### RE: [waterpests] NPDES Pesticides General Permit Question on NOIs Creger, Tim to: Waterpests Mailing List 12/22/2009 09:24 AM Please respond to "Waterpests Mailing List "

My thoughts on Jack's questions:

There are numerous situations where a general contractor might hire multiple subcontractors who would then perform pesticide applications on multiple sites. This is true with widespread invasive species control work, right-of-way work, aquatic pest control, and possibly mosquito control. It seems logical that in those situations, the general contractor would be responsible for applying for and maintaining the permit, while the subcontractors would be responsible, as part of their contract, to comply with the conditions of the permit, which could include record keeping, reporting,

etc.

Where the real challenge lies is with the single operator situations that are small in size, infrequently applied, or situated in locations that are borderline "near" an aquatic site. This is where I think we all are searching for a reasonable solution for the definition of "including near". I was recently involved in some discussions at EPA HQ with OECA (national pesticide program meeting), and it seemed to me the common thread I was hearing when this definition was discussed was to set the definition of "near" more in the vein of immediate runoff potential, such as the sloping ditch bank of an irrigation canal or a stream. (I don't suppose there is a legal procedure available to ask the 6th Circuit Court of Appeals to give us a better idea of what they were thinking?) :-)

The biggest problem I see with setting specific buffer distances or application size triggers is that not all treatment sites are equal. A 100-foot buffer or 1,000-acre treatment threshold might work well here in the High Plains, but not in the Rockies or marshy coastal areas. Setting these thresholds seems to be similar to defining when pollution occurs, below which it does not. Given the propensity of certain groups to sue under the Clean Water Act, if the national permit sets a threshold, and the applicator doesn't exceed that threshold (therefore doesn't need a permit or NOI) but the citizen group feels the resulting pesticide application still leaves a residue considered a pollutant (under the court's definition), it would seem there are no thresholds small enough to exclude applicators from obtaining a permit. I will be the first to admit I still haven't got a solid grasp of the CWA to know if the national permit, once written, pre-empts citizen lawsuits for anyone who obtains the permit. If it does, that would be a strong motivator for all applicators to obtain a permit whether they met the threshold criteria

or not.

I would like to explore Bob Hays' idea of calculated buffer zones as they are used for the Endangered Species Act. We don't do that here (yet), so I really don't know what all goes into it, but if it uses a set of predetermined criteria (easily identified waters, specific formulae, etc.) then it might be worth consideration. It might also provide the unintended benefit of creating compliance with the ESA for aquatic species, something we all are aware needs attention as well.

Tim Creger President of AAPCO and, Pesticide Program ManagerNebraska Department of Agriculture (402) 471-6882 tim.creger@nebraska.gov

-----Original Message----- From: Faulk.Jack@epamail.epa.gov [mailto:Faulk.Jack@epamail.epa.gov] Sent: Friday, December 18, 2009 4:33 PM To: Waterpests Mailing List Subject: [waterpests] NPDES Pesticides General Permit Question on NOIs

All,

We are getting close to having a draft permit to share with regulators (i.e., EPA and states) but are still trying to work out details of the NOI (i.e., who has to "apply" for permit coverage as opposed to who will be covered automatically without having to notify the Agency). We have received some ideas from state and industry representatives but are still trying to work out the details of how best to establish thresholds for (1) who must submit an NOI and (2) who must implement more comprehensive permit requirements (e.g., develop a written pest management plan). Our original thought was to not require NOIs from any but the largest permittees but we are thinking that there may be advantages (both to us and to permittees) to also require NOIs from a second set of permittees that may not be the largest but are still entities for which we would like to have some basic information (e.g., name, location, pesticide use pattern for which permit coverage is needed).

Under the scenario described above, we may need two thresholds: (1) who is required to submit an NOI and (2) who should be subject to more comprehensive permit conditions. I'm hoping that some of you have been thinking about this issue over the past month or so and may have some additional thoughts on how we may want to address this. I should add that the thresholds may also take into account something other than simply area treated, for example, may be based on the type of entity (e.g., mosquito control district) or the type of pesticide use pattern (e.g., aquatic weed control).

Also, your thoughts on when a threshold value triggers additional requirements are welcome. For example, and this is strictly hypothetical, if we set an "written plan" threshold of 1000 water-acres treated, when should those IPM implementation requirements apply? Some options include: (1) as soon as the permittee has reason to believe it will exceed 1,000 water-acres treated under the permit, (2) as soon as the permittee has reason to believe it will exceed 1,000 water acres treated in a given permit year, (3) as soon as the permittee applies pesticides that exceed the 1000 water-acre threshold (i.e., they would not have to follow IPM practices for the first 999.9 acres, or (4) some other approach. Sorry if this is confusing but this is turning out to be the most complicated logistical aspect of the permit. I would appreciate if you could really take some time and think through this process and provide me with your ideas before Janauary 5, 2010. All ideas are welcome. I hate the phrase, but we really do have to think outside the box to make this NOI concept workable and appropriate. Thanks in advance for your ideas.

Enjoy the holidays!

JackWater Permits Division US Environmental Protection Agency EPA East (4203M) 1200 Pennsylvania Avenue, NW Washington, DC 20460

Telephone (202) 564-0768 Fax (202) 564-6431

------------------------------------------ You are currently subscribed to waterpests as: faulk.jack@epamail.epa.gov

To unsubscribe, send a blank email to leave-990055-899042.9f13d3132414d2a661cf 37db2832db5d@lists.epa.gov
OR: Use the listserver's web interface at https://lists.epa.gov/read/?forum=waterpests to manage your subscription.

For problems with this list, contact waterpests-Owner@lists.epa.gov

------------------------------------------