COMMENTS ON EPA’s WORKING DRAFT OF PESTICIDE GENERAL PERMIT

Structural Pest Contro l & Pesticides Division North Carolina Department of Agriculture and Consumer Services

January 25, 2010

The only typographic error I noticed in the dr aft document was an omission in Section 1.1.1
(page 1): “(2) chemical pesticides which leave a 

### ? for the following pesticide use patterns.” It seems that ‘residual waste’ would be appropriate for the omission. It is somewhat ironic that ‘residual waste’ would be missing because I beli eve the Office of Water developed a PGP that extended its mandate beyond the ruling of the 6 th Circuit. The document is heavily skewed in managing the pesticide during the phase when it is performing its intended use (which is already regulated by FIFRA) and is making assumptions on the ultimate frequency and distribution of

the waste residues that are not necessarily fact-based.

The focus of pest management programs has been to minimize the potential adverse effects of chemicals while performing the intended pest c ontrol function. Excessive rates may select for pesticide-resistant pests, kill natural enemies th at control other pests or impact an endangered species. Very few (if any) programs have been desi gned or evaluated with respect to the specific goal of just reducing the frequenc y and distribution of waste resi dues that have declined to a concentration that is no longer adequate for pest c ontrol. It is quite conceivable that a high rate pesticide strategy that totally eliminates a pest would result in less waste residues when evaluated over a long period of time or a wide geographic ar ea. A low rate strategy could lead to the need for re-treatments, planned multiple treatments or the spread of the pest to other locations that would eventually require treatments over a broa der area. While the high-rate strategy may have some real adverse effects as the pesticide is performing its intended use, the residual nonpesticidal waste residues may ha ve a minimal impact on the environment. Conversely, the lowrate strategy may have minimal adverse effects while the pesticide is performing its intended use, but (if pest control is not comple te) could lead to detectable wast e residues over a l onger interval or a wider geographic area due to necessary re-treatments or treatments of secondary

infestations.

The Office of Water should not at tempt to use the PGP as a mech anism to assert authority over pesticides while the chemicals are at pest-contro l concentrations. In issuing the registration, the Office of Pesticide Programs has judged the products to provide an acceptable profile for environmental exposure when applied according to label direction. Admitted ly, there is sparse information for pesticides at concentrations that are no longer effective at controlling pests. Even

less is known about the adverse effects of non-pesticidal concen trations. There may be some

relevant information that comes from the Endoc rine Disruption Screeni ng Program, but the core guidelines for those studies have just been issued. The paucity of information on pesticide waste residues should not be a valid excuse for OW establishing a PGP process that is focused on managing the effects of pesticidal concentra tions (which is already covered by FIFRA).

Many of the following concerns are rooted in the above discussion about the n eed to discriminate between the impact of pesticidal c oncentrations and pesticide wastes:Section 1.1.2.1 – OW should examin e the listings of pesticides/degradates for which a body of water has been classified as impaired for that substance. Organochlorine insecticides, atrazine, chlorpyrifos, diazinon and nearly all the listed pe sticides are not involved in the uses covered by

the 6 th circuit court decision. An ex amination of products with current approved uses for the target sites requiring a NPDES permits might reveal that it would be easy to provide a short table listing the bodies of waters impaired for the su bstances (are there any?) instead of asking NOI submitters to dig through the websites that are mentioned.

Section 1.1.2.2 (pages 1-2) – Regarding comment jrf 3, we think that biological pesticides should be allowed in Tier 3 waters by the PGP if they are labeled for this use and are safer to use than chemical pesticides or they are targeting an invasive species.

Section 1.1.2.4 (page 2) – OPP is already involved with the impact of pe sticidal rates on endangered species. OW should only be concerned with the impact s of the waste residues. For example, paragraph 1 of this section should be modified to read (changes in red): “ Coverage under this permit is available only if the wastes resulting from your discharges and discharge-related activities will not adversely affect any species that are federally-listed as endangered or threatened and will not result in the adverse modification or destruction of habitat that is federally-designated as

“critical habitat” under the ESA .” The pesticide as applied for its intended purpose may have a theoretical impact on an endangered species while the non-pesticidal waste residue may have an acceptable margin of exposure.

Section 1.2.2 (page 4) – The treatment area annual thresholds should be made applicable to all category of users. In the current format, a home owner association would be required to file a NOI to control the aquatic weeds in a community lake regardless of size. However, individual property owners could treat their fr ontage areas as long as the trea ted area is less then 160 acres.

Is it the intent of OW to di scourage professional applications in lieu of more homeowner treatments? Also, how is the homeowner using a general pesticide supposed to be aware of NPDES requirements that are not on the pesticid e label? When calculating the treatment area

annual threshold or the water-treatment area annual threshold, would a site that is treated more

than once be calculated based on the area once or multiplied by the number of times it was treated during the year? For example, 85 acres of water treated twice. Would this annual

threshold be 85 acres or 170 acres ? Regarding comment jrf5, we recommend the following:

1. the thresholds be based on an annual amount,

2. the treatment area annual thresh old be increased to 1,000 acres,

3. the water-treatment area annual threshold be increased to 200 acres,

Section 2.2.* (pages 9-15) – Throughout this sec tion OW is managing the pesticidal phase of the application which should be governed by FIFRA. As discussed above, there is no assurance that a low-rate IPM program will result in less non-pest icidal waste residues ove r a long time interval or a broad geography. It is known that low rates or high rates will eventually decline to the nonpesticidal waste residue concen tration. Any differences in envi ronmental effects between the high and low rates will result from impacts during the pesticidal phase of the treatment. Once reached, the impact of the waste residue (whateve r that is) should be the same regardless of the starting point of the concentrations that are performing the intended use. This entire section will require substantial paperwork with little enforceability. Many IPM guidelines are

recommendations that allow considerable flexib ility for user interpre tation. It will be very difficult for any permitting authority to legally challenge anything that is recorded on an NOI foran approved labeled use. Pesticides used in agricultural production sy stems can have welldefined application thresholds th at balance the cost of the treatment with the economic benefits in preventing yield loss. The objective s of the pest programs covered by the 6 th Court ruling are not so easy to define. How many mosquitoes does it take to tr ansmit West Nile Virus? How many mosquito bites should be acceptable for the average person? How much of a lake needs to be infested with aquatic weeds to be considered a problem? A single inva sive aquatic weed can lead to many significant pr oblems for any water body.

Is it appropriate for OW to make recommendations for practices that provide more effective pest control (Section 4.1)?

Comments on the remaining portion of the draft PGP are redundant to the previous comments on the lack of distinction between the pest control phase and the waste phase of a pesticide application. For example, how does someone c onducting a visual assessment (Section 4.2) to determine if a perceived adverse effect resu lted while the applica tion was performing the intended pest control purpose or was caused by the waste residue? The Pesticide Discharge Management Plan and other reporting requireme nts are heavily skewed towards information from the pest control phase of an application th at may not influence the ultimate characteristics of the pesticide waste.

Appendix F – Notice of Intent Form (pages 51-53) – In part III. Operator Information: 5.a. It references item 4 above. Should the use patterns in item 4 be labeled with “a, b, c, and d?” Regarding providing a map or description, is this necessary for all sites or can there be a threshold size that requires a map or description?

In summary, the PGP would best serve the publ ic by efficiently meeting the minimal mandates

of the 6 th Circuit Court ruling. EPA management has pub licly expressed their disagreement with the decision so why not implement a simple, ti me-efficient system? OPP has already conducted risk assessments (often using the most severe us e parameters) and determined that the registered uses do not pose an unreasonable ad verse risk. Why not design a PGP that just calls for sufficient information to verify that the product was applied according to label directions?