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 Manager
Nebraska 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!

Jack
Water 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-990055-899042.9f13d3132414d2a661cf37db2832db5d@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

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