l Representing the Plant Science Industry l 1156 15 th St. N.W
. l Wa shington, D.C. 20005 l 202.296.1585 l 202.463.0474 fax l www.croplifeamerica.org November 13, 2009 Ms. Allison Wiedeman Rural Branch Chief Office of Water US Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 Dear Ms. Wiedeman: CLA has given considerable thought to the question of what thresho ld(s) should be applied to determine who should submit an NOI. In its October 7 national webinar, EPA made several statements about NOI submissio ns that we found instructive in our thinking. We have underlined those most relevant to our comments:

· The NOI should collect useful informat io n from appropriate ent it ies; · EPA will consider the burden on regulators and the regulated entit ie s; · NPDES regulat io ns allo w general permit coverage without submissio n of an NOI in certain instances; · Avo idance of duplicat ive submi ssion s ; · Challenging to ident ify large co mmercial or large public entit y applicat io ns; · Thresho lds/triggers for an NOI could vary by use category; · The NOI filer, in most cases, would be the organization responsible for deciding to conduct th e pesticide appli cat io ns, as opposed to the person performing the applicat io ns ; · However, an applicator would need to file an NOI if the applicator projects that it will treat mo re than X water
- acre treatments per year (or per permit cycle?); · A person filing an NOI would be covered starting 10 days after receipt of a complete and accurate NOI form by the appropriate permitting authority (provided the permitting authority does not delay authorizat io n to further assess the NOI); · Filing an NOI provides coverage for all future p esticide applicat io n [ in t hat category in that geographic area] that occur during the life of the General Permit (5 years); · For entit ies that are required to file an NOI based on the aggregation of water
- acres treated in mult iple applicat io ns, the NOI sho uld be filed at any t ime the operator determines that it will exceed the trigger of X water
- acres treatments per year (or per permit cycle); · Applicat io ns performed before the operator determined that it would exceed the thresho ld would be covered without t he NOI ; · Emergency si

tuations that requi

re pest ic ide application can be performed in advance of an NOI submissio ns, provided all other condit io ns are met in the permit; · The NOI should ident ify the responsible ent it y and provide the fo llo wing informat io n: ( a) contact informat io n; (b) descript io n of ent it y; (c) type of discharges (pesticide use patters); (d) receiving stream(s);· The discharger would be required to submit updated informat io n to perform operations

different than those ident ified in the NOI . We agree with EPA that the NOIs should be filed by the persons or organization(s) responsible 1 fo r deciding to conduct the pesticide applicat io ns, as opposed to the person(s) performing the applicat io n – especially if the purpose of the NOI is to collect inf ormat io n at the beginning of the 5
- year life of the General Permit about responsible persons, anticipated pesticide use patterns, and likely receiving streams. Decisio n - mak ing persons or entit ie s should ident ify in their NOI submissio ns the names and co nt act i

nformat io n of for
- hire pest ic ide applic ator companies they plan to emplo y dur ing th e course of the permit cycle, and update that list as necessary fro m t ime to time wit h contact informat io n on addit io nal for
- hire applicators as well as other key inf orm at io n t hat may have changed since the NOI submissio n. For those updates, EPA and States should look to the annual report submissio ns by decisio n - making persons or ent it ies to be the vehicle to co rrect inaccuracies in previously
- submi tted NOIs, or provi de a simple on
- line template for more
frequent amendments to their NOIs. For - hire applicators should not be required to file NOIs because: (a) Such NOIs would be duplicat ive of those submitted by decisio n - mak ing persons or entit ies, provide no addit io nal useful informat io n, and impose significant burdens on for
- hire applicators to keep them updated; (b) Pesticide
- applicat io n contracts that are let to for
- hire contractors generally are time
- sensi tive, and it’s impract icable to expect for
- hire applicators to wai t 10 days or longer for EPA or State NOI processing to gain general permit coverage; (c) The NOI is expected to ident ify receiving waters, something only the decisio n - making persons or entit ies likely will know in advance; (d) Regulatory agencies likely will use the NOI submissio ns to help flag and intercept intended applicat io ns to newly
- listed § 303(d waters or Tier III ONRWs. These are NOI data that EPA and States would want well in advance, and only the decisio n - making persons or entities would have access to well in advance. Furthermore, if the burden to ident ify § 303(d) waters or Tier III ONRWs falls to NOI submitters, then only the decisio n - making persons or entities would have th e com puter research resources to determine if int ended applicat io ns might intersect such specialt y waters; and (e)EPA has indicated that NPDES regulat io ns allow for general permit coverage without submissio n of an NOI in certain instances. Those instances should include all actions of fo r - hire applicators. The NOI
- s ubmissio n t hresho ld s we envisio n would be permit
- specific metrics designed to reflect both the potential for impact and the entity’s size and abilit y t o manage the administrative burdens of the NOI process. Some decisio n - mak ing persons or entit ies will be government agencies wit h t he potential to implement many o f t he systemat ic B MPs th at EPA has described, such as consideration of alternat ives and habitat modification, and those considerations could influence the submissio n of the NOI. Others will be priv ate com panies that own and /or ma nage forests, water conveyances, lakes and other water bodies, or other natural

1 This would include any public or private orga nization as well as any person who arranges for an application of pesticide products covered by one of the new permits. Because this class likely includes many different forms of decision
- makers, we refer to them here and throughout as “decision
- making pe rsons or entities.”resources to which the pesticides would be applied, and their NOI submissio ns could integrate

corporate business
- plan decisio n making. NOI submissio n t hresho lds will provide EPA with crit ical information related to all substant ia l application act ivit ies and will reduce the burden on permit ho ld ers and regulatory ent it ies where smaller activit ies with lower impact are at stake . Such thresho ld s a lso c ould be unique to each pesticide use covered by the general permit(s), and subdivided below those broad permit categories as warranted. For example, within the rights
- of
- way maintenance pest ic ide
- use category, the maintenance of roads, irrigat io n/drinking water canals, pipelines, recreational waterbodi es, power lines, and other rights of way could have different thresho lds for NOI submissio n. 2 NOI submissio n t hresho lds should not be based on the amount of pesticides applied, for pesticide products and their FIFRA
- labeled use rates vary widely and amount
- used provides a poor metric across types of product. Similarly, the number of applicat io ns is not an appropriate metric for the thresho ld because products differ so widely in the scope and number of si tes to which they are applied. We agree that the presence o f NOI thresho lds assumes that even among the decisio n making persons and entit ie s there will be so me pesticide applicat io ns that will be covered by the general permit without submissio n of an N OI . Thresho lds should be based on the amount of water
- acres treated, linear miles of rights
of
- way treated that include jurisdictional waters, or aggregated forest acres to be treated by pesticide treatments. NOI submissio n t hresho ld s should not be base d on the amount of pest ic ides applied, for pesticide products and their FIFRA
- labeled use rates vary widely, or the number of applicat io ns. We believe that if EPA applies thresho ld s fo r NOI submissio ns by decisio n - making persons and ent it ies, then reaso nable thresho ld s might be th e fo llo wing. We urge EPA to contact representatives of these industry sectors to verify the utilit y and funct io nalit y o f t hese thresho lds : · For treatment to or over lakes, ponds, rivers and other water bodies for control of inv asive or native aquat ic weeds, mosquitoes, or algae, a reasonable thresho ld might be 250 water - acres in aggregate per year; · For treatment to control growth of brush and weeds along land
- based rights
- of
- way (pi pelines, power lines, roads, railroads, etc.) th at may routinely encounter adjacent

2 According to DOE there are 305,000 miles of interstate and intrastate pipelines for natural gas and another 200,000 miles of oil pipelines in the US; the rights of way are maintained by pipeline companies, which should submit NOIs. Ac cording FEMA there are 186,411 miles of high power transmission lines in the US owned and operated by 500 companies. According to the National Association of Counties states there are 2,987,371 miles of rural roads and 1,029,363 miles of urban roads, which are generally maintained by the 3,141 counties in the US. According to the Association of American Railroads (AAR) there are 140,490 miles of Class 1 railroads in the United States operated by 7 companies. According to the DOT there are 119,093 miles of ru ral interstate and 41,924 miles of urban interstate in the US, often maintained by state highway departments. There are thousands of miles of drainage ditches and water conveyance canals in the US, and these are maintained by a wide range of entities, from state water management districts, water management companies and irrigation districts of various sizes.di

tches, storm

water culverts, or other potential jurisdictional waters in the process, a reasonable thresho ld might be 100 miles o f r ig ht
- of
- way treatment in aggregate per year ; · For treatment to control algae and /or aquatic invasive or native weed species in and adj acent to canals, drainage ditches , rivers, and other water conveyances, a reasonable th resho ld might be 100 miles of treatment of water conveyances in aggregate per year ; · For insect pest control in forest canopies treated by airplane, a reasonable threshold might be in aggregate 5,000 acres of treated forest. Thank you for allowing us to contribute the points on the NOI threshold question. It is but one of th e many issues in the scope of NPDES general permit program development for aquatic pesticide applications. We look forward to contributing our thoughts on other aspects of this issue. Sincerely,
Douglas T. Nel son General Counsel and Secretary