Please Respond to:

Dr. Davis H. Daiker Environmental Administrator, Bureau of Pesticides Division of Agricultural Environmental Services 3125 Conner Boulevard Bldg #6 Tallahassee, Florida 32399-1650

E-mail: daikerd@doacs.state.fl.us

Phone: 850-487-0532

January 25, 2010

Mr. Jack Faulk, US EPA USEPA Headquarters Ariel Rios Building 1200 Pennsylvania Avenue, N. W.

Mail Code: 4203M Washington, DC 20460

SUBJECT: Comments on the EPA deliberative draft dated January 13, 2010.

Mr. Faulk,

The Florida Department of Agriculture and Consumer Services would like to thank the USEPA for hosting the face-to-face meeting with state regulatory partners in Dallas on January 21-22. I can confidently say that all Florida representatives we re pleased with the exchange of information. As requested, we are providing the following comments on the draft pesticide general permit. Overall, we are extremely pleased with the approach that EPA is pursuing on this matter and encourage the Agency’s continued solicitation of input from stakeholders. We ask that the Agency please consider these comments as the process moves forward and the draft permit is proposed to the public.

General Comments The document is, in general, a reasonable attempt to provide a general permit process. It would provide for pesticide applications to waters of th e United States in a way that meets the requirements of the Clean Water Act without posing unreasonable burdens to the public and private entities that make these applications to protect public health, consumers, and the environment.

Please consider the following specific comments and suggestions for the language of the Pesticide General Permit, identified by the section of the PGP.FDACS Comments to draft NPDES permit Page 2 of 6 January 25, 2010

1.1.1 – Coverage. Eligibility –

As written, it appears that the USEPA has decided to limit the PGP to four activities or pesticide use patterns. Pesticide applications other than these th at result in discharges to waters of the US (excluding drift, agricultural storm water runoff, and irrigation return water) would apparently require individual permits. Although, delegated states can expand their PGPs to include these other activities, the USEPA should reconsider their appro ach and include an additional category, “other”, that will cover pesticide applications not otherwise specified.

FDACS believes that all applications/applicators m eeting certain pesticide use pattern criteria should be covered under this permit. This is especially applicable to homeowners, and private property owners that may make small-scale applications to waters of the US. If these entities are not included or covered by the PGP, any application they make to waters of the US would be illegal without an individual permit. The USEPA hopefully does not want to make applications that are allowed under FIFRA to become illegal under the CWA. In additi on, without permit coverage, potentially millions of people would be subject to prosecution under the CWA for otherwise legal pesticide applications.

In addition, FDACS supports the threshold concept for determining what notification, reporting and record keeping requirements an entity would need to meet under the general permit. However, FDACS believes the trigger for certain requirement s should be based on application size thresholds, as opposed to size of business.

Definition of Area Wide Pest Control –

This definition is problematic. The only enforceable component is the threshold of 15 acres, and this acreage is far too small to capture what agricultural departments have implied to be area-wide programs. This small acreage value would effectively capture many agricultural applications that do not make applications directly to water. FDACS believes the distinction should be based on the entity conducting the application or the nature of the pest control campaign (e.g., invasive pest).

There are several options to address this:

- Gear the definition to applications by federal or state agencies acting to control a declared

pest

- Increase threshold to a very large area, such as over 10,000 acres.

- Exempt control of agricultural or ornamental plant pests that are routinely controlled as part of normal practices

1.2.2. Operators required to submit a Notice of Intent –

FDACS believes the proposed requirements are too broad. The threshold numbers should apply to the operators listed in section 1.2.2. As currently written, virtually every entity that performs these operations would have to file an NOI. Large numbers of homeowner associations would have to file, but in general, homeowner associations would likel y fail to meet all permit requirements, or be unaware of filing requirements altogether. FDACS believes that the threshold triggers should be applicable, regardless of the nature of the entity.

In addition, the proposed requirement of a threshold of 640 acres total treatment, to include any portion of a terrestrial application which results in a discharge to waters of the US, is excessively broad. For example, consider commercial pest control applicators that perform mosquito controlFDACS Comments to draft NPDES permit Page 3 of 6 January 25, 2010

applications for private landowners, property associations, resorts, etc. These companies can easily make terrestrial applications that total more than 640 acres in a year. In the event that these companies occasionally make applications of larvacid es as part of their operation, they would then be required to file an NOI. This requirement would result in the perverse result of discouraging mosquito control applicators from using larvacides, in order to avoid triggering these requirements. The permit should provide further guidance on how “treatment acres” is calculated.

FDACS also believes that the threshold level is too low and suggests that a threshold of 1000 acres of application to or over jurisdictional waters woul d be more appropriate. It would appropriately eliminate notification requirements of many of the smaller entities that are unlikely to cause significant environmental impacts. As proposed, too many parties will be required to file an NOI.

Section 2.0

FDACS agrees with 2.1-2.1.3 and supports this approach. The use of the term “lowest effective amount” is appropriate since it provides flexibility to use different “rates”, frequencies, or both to accomplish effective control. In all cases, the amount applied will be consistent with the label rate, but this language will allow flexibility while still directing the applicator to minimize the total amount applied.

Section 2.2

Section 2.2.1.1. The term “treatment area” needs to be defined and should be based on the area of responsibility of the entity required to meet this condition of the permit. For example, if the “treatment area” for a mosquito control district is the area encompassed by the district, or subunits determined by the district, this is workable. If the “treatment area” is the area for each individual application, this becomes unworkable. Such permit conditions would result in a major increase in record keeping and documentation workload and would not provide any useful information for the regulatory programs charged with oversight in this area.

Section 2.2.1.3 – Pesticide Use –

Sections 2.2.1.3.1 – 2.2.1.3.3 – FDACS supports this language.

Section 2.2.1.3.4 – As discussed at the meeting, use of the term “primary” is not acceptable when referring to mosquito control and larvaciding. Mandating a specific control practice is counter to the foundations of integrated pest management. Such a permit condition would require mosquito control operators to establish larvaciding as the basis of their control program. In many situations, larvaciding is not an appropriate control methodology. Larvaciding is only appropriate when integrated pest management practices result in the selection of larvaciding as the appropriate methodology, and, more specifically, when it selects the locations, timing, rates, etc. It would be much more logical to use the term “preferred” control “where practicable and effective”.

Mandating larvaciding as a condition of the permit could have two unintended consequences:

1. Districts may elect to only conduct terrestri al ULV applications to avoid having any regulated discharge to waters of the US, and thereby avoiding the requirement to obtain coverage under a PGP. Terrestrial applicati on of adulticides cannot be construed to beFDACS Comments to draft NPDES permit Page 4 of 6 January 25, 2010

applications to waters of the United States if these applications are not made “to, over, or near” these waters. The imposition of onerous requirements associated with larvaciding could result in decreases to larvaciding and increases in the total amount of the adulticides applied in a district. The fact that larvacide applications cost anywhere from 10 to 100 times more than adulticide treatments will drive this process.

2. Districts may conduct larvaciding in ways that are not consistent with IPM principles. For example, areas may be treated where application of larvacides is a marginal or less effective practice simply to meet the requirement that larvaciding is the “primary” method. This will not remove the need to conduct adulticiding operations, but it will waste public resources, and could result in an overall degradation in the quality of the community’s mosquito control program, for no good purpose.

The language should be modified to clarify that larvaciding is not required to be the “primary” method of mosquito control, but a preferred method when appropriate in terms of cost and efficacy.

Section 3.0 Water Quality Based Effluent Limitations

We support this language and this approach.

Section 4.0 Site Monitoring

We support this language and this approach. It is reasonable and appropriate to require visual monitoring for adverse effects. Some clarification is needed on how the EPA anticipates permittees will monitor for: 1) amount of pesticide applied; 2) activities to ensure regular maintenance; and 3) activities to ensure proper operating conditions of equipment. It appears that this is really a record keeping requirement, but further clarification would be appreciated.

If the Agency determines after receiving public comment that some form of ambient monitoring is required, we urge that this be accomplished through a provision that allows state agencies to develop and maintain a reasonable and economically feasible monitoring program to collect data on pesticide levels in representative application sites, rather than imposing requirements on individual applicator entities for individual applications. The costs for such monitoring would easily exceed the costs of the control programs, and would impose an unreasonable burden on the entities that perform the pesticide applications included in the PGP. Si nce many of the entities covered by this PGP are public agencies performing a service for the public (e.g. mosquito control, aquatic habitat preservation, forestry pest control), imposing un reasonable burdens ultimately negatively impacts the public. We would also request federal funding for states to conduct strategic monitoring programs.

Section 5.0 PDMP

In general, we support this section and the designation of this as a “Pesticide Discharge Management

Plan”.

Section 5.1.3, subsection f.3. – The language should be modified to remove the term “primary” control method. This section should document which control methods have been selected and why, without focusing on one method.FDACS Comments to draft NPDES permit Page 5 of 6 January 25, 2010

Section 6.0

The proposed language in this section is reasona ble and appropriate. Undoubtedly, there will be reports of adverse incidents that are ultimately found to be not factually based or pesticide related.

Corrective actions based on adverse incidents should not be required unless the adverse incident is determined after appropriate investigation to be caused by the application activity. The PGP should allow sufficient time to investigate such reports (at least 72 hrs) and should clearly state that permittees cannot be penalized for failure to report to the Agency on reports of adverse incidents that are not found to be factually based or pesticide related. In addition, FDACS is concerned about the ramifications of having to report adverse incidents, whether they are substantiated or not. See section 4.3 which provides the USEPA the latitude to require “additional monitoring” in cases where a discharge was or could be associated with an adverse effect.

The permit should also exclude from reporting requirements incidents such as spills or equipment malfunctions at sites removed from jurisdictional waters.

Section 7.0

We support the language in this section with the following three provisos –

- Not all water bodies have “HUC” designations. Provision should be made to allow narrative descriptions or map coordinates where these are most appropriate.

- “pests controlled” should be changed to “target pests”

- Pesticides should be reported as amount of active ingredient rather than product used. If total pounds or gallons are reported, this information could be easily misinterpreted.

The Agency must also recognize that federal funding is needed to enable states to can collect, input and provide these reports as useful information to the Agency and interested parties.

Section 8.0 Recordkeeping

8.2 – A “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 records can be specified, but there is no need to require them to be compiled into one document. These records can be provided upon request and made accessible for inspection. Failure to provide the records would be the basis for a violation of the conditions of the permit. There is no need to specify locations, method of recordkeeping, etc.

The records listed as required in this section should be evaluated to determine which are necessary to determine compliance with the conditions of the permit. The following appear to be reasonable:

• NPDES permit number

• Dates of pest management activities- Times of pest management will be either very difficult and laborious to compile or, in the case of spot aquatic weed control, a meaningless compilation of an

exhaustive amount of records.

• Method of pest management used

• Pesticides used

• EPA ID numbers of products used

• Rates/amounts usedFDACS Comments to draft NPDES permit Page 6 of 6 January 25, 2010

• Locations applied – which can be specified as coordinates or other designations. FDACS requests some latitude be provided for this requirement, given the varied and spot-natured aspects of some pest management activities (spot treatment).

• Surveillance records

 Methods used

 Results

• Adverse incident records

• Calibration records – maintenance and cleaning records are superfluous and not useful

information

The requirement to specify why larviciding is not practical is redundant. The determination of the control method is already documented in the documentation of the integrated pest management plan and the pesticide discharge management plan.

Thank you again for this opportunity. We look forward to working further with the Agency on this

matter.

Sincerely,



### CHARLES H. BRONSON

COMMISSIONER OF AGRICULTURE

Davis H. Daiker Ph.D.

Cc: Ms. Linda Boornazian, USEPA Ms. Allison Weideman, USEPA Mr. Jordan Page, USEPA Mr. William Jordan, USEPA Mr. Steven Dwinell, FDACS Dr. Dennis Howard, FDACS Mr. Phil Coram, FDEP Mr. Jeff Schardt, FFWCC