z Representing the Plant Science Industry z 1156 15 th St. N.W. z Washington, D.C. 20005 z 202.296.1585 z 202.463.0474 fax z www.croplifeamerica.org December 7, 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/RISE have given considerable thought to several additional issues pertaining to the issuance of NPDES gene ral permits EPA is developing for aquatic pesticide use. This memo summarizes our thoughts on: (1) Who most appropriately should be permitted under a pesticide general NPDES permit; (2) What are the consequences of denying general NPDES permit coverage for pesticide applications to, over, or near waters of the US that ar e impaired due to specific pesticides (§ 303(d)-listed waters) or Tier III waters (e.g., Outstanding Natural Resource Waters), and what are possible alternatives to requiring permittees to apply for individual permits in those areas; (3) How EPA could address compliance with “free from” narrative water quality standards; (4) What the relative costs of the IPM measures suggested in the prototype permit for BAT might be; (5) If EPA decided to cover terrestrial pesticide applications ne ar streams running through fields, what the likely increase in the number of permit tees might be; (6) How the US Congress has defined Integrated Pest Management ; and (7) What the relative costs of monitoring might be.

In its October 7 national webinar, EP A made several statements about the scope of NPDES general permitting relative to these specific questions that we
found instructive in our thin king. We have underlined those most relevant to our

comments:

• The pesticide general permit may not cover certain discharges for which EPA will require coverage under an individual permit or another general permit, such as: Discharges of pesticides to wate rbodies that are impaired under CWA § 303(d) for that discharged pesticide; Di scharges to Tier 3 waterbodies (i.e., Outstanding Natural Resource Waters ); or Discharges that are not specifically addressed by the pesticide general permit;

• EPA may notify discharger in writing of it s decision to exercise its authority to impose additional enforceable monitoring requirements ; permittee can either accept the new requirements, or elect to apply for an individual permit.Alternatively, EPA could use its separa te enforcement authority to require additional monitoring or other information to verify compliance or a return to compliance;

• EPA expects that compliance with the co nditions of the permit will control discharges as necessary to meet applicable water quality standards . A ‘visual’ monitoring approach based on narrative WQBELs may be appropriate for assessing compliance with permit conditio ns. Routine visual monitoring includes spot checks for signs of adverse effects on non-target organisms during efficacy

checks.

• The pesticide general permit will cover pesticide applications covered under the
2006 Final Rule (71 FR 68483, 11/27/06): The applic ation of pesticides directly “to” the water to control pest s, or the application of pesticides to control pests that are present “over” waters of the Unit ed States, including “near” such waters (e.g., ditch bank vegetation control), where a portion of the pesticides will unavoidably be deposited to waters of the US in order to target the pests effectively. Off-target spray dr ift was not covered by the 2006 rule

.

• This pesticide general permit will not co ver activities exempt from permitting under the CWA: Agricultural stormwat er runoff and irrigation return flow

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• Implementing Integrated Pest Management (IPM) practices will be determined to be Best Available Technology (BAT) for many applicators

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1. Who most appropriately should be permitted under a pesticide general NPDES permit? Recently we communicated that we believe NOI submissions should be made by the decision-making entities and persons (“decision makers”) who trigger pesticide applications. In their NOI su bmissions and annual reports they should identify the contract applicat ors they have hired during the course of the season. Subsequently hired applicators’ names wo uld be submitted as supplements to the decision maker’s NOI or in annual reports. If the decision maker is the applicator,
that fact should be stated in the NOI. For-hire aquatic pesticide applicators hired by NOI-submitting decision makers sh ould be subject separately to the requirements of the general permit, but with out the need to file a separate NOI on their own behalf to obtain coverage. Such for-hire applicators would be bound also to performance provisions of their contracts with decision makers. The general permit should clearly establish the respec tive responsibilities (e.g., IPM activities, recordkeeping, report submission, etc.) of NOI-filing decision makers and of their non-NOI-filing for-hire applicators, and th ere should be no obligations that fall amorphously to both. This will avoid the difficulties encountered in other multiple permittee settings where permit obligations frequently go unsatisfied because they have not been assigned clearly to one perm it holder or to the other. The general permit also should be clear and flexible enough to re-assign responsibilities generally allocated to for-hire pesticide ap plicators to the decision makers where the latter also functioning as the applicator.Non-decision-making entities that may incidentally benefit from the pesticide application, such as absentee landowners of woodlots, individual homeowners within a homeowners’ association, or fa rmers who purchase water from irrigation districts, should be expressly exempted from NPDES permitting as entities and persons that do not constitute “operators ” under the terms of 40 CFR 122.21(b).

2. What are the consequences of requiring individual NPDES permit coverage for some pesticide treatments? What are possibl e alternatives to requiring permittees to apply for individual permits in some circumstances? As EPA develops the pesticide NPDES permits we believe it sh ould take account of the significant adverse consequences that attach to any system that requires individual permits for each encountered Tier III waterbody or §303(d)-listed waterbody. We urge EPA (and delegated States) to explore alternativ e permitting strategies to avoid or at least minimize those consequences while still protecting these important or
vulnerable waters.

• Tier III waters: Often pipelines, power lines , railroads, canals and roads
extend for hundreds or thousands of miles across numerous legal jurisdictions. Such utility and conveyance rights-of-ways must be maintained to control the growth of brush and weeds across long expanses of rural, often remote, wilderness in which Tier III wa ters (lakes, rivers, creeks, wetlands, etc.) may be encountered. Also, private, national or state forests often extend
for hundreds of miles across remote an d mountainous regions in which Tier III waters are likely to be encountered. Maintenance of forests involves the control of insects (e.g., Pine Bark Beetle, Gypsy Moth, etc.) and control of weeds/brush in reforestation areas. Requiring the negotiation of individual permits for each encountered waterbody will deny or delay necessary pest control measures; defeat critical maintenance strategies; jeopardize forest survival, safe operation of utilities and roadways; and challenge maintenance budgets.

We believe that decision makers respon sible for the maintenance of rights-ofway for interstate utilities and conveyan ces should be offered the opportunity for CWA coverage within the general permit, perhaps enhanced by EPA and States with the imposition of additi onal enforceable requirements. Such permittees could then either accept the additional requirements, or elect to apply for an individual permit.

Alternatively, the Agency could acce pt, as a default assumption, that any area containing Tier III waters to wh ich the proposed pe sticide application has been made in the past without reported adverse impact can sustain similar application in the future without harm. This presumption would be rebutted by documentation of past impairment or future documentation of a water quality excursion resulting fr om future applications, with theconsequence that future applications would need to be subject to an individual permit. The effect of this “presumptive approach” would be to enable EPA to rely on past data to authorize continued applications in the future under the general permit unles s and until empirical past or future
data reflect a threat to those waters.

• §303(d)-listed waters : Situations may occur where decision makers will require aquatic pest control treatment of waterbodies that are listed as impaired due to residues of the specific pesticides needed, but that originated from the prior actions of others. Rather than penalizing the “innocent” decision maker by invoking the time-consuming and costly process of obtaining an individual permit, we belie ve a modified general permit should
be considered for those situations.

One alternative would be to simply i mport specific terms from the Waste Load Allocation of any such TMDL into the permit by the permit’s terms. This simple expedient would ensure that the permit was consistent with the applicable TMDL, as required by regulation, but would enable permittees to enjoy the benefits in efficiency that make the general permit EPA’s preferred vehicle for permitting this class of di scharge. Such an approach has been adopted in prior EPA general permits, including the Vessel General Permit.

Another alternative is to employ the “reasonable assurance” concept currently applied in the development of TMDLs. The notion here is that EPA (and the stream) gains new value by making the FIFRA label and any additional permit-based BMPs and monitoring enforceable for the first time
under the CWA. This additional level of control over discharges constitutes
the kind of “reasonable assurance” th at water quality managers are allowed to rely upon when developing TMDL s. Such reasonable assurance of attainment of water quality standards is equally supportive of a finding that, with the addition of the new NPDES permit, the water quality of the receiving water will be restored. Should that finding be unsupported by the next triennial review of the 303(d) list an individual permit tailored to the remaining specific needs of the stream could be developed for future applications.

3. How should EPA address compliance with “free from” narrative water quality
standards? This is a complex issue, but one that we feel has at least two potential

solutions:

• Application to Treatment Zones: EPA in its October 7 webinar stated “ Your discharge must be controlled as necessa ry so that your chemical residue meets applicable water quality standards ”. This suggests that “free from” narrative water quality standards (“WQS”) would apply not to the pesticide treatment zone at the time of applicat ion, but to any residues remaining atthe end of the effective period of treatment. We agree. Applying WQS to pesticide at the time of application co uld so reduce the application dosages that the treatment would be both ineffective and perhaps violate the product labeled application rate. Thus, the “free from” limitation should be applied exclusively to any pesticide residues after the treatment has been completed.

• Sufficiency of Technology-Based Standards: EPA should stipulate explicitly that compliance with all applicable FIFRA-label requirements and CWANPDES TBELs will satisfy all applicable water quality standards, including narrative water quality standards. Ti tle 40, CFR 122.44(k)(3) allows water quality-based effluent limitations to be implemented through BMPs if
numeric effluent limits are infeasible. This was the position adopted by California’s Water Resources Control Board in its statewide NPDES permit for aquatic weed control. 1 EPA should determine it is infeasible to establish numeric effluent limitations for pestic ide general permits because, (1) the regulated discharge is over-applied or misdirected pesticide products and residues remaining after the effective period of beneficial use resulting from the pesticide application. At what point the pesticide becomes a waste or residue is not precisely known and varies depending on many factors. Therefore, in the application of aqua tic pesticides, the exact effluent is unknown; (2) it would be impractical to treat the numerous short-duration intermittent pesticide releases to surface waters from many different locations; and (3) treatment in many cases may render the pesticide useless for aquatic pest control. Therefore, EP A (and States) should make a finding that the FIFRA label requirements and IPM-based narrative effluent limitations contained in pesticide gene ral permits include the requirements necessary to comply with all applicabl e water quality standards, including
narrative standards.

4. What are the relative costs of the IPM measures suggested for pesticide general permits for BAT? Many aspects of IPM are integrated into FIFRA label requirements, and as such many are alre ady mandatory. They protect workers, neighbors and the environment, while enhancing pest management strategies. These practices require time and expertise, and add direct and indirect costs to pesticide use for both decision makers and for-hire applicators. They include the requirement to carefully follow the precauti onary statements on the label, proper use of personal safety equipment, storag e and handling of pesticide containers, careful selection of pesticide dosage from a range of allowable application rates based on factors such as pest population and life stage, presence of beneficial or non-target species, soil type, and meteorol ogical factors; preventative equipment maintenance and inspection; calibration of sprayers and applicators; proper pesticide mixing and loading procedures; spill avoidance and proper cleanup; spray

1 California SWRCB. 2004. Water Qual ity Order No. 2004-0009-DWQ. Pp 9-11.drift minimization 2 ; rinsing of equipment; recycling/disposal of empty containers; excess product disposal; worker safety training; recordkeeping; and other procedures. Certified pesticide applicator s attend classes and must pass periodic
examinations to earn and retain certification 3 , and the pesticide industry sponsors safety/emergency preparedness training sc hools and a national program that has collected and recycled 100 million pounds of plastic pesticide containers since 1992. 4 Professional aerial applicators commonly rely on GPS-based application technology coupled with field mapping and flagging. Costs for training and use of such BMPs are significant.

Additional IPM practices such as habitat mo dification, introduction of sterilized or beneficial insects, or hand weeding are us eful in some circumstances when time and funding are available, but likely impractica l as a requirement on a national scale for either routine or emergency management of utility rights of way, irrigation canals and recreational waterways, forests, roads, etc. Many federal, state and municipal agencies responsible for pest control w ill not have the resources or time to implement IPM measures beyond the requ irements of the FIFRA label, state pesticide regulations, and professional BMPs described above. Furthermore, commercial applicators hired to apply pest control products have their performance responsibilities fully delineated by contra cting decision makers; it is not their prerogative to consider alternatives th at may involve time delays, alternative methods, or additional costs.

NPDES-permit enforcement of IPM (those measures beyond FIFRA labels) would represent a quantum change in the manne r in which IPM is affected (e.g., mandatory vs. voluntary). If IPM measures are to have a role in this permit, even under a more voluntary arrangement, then EPA should use the statutory definition of IPM (see #6 below) and not selected part s of it, fully value the BMPs required by FIFRA labels and state pesticide regulations, carefully define the meaning of phases such as “to the extent practical and in yo ur control,” and ensure that IPM measures that can best be implemented by decision makers are not also required of their forhire applicators, and vice-versa.

5. If EPA decided to cover terrestrial pest icide applications near streams running through fields, what would be the likely increase in the number of permittees? Were EPA to expand the jurisdictional re ach of its pesticide NPDES general permit program to regulate all potential circumstances of accidental off-target applications to waters of the US, the number of permittees covered by such permits could well increase by at least 10-fold. This statement is not a condemnation of pesticide

2 EPA recently proposed additional pesticide label spray drift policies (74 FR 57166; 11/04/09).

3 Examples: Wisconsin http://ipcm.wisc.edu/pat/Certifi cation/tabid/94/Default.aspx ; Ohio http://www.agri.ohio.gov/apps/oda prs/pestfert-P RS-index.aspx ; California http://www.cdpr.ca.gov/docs/license/liccert.htm

4 Ag Container Recycling Counc il, http://www.acrecycle.org/application practices, either aerial or gr ound based, but simply an observation that a percentage of the 922 million acres 5 of farmland have adjacent streams, creeks, ditches, lakes, wetlands, and other potentially jurisdictional waters of the US. EPA
should not extend the reach of its NP DES program to terrestrial pesticide applications.

CLA/RISE believes the NPDES general permit program under development should be limited to the scope of the vacate d 2006 Final Rule (71 FR 68483, 11/27/06). That rule addressed applications of pest icides made directly “to” the water to control pests, and applications of pesticides to control pests that are present “over” waters, including “near” such waters (e.g., ditch bank vegetation control), where a portion of the pesticides will unavoidably be deposited to waters of the US in order to target the pests effectively . This last phrase effectiv ely eliminates the need to extend the new general permits to include any terrestrial pesticide applications. The 2006 rule did not include spray drift from terrestrial a pplications that accidentally enters waters of the US, or attempt to disturb the statutory exemption of agricultural stormwater runoff and irri gation return flows and neither should these new general permits.

6. How has the U.S. Congress defined Integrated Pest Management? Congress has defined Integrated Pest Management (IPM) three times in recent legislation. In each case the terminology has been the sa me. To the extent EPA integrates IPM
measures in addition to the FIFRA label re quirements into the BAT provisions of its NPDES general permit for pesticides use in, over or near waters of the US, we urge the Agency to adhere to the IPM envisioned by Congress:

• The 1996 Food Quality Protection Ac t (PL 104-170) defines IPM as “a sustainable approach to managing pests by combining biological, cultural, physical, and chemical tools in a way that minimizes economic, health, and
environmental risks.”

• The Children’s Health Act of 2000 (PL 106-310) reaffirms the FQPA

definition of IPM. The law states th at “‘integrated pest management’ means an approach to the management of pest s in public facilities that combines biological, cultural, physical, and chem ical tools in a way that minimizes economic, health, and environmental risks.”

• The 2008 Farm Bill, the “Food, Conser vation and Energy Act of 2008” (PL 110-246) also reaffirms the definition of IPM. It states that IPM is “a sustainable approach to managing pests by combining biological, cultural, physical, and chemical tools in a way that minimizes economic, health, and
environmental risks.”

5 2007 U.S. Farmland. USDA Economic Research Service. http://www.ers.usda.gov/StateFacts/US.htm7. What are the relative costs of monitoring? Monitoring costs will depend on the number, extent, and whether they are to be vi sual observations of selected biological indicators or involve analytical analysis of water samples for pesticide residues. Labor costs for sample collections may be si gnificant for post-application monitoring of creeks, streams, wetlands and other wa terbodies below vast expanses of forest canopies in remote areas, or wetlands following mosquito control. There is also the consideration of how many observations or samples would constitute a valid assessment; for large treatment areas this could be extremely significant. A critical question would be which entity (decision maker or for-hire pesticide applicator)

should be tasked with monitori ng responsibility and costs.

Visual surveillance costs can be broken into two categories: (a) the direct costs of
travel and the evaluation of the site . These are primarily labor and travel costs, and can be significant if the evaluation sites are remote, waterbodies are located extensively across large treatm ent areas, or access is diff icult. It will also vary by the duration of surveillance (e.g ., repeat visits over a period of time); (b ) the indirect costs of lost productivity . Significant business “down time” costs and loss of income could be involved if the evaluator is required to return to the application site one or more times following treatment. These costs would apply to both decision makers and for-hire applicators, and would be espe cially problematic if individuals or small businesses were responsible for the evaluation . This would be especially costly for aerial applicators hired to apply pesticide treatments to sites hundreds of miles apart in different states, or for applicators or decision makers required to evaluate ground-based pesticide applications made to large expanses of utility, railroad or roadway rights-of-way that encounter larg e numbers of jurisdictional waters. Return travel on one or more separate da tes to the application sites for surveillance may represent such a loss of income an d/or expense burden that the business
cannot be sustained.

Analytical monitoring would include the costs outlined above for visual surveillance but would also include the very signific ant direct and indirect costs – sample collection (perhaps requiring a boat), purc hase and pre-use cleaning of bottles or other sample containers, sample collection and transport, assurance of quality assurance/quality control, pre-analysis sample preparation, GC-Mass Spectrometer analysis, statistical data analysis – accord ing to Bob Hirsch, Chief Hydrologist, US Geological Survey. The GC-MS analysis 6 alone for aquatic pesticides costs $300 to $500 per sample in a state laboratory, according to Jon Jennings, Washington State Department of Ecology NPDES Permits Admi nistrator. Such determinations by certified commercial laboratories may represent a higher or lower cost, depending on the number of analyses, sample prepar ation, and other factors. For-hire applicators would likely find analytical moni toring costs, direct and indirect, beyond

6 EPA Method #525.2, “Determination of Organic Compounds in Drinking Water by Solid-Liquid Extraction and GC-Mass Spectrometry.”their capability. Even decision makers would find analytical monitoring a

substantial burden.

These considerations present EPA with a se t of decisions that must be made with great deliberation if a balance between a mandate to incorporate compliance monitoring terms in NPDES permits and th e inclusion of terms so onerous as to place such a critical industry’s viability in doubt. In the main, visual observations, properly defined and economically applie d, are generally more useful and more economically sustainable than are measures requiring analytical monitoring. Individual attention to each class of pest icide application to be permitted will be necessary to, first, identify current practices as required by product labels and, then, to determine what if any new monitoring procedures need to be added to satisfy NPDES permitting requirements . These investigations should be undertaken between formal option selectio n and the publication of the first draft permits. CLA/RISE, of course, stands read y to assist the Agency in developing a more finely-tuned understanding of additional practices and understanding the degree to which proposed additional monitoring practices would impact each product use sector under consideration in this permitting process.

Thank you for allowing us to contribute these observations on NPDES permits program considerations. We look forward to contributing our thoughts on other aspects of this.

Sincerely,

Doug Nelson General Counsel and Secretary