EPA Draft NPDES Permit for Pesticide Applications

EPA releases its draft permit unleashing a slew of different and unprecedented requirements for pesticide applicators; the Agency is taking comments on the permit and aerial applicators are urged to comment

EPA’s long-awaited draft general permit for pesticide applications made into, over or near waters of the US (or conveyances to those waters) for a number of different pesticide uses was released in the Federal Register June 4. Details on the permit may be found at the following Web site: http://cfpub.epa.gov/npdes/home.cfm?program_id=410.

EPA intends to finalize the general permit by December 2010, incorporating comments received from states, industry, environmental groups and others. If it remains in its current form, the general permit will markedly alter compliance under FIFRA, add significant legal exposure, and add to the recordkeeping and reporting burdens required of pesticide applicators. Aerial applicators’ clients—entities making decisions about the use of pesticides—will have even greater burdens and legal exposure. The permit is scheduled to be in place and in use April 9, 2011, although many doubt the process will be completed, especially among the 44 states that have to develop their own general NPDES permits from EPA’s model. The legal liability pesticide applicators and their decision-making clients will have if that happens is unknown at this point. This article attempts to explain the draft permit requirements’ effects on aerial applicators. Comments are due to the EPA on or before July 19, 2010.

A Brief History

The requirement to obtain National Pollutant Discharge Elimination System (NPDES) permits for point source discharges from pesticide applications to waters of the U.S. stems from last year’s decision by the U.S. Court of Appeals for the Sixth Circuit in National Cotton Council, et al. v. EPA. There the Court nullified a 2006 EPA rule that stated NPDES permits were not required for applications of pesticides into, over or near waters of the US when the applications were made in compliance with the FIFRA label. Today’s reality is that common applications of any pesticide over, near, or onto waters of the U.S. and certain conveyances are considered to be a “discharge” and will require NPDES permits when the court’s mandate takes effect beginning on April 9, 2011.

Permit Coverage

EPA’s draft NPDES Pesticide General Permit (PGP) is effective only in areas where EPA is acting as the NPDES permitting authority which includes Alaska, Idaho, Maine, New Hampshire, New Mexico, and Oklahoma, Federal lands, Indian lands, and several territories. Remaining states that have their own NPDES permitting authority are responsible for issuing NPDES permits for pesticide discharges in their respective jurisdictions. States are not precluded from making their requirements more stringent than the EPA permit requirements. Applicators are urged to be in communication with their state agencies with jurisdiction over these permits, express any concerns and suggestions, and urge them to minimize the permit’s adverse effects on their businesses.

EPA’s PGP would authorize discharges to waters of the U.S. from the application of biological pesticides and chemical pesticides that leave a “residue” (excess pesticide active ingredient or degradation of product) for the following pesticide use patterns: (1) mosquito and other flying insect pest control; (2) aquatic weed and algae control; (3) aquatic nuisance animal control; and (4) forest canopy pest control. Agricultural terrestrial applications are not covered under the permit; however EPA asked for comments on whether other pesticide uses, such as terrestrial applications, should be added before finalization. EPA acknowledges that the Clean Water Act’s exemption of agricultural storm water and irrigation return flow mean they are not included in this general NPDES permit, and also that off-target spray drift would not be covered (authorized) by this permit. EPA states in its permit documents that “any use patterns not covered by this proposed draft permit would need to obtain coverage under an individual permit or alternative general permit if they involve pesticide applications that result in point source discharges to waters of the U.S.”

An entity discharging under one of the four use patterns covered by EPA’s general permit receives automatic coverage unless they exceed the following annual treatment thresholds:

  • Mosquitoes and Other Flying Insect Pests >640 acres of treatment area
  • Aquatic Weed and Algae Control:
    • In Water >20 acres of treatment area
    • At Water’s Edge: >20 linear miles of treatment area at water’s edge
  • Aquatic Nuisance Animal Control:
    • In Water >20 acres of treatment area
    • At Water’s Edge >20 linear miles of treatment area at water’s edge
  • Forest Canopy Pest Control >640 acres of treatment area

If an entity exceeds one of these thresholds it must submit a Notice of Intent (NOI) in order to be covered under the PGP. Exceeding any of these thresholds triggers the need to file an NOI and meet a number of analytical and paperwork requirements. EPA defines someone who must file an NOI as an “operator” (not to be confused with an aerial application operator, although in some instances they could be one and the same) and describes “operators” as (1) those that “have control over the financing for or the decision to perform pesticide applications that result in discharges, including the ability to modify those decisions; or (2) [an entity that] has day to day control of or performs activities that are necessary to ensure compliance with the permit (e.g. they are authorized to direct workers to carry out activities required by the permit or perform such activities themselves).” The EPA states in its draft permit that “For-hire applicators are required to submit an NOI when their total treatment area exceed[s] an annual treatment area threshold (see chart above), but only for those areas [treated that are] not accounted for in another NOI.” The draft PGP documentation also states that “operators hiring another party to apply pesticides are responsible for submitting an NOI if: [t]he application exceeds any applicable annual treatment.”

The NOI submission is done in advance of the pesticide application, sometimes months in advance. As such, the operator submitting the NOI needs to map and describe the exact locations of the planned treatments; which, if any, waters of the US are present; which pesticides and what rate will be used; and (if known) which applicator(s) will apply the pesticides. Obviously, the decision-making client entities are the only ones who will know this far enough in advance to be able to submit the NOI. EPA anticipated this, and allows for-hire operators to be covered by the NOIs submitted by their client federal, state or municipal agencies and private/corporate organizations.

If it survives into the final permit, we believe this should generally exempt for-hire applicators from the multiple requirements that accompany the submission of an NOI, such as use and documentation of Integrated Pest Management practices, annual reporting, etc. However, if an applicator has contracted to apply pesticides for a client that doesn’t file an NOI, to gain the protections of the NPDES permit the applicator will have to prepare and file an NOI, and meet many other analyses and paperwork requirements far outside what has ever been required of applicators before. The focus of NAAA’s comments to the EPA is to clarify our concerns about some issues, express support for EPA’s decisions on others, and to make suggested changes where we believe they are warranted.

In general, the PGP requires all operators to minimize pesticide discharges (by using the lowest effective amount of pesticide, preventing leaks and spills, and calibrating equipment) and to monitor for and report any adverse incidents, including exceedances of state water quality standards. Operators (such as federal, state or municipal decision-making organizations whose annual pesticide treatment area exceed the NOI threshold must submit an NOI to gain general permit coverage, implement integrated pest management (IPM) practices and best management practices (BMPs) to minimize the discharge of pesticides to waters of the U.S., develop a Pesticide Discharge Management Plan (PDMP), submit adverse incident and annual reports, and maintain records that effectively document all of these practices. It is a permit violation not to report incidents properly and quickly, or not to maintain records and the PDMP in a complete, up-to-date fashion. Implementing IPM includes a variety of requirements such as taking steps to identify the pest problem, and evaluating pest-eradication methods (i.e. deciding, after analyzing a treatment area whether to take no action, or use mechanical/physical methods, cultural methods, biological control agents, or pesticides to eradicate a pest), and establishment of an economic or nuisance threshold that would justify pesticide application.

In its example of IPM techniques to follow pertaining to mosquito control, EPA suggested in its PGP Fact Sheet for operators to establish mosquito larval densities, analyze whether to either take no action, use mechanical/physical methods, cultural methods (reducing breeding sources), biological controls and or chemical controls to eradicate the pest, and also document justification as to why the course taken was chosen. These steps are important in the pest management process for entities making the decision to have an area treated for a pesticide; however, they are decisions and steps not usually taken or required of most for-hire pesticide applicators whose focus and attention is on the processes involved with the actual application, maintenance and operation of the equipment and conditions related to those processes in the eradication phase of the pest management cycle. In addition, conducting pest counts and then post application surveillance and monitoring, are other IPM requirements for those entities required to submit an NOI in order to qualify under the PGP. These are not appropriate for applicators, who might apply the pesticides at night, and is not the owner of the property treated (requiring him to trespass) to comply with these permit requirements. For these and other reasons, NAAA believes it is unreasonable for the applicator to be responsible for submitting an NOI or complying with applicable IPM requirements. NAAA’s comments and those of aerial applicators submitting comments to the EPA should focus on these points.

What is more realistic is for aerial applicators to document current practices to provide evidence that the applicator is complying with those sections of the permit that apply to them (e.g., maintenance of equipment, avoidance of spills, etc.). Such evidence will be critical if EPA or the state regulators do an inspection of an applicator’s property and records, or a citizen suit is filed against the applicator by a neighbor or activist. NAAA will be pushing EPA to allow applicators to maintain a personal record of their BMPs and activities at their place of business, in lieu of needing to comply with all the other NOI requirements. These personal records (a Pesticide Discharge Management Plan (PDMP)) are required of those operators having to submit an NOI under the EPA’s PGP. The contents of a PDMP would describe each aerial applicator’s business and document how the applicator is meeting the technology best management practices (BMP) requirements of the permit. They would likely include:

a. Identify a Pesticide Discharge Management Team and responsibilities of that team
(which person maintains and calibrates the aircraft, who supervises the purchase and storage
of pesticides, who is trained in spill control and cleanup, who keeps the spray log, who knows
and is responsible for recording changes to the PDMP. If it’s the same person(s), just say so)

b. Pest Management Area Description (keep records of the treatments made, and where the
treatment areas were; similar to FAA spray log requirements)

c. Control Measure Description (BMPs used, calibration and maintenance of equipment used)

d. Schedules and Procedures

1. Control Measures Used to Comply with the Effluent Limitations

a. Application Rate and Frequency Procedures (document how this was chosen)
b. Spill Prevention Procedures (document BMPs used)
c. Pesticide Application Equipment Procedures (calibration and maintenance)
d. Pest Surveillance Procedures (if any, describe)
e. Assessing Environmental Conditions Procedures (document how go-no go decisions are made about wind, rain, drift, etc. on day of application, whether ground flagging, automatic flagman or GPS was used, etc.)

2. Pertaining to Other Actions Necessary to Minimize Discharges

a. Spill Response Procedures
b. Adverse Incident Response Procedures
c. Pesticide Monitoring Schedules and Procedures
e. Documentation to Support Eligibility Considerations under Other Federal Laws (state or federal laws that applicators need to consider when making applications – e.g., FAA, FIFRA)
f. Signature Requirements.

Most of this information is obtainable for aerial application operators, but not without some additional paperwork and recordkeeping burdens. Some of the challenging PDMP items to obtain for aerial applicators will be the pest surveillance procedures; however, EPA has stated in the Draft PGP that aerial applicators are exempt from the visual monitoring requirements during application so that is what an applicator would write in its PDMP. EPA does require visual monitoring assessments during any post-application surveillance that is done to assess the efficacy of the pesticide treatment. If aerial applicators are required by their spraying contract with their client to circle back and look for efficacy in, say mosquito control, then aerial applicators would be also required to look for dead fish etc. and report them. But it is doubtful that any aerial application contracts will require the pilot to come back later to look for pesticide treatment efficacy – so the pilot would also not be required to do these types of searches

In terms of what EPA is looking for under the PDMP for “Pesticide Monitoring Schedules and Procedures” according to the Draft PGP is monitoring the integrity of application equipment by calibrating, cleaning, and repairing equipment on a regular basis to reduce the potential for leaks, spills, and unintended/accidental release of pesticides to waters of the US. The EPA also states in regards to this requirement that all permittees must monitor the amount of pesticide applied to ensure that the lowest amount needed to effectively control the pest is used, “…depending on conditions…” and balancing pest control application rates with the need for efficacy and the avoidance of pesticide resistance development.

Next Steps & Grassroots Action
NAAA will continue to work with its agricultural and non-ag pesticide coalition colleagues in an attempt to urge Congress to enact legislation to prevent the NDPES draft permit from being implemented. The goal is to keep the FIFRA standard as the necessary water protection statute via its environmental and safety requirements for pesticides that are mandated as part of a pesticide’s registration process. NAAA also will continue to work to influence EPA during the period up to finalization of the permit.

Even though these legislative and EPA lobbying efforts are underway, the results are far from certain. Thus, pesticide applicators and others concerned about this permit must submit comments to the Agency to influence the draft NPDES PGP and make it more tolerable for the parties affected. NAAA urges U.S. aerial application operators and pilots to submit comments. NAAA has developed a webpage for applicators to visit providing a summary of this issue and guidance on how to draft and submit comments. The site also includes a draft of NAAA’s comments the Association is developing to submit to the Agency. To visit the site go to: http://agaviation.org/NPDES-permits. NAAA urges its members to read our draft comments and provide suggestions of possible improvements.

The prospect of those in agriculture having to comply with NPDES permits for pesticide applications that will or may result in a discharge into a water of the U.S. is arguably the largest regulatory challenge to face the pesticide application industry since the Food Quality Protection Act was enacted in 1996. Operators failing to comply with the Clean Water Act (CWA) (such as failing to obtain NPDES permit coverage, or violating specific provisions of the permit (such as the fieldwork and paperwork requirements) risk being found in violation of the CWA and subject to penalties of up to $37,500 per day per violation (in additional to any possible FIFRA penalties). Also, the CWA provides for citizens to file suit.

Currently, environmental activist groups responsible for pushing the Courts to include pesticide applications under the Clean Water Act permitting requirements are stating they will push for an even more restrictive permit than EPA’s current draft. One environmentalist attorney went on record stating that his impression in regards to EPA’s draft permit is that “it needs to have more teeth to it instead of being just a paper exercise.” Another activist group that was a party to the Sixth Circuit decision stated that the lack of any requirement for a pesticide needs analysis as part of the draft permit is “a very general and striking inadequacy and as a result there has been no progress in protecting waterways through the permit.” Moreover, these activists have stated that “there is no adequate rationale for some things that are excluded from the permit, [such as agricultural crops and forest floors].” It is clear that these groups, during this open comment period, will attempt to move EPA to require the permit to be far more stringent for permittees. For this reason, it is important that aerial applicators nationwide comment to the EPA stating that the permit requirements for applicators are too stringent and clarifications and revisions need to be made.