Issue 8, June 11, 2010

Additional notes on NPDES General Permit Comment Period

In last week's issue, notice was given of a NPDES General Permit Comment Period. If you haven't read it, I encourage you to do so.

It seems that this EPA announcement (and the whole concept of requiring NPDES permits) has spurred considerably more questions than answers. We in the Pesticide Safety Education Program are currently unclear about the exact scope of this matter and we encourage all pesticide applicators to participate in these sessions, ask questions, and submit comments. This week, I've seen similar announcements from grower groups and professional associations encouraging their members to do the same. Now is your chance to speak up because these matters could affect you.

Currently, the draft permit includes only 4 areas. If an application does not fall into these 4 areas, it does NOT mean that an NPDES permit is not needed. With this comment period, EPA wants to know if they should include other areas (uses/additional use patterns). From discussions at various pesticide meetings this past year, this could include drift from nearby applications. A recent article in the North Dakota Pesticide Quarterly had this to say, "The general permit is silent when it comes to agricultural uses, although most Clean Water Act experts agree that the court's ruling likely covers uses 'near' water. Some agricultural users also may want to be permitted to protect themselves from citizen lawsuits."

EPA's website reads, "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 application that result in point source discharges to waters of the United States." Would a revised version of the current PGP be considered an alternative general permit or would it be an entirely different permit? If the latter, how would that be obtained? How is an applicator to know if his application could fall under the definition of a point-source discharge? What is meant exactly by waters of the U.S.? Hopefully, the webcast on June 17th will cover these important questions.

Monitoring, IPM, equipment cleaning schedules, and mandatory calibration and maintenance would be required according to this draft. That in itself is something that applicators should pay careful attention to. These requirements could affect your operation's time investments and finances.

Operators will need to know if their applications will exceed an annual treatment area threshold. What is that threshold? It depends on the size of the area, the number of treatments, and type of site. Those that know they will exceed it, will have to file their NOI (Notice of Intent) and then wait until its receipt is confirmed by EPA before they can apply the pesticide. Additional requirements such as development of a Pesticide Discharge Management Plan and submittal of annual reports are included in this draft PGP for those who know they will exceed the threshold. Emergency pesticide applications can be performed without delay, but an NOI must then be filed.

A violation--intentional or not--of the Clean Water Act could reach up to $37,500/day. Comparatively, FIFRA violations are minimal. Those in violation of the Clean Water Act could be driven out of business fairly quickly. How good is your relationship with your neighbors and clients? Citizen lawsuits will be a very real concern for many.

At this time, the only clear recommendation I have for pesticide users is to get involved and become familiar with the issues at hand. Inclusion in the PGP may provide protection against citizen lawsuits, however, the PGP process is quite involved. For details, read the draft permit. It's no quick read at 58 pages long and neither is the "Fact Sheet" at 116 pages (also on EPA's website). I guess these documents are shorter than the health care bill, but likewise won't be completely read by most. At the very least, check out the "Questions and Answers", which is only 8 pages long.

The Federal Register Notice is filled with intermingled requests for comments on specific topics. At 11 pages in length, it's not so bad. For a shorter, bulleted list that's been paraphrased a bit by the Agricultural Retailers Association, check out: (under "news") or the direct link.

My prediction is that there will be a great reduction in the number of pesticide applications made to these 4 areas in the upcoming year. Some will choose to simply not apply pesticides at all to avoid these new requirements. Others, in an effort to lessen their requirements, will choose to make only one application if they determine that 2 applications will exceed the threshold. It will be interesting to see the long term effects of all of this.--Michelle Wiesbrook, Pesticide Safety Education Program

Michelle Wiesbrook

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