68750 Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Notices 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OW–2010–0257; FRL–9487–9] 

RIN 2040–ZA08 

Final National Pollutant Discharge 

Elimination System (NPDES) Pesticide 

General Permit for Point Source 

Discharges From the Application of 

Pesticides 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of final permit. 

SUMMARY: This notice announces the 

NPDES general permit for point source 

discharges from the application of 

pesticides to waters of the United States, 

also referred to as the Pesticide General 

Permit (PGP). A draft PGP was 

published on June 4, 2010 for public 

comment. 75 FR 31775. All ten EPA 

Regions today are issuing the final 

NPDES PGP, which will be available in 

those areas where EPA is the NPDES 

permitting authority. This action is in 

response to the Sixth Circuit Court’s 

ruling that vacated an EPA regulation 

that excluded discharges of biological 

pesticides and chemical pesticides that 

leave a residue from the application of 

pesticides to, or over, including near 

waters of the United States from the 

need to obtain an NPDES permit if the 

application was done in accordance 

with other laws. EPA requested and was 

granted a stay of the Court’s mandate to 

provide time to draft and implement the 

permit noticed today. The stay of the 

mandate expires on October 31, 2011; 

after which, NPDES permits will be 

required for such point source 

discharges to waters of the United 

States. 

DATES: This action is effective on 

October 31, 2011. 

FOR FURTHER INFORMATION CONTACT: For 

further information on this final NPDES 

general permit, contact the appropriate 

EPA Regional Office listed in Section 

I.F, or contact Jack Faulk, EPA 

Headquarters, Office of Water, Office of 

Wastewater Management at tel.: (202) 

564–0768 or email: faulk.jack@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

organized as follows: 

Table of Contents 

I. General Information 

A. Does this action apply to me? 

B. How can I get copies of this document 

and other related information? 

C. Who are the EPA regional contacts for 

this final permit? 

II. Statutory and Regulatory History 

A. Clean Water Act 

B. NPDES Permits 

C. History of Pesticide Application 

Regulations Under FIFRA 

D. Court Decisions Leading to the CWA 

Regulation Concerning Pesticide 

Applications 

E. 2006 Agency Rulemaking Excluding 

Discharges from Pesticide Applications 

From NPDES Permitting 

F. Legal Challenges to the 2006 NPDES 

Pesticides Rule and Resulting Court 

Decision 

G. Publication of the Draft NPDES 

Pesticide General Permit 

III. Scope and Applicability of This NPDES 

Pesticide General Permit 

A. Geographic Coverage 

B. Categories of Facilities Covered 

C. Summary of Permit Terms and 

Requirements 

IV. Economic Impacts of the Pesticide 

General Permit 

V. Executive Orders 12866 and 13563 

I. General Information 

A. Does this action apply to me? 

You may be affected by this action if 

your application of pesticides, under the 

use patterns in Section III.B., results in 

a discharge to waters of the United 

States in one of the geographic areas 

identified in Section III.A. Potentially 

affected entities, as categorized in the 

North American Industry Classification 

System (NAICS), may include, but are 

not limited to: 

TABLE 1—ENTITIES POTENTIALLY REGULATED BY THIS PERMIT

Category NAICS Examples of potentially affected entities 

Agriculture parties—General agricultural interests, farmers/producers, forestry, and irrigation.111 Crop Production. .................... Producers of crops mainly for food and fiber including farms, orchards, groves, greenhouses, and nurseries that have irrigation 

ditches requiring pest control. 

113110 Timber Tract Operations 

113210 Forest Nurseries Gathering of Forest Products.

The operation of timber tracts for the purpose of selling standing timber. Growing trees for reforestation and/or gathering forest products, such as gums, barks, balsam needles, rhizomes, fibers, 

Spanish moss, ginseng, and truffles. 

221310 Water Supply for Irrigation Operating irrigation systems. 

Pesticide parties (includes pesticide 

manufacturers, other pesticide 

users/interests, and consultants).

325320 Pesticide and Other Agricultural Chemical Manufacturing.Formulation and preparation of agricultural pest control chemicals. 

Public health parties (includes mosquito or other vector control districts and commercial applicators 

that service these).

923120 Administration of Public 

Health Programs.

Government establishments primarily engaged in the planning, administration, and coordination of public health programs and services, including environmental health activities. 

Resource management parties (includes State departments of fish 

and wildlife, State departments of 

pesticide regulation, State environmental agencies, and universities).

924110 Administration of Air and 

Water Resource and Solid 

Waste Management Programs.

Government establishments primarily engaged in the administration, 

regulation, and enforcement of air and water resource programs; 

the administration and regulation of water and air pollution control 

and prevention programs; the administration and regulation of flood 

control programs; the administration and regulation of drainage development and water resource consumption programs; and coordination of these activities at intergovernmental levels. 

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TABLE 1—ENTITIES POTENTIALLY REGULATED BY THIS PERMIT—Continued 

Category NAICS Examples of potentially affected entities 

924120 Administration of Conservation Programs.Government establishments primarily engaged in the administration, 

regulation, supervision and control of land use, including recreational areas; conservation and preservation of natural resources; erosion control; geological survey program administration; 

weather forecasting program administration; and the administration 

and protection of publicly and privately owned forest lands. Government establishments responsible for planning, management, 

regulation and conservation of game, fish, and wildlife populations, 

including wildlife management areas and field stations; and other 

administrative matters relating to the protection of fish, game, and 

wildlife are included in this industry. 

Utility parties (includes utilities) ....... 221 Utilities .................................... Provide electric power, natural gas, steam supply, water supply, and 

sewage removal through a permanent infrastructure of lines, 

mains, and pipes. 

B. How can I get copies of this document 

and other related information? 

1. Docket. EPA has established an 

official public docket for this action 

under Docket ID No. EPA–HQ–OW– 

2010–0257. The official public docket is 

the collection of materials that is 

available for public viewing at the Water 

Docket in the EPA Docket Center, (EPA/ 

DC) EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. Although all documents in the 

docket are listed in an index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. EPA 

policy is that copyrighted material will 

not be placed in EPA’s electronic public 

docket but will be available only in 

printed, paper form in the official public 

docket. Publicly available docket 

materials are available in hard copy at 

the EPA Docket Center Public Reading 

Room, open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Water 

Docket is (202) 566–2426. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the United States 

government on-line source for federal 

regulations at http:// 

www.regulations.gov. 

Electronic versions of this final permit 

and fact sheet are available on EPA’s 

NPDES Web site at http://www.epa.gov/ 

npdes/pesticides. 

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

Dockets at http://www.regulations.gov to 

view public comments, access the index 

listing of the contents of the official 

public docket, and to access those 

documents in the public docket that are 

available electronically. For additional 

information about EPA’s public docket, 

visit the EPA Docket Center homepage 

at http://www.epa.gov/epahome/ 

dockets.htm. Although not all docket 

materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the Docket Facility 

identified in Section I.A.1. 

C. Who are the EPA regional contacts 

for this final permit? 

For EPA Region 1, contact George 

Papadopoulos at USEPA Region 1, 5 

Post Office Square—Suite 100, Boston, 

MA 02109–3912; or at tel.: (617) 918– 

1579; or email at 

papadopoulos.george@epa.gov. 

For EPA Region 2, contact Maureen 

Krudner at USEPA Region 2, 290 

Broadway, New York, NY 10007–1866; 

or tel.: (212) 637–3874; or email at 

krudner.maureen@epa.gov. 

For EPA Region 3, contact Peter 

Weber at USEPA Region 3, 1650 Arch 

Street, Mail Code: 3WP41, Philadelphia, 

PA 19103–2029; or at tel.: (215) 814– 

5749; or email at weber.peter@epa.gov. 

For EPA Region 4, contact Sam 

Sampath at USEPA Region 4, 61 Forsyth 

Street SW., Atlanta, CA 30303–8960; or 

at tel.: (404) 562–9229; or email at 

sampath.sam@epa.gov. 

For EPA Region 5, contact Morris 

Beaton at USEPA Region 5, 77 West 

Jackson Boulevard, Mail Code: WN16J, 

Chicago, IL 60604–3507; or at tel.: (312) 

353–0850; or email at 

beaton.morris@epa.gov. 

For EPA Region 6, contact Jenelle Hill 

at USEPA Region 6, 1445 Ross Avenue, 

Suite 1200, Mail Code: 6WO, Dallas, TX 

75202–2733; or at tel.: (214) 665–9737 

or email at hill.jenelle@epa.gov. 

For EPA Region 7, contact Kimberly 

Hill at USEPA Region 7, 901 North Fifth 

Street, Mail Code: XX, Kansas City, KS 

66101; or at tel.: (913) 551–7841 or 

email at: hill.kimberly@epa.gov. 

For EPA Region 8, contact David Rise 

at USEPA Region 8, Montana 

Operations Office, Federal Building, 10 

West 15th Street, Suite 3200, Mail Code: 

8MO, Helena, MT 59626; or at tel.: (406) 

457–5012 or email at: 

rise.david@epa.gov. 

For EPA Region 9, contact Pascal 

Mues, USEPA Region 9, 75 Hawthorne 

Street, Mail Code: WTR–5, San 

Francisco, CA 94105; or at tel.: (415) 

972–3768 or email at: 

mues.pascal@epa.gov. 

For EPA Region 10, contact Dirk 

Helder, USEPA Region 10 Idaho 

Operations Office, 1435 North Orchard 

Street, Boise, ID 83706 or at tel.: (208) 

378–5749 or email at: 

helder.dirk@epa.gov. 

II. Statutory and Regulatory History 

A. Clean Water Act 

Section 301(a) of the Clean Water Act 

(CWA) provides that ‘‘the discharge of 

any pollutant by any person shall be 

unlawful’’ unless the discharge is in 

compliance with certain other sections 

of the Act. 33 U.S.C. 1311(a). The CWA 

defines ‘‘discharge of a pollutant’’ as 

‘‘(A) any addition of any pollutant to 

navigable waters from any point source, 

(B) any addition of any pollutant to the 

waters of the contiguous zone or the 

ocean from any point source other than 

a vessel or other floating craft.’’ 33 

U.S.C. 1362(12). A ‘‘point source’’ is any 

‘‘discernible, confined and discrete 

conveyance’’ but does not include 

‘‘agricultural stormwater discharges and 

return flows from irrigated agriculture.’’ 

33 U.S.C. 1362(14). 

The term ‘‘pollutant’’ includes, among 

other things, ‘‘garbage* * * chemical 

wastes, biological materials * * * and 

industrial, municipal, and agricultural 

waste discharged into water.’’ 33 U.S.C. 

1362(6). 

One way a person may discharge a 

pollutant without violating the section 

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301 prohibition is by obtaining 

authorization to discharge (referred to 

herein as ‘‘coverage’’) under a section 

402 National Pollutant Discharge 

Elimination System (NPDES) permit (33 

U.S.C. 1342). Under section 402(a), EPA 

may ‘‘issue a permit for the discharge of 

any pollutant, or combination of 

pollutants, notwithstanding section 

1311(a)’’ upon certain conditions 

required by the Act. 

B. NPDES Permits 

An NPDES permit authorizes the 

discharge of a specified amount of a 

pollutant or pollutants into a receiving 

water under certain conditions. The 

NPDES program relies on two types of 

permits: Individual and general. An 

individual permit is a permit 

specifically tailored for an individual 

discharger. Upon receiving the 

appropriate permit application(s), the 

permitting authority, i.e., EPA or a state 

or territory, develops a draft individual 

permit for public comment for that 

particular discharger based on the 

information contained in the permit 

application (e.g., type of activity, nature 

of discharge, receiving water quality). 

Following consideration of public 

comments, a final individual permit is 

then issued to the discharger for a 

specific time period (not to exceed 5 

years) with a provision for reapplying 

for further permit coverage prior to the 

expiration date. 

In contrast, a general permit covers 

multiple facilities/sites/activities within 

a specific category for a specific period 

of time (not to exceed 5 years). For 

general permits, EPA, or a state 

authorized to administer the NPDES 

program, develops and issues the 

general permit with dischargers then 

obtaining coverage under the already 

issued general permit, typically through 

submission of a Notice of Intent (NOI). 

A general permit is also subject to 

public comment, as was done for this 

permit on June 4, 2010, and is 

developed and issued by a permitting 

authority (in this case, EPA). 

Under 40 CFR 122.28, general permits 

may be written to cover categories of 

point sources having common elements, 

such as facilities that involve the same 

or substantially similar types of 

operations, that discharge the same 

types of wastes, or that are more 

appropriately regulated by a general 

permit. Given the vast number of 

pesticide applicators requiring NPDES 

permit coverage and the discharges 

common to these applicators, EPA 

believes that it makes administrative 

sense to issue this general permit, rather 

than issuing individual permits to each 

applicator. Entities still have the ability 

to seek individual permit coverage. The 

general permit approach allows EPA to 

allocate resources in a more efficient 

manner and to provide more timely 

coverage. As with any permit, the CWA 

requires the general permit to contain 

technology-based effluent limitations, as 

well as any more stringent limits when 

necessary to meet applicable state water 

quality standards. Courts have approved 

of the use of general permits. See e.g., 

Natural Res. Def. Council v. Costle, 568 

F.2d 1369 (DC Cir. 1977); EDC v. U.S. 

EPA, 344 F.3d 832, 853 (9th Cir. 2003). 

C. History of Pesticide Application 

Regulation Under FIFRA 

EPA regulates the sale, distribution 

and use of pesticides in the United 

States under the statutory framework of 

FIFRA to ensure that, when used in 

conformance with FIFRA labeling 

directions, pesticides will not pose 

unreasonable risks to human health and 

the environment. All new pesticides 

must undergo a rigorous registration 

procedure under FIFRA during which 

EPA assesses a variety of potential 

human health and environmental effects 

associated with use of the product. 

Under FIFRA, EPA is required to 

consider the effects of pesticides on the 

environment by determining, among 

other things, whether a pesticide ‘‘will 

perform its intended function without 

unreasonable adverse effects on the 

environment,’’ and whether ‘‘when used 

in accordance with widespread and 

commonly recognized practice [the 

pesticide] will not generally cause 

unreasonable adverse effects on the 

environment.’’ 7 U.S.C. 136a(c)(5). In 

performing this analysis, EPA examines, 

among other things, the ingredients of a 

pesticide, the intended type of 

application site and directions for use, 

and supporting scientific studies for 

human health and environmental effects 

and exposures. The applicant for 

registration of the pesticide must submit 

data as required by EPA regulations. 

When EPA approves a pesticide for a 

particular use, the Agency imposes 

labeling restrictions governing such use. 

Compliance with the labeling 

requirements ensures that the pesticide 

serves an intended purpose and avoids 

unreasonable adverse effects. It is illegal 

under Section 12(a)(2)(G) of FIFRA to 

use a registered pesticide in a manner 

inconsistent with its labeling. States 

have primary authority under FIFRA to 

enforce ‘‘use’’ violations, but both the 

States and EPA have ample authority to 

prosecute pesticide misuse when it 

occurs. 

D. Court Decisions Leading to the CWA 

Regulation Concerning Pesticide 

Applications 

Over the past ten years, several courts 

addressed the question of whether the 

CWA requires NPDES permits for 

pesticide applications. These cases 

resulted in some confusion among the 

regulated community and other affected 

citizens about the applicability of the 

CWA to pesticides applied to waters of 

the United States. In 2001, the U.S. 

Court of Appeals for the Ninth Circuit 

held in Headwaters, Inc. v. Talent 

Irrigation District (Talent) that an 

applicator of herbicides was required to 

obtain an NPDES permit under the 

circumstances before the court. 243 

F.3rd 526 (9th Cir. 2001). 

In 2002, the Ninth Circuit in League 

of Wilderness Defenders et al. v. 

Forsgren (Forsgren) held that the 

application of pesticides to control 

Douglas Fir Tussock Moths in National 

Forest lands required an NPDES permit. 

309 F.3d 1181 (9th Cir. 2002). The court 

in Forsgren did not analyze the question 

of whether the pesticides applied were 

pollutants, because it incorrectly 

assumed that the parties agreed that 

they were (in fact, the United States 

expressly reserved its arguments on that 

issue in its brief to the District Court. Id. 

at 1184, n.2). The court instead analyzed 

the question of whether the aerial 

application of the pesticide constituted 

a point source discharge, and concluded 

that it did. Id. at 1185). 

Since Talent and Forsgren, California, 

Nevada, Oregon, and Washington, all of 

which are within the Ninth Circuit, 

have issued permits for the application 

of certain types of pesticides (e.g., 

products to control aquatic weeds and 

algae and products to control mosquito 

larvae). Other States have continued 

their longstanding practice of not 

issuing permits to people who apply 

pesticides to waters of the United States. 

These varying practices reflected the 

substantial uncertainty among 

regulators, the regulated community, 

and the public regarding how the CWA 

applies to pesticides that have been 

properly applied and used for their 

intended purpose. 

Additionally, the Second Circuit 

Court of Appeals addressed the 

applicability of the CWA’s NPDES 

permit requirements to pesticide 

applications. In Altman v. Town of 

Amherst (Altman), the court vacated 

and remanded for further development 

of the record a District Court decision 

holding that the Town of Amherst was 

not required to obtain an NPDES permit 

to spray mosquitocides over waters of 

the United States. 47 Fed. Appx. 62, 67 

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(2nd Cir. 2002). The United States filed 

an amicus brief setting forth the 

Agency’s views in the context of that 

particular case. In its opinion, the 

Second Circuit stated that ‘‘[u]ntil the 

EPA articulates a clear interpretation of 

current law—among other things, 

whether properly used pesticides 

released into or over waters of the 

United States can trigger the 

requirement for NPDES permits 

* * *—the question of whether 

properly used pesticides can become 

pollutants that violate the CWA will 

remain open.’’ Id. at 67. 

In 2005, the Ninth Circuit again 

addressed the CWA’s applicability to 

pesticide applications. In Fairhurst v. 

Hagener, the court held that pesticides 

applied directly to a lake to eliminate 

non-native fish species, where there are 

no residues or unintended effects, are 

not ‘‘pollutants’’ under the CWA 

because they are not chemical wastes. 

422 F.3d 1146 (9th Cir. 2005). 

Recently, the Second Circuit 

reaffirmed the recent Sixth Circuit 

decision in ruling that trucks and 

helicopters that sprayed pesticides 

should be considered point sources 

under the CWA. Peconic Baykeeper Inc. 

v. Suffolk County, 600 F.3d 180 (2nd 

Cir. 2010). 

E. 2006 Agency Rulemaking Excluding 

Discharges From Pesticide Applications 

from NPDES Permitting 

On November 27, 2006 (71 FR 68483), 

EPA issued a final rule (hereinafter 

called the ‘‘2006 NPDES Pesticides 

Rule’’) clarifying two specific 

circumstances in which an NPDES 

permit is not required to apply 

pesticides to or over, including near 

water provided that the application is 

consistent with relevant Federal 

Insecticide, Fungicide and Rodenticide 

Act (FIFRA) requirements. They are: (1) 

The application of pesticides directly to 

water to control pests; and (2) the 

application of pesticides to control pests 

that are present over, including near, 

water where a portion of the pesticides 

will unavoidably be deposited to the 

water to target the pests. 

F. Legal Challenges to the 2006 NPDES 

Pesticide Rule and Resulting Court 

Decision 

On January 19, 2007, EPA received 

petitions for review of the 2006 NPDES 

Pesticides Rule from both 

environmental and industry groups. 

Petitions were filed in eleven circuit 

courts with the case, National Cotton 

Council, et al, v. EPA, assigned to the 

Sixth Circuit Court of Appeals. On 

January 9, 2009, the Sixth Circuit 

vacated EPA’s 2006 NPDES Pesticides 

Rule under a plain language reading of 

the CWA. National Cotton Council of 

America v. EPA, 553 F.3d 927 (6th Cir. 

2009). The Court held that the CWA 

unambiguously includes ‘‘biological 

pesticides,’’ and ‘‘chemical pesticides’’ 

that leave a residue within its definition 

of ‘‘pollutant.’’ Specifically, the 

application of chemical pesticides that 

leaves no residue is not a pollutant. The 

Court also found that the application of 

pesticides is from a point source. Thus, 

point source discharges of biological 

pesticides and chemical pesticide 

residues to Waters of the United States 

require an NPDES permit. This also 

means (as also supported by other court 

cases) that point source discharges to 

waters of the United States from 

pesticides applied for forest pest control 

activities need to obtain an NPDES 

permit (see Section III.1 of the Fact 

Sheet for further discussion). 

Based on the Court’s decision, 

chemical pesticides that leave no 

residue do not require an NPDES 

permit. However, EPA assumes for 

purpose of this permit that all chemical 

pesticides have a residue, and, therefore 

would need a permit unless it can be 

shown that there is no residual. Unlike 

chemical pesticides (where the residual 

is the pollutant), the Court further found 

that biological pesticides are pollutants 

regardless of whether the application 

results in residuals and such discharges 

need an NPDES permit. 

In response to this decision, on April 

9, 2009, EPA requested a two-year stay 

of the mandate to provide the Agency 

time to develop a general permit, to 

assist NPDES-authorized states to 

develop their NPDES permits, and to 

provide outreach and education to the 

regulated community and other 

stakeholders. On June 8, 2009, the Sixth 

Circuit granted EPA the two-year stay of 

the mandate until April 9, 2011. On 

November 2, 2009, Industry Petitioners 

of the Sixth Circuit Case petitioned the 

Supreme Court to review the Sixth 

Circuit’s decision. On February 22, 

2010, the Supreme Court issued its 

decision denying petitions to review the 

Sixth Circuit decision. 

As a result of the Court’s decision on 

the 2006 NPDES Pesticides Rule, at the 

end of the two-year stay, NPDES permits 

will be required for point source 

discharges to waters of the U.S. of 

biological pesticides, and of chemical 

pesticides that leave a residue. Until 

April 9, 2011, the rule remains in effect 

and NPDES permits are not required. 

In response to the Court’s decision, 

EPA is issuing this final general permit 

for four specific pesticide use patterns 

with an effective date of April 9, 2011, 

i.e., the date upon which NPDES 

permits are required for discharges from 

the application of pesticides. The 

specified use patterns may not represent 

every pesticide application activity for 

which a discharge requires NPDES 

permit coverage; however, the Agency 

believes these four use patterns 

represent a significant portion of those 

activities for which permit coverage is 

now required and is consistent with the 

use patterns EPA contemplated in the 

2006 NPDES Pesticides Rule. 

Neither the Court’s ruling nor EPA’s 

issuance of this general permit affects 

the existing CWA exemptions for 

irrigation return flow and agricultural 

stormwater runoff, which are excluded 

from the definition of a point source 

under Section 502(14) of the CWA and 

do not require NPDES permit coverage. 

G. Publication of the Draft NPDES 

Pesticide General Permit 

EPA worked closely with states and 

other stakeholders to develop the PGP. 

Because 44 states are required to 

develop their own permits, EPA held 

three face-to-face meetings and regular 

conference calls with environmental 

and agricultural agencies in each state, 

in order to share information and ideas 

on how to permit this new class of 

NPDES permittees. EPA also conducted 

or attended approximately 150 meetings 

with industry experts, environmental 

interest groups, and other interested 

stakeholders. 

EPA published the draft NPDES 

Pesticide General Permit and 

accompanying fact sheet in the Federal 

Register on June 4, 2010 (75 FR 31775) 

soliciting comments on that permit, and 

accepted public comments through July 

19, 2010. In addition, EPA held three 

public meetings, a public hearing, and 

three national webcasts to further 

educate stakeholders on the conditions 

included in the draft permit and to get 

feedback on specific areas for which 

EPA sought additional information to 

support finalization of the permit. EPA 

also conducted formal consultation with 

the Tribes. EPA received over 750 

written comment letters on the draft 

permit from a variety of stakeholders, 

including industry; federal, state, and 

local governments; environmental 

groups; academia; and individual 

citizens. EPA considered all comments 

received during the comment period in 

preparing the final general permit. EPA 

responded to all significant comments 

in the Response to Comment Document 

which is available as part of the docket 

to this permit. 

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H. Posting of the Draft Final NPDES 

Pesticide General Permit 

On April 1, 2011, EPA posted a prepublication version of its draft final 

Pesticide General Permit for discharges 

of pesticide applications to U.S. waters. 

This draft final permit was not 

considered a ‘‘final agency action,’’ and 

the Agency did not solicit public 

comment on this draft final permit. EPA 

provided a preview of the draft final 

permit to assist states in developing 

their own permits and for the regulated 

community to become familiar with the 

permit’s requirements before it was to 

become effective. This reflected EPA’s 

commitment to transparency and 

responding to the needs of stakeholders. 

The draft final permit posted on April 

1, 2011 contains largely identical 

requirements to the final permit being 

published today. The principal change 

is the addition of conditions to protect 

listed species as a result of consultation 

with the National Marine Fisheries 

Service (NMFS) under the Endangered 

Species Act (ESA). There have also been 

changes to the timing of NOI submission 

deadlines and some additional 

clarifying changes, but these do not alter 

the intent of the pre-publication version 

posted in April. 

III. Scope and Applicability of the 

NPDES Pesticide General Permit 

A. Geographic Coverage 

The PGP will provide permit coverage 

for discharges in areas where EPA is the 

NPDES permitting authority. The 

geographic coverage of today’s final 

permit is listed below. Where this 

permit covers activities on Indian 

Country lands, those areas are as listed 

below within the borders of that state: 

EPA Region 1 

• Massachusetts, including Indian 

Country lands within Massachusetts 

• Indian Country lands within 

Connecticut 

• New Hampshire 

• Indian Country lands within Rhode 

Island 

• Federal Facilities within Vermont 

EPA Region 2 

• Indian Country lands within New 

York 

• Puerto Rico 

EPA Region 3 

• The District of Columbia 

• Federal Facilities within Delaware 

EPA Region 4 

• Indian Country lands within 

Alabama 

• Indian Country lands within 

Florida 

• Indian Country lands within 

Mississippi 

• Indian Country lands within North 

Carolina 

EPA Region 5 

• Indian Country lands within 

Michigan 

• Indian Country lands within 

Minnesota, excluding Sokaogon 

Chippewa Community 

• Indian Country lands within 

Wisconsin, excluding Lac du Flambeau 

Band of Lake Superior Chippewa 

Indians and Fond du Lac Reservation 

EPA Region 6 

• Indian Country lands within 

Louisiana 

• New Mexico, including Indian 

Country lands within New Mexico, 

except Navajo Reservation Lands (see 

Region 9) and Ute Mountain Reservation 

Lands (see Region 8) 

• Oklahoma, including Indian 

Country lands 

• Discharges in Texas that are not 

under the authority of the Texas 

Commission on Environmental Quality 

(formerly TNRCC), including activities 

associated with the exploration, 

development, or production of oil or gas 

or geothermal resources, including 

transportation of crude oil or natural gas 

by pipeline, including Indian Country 

lands within Texas 

EPA Region 7 

• Indian Country lands within Iowa 

• Indian Country lands within Kansas 

• Indian Country lands within 

Nebraska, except Pine Ridge Reservation 

lands (see Region 8) 

EPA Region 8 

• Federal Facilities within Colorado, 

including those on Indian Country lands 

within Colorado as well as the portion 

of the Ute Mountain Reservation located 

in New Mexico 

• Indian Country lands within the 

State of Colorado, as well as the portion 

of the Ute Mountain Reservation located 

in New Mexico 

• Indian Country lands within 

Montana 

• Indian Country lands within North 

Dakota 

• Indian Country lands within South 

Dakota, as well as the portion of the 

Pine Ridge Reservation located within 

Nebraska (see Region 7) 

• Indian Country lands within Utah, 

except Goshute and Navajo Reservation 

lands (see Region 9) 

• Indian Country lands within 

Wyoming 

EPA Region 9 

• American Samoa 

• Indian Country lands within 

Arizona as well as Navajo Reservation 

lands within New Mexico (see Region 6) 

and Utah (see Region 8), excluding for 

Hualapai Reservation 

• Indian Country lands within 

California 

• Guam 

• Johnston Atoll 

• Midway Island and Wake Island 

and other unincorporated U.S. 

possessions 

• Northern Mariana Islands 

• Indian Country lands within 

Nevada, as well as the Duck Valley 

Reservation within Idaho, the Fort 

McDermitt Reservation within Oregon 

(see Region 10) and the Goshute 

Reservation within Utah (see Region 8) 

EPA Region 10 

• Alaska, including Indian Country 

lands 

• The State of Idaho, including Indian 

Country lands within Idaho, except 

Duck Valley Reservation lands (see 

Region 9), excluding Puyallup Tribe 

Reservation 

• Indian Country lands within 

Oregon, except Fort McDermitt 

Reservation lands (see Region 9) 

• Federal Facilities in Washington, 

including those located on Indian 

Country lands within Washington, 

excluding Puyallup Tribe Reservation 

B. Categories of Facilities Covered 

The final general permit regulates 

discharges to waters of the United States 

from the application of (1) biological 

pesticides, and (2) chemical pesticides 

that leave a residue for the following 

four pesticide use patterns. 

• Mosquito and Other Flying Insect 

Pest Control—to control public health/ 

nuisance and other flying insect pests 

that develop or are present during a 

portion of their life cycle in or above 

standing or flowing water. Public 

health/nuisance and other flying insect 

pests in this use category include 

mosquitoes and black flies. 

• Weed and Algae Pest Control—to 

control weeds, algae, and pathogens that 

are pests in water and at water’s edge, 

including ditches and/or canals. 

• Animal Pest Control—to control 

animal pests in water and at water’s 

edge. Animal pests in this use category 

include fish, lampreys, insects, 

mollusks, and pathogens. 

• Forest Canopy Pest Control— 

application of a pesticide to a forest 

canopy to control the population of a 

pest species (e.g., insect or pathogen) 

where, to target the pests effectively, a 

portion of the pesticide unavoidably 

will be applied over and deposited to 

water. 

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Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Notices 68755 

The scope of activities encompassed 

by these pesticide use patterns is 

described in greater detail in Part III.1.1. 

of the fact sheet for the final general 

permit. 

C. Summary of Permit Terms and 

Requirements 

The following is a summary of the 

final PGP’s requirements: 

• The PGP defines Operator (i.e., the 

entity required to obtain NPDES permit 

coverage for discharges) to include any 

(a) Applicator who performs the 

application of pesticides or has day-today control of the application of 

pesticides that results in a discharge to 

Waters of the United States, or (b) 

Decision-maker who controls any 

decision to apply pesticides that results 

in a discharge to Waters of the United 

States. There may be instances when a 

single entity acts as both an Applicator 

and a Decision-maker. 

• All Applicators are required to 

minimize pesticide discharges by using 

only the amount of pesticide and 

frequency of pesticide application 

necessary to control the target pest, 

maintain pesticide application 

equipment in proper operating 

condition, control discharges as 

necessary to meet applicable water 

quality standards, and monitor for and 

report any adverse incidents. 

• All Decision-makers are required, to 

the extent not determined by the 

Applicator, to minimize pesticide 

discharges by using only the amount of 

pesticide and frequency of pesticide 

application necessary to control the 

target pest. All Decision-makers are also 

required to control discharges as 

necessary to meet applicable water 

quality standards and monitor for and 

report any adverse incidents. 

• Coverage under this permit is 

available only for discharges and 

discharge-related activities that are not 

likely to adversely affect species that are 

federally-listed as endangered or 

threatened (‘‘listed’’) under the 

Endangered Species Act (ESA) or 

habitat that is federally-designated as 

critical under the ESA (‘‘critical 

habitat’’), except for certain cases 

specified in the permit involving prior 

consultation with the Services and 

Declared Pest Emergencies. The permit 

contains several provisions addressing 

listed species, including for certain 

listed species identified in the permit as 

NMFS Listed Resources of Concern, that 

Decision-makers whose discharges may 

affect these resources certify compliance 

with one of six criteria which together 

ensure that any potential adverse effects 

have been properly considered and 

addressed. These NMFS Listed 

Resources of Concern for the PGP are 

identified in detail on EPA’s Web site at 

http://www.epa.gov/npdes/pesticides. 

These provisions were added as a result 

of consultation between EPA and the 

National Marine Fisheries Service 

(NMFS), as required under Section 7 of 

the Endangered Species Act. Other 

requirements that address protection of 

listed species include the waiting 

periods between submission of an NOI 

and authorization to discharge, and 

specific permit conditions requiring 

compliance with the results of any ESA 

Section 7 consultation with the 

Services, or ESA Section 10 permit 

issued by the Services. 

• Certain Decision-makers (i.e., any 

agency for which pest management for 

land resource stewardship is an integral 

part of the organization’s operations, 

entities with a specific responsibility to 

control pests (e.g., mosquito and weed 

control districts), local governments or 

other entities that apply pesticides in 

excess of specified annual treatment 

area thresholds, and entities that 

discharge pesticides to Tier 3 waters or 

to Waters of the United States 

containing NMFS Listed Resources of 

Concern) are required to also submit a 

Notice of Intent (NOI) to obtain 

authorization to discharge and 

implement pest management options to 

reduce the discharge of pesticides to 

Waters of the United States. Certain 

large Decision-makers must also 

develop a Pesticide Discharge 

Management Plan (PDMP), submit 

annual reports, and maintain detailed 

records. Certain small Decision-makers 

are required to complete a pesticide 

discharge evaluation worksheet for each 

pesticide application (in lieu of the 

more comprehensive PDMP), an annual 

report, and detailed recordkeeping. 

Permit conditions take effect as of 

October 31, 2011; however, Operators 

with eligible discharges are authorized 

for permit coverage through January 12, 

2010 without submission of an NOI. 

Thus, for any discharges commencing 

on or before January 12, 2012 that will 

continue after this date, an NOI will 

need to be submitted no later than 

January 2, 2012 to ensure uninterrupted 

permit coverage, and for any discharge 

occurring after January 12, 2012, no 

later than 10 days before the first 

discharge occurring after January 12, 

2012. 

The following is a summary of permit 

terms and requirements modified from 

the draft PGP public noticed on June 4, 

2010: 

• Expanded the forest canopy pest 

control use pattern to also include 

pesticide application activities 

performed from the ground; 

• Expanded eligibility provisions to 

provide for coverage for discharges to 

Tier 3 waters from pesticide 

applications made to restore or maintain 

water quality or to protect public health 

or the environment that either do not 

degrade water quality or that only 

degrade water quality on a short-term or 

temporary basis; 

• Eliminated the requirement for 

certain Applicators to submit NOIs; 

• Revised annual treatment area 

thresholds (which trigger the need for 

NOI submission and implementation of 

more comprehensive Pest Management 

Measures and documentation); 

• Delayed discharge date for which 

NOIs are required for a little more than 

two months after permit issuance; 

• Refined definitions of ‘‘Operator,’’ 

‘‘Applicator,’’ and ‘‘Decision-maker,’’ 

for purposes of delineating 

responsibilities under the permit 

between Applicators and Decisionmakers based on EPA’s expectation for 

these two groups of Operators; 

• Added requirement for Applicators 

to assess weather conditions in the 

treatment area to ensure pesticide 

application is consistent with all federal 

requirements; 

• Added requirement for certain 

Operators to document visual 

monitoring activities, Provided different 

responsibilities for small Decisionmakers to complete a pesticide 

discharge evaluation worksheet in lieu 

of a more comprehensive PDMP, annual 

report, and detailed recordkeeping; and 

• Added specific permit conditions 

for states and Tribes in accordance with 

CWA section 401 certifications. 

IV. Economic Impacts of the Pesticide 

General Permit 

As a result of the Sixth Circuit Court 

decision on EPA’s 2006 NPDES 

Pesticides Rule, operators of discharges 

to waters of the U.S. from the 

application of pesticides now require 

NPDES permits for those discharges. 

EPA expects that costs associated with 

complying with the effluent limitations 

under this general permit will be similar 

to costs under individual permits for 

similar activities; however, 

administrative costs for both EPA as the 

permitting authority and operators as 

permittees are expected to be lower 

under this general permit than under 

individual permits. In other words, the 

general permit itself can be expected to 

reduce rather than increase costs for 

permittees as compared to the baseline 

of individual permitting. 

EPA expects the economic impact on 

covered entities, including small 

businesses, to be minimal. EPA 

requested additional information during 

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68756 Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Notices 

the public notice of the draft permit and 

updated the analysis as appropriate for 

the final permit. A copy of EPA’s 

economic analysis, titled, ‘‘Economic 

Analysis of the Pesticide General Permit 

(PGP) for Point Source Discharges from 

the Application of Pesticides’’ is 

available in the docket for this permit. 

The economic impact analysis indicates 

that the PGP will cost approximately 

$10.0 million dollars annually for the 

35,200 operators in the areas for which 

EPA is the permitting authority. 

Knowing that most applicators and 

decision-makers are small businesses, 

EPA conducted a small entity economic 

analysis. Based on available data, this 

permit will not have a significant 

economic impact on a substantial 

number of small entities. The economic 

impact analysis is included in the 

administrative record for this permit. 

V. Executive Orders 12866 and 13563 

Under Executive Order (EO) 12866 

(58 FR 51735 (October 4, 1993)) this 

action is a ‘‘significant regulatory 

action.’’ Accordingly, EPA submitted 

this action to the Office of Management 

and Budget (OMB) for review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011) and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

Authority: Clean Water Act, 33 U.S.C. 1251 

et seq. 

Dated: October 31, 2011. 

H. Curtis Spalding, 

Regional Administrator, EPA, Region 1. 

Dated: October 31, 2011. 

Ariel Iglesias, 

Deputy Director, Division of Environmental 

Planning and Protection, EPA Region 2. 

Dated: October 31, 2011. 

Carl-Axel P. Soderberg, 

Division Director, Caribbean Environmental 

Protection Division, EPA, Region 2. 

Dated: October 31, 2011. 

Jon M. Capacasa, 

Director, Water Division, EPA Region 3. 

Dated: October 31, 2011. 

Gail Mitchell, 

Acting Director, Water Protection Division, 

EPA, Region 4. 

Dated: October 31, 2011. 

Tinka G. Hyde, 

Director, Water Division, EPA Region 5. 

Dated: October 31, 2011. 

William K. Honker, 

Acting Director, Water Quality Protection 

Division, EPA Region 6. 

Dated: October 31, 2011. 

Karen A. Flournoy, 

Acting Director, Water, Wetlands, and 

Pesticides Division, EPA Region 7. 

Dated: October 31, 2011. 

Stephen S. Tuber, 

Assistant Regional Administrator, Office of 

Partnerships and Regulatory Assistance, EPA 

Region 8. 

Dated: October 31, 2011. 

Alexis Strauss, 

Director, Water Division, EPA Region 9. 

Dated: October 31, 2011. 

Michael A. Bussell, 

Director, Office of Water and Watersheds, 

EPA Region 10. 

[FR Doc. 2011–28770 Filed 11–4–11; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

Public Information Collections 

Approved by the Office of Management 

and Budget (OMB) 

AGENCY: Federal Communications 

Commission. 

ACTION: Notice. 

SUMMARY: The Federal Communications 

Commission has received Office of 

Management and Budget (OMB) 

approval for the following public 

information collection(s) pursuant to the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3520). The FCC may not 

conduct or sponsor a collection of 

information unless it displays a 

currently valid OMB control number, 

and no person is required to respond to 

a collection of information unless it 

displays a currently valid OMB control 

number. 

FOR FURTHER INFORMATION CONTACT: For 

additional information about the 

information collection contact Leslie 

Haney, Leslie.Haney@fcc.gov, (202) 

418–1002. 

SUPPLEMENTARY INFORMATION: The FCC 

obtained approval of this revision to the 

previously approved information 

collection to establish a voluntary 

electronic method of complying with 

the reporting that EAS participants must 

complete as part of their participation in 

the national EAS test. 

OMB Control Number: 3060–0207. 

OMB Approval Date: 10/14/2011. 

Effective Date: 10/17/2011. 

OMB Expiration Date: 04/30/2012. 

Title: Part 11—Emergency Alert 

System (EAS). 

Form No.: Not applicable. 

Estimated Annual Burden: 82,008 

hours. 

Obligation to Respond: Voluntary. 

Statutory authority for this collection of 

information is contained in 47 U.S.C. 

sections 154(i) and 606. 

Nature and Extent of Confidentiality: 

The Commission will treat submissions 

pursuant to 47 CFR 11.61(a)(3) as 

confidential. 

Needs and Uses: On March 10, 2010, 

OMB authorized the collection of 

information set forth in the Second 

FNPRM in EB Docket No. 04–296, FCC 

09–10. Specifically, OMB authorized the 

Commission to require entities required 

to participate in EAS (EAS Participants) 

to gather and submit the following 

*52663 information on the operation of 

their EAS equipment during a national 

test of the EAS: (1) Whether they 

received the alert message during the 

designated test; (2) whether they 

retransmitted the alert; and (3) if they 

were not able to receive and/or transmit 

the alert, their ‘best effort’ diagnostic 

analysis regarding the cause or causes 

for such failure. OMB also authorized 

the Commission to require EAS 

Participants to provide it with the date/ 

time of receipt of the EAN message by 

all stations; and the date/time of receipt 

of the EAT message by all stations; a 

description of their station 

identification and level of designation 

(PEP, LP–1, etc.); who they were 

monitoring at the time of the test, and 

the make and model number of the EAS 

equipment that they utilized. 

In the Third Report and Order in EB 

Docket No. 04–296, FCC 09–10, the 

Commission adopted the foregoing rule 

requirements. In addition, the 

Commission decided that test data will 

be presumed confidential and 

disclosure of test data will be limited to 

FEMA, NWS and EOP at the Federal 

level. At the State level, test data will be 

made available only to State government 

emergency management agencies that 

have confidential treatment protections 

at least equal to FOIA. The process by 

which these agencies would receive test 

data will comport with those used to 

provide access to the Commission’s 

NORS and DIRS data. We seek comment 

on this revision of the approved 

collection. 

In the Third Report and Order, the 

Commission also indicated that it would 

establish a voluntary electronic 

reporting system that EAS test 

participants may use as part of their 

participation in the national EAS test. 

The Commission noted that using this 

system, EAS test participants could 

input the same information that they 

were already required to file manually 

via a web-based interface into a 

confidential database that the 

Commission would use to monitor and 

assess the test. This information would 

include identifying information such as 

station call letters, license identification 

number, geographic coordinates, EAS 

assignment (LP, NP, etc), EAS 

monitoring assignment, as well as a 24/ 

7 emergency contact for the EAS 

Participant. The only difference, other 

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