1 DRAFT – 1/22/10

Office of the Indiana State Chemist (OISC) comments on the EPA deliberative draft Pesticide General Permit (PGP) dated January 13, 2010.

OISC is the pesticide state lead agency for th e State of Indiana. We have operated under a pesticide cooperative agreement with the US EP A for approximately thirty years. Most of the following comments are intended to refl ect our experience dur ing that time period regulating the industries and individuals th at will ultimately be impacted by this permitting program. Thank you for the opportunity to comment on this document.

The document is, in general, a reasonable attempt to provide a general permit process that will provide for pesticide applications to, over and near waters of the United States in a way that meets the requirements of the Clean Water Act. If there is one theme to characterize the intent of many of our following comments it is “simpler is better.” It has been our experience that a rule/permit of th is scope requires a great deal of voluntary compliance to achieve its stated goal. That having been said, the EPA should take advantage of every opportunity to make the PGP as simple and as straightforward as possible. That will help minimize frustrati on and confusion for both impacted pesticide applicators and implementi ng/enforcing agencies.

1.1.1 Activities Covered

It should be made clear in this section or in the definitions section whether you intend to include in your definition of covered pesticides items such as pond dyes/colorants and barley straw used for algae control, vinegar used for weed control, and a variety of home remedies that are not labeled or marketed as pesticides but may be used as such. Thes e items probably meet the criteria as a pollutant under CWA, but may fall out of the FIFRA definition and regulatory

scheme.

As written, it appears that the EPA has decided to limit the PGP to four activities, or pesticide use patterns. Pesticide applications other than these that result in discharges to waters of the US (other th an through drift, ag storm water runoff, and irrigation return wate r) would apparently require individual permits. Although, delegated states can expand their PGPs to include these other activities, USEPA should reconsider their approach and provide for an “other” category that will cover pesticide applications not otherw ise specified. Of particular concern are grassed waterways in farm fields and ditche s at the edge of farm fields. We need to clarify whether grass waterways are considered ditches or better yet more clearly define ditches.2 The term ditches is used under two of the currently stated activities/use patterns. We suggest clarifying that coverage does not apply to application to ditches that do not contain water at the time of applica tion and does not apply to application to

ditches and other areas wher e the pesticide will not enter the water by force of gravity at the time of application.

It is not a good idea to not include other pesticide applications that could enter

waters of the US since these would then be subject to indi vidual permits or violations of the CWA.This is especially applicable to the issue of homeowner’s, private property owners other than farms a nd ranches, etc. If these entities are not included in the PGP,albeit without NOI, re porting ,IPM , etc. requirements, any applications they make to waters of th e US are illegal without an individual permit. The USEPA hopefully does not want to make applications that are allowed under FIFRA to become illega l under the CWA and subject potentially millions of people to prosecution under the CWA for otherwise legal pesticide applications.

1.1.2.4 Endangered and threatened species...

We note that this entry has been provided as merely an example, but it must be far simpler and much more straightforward if left in, otherwise it will be ignored.

1.2.2. Operators required to submit a Notice of Intent –

Delete the first four bulleted items. The rati onal for filing an NOI and then all that is required after that should be based on thresholds , not the ability of th e applicator/operator to perform that required ac tivity. It is way too convoluted as presented. Any of the currently listed bulleted entities should be allo wed to file an NOI and then do all of the

other activities that kick in as a result of filing if they so choose. However, these entities should not be required to do so just because of who they are. A city or town may wish to jump through all of the hoops for purposes of limiting their liability or public perception,

and that is OK. But the folks we most want to track, monitor, and insure compliance for are the pesticide users who exceed the thresholds. The proposed requirements are too broad as presented. This permit would be much simpler and much more straight forward if you just establish acceptable thresholds and stick with them . The rationale is also much more practical.

In addition, the proposed requirement of a threshold of 640 acres total treatment, to include terrestrial application, a ny portion of which results in a discharge to waters of the US is way too broad. For example, there are commercial pest c ontrol applicators who perform mosquito control applications for private landowners, property owner’s associations, resorts, etc. These companies can easily total more than 640 acres treatment in a year of terrestrial applic ations. In the event that th ese companies occasionally make applications of larvacides as pa rt of their operation, they woul d then be required to file an3 NOI. This requirement would result in the perverse resu lt of discouraging mosquito control applicators from using larvacides, in order to avoid triggeri ng these requirements.

The proposed threshold level is too low – shoul d be 1000 acres of application to or over jurisdictional waters.As proposed, too many pe rsons will be required to file an NOI.

2.1. Minimize pesticide discharges...

We understand and agree with the concept of doing everything possible to minimize discharges. But frankly terms like “minim ize”, “to the extent achievable”, and “economically practicable” are all vague, subjective, and ultimately unenforceable. As long as we understand and accept that these are goals and not real measuring sticks for compliance, I guess they are OK.

2.1.1 thru 2.1.3

Identifying maintenance and calibration sche dules is a good thing but also difficult to enforce. The people that need those things th e most are also the ones that will just pencil whip a record keeping form. In addition, main tenance and calibration schedules are going to be very dependant on frequency of use of equipment. What if I use my equipment every day but use that equipment around wate r only one day ever tw o months? Does my schedule apply only to the water ap plications? We need to make that clear if we leave this in the permit.

2.2.1.1 Identify the problem

The definition of “treatment area” needs to be based on the area of responsibility of the entity required to meet this condition of the permit. For exam ple, if the “treatment area” for a mosquito control district is the ar ea encompassed by the district, or subunits determined by the district, this is workable. If the “treatment area” is the area for each individual treatment, this becomes unworkab le. If interpreted this way, the permit conditions would result in a major increas e in record keeping and documentation workload, and would not provide any useful information for the regulatory programs charged with oversight in this area.

Again, if the regulatory requirements for la rvaciding (collective low environmental impact) become too onerous we will drive operators to adulticiding (collective higher environmental impact).

2.2.1.3 – Pesticide Use –

Sections 2.2.1.3.1 – 2.2.1.3.3 – acceptable. We support this language.4 Section 2.2.1.3.4 – The use of the term “primary ” is not acceptable. This creates a permit condition that requires mosquito control operators to establis h larvaciding as the basis of their control program. Larvaciding is not appropriate control methodology in many situations, and is only appropria te when integrated pest management practices result in the selection of larvaciding as the appr opriate methodology, and, more specifically, selects the locations, timing, rates, etc.

It would be much more logical to use the te rm “preferred” control “where practicable and

effective”.

Requiring larvaciding as a condition of the permit could have two unintended

consequences:

1. Districts may select to only conduct terr estrial ULV applications to avoid having any regulated discharge to waters of the US, and therefore not have to meet the

conditions of the PGP. This could result in increases in the total amount of the adulticides applied in a dist rict. The fact that larvaci des cost anywhere from 10

times to 100 times more that adulticide s to apply will drive this process.

2. Districts may be required to use larvacidi ng in ways that are not appropriate if IPM principles are considered. For example, areas may be treated where application of larvacides is a marginally e ffective practice, or, at times when it is not most effective, in order to meet the requirement that larvaciding is the “primary” method. This will result in a waste of public resources, as well as

result in the need to still conduct adulticiding operations. This could result in an overall degradation in the quality of the mosquito control provided to a community for no good purpose.

The language should be modified to clarify th at larvaciding is not required to be the “primary” method of mosquito control, but a preferred method when effective.

4.0 Site Monitoring

If a state has a regulatory program that provi des for spot checking of applicators during the application process to insure compliance with the targeted water protection activities, including monitoring these provisions s hould be recognized and allowed under the permitting program.

In addition, the permit must make it clear th at monitoring for observable adverse effects applies only to aquatic adverse effects, not terrestrial adverse effects completely disassociated with the water part of the pesticide application.5 5.0 Pesticide Discharge Management Plan

In general, we support and understand the need for a PDMP. However, if we make the requirement too cumbersome and too vague it will evolve into a paper plan that is developed for the sake of having a plan but never gets implemented. Simpler is better. Also, providing sample industry specific plans may make this four long pages of stuff appear more reasonable and doable.

6.0 Corrective Action

The proposed language in this section is reas onable and appropriate. There will likely be reports of adverse incidents that are u ltimately found to be not factually based.

Corrective actions based on adverse incidents should not be require d unless the adverse incident is determined after appropriate investigation to be related to the application activity. The PGP should clearly state that pe rmittees can not be penalized for failure to report to the Agency reports of adverse incidents that are not factually based.

The permit should also specify that any reporti ng of incidents are onl y those that affect water quality, not incidents such as spills or equipment malfunctions at sites removed from jurisdictional waters.

7.0 Annual reporting

We do not support this requirement. No meani ngful analysis of the information being required can be performed and no Agency/State resources are available to attempt such an analysis. We would suspect that most pesticides cove red by this perm itting program are not going to be found in mu ch if any of the ambient m onitoring data that has been conducted to date. If the purpose of the reporti ng requirement is to target applicators for compliance inspections couldn’t that be done ju st as easily by revi ewing the list of NOIs filed? Before including an annual reporting requirement we should point to examples of other permitting programs where the annual repo rts have resulted in a tangible and useful

data set and determine how similar or dissimilar this program is to that.

8.0 Recordkeeping

8.2 – The “Pest Management Log” currently does not exist and there is no need to create such an entity. If there are records that need to be kept in order to determine compliance with the conditions of the permit, these can be specified, but there is no need to require them to be compiled into one document. These records need to provided on request and accessible for inspection. Failure to provide the records would be the basis for a violation of the conditions of the permit. Th ere is no need to specify locations, method of recordkeeping, etc.

The records listed as required in this secti on should be evaluated to determine which are necessary to determine compliance with the conditions of the permit. The following appear to be reasonable:6 NPDES permit number Times and dates of pest management activities Method of pest management used

Pesticides used

- EPA ID numbers of products used

- Rates/amounts used

- Locations applied – which can be specified as coordinates or other designations

- Surveillance records

o Methods used

o Results

- Adverse incident records

- Calibration records – mainte nance and cleaning records are superfluous and not

useful information

In general, EPA and States should be a llowed to consider whatever pesticide recordkeeping requirements are already in place and duplicate or build on that to avoid confusion by the applicator/operator.

Thank you for the opportunity to comment . Questions may be directed to Dave Scott at 765-494-1593 or scottde@purdue.edu.