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[Federal Register Volume 86, Number 177 (Thursday, September 16, 2021)]
[Notices]
[Pages 51665-51669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19965]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2020-0005; FRL-7611-02-OW]

Final National Pollutant Discharge Elimination System (NPDES) 
Pesticide General Permit for Point Source Discharges From the 
Application of Pesticides; Reissuance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final permit issuance.

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SUMMARY: This notice announces issuance by all 10 Environmental 
Protection Agency (EPA) Regions of the final 2021 National Pollutant 
Discharge Elimination System (NPDES) pesticide general permit (PGP)--
the 2021 PGP. The 2021 PGP, which has an effective date of October 31, 
2021, replaces the existing permit (2016 PGP) that expires at midnight 
on October 31, 2021, and authorizes certain point source discharges 
from the application of pesticides to waters of the United States in 
accordance with the terms and conditions described therein. EPA is 
issuing this permit for five (5) years in all areas of the country 
where EPA is the NPDES permitting authority.

DATES: The permit becomes effective on October 31, 2021, and will 
expire at

[[Page 51666]]

midnight, October 31, 2026. In accordance with 40 CFR part 23, this 
permit shall be considered issued for the purpose of judicial review on 
September 30, 2021. Under section 509(b) of the Clean Water Act (CWA), 
judicial review of this general permit can be requested by filing a 
petition for review in the United States Court of Appeals within 120 
days after the permit is considered issued. Under section 509(b) of the 
CWA, the requirements of this permit may not be challenged later in 
civil or criminal proceedings to enforce these requirements. In 
addition, this permit may not be challenged in other agency 
proceedings. Deadlines for submittal of a Notices of Intent (NOI) to be 
covered, if required, are provided in Part 1.2.3, Table 1-2 of the 2021 
PGP.

FOR FURTHER INFORMATION CONTACT: For further information on the final 
permit, contact the appropriate EPA Regional office listed in Section 
I.D of this document, email [email protected], or contact Chelsea Durant, EPA 
Headquarters, Office of Water, Office of Wastewater Management (4203M), 
1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 
202-564-2290; email address: [email protected]. Electronic 
versions of the 2021 PGP and Fact Sheet are also available on EPA's 
NPDES website at https://www.epa.gov/npdes/pesticide-permitting.

SUPPLEMENTARY INFORMATION: This section is organized as follows:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. How can I get copies of this document and other related 
information?
    C. Geographic Coverage
    D. Who are the EPA regional contacts for this final permit?
II. Background
III. Summary of the 2021 PGP
    A. Summary of Updates to the 2016 PGP and From the Proposed 2021 
PGP
    B. Summary of 2021 PGP Terms and Requirements
    C. 2021 PGP Cost Analysis and Future Cost-Benefit Considerations
IV. Executive Orders 12866 and 13563
V. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations
VI. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

I. General Information

A. Does this action apply to me?

    You may be affected by this action if you apply pesticides, under 
the use patterns in Part 1.1.1. of the 2021 PGP, that result in a 
discharge to waters of the United States in one of the geographic areas 
identified in Appendix C of the 2021 PGP. Potentially affected 
entities, as categorized in the North American Industry Classification 
System (NAICS), may include, but are not limited to:

         Table 1--Entities Potentially Regulated by the 2021 PGP
------------------------------------------------------------------------
                                                        Examples of
           Category                   NAICS         potentially affected
                                                          entities
------------------------------------------------------------------------
Agricultural entities--General  111 Crop           Producers of crops
 agricultural interests,         Production.        mainly for food and
 farmers/producers, forestry,                       fiber, including
 and irrigation.                                    farms, orchards,
                                                    groves, greenhouses,
                                                    and nurseries that
                                                    have irrigation
                                                    ditches requiring
                                                    pest control.
                                113110 Timber      The operation of
                                 Tract Operations.  timber tracts for
                                                    the purpose of
                                                    selling standing
                                                    timber.
                                113210 Forest      Growing trees for
                                 Nurseries          reforestation and/or
                                 Gathering of       gathering forest
                                 Forest Products.   products, such as
                                                    gums, barks, balsam
                                                    needles, rhizomes,
                                                    fibers, Spanish
                                                    moss, ginseng, and
                                                    truffles.
                                221310 Water       Operating irrigation
                                 Supply for         systems.
                                 Irrigation.
Pesticide parties (includes     325320 Pesticide   Formulation and
 pesticide manufacturers,        and Other          preparation of
 other pesticide users/          Agricultural       agricultural pest
 interests, and consultants).    Chemical           control chemicals.
                                 Manufacturing.
Public health parties           923120             Government
 (includes mosquito or other     Administration     establishments
 vector control districts and    of Public Health   primarily engaged in
 commercial applicators that     Programs.          the planning,
 service these).                                    administration, and
                                                    coordination of
                                                    public health
                                                    programs and
                                                    services, including
                                                    environmental health
                                                    activities.
Resource management parties     924110             Government
 (includes State departments     Administration     establishments
 of fish and wildlife, State     of Air and Water   primarily engaged in
 departments of pesticide        Resource and       the administration,
 regulation, State               Solid Waste        regulation, and
 environmental agencies, and     Management         enforcement of air
 universities).                  Programs.          and water resource
                                                    programs; the
                                                    administration and
                                                    regulation of water
                                                    and air pollution
                                                    control and
                                                    prevention programs;
                                                    the administration
                                                    and regulation of
                                                    flood control
                                                    programs; the
                                                    administration and
                                                    regulation of
                                                    drainage development
                                                    and water resource
                                                    consumption
                                                    programs; and
                                                    coordination of
                                                    these activities at
                                                    intergovernmental
                                                    levels.
                                924120             Government
                                 Administration     establishments
                                 of Conservation    primarily engaged in
                                 Programs.          the administration,
                                                    regulation,
                                                    supervision and
                                                    control of land use,
                                                    including
                                                    recreational areas;
                                                    conservation and
                                                    preservation of
                                                    natural resources;
                                                    erosion control;
                                                    geological survey
                                                    program
                                                    administration;
                                                    weather forecasting
                                                    program
                                                    administration; and
                                                    the administration
                                                    and protection of
                                                    publicly and
                                                    privately owned
                                                    forest lands.
                                                    Government
                                                    establishments
                                                    responsible for
                                                    planning,
                                                    management,
                                                    regulation and
                                                    conservation of
                                                    game, fish, and
                                                    wildlife
                                                    populations,
                                                    including wildlife
                                                    management areas and
                                                    field stations; and
                                                    other administrative
                                                    matters relating to
                                                    the protection of
                                                    fish, game, and
                                                    wildlife are
                                                    included in this
                                                    industry.
Utility parties (includes       221 Utilities....  Provide electric
 utilities).                                        power, natural gas,
                                                    steam supply, water
                                                    supply, and sewage
                                                    removal through a
                                                    permanent
                                                    infrastructure of
                                                    lines, mains, and
                                                    pipes.
------------------------------------------------------------------------

[[Page 51667]]

B. How can I get copies of this document and other related information?

    Docket. EPA has established a docket for this action under Docket 
ID No. EPA-HQ-OW-2020-0005; FRL-7611-02-OW. Although all documents in 
the docket are listed in an index, some information is not publicly 
available, i.e., Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Publicly 
available docket materials are available electronically through 
www.regulations.gov. Out of an abundance of caution for members of the 
public and EPA staff, the EPA Docket Center and Reading Room are 
currently closed to the public, with limited exceptions, to reduce the 
risk of transmitting COVID-19. When the EPA Docket Center and Reading 
Room reopen, publicly available docket materials will be available in 
hard copy at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA 
Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744, and the telephone number 
for the Water Docket is (202) 566-2426.

C. Geographic Coverage

    EPA provides permit coverage for classes of point source discharges 
of pollutants that occur in areas where EPA is the NPDES permitting 
authority. The geographic coverage of the 2021 PGP is listed in 
Appendix C of the permit.

D. Who are the EPA regional contacts for this final permit?

    For EPA Region 1, contact George Papadopoulos at tel.: (617) 918-
1579; or email at [email protected].
    For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856; 
or email at [email protected]. For Puerto Rico, contact Sergio 
Bosques at tel.: (787) 977-5838 or [email protected].
    For EPA Region 3, contact Carissa Moncavage at tel.: (215) 814-
5798; or email at [email protected].
    For EPA Region 4, contact Sam Sampath at tel.: (404) 562-9229; or 
email at [email protected].
    For EPA Region 5, contact John Colletti at tel.: (312) 886-6106; or 
email at [email protected].
    For EPA Region 6, contact William F. Cooper at tel.: (214) 665-6443 
or email at [email protected].
    For EPA Region 7, contact Alex Owutaka at tel.: (913) 551-7584 or 
email at: [email protected].
    For EPA Region 8, contact Margaret Kennedy at tel.: (303) 312-6644 
or email at: [email protected].
    For EPA Region 9, contact Eugene Bromley at tel.: (415)-972-3510 or 
email at: [email protected].
    For EPA Region 10, contact Bilin Basu at tel.: (206) 553-0029 or 
email at: [email protected].

II. Background

    Section 301(a) of the CWA provides that ``the discharge of any 
pollutant by any person shall be unlawful'' unless the discharge is in 
compliance with certain other Sections of the Act. 33 U.S.C. 1311(a). 
The CWA defines ``discharge of a pollutant'' as ``(A) any addition of 
any pollutant to navigable waters from any point source and (B) any 
addition of any pollutant to the waters of the contiguous zone or the 
ocean from any point source other than a vessel or other floating 
craft.'' 33 U.S.C. 1362(12). A ``point source'' is any ``discernible, 
confined and discrete conveyance'' but does not include ``agricultural 
stormwater discharges and return flows from irrigated agriculture.'' 33 
U.S.C. 1362(14).
    The term ``pollutant'' includes among other things ``garbage . . . 
chemical wastes, biological materials . . . and industrial, municipal, 
and agricultural waste discharged into water.'' 33 U.S.C. 1362(6).
    A person may discharge a pollutant without violating the Section 
301 prohibition by obtaining authorization to discharge (referred to 
herein as ``coverage'') under a Section 402 NPDES permit (33 U.S.C. 
1342). Under Section 402(a), EPA may ``issue a permit for the discharge 
of any pollutant, or combination of pollutants, notwithstanding Section 
1311(a)'' upon certain conditions required by the Act.
    EPA issued the first Pesticide General Permit (``2011 PGP'') on 
October 31, 2011, in response to the United States Sixth Circuit Court 
of Appeals ruling vacating EPA's 2006 Final Rule on Aquatic Pesticides. 
National Cotton Council of America v. EPA, 553 F.3d 927 (6th Cir. 
2009). EPA developed the PGP to control point source discharges of 
biological pesticides and chemical pesticides that leave a residue into 
waters of the United States. In 2016, EPA issued the second PGP (2016 
PGP). EPA is issuing the 2021 PGP to replace the 2016 PGP which expires 
at midnight on October 31, 2021. Similar to the 2011 PGP and 2016 PGP, 
the 2021 PGP provides coverage for certain point source discharges of 
pollutants to waters of the United States in areas where EPA is the 
NPDES permitting authority.
    EPA published the draft 2021 PGP and accompanying Fact Sheet in the 
Federal Register on January 15, 2021 (86 FR 4070), soliciting comments 
on the draft permit. EPA also conducted formal consultation with Indian 
Tribal Governments. EPA received 8 written comment letters on the draft 
permit. EPA considered all comments received during the comment period 
in preparing the final permit. EPA responded to all significant 
comments in the Response to Comment Document which is available as part 
of the docket for this permit.

III. Summary of the 2021 PGP

A. Summary of Updates to the 2016 PGP and From the Proposed 2021 PGP

    While the requirements of the 2021 PGP remain the same as those in 
the 2016 PGP, some minor updates have been added and are discussed in 
more detail in the 2021 PGP Fact Sheet. The draft 2021 PGP was proposed 
on January 15, 2021 and EPA proposed keeping the same conditions and 
requirements as the 2016 PGP as well as the following changes:
     Removed the out of date NOI provision that provided 
automatic coverage for all Operators until January 12, 2017.
     Replaced the requirement to use the EPA's eNOI system with 
EPA's NPDES eReporting Tool (NeT) when preparing and submitting NOIs, 
NOTs, and annual reports.
     Updated Appendix A, Definitions, Abbreviations, and 
Acronyms, to include the terms ``Pesticide discharges to waters of the 
United States from pesticide application'' and ``pesticide residue,'' 
as defined in 40 CFR 122.2.
     Modified Appendix B, Standard Permit Conditions, to ensure 
consistency with 40 CFR 122.41.
     Updated Appendix C, Areas Covered, to reflect coverage 
changes by removing the State of Idaho, and added Indian Country within 
Virginia and Indiana.
    In response to the public comments received and the Endangered 
Species Act Section 7 consultation, below is a summary of changes to 
the draft 2021 PGP and discussed in more detail in the 2021 PGP Fact 
Sheet:
     Clarified Part 1.1.2.4 of the PGP by changing the phrase 
``not likely to adversely affect'' and clarified the supporting 
documentation to be submitted with the Notice of Intent for the 
eligibility criterion selected. Appendix D, Notice of Intent form, and 
Appendix I, Endangered Species Procedures, are also updated to reflect

[[Page 51668]]

changes made in Part 1.1.2.4 of the permit.
     Corrected Part 1.2.3 of the PGP by adding back the 
statement that Decision-makers may submit multiple NOIs with different 
activities.
     Clarified Part 1.6 of the PGP by adding the term ``as a 
result of a separate federal action.''
     Updated Part 2.2.3.b of the PGP to add cultural methods to 
the list of management options Decision-maker must evaluate when 
developing Pest Management Measures for animal pest control.
     Updated Part 9.0 of the PGP to reflect state and tribal 
Clean Water Act Section 401 certifications.
     Updated Definitions, Abbreviations, and Acronyms, Appendix 
A of the PGP to:
    [cir] Correct the effective date in the definition for the 
Decision-maker who is or will be required to submit an NOI.
    [cir] update the definition for the National Marine Fisheries 
Service (NMFS) Listed Resources of Concern to include the 2021 
biological opinion.
    [cir] add the definition for ``Take''.
    [cir] add missing acronyms.
     Updated Appendix C of the PGP, Areas Covered, to remove 
tribes who denied coverage under the permit, and to remove Texas' oil 
and gas activities.
     Corrected Appendix F of the PGP, Pesticide Discharge 
Evaluation Worksheet, by adding an introduction to the coversheet and 
updating the instructions to point Operators to Part 7.3 of the PGP.
     Updated Appendix I of the PGP, Endangered Species 
Procedures, to include list of pesticides that a NMFS' biological 
opinion has determined the labeled use would jeopardize the continued 
existence of ESA-listed species and/or adversely modify designated 
critical habitat.

B. Summary of 2021 PGP Terms and Requirements

    The 2021 PGP is similar to the 2016 PGP, and is structured in the 
same nine parts: (1) Coverage under This Permit, (2) Technology-Based 
Effluent Limitations, (3) Water Quality-Based Effluent Limitations, (4) 
Monitoring, (5) Pesticide Discharge Management Plan, (6) Corrective 
Action, (7) Recordkeeping and Annual Reporting, (8) EPA Contact 
Information and Mailing Addresses, and (9) Permit Conditions Applicable 
to Specific States (including Territories) and Indian Country. 
Additionally, as with the 2016 PGP, the 2021 PGP includes nine 
appendices with additional conditions and guidance for permittees: (A) 
Definitions, Abbreviations, and Acronyms, (B) Standard Permit 
Conditions, (C) Areas Covered, (D) Notice of Intent (NOI) form, (E) 
Notice of Termination (NOT) form, (F) Pesticide Discharge Evaluation 
Worksheet (PDEW), (G) Annual Reporting Template, (H) Adverse Incident 
Report Template, and (I) Endangered Species Procedures. A summary of 
the 2021 PGP's requirements are provided in the 2021 PGP Fact Sheet.

C. 2021 PGP Cost Analysis and Future Cost-Benefit Considerations

    The cost analysis accompanying this final permit monetizes and 
quantifies certain incremental cost impacts of the final permit changes 
as compared to the 2016 PGP. EPA analyzed each change in the 2021 PGP 
considering the previous permit's requirements. The objective of the 
cost analysis is to show where or to what extent the 2021 PGP 
requirements impose an incremental increase in administrative and 
compliance costs (such as sampling and monitoring costs) on Operators 
in relation to costs that are already accounted for in the 2016 PGP. 
EPA expects no incremental cost impact on entities that will be covered 
under the 2021 PGP, including small businesses, since the requirements 
in the permit are substantively the same as those found in both the 
2016 PGP as well as the 2011 PGP. For further discussion, see Appendix 
D of the fact sheet.
    More broadly, EPA notes that additional unquantified costs and 
benefits result from this action. In developing the next PGP (or 
another NPDES general permit, as appropriate), EPA plans to estimate 
the broader impacts arising from these actions, including costs and 
benefits. Estimates under consideration may include: (1) Assessing how 
costs and benefits are attributed between the PGP and applicable water 
quality standards (including TMDLs) that may be in effect; (2) 
developing a new modeling framework to assess how regulated entities 
understand and implement control measures relating to existing and new 
permit obligations; (3) examining whether any underlying cost and 
benefit assumptions need to be updated; (4) examining more broadly how 
EPA can analyze benefits when developing permits; (5) developing more 
robust approaches to assessing uncertainties associated with the 
analytic approaches, including how to quantitatively assess 
uncertainties of key assumptions; and (6) developing a framework to 
analyze the effort of cooperative federalism.

IV. Executive Orders 12866 and 13563

    The 2021 PGP is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

V. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA believes that the 2021 PGP will 
not have disproportionately high and adverse human health or 
environmental effects on minority populations, low-income populations, 
and/or indigenous peoples because the requirements in the permit apply 
equally to all pesticide applicators in areas where EPA is the 
permitting authority. The provisions in the general permit increase the 
level of environmental protection for all affected populations.

VI. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in E.O. 
13175. It will neither impose substantial direct compliance costs on 
federally recognized tribal governments, nor preempt tribal law. EPA 
directly implements the NPDES Program, including the 2021 PGP when it 
is finalized, in Indian country; therefore, in compliance with EPA 
Policy on Consultation and Coordination with Indian Tribes, EPA 
consulted with tribal officials early in the process to allow tribes to 
have meaningful and timely input into the renewal of the PGP. In the 
course of this consultation, EPA undertook the following activities:
     May 8, 2020--EPA emailed notification letters to tribal 
leaders initiating consultation and coordination on the renewal of the 
PGP.
     June 9, 2020--EPA held an informational webinar open to 
all tribal representatives and reserved the last part of the 
teleconference for official consultation comments. No official comments 
were received during the webinar.

[[Page 51669]]

    EPA did not receive any comments during the formal tribal 
consultation period. EPA notes that as part of the finalization of this 
permit, the agency completed Section 401 certification procedures with 
all applicable tribes where this permit will apply (see Part 9 and 
Appendix C of the PGP).
    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: September 8, 2021.
Deborah A. Szaro,
Acting Regional Administrator, EPA Region 1.

    Dated: September 8, 2021.
Javier Laureano,
Director, Water Division, EPA Region 2.

    Dated: September 8, 2021.
Carmen R. Guerrero-P[eacute]rez,
Director, Caribbean Environmental Protection Division, EPA Region 2 
Caribbean Office.

    Dated: September 8, 2021.
Catherine A. Libertz,
Director, Water Division, EPA Region 3.

    Dated: September 8, 2021.
Jeaneanne M. Gettle,
Director, Water Division, EPA Region 4.

    Dated: September 8, 2021.
Tera L. Fong,
Director, Water Division, EPA Region 5.

    Dated: September 8, 2021.
Troy Hill,
Deputy Director, Water Division, EPA Region 6.

    Dated: September 8, 2021.
Jeffery Robichaud,
Director, Water Division, EPA Region 7.

    Dated: September 8, 2021.
Humberto Garcia,
Acting Director, Water Division, EPA Region 8.

    Dated: September 8, 2021.
Tom[aacute]s Torres,
Director, Water Division, EPA Region 9.

    Dated: September 8, 2021.
Daniel D. Opalski,
Director, Water Division, EPA Region 10.
[FR Doc. 2021-19965 Filed 9-15-21; 8:45 am]
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