1005 E Street SE · Washington, DC 20003 Tel: 202-546-5722 · Fax: 202-546-5726 · www.agaviation.org December 1, 2009

Allison Wiedeman, Branch Chief

Office of Water U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N. W.

Mail Code: 4203M Washington, DC 20460

National Agricultural Aviati on Association’s comments on: NPDES Prototype General Permit fo r Aquatic Pesticide Applications

The National Agricultural Aviati on Association (NAAA) appreciates the EPA sharing its initial proposed policy direction on Clean Water Act permitti ng of discharges from pesticide applications via webcast on Oct. 7. NAAA has analyzed th e document detailing the Agency’s permitting proposal and has a number of questions and concer ns that are documented in this letter.

NAAA represents the interests of small busine ss owners and pilots licensed as commercial applicators that use aircraft to enhance food, fi ber and bio-fuel productio n, protect forestry and control health-threatening pests. Furthermore, th rough its affiliation with the National Agricultural

Aviation Research & Education Foundation (NAAREF), the NAAA c ontributes to research and educational programs focused on en hancing the efficacy, security a nd safety of aerial application. NAAA represents more than 1,500 members in 46 states.

NAAA appreciates the opportunity to provide EP A input about its initial permit proposals for pesticides made over and near water and hopes that the agency will take into account the questions and points raised in the following comments as it works to develop a draft permit system for public

comment.

NAAA would like to receive more specifics and cl arity from the Agency about its Pesticides General Permit (PGP), namely who specifically will be required to apply for and comply with the new regulations. A primary conc ern NAAA has with proposals requ iring permits for pesticide applications made over or near water is an entity other than the entity authorizing the application having to file a Notice of Intent (NOI) to fall und er the Pesticide General Permit (PGP). This is a duplicative requirement, unnecessary and seems w ill only result in causing additional paperworkComments to EPA on Preliminary NPDES Permit Information December 1, 2009 Page 2 of 8

burdens for regulatory agencies. Another great concern NAAA has is that requiri ng entities to apply for an NOI under the PGP is that it will open up pesticide applicators to citizen action lawsuits. NAAA’s question to th e EPA in regards to PGPs is if an entity authorizing an application files a Notice of Intent (NOI) to fall unde r a PGP, and he is not denied from working under the PGP, is that authorizing entity (and the appli cator if he is conducting work for an authorizing entity) then immune from citizen action lawsuits since they fall under the permit? Without more specific clarific ation from the Agency on the terms, phrases and requirements included in the PGP, activist groups could pursue their own interpretations of this language via litigation. NAAA believes EPA should very clearly and strongly state in the preamble and rule that

“ pesticide applications to, over , or near waters of the U.S. are fully authorized if entities authorizing the application and the applicators working for those entities comply with the provisions of the label and the general permit .”

Below are additional questions, issues and or comments NAAA raises to the EPA regarding its webcast proposal—the bolded and quoted text is taken from the Oct. 7 EPA Webcast document followed by NAAA’s comments in response:

Question/Issue: “The NOI filer, in most case s, would be the organization responsible for deciding to conduct the pesticide applications. Ho wever, any applicator would need to file an NOI if the applicator projects that it will treat more than X water-acre treatments per year (or permit cycle?) for people who did not need to file an NOI individually,” and “The discharger would be required to submit updated information to perform operations different

from those identified in the NOI.” NAAA agrees with EPA that the entity responsible for deciding to conduct the pesticide application should be the NOI filer, rather than the pers on performing the applications. NAAA strongly urges that in all cases the person (e.g., the landowner or the mosquito abatement district) making the decision to have a pesticide application made be the sole entity to submit the NOI. The landowner is in an optimal situation to file such informati on, as they are completely familiar with the land, surrounding waterways, pests presen t, prior treatments, materials and quantities of materials to apply, etc. This is also important so as not to further, unnecessar ily burden the regulatory agencies, including the EPA, with issuing PGPs. The Agen cy’s own projections are that approximately 5.6 million pesticide applications will fall under the Clean Water Act permitting of discharges from pesticide applications. Including two different entities—the entity authorizing the application and the entity making the application— to obtain permits for the same application will create additional burdens on already strained regulatory agencies and provide no additiona l protection to waters.

Question/Issue: “Permitting authorities use bo th Individual Permits and General Permits to control discharges to waters of the United States.” What is an example of an entity that would need an individual permit? Wi ll there be any scenarios where a pesticide application will require an individual permit? NAAA would like specific information on what type and level of activity a general permit will cover. Will it be for multiple applications during a specific time span and if so what number defines multiple applications and what is the duration of the time span? Will it be determine by the land area covered and if so what is

the size of the land area? To reiterate the last point, will it cover both th e entity requesting the application and the applicator if the applicator is working for the entity authorizing the permit?

NAAA believes that it’s the entity authorizing the applicati on that is responsibl e for negotiating theComments to EPA on Preliminary NPDES Permit Information December 1, 2009 Page 3 of 8

individual permit, paying its permitting fees, a nd having it in hand when he hires the aerial applicator to make the application.

Question/Issue: “Permits are written based on a permit writer’s Best Professional Judgment (BPJ); judgments may differ, so how each pe rmit satisfies the CWA requirement may differ in some respects.” What is an example of “best professional judgmen t?” What kind of rationale and requirements will be used when deciding to give a general permit? Will EPA issue general gui delines for BPJ? This leaves the door open for judgments and perm itting requirements to vary widely when EPA clarification on the details is sp arse. To avoid unfair judgments being determined by rogue permit writers, more details from the Agency should be provided.

Question/Issue: “Permit must identify area of coverage, sources covered and other info.” NAAA requests more clarity on these points. How is this “area of coverage” defined, is it latitudinal and longitudinal coordinates? What does “sources c overed” refer to? The type of application? The chemical being used? Lastly, it is stated that th e permit must identify “oth er info.” NAAA feels that this is too vague, and would like more specific information from the agency on what exactly

constitutes “other info.” NAAA wo uld support a permit that covers a specific parcel of land and all pesticide applications during a five-y ear duration made on that parcel.

Question/Issue: “Citizens have the ri ght to challenge NPDES permits.” If a permit is issued and someone wishes to challenge the NPDES permit issued, who is that challenge addressed to: the state entity issuing the permit, the permit holder or the applicator working under the entity issued the permit? NAAA believes that the permit holder and the applicator should be protected from citizen action suits if the applic ation is made after an NOI has been filed and it is determined the entity authoriz ing the application (and the applicator that is contracted to perform the appl ication) falls under the permit.

Question/Issue: “Considerations for Permit De velopment – Consists of an efficient and effective process; uses resources effectively.” NAAA believes that the NPDES permitting process is not an efficient and effective use of federal and state funding during this critic al economic time. It is highly questionable as to whether some states will be able to keep up with the influx of permitting requests being submitted and entities responsible for submitting requests for permits w ill be facing delays in obtaining permit approval because of the imposed permit requirements that permitting agencies must review coupled with staffing challenges they will face as a result of state budget issues that are facing the country. Again, NAAA believes that the process of applyi ng for and waiting to receive an NPDES permit will be overly burdensome for EPA, where it is requi red to issue permits, state permitting agencies

and the other stakeholders that are required to obtain the permits.

Question/Issue: “The application of pesticides to control pest that are present over waters of the United States, including near such waters...” require an NPDES permit. NAAA requests that EPA be more specific as to whic h applications will be considered applications made “near” water. Examples need to be given, as well as clearer guidelines for determining what is

considered “near” water. Should one assume that a permit is needed for app lications made directly to a crop that is adjacent to water but no buffers are present? Likewise, is it safe to assume that if a buffer area of uncultivated soil is present no permit is required? How is one to gauge the proper sizeComments to EPA on Preliminary NPDES Permit Information December 1, 2009 Page 4 of 8

of uncultivated soil between a crop and water to determine if he is applying near water where the permit rules come into place? More detail is needed to ensure proper compliance with this aspect of

the rule.

The aerial application industry take s every precaution to ensure th e on-target app lication of crop protection products. The industry utilizes numer ous stewardship programs and technological developments to further ensure these on-target applications.

One industry stewardship program that receives EPA’s financial support and endorsement is the Professional Aerial Applicators’ Support System, known as the PAASS program. PAASS is presented to approximately 1,800 aerial applic ators throughout the country each year with curriculum on new technologies to mitigate aerial drift. Insurance companies provide discounts for aerial applicators that participate in the PAASS program, and states provide CEU credits to those attending the program that are used to renew their commercial pesticide licenses

One of the stated goals of the PAASS program is to reduce incidents of off-target drift by reaching a large audience of our nation’ s aerial applicators. The PAASS program’s success in doing so is reflected in data collected through surveys condu cted by the Association of American Pesticide Control Officials (AAPCO). AAPCO conducted pesticide drift su rveys in 1999, which covered the years 1996-1998, and another survey in 2005, which covered the years 2002- 2004. The first survey showed that the confirmed aerial drift comp laints for the years 1996, 1997 and 1998 were 342, 280 and 378, respectively. This yields an annual aver age of 333 complaints for the period covered by the survey. The second survey indicated th at the years 2002, 2003 and 2004 resulted in 244, 237 and 260 complaints, respectively. The annual average for these years is 247. A comparison of these surveys indicates a decrease in the three-year aver age of confirmed aerial drift complaints from 333 in the 1999 survey to 247 in the 2005 su rvey—a decrease of 26 percent. The PAASS program began after the 1998 aerial application season, and the corre sponding decrease in c onfirmed drift incidents indicates a definite improvement in terms of miti gating drift within the industry through the use of education and technology, rather than increased restrictions.

Operation S.A.F.E. is another safety and educat ion initiative within the agricultural aviation industry. At the backbone of Operation S.A.F.E. are the Professional Application Analysis Clinics—or Operation S.A.F.E. Fly-Ins. During these fly-ins, pilots participate in an NAAAapproved swath analysis and equipment examinations under the direction of an authorized analyst. At these sessions, which are usually hosted befo re the flying season begi ns, agricultural aviation operators’ aircraft application equipment are tested and calibrated by S.A.F.E. technicians to ensure application efficiency and to mitigate crop protec tion product drift. Operation S.A.F.E. clinics are conducted nationwide to a large constituency of ag pilots and operators. This program offers substantial advantages to the ope rator, his customers and the produ cers of chemicals applied by air. These advantages are found in the economy of oper ation and application, as well as in increased safety and reduced health and environmental concerns.

State-of-the-art tools lik e AIMMS have also allowed aerial app lications to be more precise and

efficacious than ever. AIMMS—which stands for Ai rcraft Integrated Meteorological Measurement System—is a high-tech application sy stem being used by a number of agricultural aviators to ensure more targeted and efficient application. AIMMS adds an additional layer to the precision ag system by incorporating a real-time onboard wind speed and direction meas urement system. TheComments to EPA on Preliminary NPDES Permit Information December 1, 2009 Page 5 of 8

atmospheric data collected by AIMMS is then s ynchronized with the aircraft’s onboard GPS unit.

This enables the variable rate controller to apply product while taking in to account outside wind speed and direction, thus resulting in an even more precise application.

Cutting-edge technologies and tool s like AIMMS are continually bei ng developed and tested at the USDA-ARS Aerial Application Technology Program in College Station, Texas.

Researchers at the ARS facility have been work ing closely with the EPA’s Office of Pesticide Programs in developing a policy to test drift re duction technologies (D RTs) and reward aerial applicators for using DRTs by mitigating buffers when tested and approved DRTs are in use.

The combination of these stewardship programs and continuing technological advancements has allowed the aerial application industry to make great strides in terms of more efficacious applications, and the industry can only improve from here.

Question/Issue: “Emergency situations that require pesticide application be performed in advance of an NOI submission, provided all other conditions are met in the permit.” NAAA fully supports this provision of enabling an entity authorizi ng the application to submit an NOI after an emergency application is made. Pes ticide applications are of ten required in a quick and timely manner, and timeliness is one of the key benefits of aerial pesticide applications because of the speed and efficiency this method of applic ation provides. Aerial ap plication is by far the quickest method of appl ication available.

Even a seemingly minimal delay in treatment can resu lt in the total devasta tion of a crop due to a pest infestation or outbreak of f ungus or disease. It is vital that applicators are able to perform emergency applications when necessary in order to prevent crop loss and threats to public health without the threat of being penalized for failing to obtain a permit beforehand.

Being able to file an NOI after the application is made will address these types of “emergency” applications. That being sai d, NAAA has questions about this provision. To reiterate an earlier question about this proposed policy: are entities authorizing an application—and/or the parties responsible for making an application under an entity authorizing the application’s NOI—immune from the citizen action suits, and if so, would they also be immune if an NOI was filed after an application but before the “emergency” deadli ne but after a potentia l complaint about the application had been made? In addition, what co nstitutes an emergency application? What may constitute an emergency applicati on to a farmer or a mosquito control agency might be different from that of a regulatory official. To provide better protection for entities authorizing an application and also for those fili ng an NOI more clarification to el iminate any question as to what an emergency application should be provided.

Question/Issue: “A person filing an NOI would be covered starting 10 days after the receipt of a complete and accurate NOI form by the a ppropriate permitting au thority (provided the permitting authority does not delay auth orization to further address the NOI). NAAA believes that an entity filing for an NOI s hould be covered immediately, not after 10 days. The reason for this is that pesticide applications ar e often required to be ma de in a quick and timely manner. Any delay can result in the devastation of a crop or a pa ndemic to public health due to a pest infestation. Because no definition exists as to what makes up an emergency pest applicationComments to EPA on Preliminary NPDES Permit Information December 1, 2009 Page 6 of 8

(see previous response), it is importa nt for entities authorizing applic ations (and the a pplicators that are conducting work under these enti ties) filing an NOI to be cove red immediately, until they hear otherwise, that they are making an applic ation within the confines of the PGP.

Question/Issue: “The NOI should collect usef ul information from appropriate entities.” NAAA requests that the EPA provi de more information defining what is considered “useful

information” as well as how.

Question/Issue: “PGP effluent limits woul d include provisions to minimize pesticide discharges, including using non- chemical alternatives. To the extent feasible, the permittee would identify/assess the pest problem, consider if source reduction/habitat modification may significantly reduce sources, follow appropriat e procedures for pesticide use (calibrate, maintain, etc.), educate.” Minimizing pesticide discharges, calibrating and maintaining application equipment is all standard, common practice for the pesticide user community and aerial application industry. These practices are emphasized throughout NAAA’s PAASS and Operation S.A.F.E. programs, as detailed above. Chemicals are expens ive to use for farmers, mosquito districts, and

other user entities and state enforcement and in surance premiums are high for those not properly caring for their equipment. As a result adding these additional provisions to monitor these conditions is duplicative and unnecessary becaus e it is already conducted and provides another regulatory requirement for a permittee to document and a regulator to check for when it is already being done.

NAAA believes it is unclear as to what the Agen cy is requiring when it asks a permittee to

“educate” and to “consider if source reduction/ habitat modification ma y significantly reduce sources” and requires more clarific ation and details from the Agency on its intent on this matter. NAAA also reiterates the importance of requiring th at the entity authorizing the application be the sole entity responsible for submitting the NOI si nce they are most intimate with educational

activities, habitat modifi cation activities, etc. be ing conducted on the land requiring the application.

Question/Issue: “EPA would require permittees to conduct post-application surveillance to identify, record and report adv erse effects, immediately impl ement corrective actions, and report these to EPA.”

To reiterate an earlier comment, NAAA believes that the entity authorizing the application is in the best position to conduct post-app lication surveillance si nce that entity will typically be the landowner or mosquito abatement district that is familiar with the land and the surrounding natural resources and knowledgeable and have free access to know what to check. To require an applicator, who is not the owner of property he was authorized to make an a pplication to, may actually require him to trespass and put him in jeopar dy of violating one’s private proper ty to comply with this rule.

Furthermore, it is a tremendous reso urce concern for an applicator to have to follow up with this requirement and duplicative since the entity author izing the application is already conducting post application surveillance. One question NAAA has about this requirement is how long after an application would surveillance be required? This would be helpful information for the permittee and the permitting agency to know in order to properly follow up on the requirement.Comments to EPA on Preliminary NPDES Permit Information December 1, 2009 Page 7 of 8

Question/Issue: “If at any time the permitt ee becomes aware, or EPA determines, that a discharge causes or contributes to an exceedan ce of applicable water quality standards, the permittee must take correctiv e actions and report the co rrective actions to EPA.” NAAA believes it would be of use to the permitting ag encies and permittees to define examples of corrective actions in the event that a permittee ca uses an “exceedance” discharge to applicable water quality standards.

Question/Issue: “A ‘visual’ monitoring approach based on narrative WQBELs may be appropriate for assessing compliance with permit conditions. Routine vi sual monitoring: spot checks for signs of adverse effects on non -target organisms during efficacy checks.”

To reiterate earlier comments, NA AA believes that the entity aut horizing the applic ation should be the sole permittee because they are the parties most familiar with the area in which the application is made and most likely have access to the application area to be able to check for signs of adverse effects on non-target organisms.

An additional question NAAA has about the EPA wa ter permitting policy for pesticides made over or near water is: “Are pesticide applications made to certain crops such as rice and cranberries, when the crops themselves are in water exempt since, it seems clear, they fall under the Clean Water Act exemptions for agricultural stormw ater runoff and irriga tion return flow?

It is important for EPA to state in its water permit policy for pesticides if an applicator is exempt from an NPDES permit if he is conducting work for an entity authorizi ng an application that received a permit (or filed an NOI) so that there is legal protection for these entities from frivolous lawsuits. NAAA requests when the Agency finalizes its policy it is clear on this issue along with the irrigation exemption above.

In addition, NAAA requests clarifica tion from the Agency as to the parameters of a permit. For example, is it for any and all legal pesticide appl ications made over a clarified area for a certain amount of time or is just for a single application over a clarified area of land? To ensure that the permittee is in full compliance these details on duration, number of app lications, geographical parameters, etc. are important to clarify.

NAAA believes it is important for the Agency to wo rk closely with the aerial application industry on this issue in order to make the pesticide pe rmitting process more efficient for all entities

involved.

NAAA strongly urges the Agency to consider the unduly and unnecessa ry burdens aerial applicators could face under this proposed permit system which will provide no environmental benefit and only levy an administrative burden to applicator and re gulatory agency alike if it is determined that applicators must fall under the perm itting process. Aerial applicator s already regularly comply with mandated recordkeeping and reporting requirements at the state level and as required by the Federal Aviation Regulations—14 CFR Part 137 for Agricult ural Aircraft Operations (Subpart D). These requirements (Part 137.71) include, for one year, keeping a list of names and addresses for each person for whom agricu ltural aircraft services were provided, the date of the service, the name and quantity of the mate rial expensed, etc. Additional requirements under the Clean Water Act serve no further purpose and do not provide additional environmental protections. An entity authorizi ng the application is already pr oviding all of this information.Comments to EPA on Preliminary NPDES Permit Information December 1, 2009 Page 8 of 8

It is important for the Agency to keep in mind th at aerial application opera tions are typically small businesses that consist of just a few employees. In some cases, the owner of the operation may serve as the pilot, mixer/loader and comptroller. Requiri ng them to also file an NOI in certain scenarios will be a tremendous and unnecessary paperw ork burden, while offering no additional environmental protection.

NAAA has attempted to determine the number of a pplications that could be covered under this expansion of NPDES permitting requirements. Our records show there are 1,625 aerial application operators in the U.S. According to a pest icide use survey NAAA conducted in 2004, there are 2.2 operating aircraft per operation. Depending on the targ et application site, the number of applications made in a given season to a particular crop, lands ite, etc. is between three and six. The survey shows that eight percent of aeria l applicators treat forests, 25 pe rcent treat rice, 0.4 percent treat mosquitoes, 0.4 percent treat public health acres and 0.5 percent treats rights-of-way. A typical aerial applicator has, on average, approximate ly 100 customers. Using these numbers—(1,625 x 2.2 x (3+6/2) x 100) = 1608750; (1608750 x .08) + (1608750 x .25) + (1608750 x .004) + (1608750 x .004) + (1608750 x .005)—it’s estimated that 551,801.25 aerial applications will require NPDES coverage. This expansive number of permits will surely be a profound burden on state and federal regulators, not to mention those entities responsible for filing the NOIs.

NAAA is concerned that this permitting system will encumber aerial applicators’ ability to provide an important service to America’s farmers in or der to feed, clothe and fuel the world. Aerial application is advantageous fo r several reasons, including spee d, efficacy and unobtrusiveness to the crop and topsoil. The aerial ap plication industry is responsibl e for 25 percent of commercial applications and treats at a minimum more th an 77 million cropland acres and many more acres when considering forestry, pasture, public health and fire and pos t fire seeding acres.

Thank you for considering our comments and pl ease do not hesitate contacting us with any questions or additional informati on you might need on this issue of great, great importance to the aerial application industry.

Sincerely,

Andrew D. Moore

Executive Director