1 Draft EPA PGP Public Meeting

Albu querque, NM June 14, 2010

Notes on Questions from attende es:

How long is permit in effect?

What is a water of the U.S.? What is a point source? Why doesn’t NM have NPDES authority? GPS can help avoid streams

– need permit in this case? Do applications into canals that are dry require permit?

Uncertain

– EPA looking into this. Ephemeral stream can be water of U.S. How can you submit comment on ephemeral streams and dry ditches?

Can farmer be held liable for runoff to river or stream? Does irrigation return flow and runoff exemptions assume pestic ides are applied legally under

FIFRA?

Section 18

– permits required? Applies to section 18 as to any other pesticide use. Backpack sprayers require permit if you can avoid deposition to water?

– No Aerial applications that ca n’t avoid deposition to water require permit coverage. If you’re a manager but hire applicators, how does coverage work? Both are permittees per Jack. Do you need two NOIs for the above situation?

No

– only one NOI required

. Can states have different permit c onditions than the EPA permit? (e.g., TX and thresholds) Do we expect most states even with authority to adopt EPA’s permit?

Jack

– maybe half will be identical; one

- fourth will do something similar; one

- fourth may do something different

How is threshold calculated? For NM, is it possible to adjust the permit? We could write the permit t hat varies by state, even for non

- delegated states. Are the 44 states going to use general or individual permit process? General

. Some states may have separate permits for , say, mosquitoes and weeds Do state permits need to have EPA approval? They have obligation to submit to Region and Region can provide and comment (or not). EPA can object formally, but it’s not likely Region will object given generality of permit

How w ould the timing ―limbo‖ apply to applicators? Minimizing

– nothing quantitative about it Operators concerned about decisions being open to scrutiny. Can EPA make directions for minimizing objective? Indicates issue related to FIFRA

How to resolve confli ct between owner and applicator i f they don’t agree on applic at i o n rate?

Can EPA elaborate on ―lowest effective amount?‖ Do operators under the PGP have to be FIFRA certified?

– No

– certification requirements not affected by the PGP.2

The EPA permit has to go thru Section 7 ESA consultation; state permits don’t have this requirement Does ES consultation include candidate species? No (probably)

– only listed species.

Will we reconsider the Tier 3 restrictions? Some forested areas in NE are trout stre ams that can

be defoliated which has negative e ffect on the stream. Should be allowed to apply over streams to control gypsy moths to prevent defoliation. What does ―conveyance‖ mean? Does irrigation Who will determine jurisdiction over a ―waters of the U.S.?‖ US Army Corps of Engineers? Could we end up with individual consultations for ES in the permit? Jack

– practically, that’s not an option. We’re looking at doing several steps under PGP, or you could do individual permit. Monitoring

– similar to doctor being required to do annual reporting for prescribing medication. Reporting requi red. Is there jeopardy with previous applications if their business changes and they meet or exceed

the threshold?

- No. Can owner require applicator to submit NOI (and do other permit requirements)? Not exactly,

decision

- maker submits NOI. Filing NOI isn’t problem, PDMP is the expensive, complicated part. Long discussion of stakeholder vs

. applicator. It will be confusing for applicator to know whether he needs to compl y with permit Consider first year phase in with owner/decision

- maker doing NOI and PDMP. Consider separate system for applicators similar to pesticide applicator license while

owner/decision

- maker does NOI. Applicator can do one PDMP that covers a variety of application scenarios. The way permit is written now puts liability for owner on applicator and vice

- versa. Need to make clear separation of responsibility regarding liability. Are we considering anything in annual report

– can they comment on what s tate regulators would like to see (and not see)? 20 acre threshold will overwhelm regulators. Aquatic Weed Control Associations, other associations

– can they file for NOIs?3 Draft EPA PGP Public Meeting

Boise, Idaho

J une 16, 2010

Notes on Questions from attende es:

1. Idaho Water Users Association

– why didn’t EPA ask for re

- hearing from 6 th Circuit?

2. How do State programs for crickets, grasshoppers, etc. on rangeland fit into this? Terrestrial can be controlled to avoid direct deposition to water. Also, we’re taking comment on activities and scope that should be included.

3. Terrestrial applications to a bank of the water (they’re also doing

– leave buffer of say 3 ft, acknowledging there would be drift

– does it need a permit/NOI? No covering drift; Jack

said could file on NOI for all activities

3. Duration of NOI

– same as permit (5 yrs)

– yes. 4. Is there difference between treatment area vs pest mgmt area? Ambiguous language in draft permit. Jack

– we will attempt to clarify.

5. two NOIs required for ap plicator and mosquito control district? Control district responsible for NOI under current draft. If you work for 10 MCDs and they all submit NOI, applicators

don’t need to submit NOI.

6. Scott Campbell

– attorney in Boise

- reporting requirements are g iving litigants ammunition to sue applicators. Didn’t blame us because we’re career bureaucrats, but did blame EPA leadership. What are costs? Have litigation costs been included? Are all tributaries included?

Fact sheet

– positive identification of we ed or algae? Who’s going to do that?

PDMP

– must be kept up to date? Need to clarify that Applicator/operator must comply with any eligibility considerations under other federal laws. That tells people nothing. Need to clarify. It’s been raised in oth er NPDES permits, but we will clarify. Need definition of size of irrigation ditch

– affects ―every farmer in Idaho‖ if terrestrial applications are made. (Jack said it’s related to definition of water of U.S.) Systems are

interconnected

– how is treatm ent area defined? Does it cover downstream areas? Record keeping, reporting, etc. are ―insane.‖ EPA is welcoming ―eco terrorist‖ litigation.

Attributed this to Obama administration. Waters of U.S. is the ―backbone‖ of this thing? How can we issue permi t? Farmers are tapped out economically. Need to define and say who owns them. Allison said we will provide as much guidance as possible. Jack referred audience to some guidance on EPA website. OR Dept of Agriculture

– forest industry is concerned over litigation. Does agricultural stormwater runoff apply to forestry application? Allison

– we’re looking into that. Cost of permit (OR Dept of Ag )

– the duration is imp ortan t for costing. OR has annual permits. OR estimates that $!000

- $1200 per permit per ye ar. OR Dept of Ag

– 3.0

– will EPA establish ―numeric standards?‖ Not at this point. Clark Mosquito Control

– one NOI for one entity no matter how large it is?

Idaho Farm Bureau? IPM could be overturned. Minimize is the problem word

– it gives people opportunity to sue applicator over using the ―lowest amount possible.‖ How many streams in ID are identified as pesticide problem? Dirk

– none for specific pesticides; there may be some for ―pesticides‖ in general.4

ID Transport Dept

– covers direct appli cation but not runoff. With any pesticide runoff,

stormwater can reach water of U.S. Non

- agricultural use

– Jack

- there are existing stormwater permits

Helena Chemical

– are we looking at the right sector? What about homeowners who over

fertilize, illeg al use, etc.? EPA needs to restudy this? Weed and Mosquito Abatement District (Brian ???)

– Noxious weed control mandated by ID statutes. How do they respond to needs when they don’t know where they’ll be? Comment (same person)

– he made application where he needed an NPDES permit. The weed control was $2500; the individual permit requirements and compliance ended up costing $25,000 due to water quality sampling and notification. Allison said some states require water quality monitoring. They had t o notify 1800 people living close by Certified Mail. Under proposed PGP no notification required. Using EPA approved chems for banks and weeds, why do they need permits? Allison

- That was the EPA position in 2006 rule. 6 th Circuit said rule and inter pretation of CWA was in error.

Under draft

– 3 rd party lawsuits

– why do they have the right to sue if no interest in it? How much DEQ input from States has been included? We’ve worked with States from beginning.

PDMP modifications for corrective ac tions, change in pest control activities, etc. Clarification needed between 5.0, etc. General point is that PDMP needs to be modified for minor changes. What does 5.2 mean regarding ―change in pest control activities.‖ ―Fodder‖ for lawsuits (Scott Camp bell). Major issue regarding ―minimize‖ and ―lowest amount.‖ Remove phrase about significantly changing pest control activit i es

– ―huge invitation‖ for litigation.

Travis Jones

– ID Grain Producers Association

– clarification from FR Notice

– EPA seeking comment on other uses (terrestrial uses, viz., crops) that may result in discharge. He wants to know why EPA wants comment on this if agri culture excluded in PGP. Q: No intent to disrupt FIFRA, but small irrigation companies can’t do this due to cost, impact,

e tc. What impact does this PGP have on public health, costs, etc. to small municipalities, etc.? Have we estimated impacts on environment due to this PGP? Impacts due to using mechanical methods, etc. Q: Can we do permit that simply says compliance wit h FIFRA fulfills NPDES? Q: Have we evaluated environmental impacts of using non chem ical methods (e.g. sediment impact, etc.) Allison said permit can be ―shield‖ against 3 rd party lawsuits. Same questioner

– small governments said they won’t do it anymore because they don’t want to take on risk of third party lawsuits? Same Q: have we evaluated legislation to help resolve this? Executive branch can’t lobby Congress (Allison) Q (same as above)

– irrigation return flows

– prior to 2006 there was guidance on irrigation return flows. How will this guidance be incorporated into the PGP? 3/29/2002 it was signed

– How will people understand whether they’re covered under irrigation return flow exemption?

Jason Kinley

– AMCA (from ID)

- AMCA said no one should be complaining about k eeping records for applying pes tic i des

Adverse incidents

– everything

– would fisherman who gets rash from mosquito application intended to reduce risk from West Nile be adverse incident? Need to change/consider this kind of activity

. Where do you document5

Ron ??

-- ?? River Basin

– what new action will reduce pesticide application (as stated by EPA). IPM, minimization might

Darren Kuhn?

– new permit requirement would reduce amount of pesticide discharged to waters

of U.S. How will EPA quantify the reduction in pesticides discharged to waters of U.S? There should be some scientific quantification other than ―because we say so.‖

Bryce Ferris (?)

– irrigation

– reducing leaks, spills, etc. Is EPA going to be regulating operati on and maintenance?

Scott Campbell

– Has EPA done any NEPA compliance activity? Jack

– no NEPA obligation,

so answer is no. Has EPA done anything to evaluate ―global warming‖ impacts related to burning weeds instead of using pesticides (since EPA is re gulating CO2 as a pollutant). Jack

– No we’re not evaluating impact of other methods

– just cost of compliance with the permit.

Additional Questions/Comments from Boise Public Meeting :

1. Need to define ―near‖ in the permit itself

2. Black flies

– ESA

– how to limit liability for 3 rd party lawsuits for new species that might be involved. Where does consultation timing leave pest control operators in ID when final permit is issued?

3. S uggested model plans (e.g., PDMP)

– standard forms, etc.

4. T urboTax

- like form

– drop down questions, etc.

5. W hat is expected in terms of annual reports, how are they going to be used?

6. C an they use reports already being kept?

7. PDMP

– does EPA want specific form at? Almost certainly not as long as all the information was included. They’ll submit example report.

8. PDMP team

– can it be an individual? Yes.

9. How can pesticide users be expected to know they’re subject to NPDES requirements if they’re under the thresho ld? Susan

– outreach

10. How will EPA handle a large influx of individual permits?

11. How will outstanding state waters (i.e., not federally designated) be handled?

12. One person said environmental groups will ask for individual permits because general permits aren ’t good enough.

13. Legal liability is a concern

14. OR incurred costs of $1000

- $1200 per permit per year (see notes of public meeting)

15. Adverse effects

– section expanded CWA to include total operations. If there is a spill and it’s cleaned up, now they have to r eport it.

16. Added another level of regulatory ―liability.‖ Have we created EJ issue for small towns/communities with small budgets who can’t afford to implement permit reqmts and might lose mosquito control in small areas, etc.

17. C an thresholds be based on p opulation density or other factors? Should submit comment.6 Draft EPA PGP Public Meeting Boston, Massachusetts June 21, 2010

Notes from Q & A Session:

Permit is for chemical residue from pesticide applications; is there a list of residues? For purposes of the GP, EPA has assumed that all chemical pesticides will leave a residue; however, there is no need for a permit if the dis charger can prove that there was no residue. (Josh, National Environmental Law Center)

How does permit address inert ingredients in pesticides? May be addressed in future permits.

Need clarity on Federal Facilities/Federal lands since legal definitions for both vary from state to state and ambiguity exists regarding what certain entities are considered, and how states that are writing their own permits will interpret it (Jeff, VT Ag).

Several reference were made to applicator burden

— but the process nee ds to be workable for the public; there are several parts of the permit that are not available for review by the public

- such as IPM plans, PDMPs, etc. There were also comments aimed at showing that there should be some burden (just not undue); otherwise, w hat is the point of the permit? That is, we should move beyond business as usual and actually make a difference.

Some groups that are trying to reduce invasive species may have disincentive to take action due to requirements on Tier 3 systems. Need to in clude something about this in the permit (Betsy Reilly).

IPM / PDMP; what is the difference? IPM is better labeled as IPM Plans and includes typical industry practices, whereas PDMPs are involved more with spill control, calibration of equipment, etc.

Be clear in the permit that IPM includes chemical control.

Post application monitoring should be done by the applicator, as it could actually make a positive difference in terms of discharges and would not be burdensome to conduct. Results from post

app lication monitoring should be collected and publicly available in order to guarantee that the permit is being complied with (VT).

The permit states least effective amount

—how does that fit in with multiple applications and will we be considering the poss ibility that an applicator could be in compliance with FIFRA but out of compliance with CWA?

Are terrestrial applications near water covered?

Control mechanisms /industry practices/BMPs only refer to use of chemical products.

Should have great focus on water ecosystem management

- looking at various control measures.7

What are the costs associated with implementation of this; is there any data?

Will there be funding made available to states to help them implement GP? Is the EPA

concerned about state back logs? Answer: No, there is no additional funding but some states that have to create their own permit have the ability to request funding and impose permitting fees that can cover some of the costs. (Greg, CT Ag Experimental Station).

Need clarity on wh o applies for coverage versus who files NOI. Also felt that the landowner should hold ultimate responsibility since they should be aware of what if happening on their

land.

Thresholds are too low for aquatic vegetation/animal control in comparison to oth er use pattern thresholds, and feels that it may be harsher on small folks. Proposed that for vegetation, it may

be better to work off a volume

- based threshold (Watershed Association of South Western MA; Betsy Reilly).

Process is very cumbersome and repe ats efforts already in place via the state departments of environmental protection. There needs to be some recognition regarding the current state that exists for each use pattern and the differences between current requirements and what will be required u nder the new permit. According to Allison, around 27 states already have permitting programs in place for one or more of the use patterns (Mike Mundel).

There is nothing under the permit that would help EPA in determining the cumulative effects of multipl e applications of different types of pesticides on a single waterbody. Knowing this information could help EPA in maintaining environmental integrity (e.g. maintain/promote fish health in particular waterbodies). Also, in general would like to see better monitoring practices be in place/better information be collected (e.g. Watershed Association of South Western MA).

What is considered near water? Concerns were raised regarding how the applicator is supposed to know if discharges reach waterbodies. Appl icator can make judgment call as to whether application will lead to unintentional spraying in water.

The definition of ―adverse incident‖ needs to be clarified so as to not include AI regarding the targeted species/weed. Any application area with have NTOs.

Regarding weed control, it was noted that although mechanical harvesting is several times the cost of pesticide application in a given season, harvesting could reduce the overall levels of weeds over time which may save money over time. It was also noted that there are challenges/feasibility issues with mechanical approaches. Furthermo r e, the additional burden created by weed requirements would be impossible to quantify until after the first year (Jerry Smith, Aquatic Control Technology)

Mail

- order sales of aquatic herbicides should be considered in future permits (Jerry Smith, Aquatic Control Technology)

Is the alternatives analysis more extensive if over the threshold? Is the current alternatives analysis extensive enough?8

CWA calls for technol ogy development to minimize discharges

- chemical control still used. Regarding ―minimize‖ and control measures, how will the permit account for methods/treatments that one day may be more economically feasible than what is currently

considered the most econ omically feasible method? Could the permit be written in a way that would promote technological adoption/advancements?

The timeliness of returning ground permit applications needs to be stressed. For example, in MA it takes a very long time to process an d receive such applications. Furthermore, the timing of when clients (such as towns/cities) hire applicators can be a small window, and it could be difficult to have the timing work out with the application beings submitted (Jerry Smith, Aquatic

Control Te chnology)

Desire to see incident data collected through this permit be combined with 6(a)(2) incident data

It is believed that in many cases, there would be little additional burden by requiring post

application monitoring since in most cases that is a lready happening (in MA) (Jerry Smith, Aquatic Control Technology)

In closed systems with respect to mosquito control: what if water tainted with pesticides goes through water treatment facility

— is it covered? This is not the same situation as if it were to seep into ground water. Same concern was raised for catch

- basins.9 EPA PGP Public Hearing Washington, DC

June 23 , 2010

Notes on Questions from attende es:

1) National Cotton Council (Keith Menchey)

- Question : Citizens have the ability to challenge NPDES permits. What does ―challenge‖

mean?

- EPA Answer: If a third party believes that a particular operator is causing WQ problems they can bring suit against that operator. The third party will have the bu rden of showing that the operator i s responsible for the WQ exceed a nce.

- Question: Doesn’t the ―minimize‖ language conflict with the FIFRA labels?

- EPA Answer: Through these meetings we’ve realized that this language is a problem, we’re considering new t erms. If the FIFRA label says you can use more pesticide you can, but we want folks to consider using less.

- Follow

- up Comment: The Cotton Council thinks this provision will open a flood gate of litigation

- Question: Agree with EPA’s decision not to requi re numeric limitations, but would states be allowed to include numeric limits in their permits? Is there anything EPA can do to prevent them from doing that?

- EPA Answer: Yes, states can develop a permit that they feel is best for their state, and if

that means including numeric limits that’s their choice. EPA will review the permits and

determine on a case

- by

- case basis what is appropriate.

- Question: What if a state says they can’t afford or won’t develop a permit?

- EPA Answer: We’re trying to provide as much assistance as we can to the states. We recognize that the states have resource issues, and we’re working with states to use our template. We’re doing what we can to help to assist them with issuing their permit.. We increased 106 grants this year an d hope to increase them by $10 million more next year. We hope that a state wouldn’t choose to not develop a permit because that would cause many problems in that state. We have not heard that states will not be able to develop a permit.

2) Jim

- Question: This was a question about joint liability. It’s clear that joint liability would apply if an operator sprays for the government. But what if an operator is working for a nonprofit organization or a homeowner? Would those entities share liability?

- EPA An swer: The person who has the opportunity to consider alternatives to spraying is the one responsible for the IPM. The applicator would be responsible for the equipment calibration and application requirements. So EPA sees it as joint liability.

- Follow

- up Question: So nobody would ever be completely off the hook?

- EPA Answer: No.

- Question: Could operators contractually indemnify the other person?10

- EPA Answer: Cannot say for sure (not an attorney), but EPA wants to keep the flexibility for people to retain or contract out responsibility. It just needs to be clear to EPA who is doing what.

3) Aquatic Ecosystems Restoration Foundation (Carlton Layne )

- Question: If a researcher is doing research on herbicides and the total acreage would exceed 20 acres, does he have to submit an NOI?

- EPA Answer: EPA doesn’t want to interfere with research. If a researcher’s work will
exceed the thresholds, he will need to submit an NOI and follow the IPM and other permit requirements to the extent they don’t conflict with res earch.

4) American Mosquito Control Association (Bill Meredith)

- Question: [read statement and provided written comments]

o Membership concerned about the threat of litigation

– state’s don’t have enough resources or funding available

o Fear the money require d for the PGPs new regulatory overlay will take away from core program functions. Not clear what the value added will be (of the permit).

- U.S. Small Business Administration (Kevin Bromberg) : What do you want from the permit, then, other than not having on e at all?

5 ) Fairfax Water & American Waterworks Association (Tracy Goldberg)

- Question: [read statement and provided written comments]

o 20 acre threshold is very small compared to the 640 acre threshold. The threshold should be changed to capture only the larger applications.

o Applications to Tier 3 waters should be allowed under the permit

o Imperative that the permit be consistent with FIFRA labels

6 ) Florida Dept. of Agriculture and Consumer Services (Steve Dwinell)

- Comment: FL Dept. of Ag. supports EPA’s efforts. This has been a very difficult and complex situation and EPA has developed a reasonable approach. The general permit is appropriate. TBEL is appropriate.

7 ) American Mosquito Control Association (Bill Meredith)

- Question: the PGP brings with it the potential for citizen involvement

– can citizens do anything other than bring litigation? Can they request and receive any information they want, or are there administrative avenues?

- EPA Answer: As with any NPDES permit, the NOI is publically availabl e. The annual report is also publically available if citizens ask for it. The PDMP doesn’t need to be submitted for EPA review, but does need to be kept onsite and citizens can request to see it. The control agency will determine whether the request is rea sonable.

- Question: concerned that the content and quality of the PDMPs will be open to public scrutiny. This will push entity to write better document. Are there protections for states from unlimited challenges?

- EPA Answer: Most requests need to come t hrough EPA, EPA will act as an intermediary. If the request goes to the state, the state will make the determinations based on state rules. Folks have had this concern with every general permit but so far it hasn’t been a realized issue, though it may be d ifferent for pesticides. EPA may be able to develop a public11

database to house the information

– the agency is trying to determine how to make the information available but not cause burden on the regulatory agencies.

8 ) Responsible Industry for a Sound Environment (RISE) (Jim Skillen)

- Question: The threshold of 20 acres for algae and weed control is incredibly low

– can be met in 20 minutes of aerial application or 3 hours by boat. To remove the burden on small

businesses this threshold needs to be a muc h larger number.

- EPA Answer: We specifically asked for comments on the threshold numbers. When you provide comments please indicate what would be an appropriate number and why. It’s our understanding that most folks are already doing much of what is requ ired by the permit, or can reference and pull information from similar documents.

o Response from Commenter: The permit requires operators to keep records for three years beyond the permit’s expiration, would also have to update the plan when employees turn over. Worried about paperwork violations (heard that these are the number one type of general permit violation). It’s just harder to keep records that will be reviewed by regulators

- more stringent requirements.

o Response from U.S. Small Business Admini stration (Kevin Bromberg): The economic analysis conducted by EPA for this permit indicates that 31,000 farms will be below the threshold individually, but the applicator who is applying to multiple farms will not be. Does it make sense to have a PDMP for separate areas that may not be geographically contiguous? Should maybe have separate IPM plans for non

- contiguous property. Indicated the EPA didn’t consider cumulative jobs when setting the threshold numbers.

 EPA Response: As we’ve worked on the permit we have gotten more knowledgeable

– when the economic analysis was written we didn’t have enough information. We would like people to comment on what types of entities will end up being permitted and what the cost to those entities will be. We are looking for comments on size of organization, who can afford IPM, and information to justify threshold.

9 ) Florida Department of Agriculture and Consumer Services (Steve Dwinell ):

- Question: Can a state chose to develop a permit that covers more use patterns than those covered by EPA’s permit?

- EPA Answer: Yes, if a state determines that there are other use patterns that would need an NPDES permit (per the CWA’s requirements) then they can develop a general permit that would cover those additional use patterns. Sta tes may have greater authority than

EPA to cover additional sources.

1 0 ) Pond Medics (Trent Louis)

- Comment: The PGP will impose severe requirements on small businesses. It’s hard to keep up with staffing and paperwork, and smaller operators are still in limbo about getting their heads around the permit. Its long term implications. The bad part of the permit outweighs the good. There are not a lot of industry folks in the room, but there are

a lot in existence. Pond Medics has a staff of four full

- time fol ks but manages thousands of acres of water. Clients shell out hundreds of thousands of dollars a year to maintain water quality and nuisance control for their uses (livestock, irrigation, etc). The new PGP will close to double the cost to private land owne rs to treat their water because of the increased insurance costs (caused by liability concerns) that the operators will have to12

carry. The permit would prevent good water quality, not encourage because landowners would stop maintaining their water.

1 1 ) Cl arke Mosquito Control (Todd Trowbridge

- private applicator and manufacturer)

- Question: Can operators claim pieces of the PGP as confidential business information?

- EPA Answer: We’ll look into that. Anybody can claim things as confidential; it’s up to

EPA to make the final decision on what can or cannot be claimed as CBI. Typically, what is in a discharge cannot be claimed as confidential.

1 2 ) Louisiana Department of Agriculture & Forestry (Bobby Simoneaux)

- Comment: State expressed thanks to EPA for its h ard work and willingness to consider state’s comments. But time is running out for the individual states to develop their permits. Encouraged EPA to work with the states more to develop their permits. Asked EPA HQ to share more information with the regiona l offices so they are better equipped

to assist the states.

- EPA Answer: We are providing that assistance and information to the states/regions. We’ve had trouble doing it up until now because things were changing so quickly.

- Question: Would EPA agree t hat NOIs are not always required?

- EPA Answer: Regulations state NOI is not required but evaluate who to include. There could be situation where NOI is not needed if authority knows the permittees. Authority

need s reasons for its decision.

1 3 ) David Bell (Maine)

- Question: How can a forestry application avoid violating water quality standards where the standard is narrative and includes the phrase ―as naturally occurs.‖

- EPA Answer: Not sure, we’ll look into it further. Also some concern over the ―no toxics in toxic amounts‖ standard that many states have.

1 4 ) Pond Medics (Trent Louis

– Texas)

- Question: Didn’t see any provisions for upstream conveyances or occurrences created by somebody other than the operator. How do you protect downstream users from ups tream activities, specifically with respect to water quality monitoring?

- EPA Answer: This is one of the reasons we’re not asking for water quality monitoring. It’s hard to determine where the pesticides are coming from. We’ll look into this to see what pr otection EPA can afford in these situations.

1 5 ) Aquatic Ecosystems Restoration Foundation (Carlton Layne)

- Question: How should an applicator assess the action threshold when he is applying pesticides for many different things in many different areas? H ow does this jive with the

PDMP?

- EPA Answer: The applicator just needs to show that he has considered other alternatives to spraying. A range is good for action threshold.

1 6 ) Earthjustice (Cheryl Cortempglia)

- Question: Has EPA done a NEPA assessment for the PGP?

- EPA Answer: We’re not required to do a NEPA assessment for a general permit (That is required only for a regulation.) However, we are conducting an ESA consultation that considers species.13

- Question: Can EPA set up any general monitoring for large bodies of water that are drinking water sources or where people swim?

- EPA Answer: Under FIFRA, OPP has already done a human health assessment and considered fish toxicity issues.

o Commenter Follow

- up : Are these specific to a geographic area?

o EPA An swer: They are a general assessment, but will cover the most sensitive situation. Some states are conducting their own monitoring.

- Question: Can EPA monitor during seasonal times when certain species are present or breeding, etc?

- EPA Answer: There are s ome species protections already in the permit, and we are considering other protections through our consultation with the Services.

1 7 ) David Bell (Maine)

- Question: If water is impaired for pesticides in general (rather than for a specific pesticide) can an operator get coverage under the PGP?

- EPA Answer: Yes. This is because we don’t know what the water is impaired for specifically, or where those pesticides came from. In many cases the impairment is for pesticides that are no longer in use.

o Commenter Follow

- up : If you’re concerned about water quality, this seems like

an artificial distinction.

1 8 ) AGRA informa (Larry Pearl)

- Question: Would EPA consider including a pesticide needs assessment as a permit requirement?

- EPA Answer: The PDMP required by t he permit already requires an alternatives analysis;

a needs assessment is inherent in this. What more would the commenter want?

o Commenter Follow

- up : The assessment included in the PDMP many not be as detailed as some groups will want.

19 ) American Mosq uito Control Association (Bill Meredith)

- Comment: Thought EPA’s fact sheet did a good job of explaining why ambient water quality monitoring would not be a value added. Largest of the largest still have funding issue. California is the only state thinking about ambient monitoring. Unless EPA can provide states with funding, he would recommend staying away from requiring this.

2 0 ) RISE (Jim Skillen)

- Question: Once an operator submits its annual report, will it be FOIA’able?

- EPA Answer: Yes

o Commenter Fol low

- up: That would mean submitting to the state our client list. This is a big problem.

2 1 ) Flori da Department of Agriculture and Consumer Services (Steve Dwinell)

- Question: Would we need an NOI for each treatment area?

- EPA Answer: No. Operator would estimate location for the NOI. Will put this question in the Q&A.

o Commenter Follow

- up: PDMP requires operator to identify location.14

2 2 ) Pond Medics (Trent Louis

– Texas)

- Question: Worried about the company with the deepest pockets closing everyone els e out of business. Companies use the information provided in the annual reports to shut down smaller operations. The reporting and information requirements are very vague and abstract, not sure what to do

– there are not guidelines or standards.

- EPA Answe r: We’re developing a guidance template for the PDMP and annual report. We’ll develop the template based on existing plans in the states as well as comments from folks. In submitting comments, be clear about what information you think is CBI. The goal of t he reporting requirements is to determine which pesticides are being applied

where.

o Commenter Follow

- up: What does this tell us about what is being discharged? Seems its not useful information without ambient water quality monitoring.

o EPA Answer: EPA has an obligation to ensure that water quality is being protected; we feel the annual report is the best way to get this information. If you think there is a better set of data that should be submitted, let us know. In absence of monitoring, we are asking fo r annual report.

2 3 ) RISE (Jim Skillen)

- Comment: To get around the CBI issue, operators could send the information though EPA and EPA could aggregate the information for the entire industry.

2 4 ) Flori da Department of Agriculture and Consumer Services (S teve Dwinell)

- Question: Does the CWA require annual reporting?

- EPA Answer: The CWA does require reporting, but not specifically an annual report.

- Question: Can EPA provide more information to help applicators determine what is a

water of the U.S. or a w ater of the state?

- EPA Answer: EPA will provide examples in the final permit where it’s clear a permit is required, but we can’t solve the waters of the U.S. problem in this permit.

2 5 ) RISE (Jim Skillen)

- Question: We get lots of questions about ditches and dry swales that are only wet for part of the year. Guidance on how to handle these would be much appreciated.

- EPA Answer: This is one of the top three issues on our list. We’re working on this.

2 6 ) American Mosquito Control Association (Bill Meredi th)

- Comment: What additional information might EPA need to determine whether this permit is necessary? Pesticides don’t cause a lot of problems; FIFRA has done its job. It hard to detect small incremental improvement.

2 7 ) Pond Medics (Trent Louis

– Tex as)

- Question: What is EPA comparing the data received in the annual report to? How is it helpful? There is no baseline to compare the data.

- EPA Answer: Based on the data we do have, we have concluded that the extra protections of the permit will be more p rotective of water quality. Over time we’ll be able to track changes in use, gather information about where applications are occurring and where water quality problems are. The information we’ll collect will allow us to determine15

where to monitor in the fu ture. This is a starting point. If we don’t start gathering the

information now we’ll be no better off 5

- 10 years from now.

o Commenter Follow

- up: In Texas, landowners are maintaining their lakes today. They might not treat further.