use pattern checked above, provide th e following: (attach addi tional pages if necessary) a. Use pattern (check one): □ a □ b □ c □ d [Use pattern # ____ of ## ______ in item 4 above] Location (check one):

□ Map provided of location of pesticide application for this use, or

□ Description of location of pesticide application for this use: __________________

__________________________________________________________________________ Receiving Waters (check one):

□ Coverage requested for all waters within location identified above

□ Coverage requested for all waters within location identified above except for:

__________________________________________________________________________

□ Coverage requested specifically for the following waters within location identified above:

__________________________________________________________________________EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

53 IV. Certification:

I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations. I further certify that the applicant has sufficient title, right or interest in the property where the proposed activity occurs.

Signature: __________________________________________________________ Date: _____________

Printed Name: _________________________________________________________________________ Title: ________________________________________________________________________________ E-Mail: _______________________________________________________________________________EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

54 Appendix G - Notice of Termination Form

United States Environmental Protection Agency Notice of Termination (NOT) of Coverage Under an NPDES General Permit for Pesticide Discharges to Waters of the U.S.

A. NPDES Permit Tracking Number: ______________________________________________

B. Operator Information:

Name: _____________________________________________________________________

Mailing address ______________________________________________________________________

Street Address

_____________________________________________________________________ City County State Zip

Contact Person: _________________________________________ Title ___________________________

Telephone: ________________________________________ E-mail ______________________________

C. Basis for Termination (check one only)

1

.  A new operator has taken over responsibility for the pest treatment.

2.  You have ceased aquatic pesticide application for which you obtained permit coverage or there is not or no longer will be a pesticide discharge.

3.  Permit coverage has been obtained under an individual or alternative general permit for all pesticide discharges requiring NPDES permit coverage either because EPA required you to obtain such coverage or you petitioned EPA requesting coverage under an alternative permit.

D. Certification:

I certify under penalty of law that I have met at least one of the reasons for terminating permit coverage listed in Section C above. I understand that by submitting this Notice of termination, I am no longer authorized to discharge pesticides to waters of the U.S. This document and all attachments were prepared under my direction and supervision in accordance with a system designed to ensure that qualified personnel properly gather and evaluate the information submitted. The information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine or imprisonment. Additionally, I understand that the submittal of this Notice of Termination does not release a pesticide applicator from liability for any

violations of the Clean Water Act.

Signature of Applicant ____________________________________ Date: _____________ Keep a copy as a record of permit. You may submit an NOT either using EPA’s electronic NOI (eNOI) system (accessible at www.epa.gov/npdes/eNOI ) or using this paper form and submitting it to:

U.S. Environmental Protection Agency Water Permits Division (Mail Code 4203M) 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460EPA Deliberative Draft – Do Not Distribute, Copy, or Cite January 13, 2010 Draft for discussion purposes only.

55 Title: ____________________________________________________________________

Printed Name: _____________________________________________________________