Cropduster Aerial Application of Pesticides
(Photograph Attribution: By USDA Photo by: Charles O. Public Domain, https://commons.wikimedia.org/w/index.php?curid=1524871)
Introduction
All ten Environmental Protection Agency (EPA) Regions are proposing for public comment the draft 2021 National Pollutant Discharge Elimination System (NPDES) pesticide general permit (PGP)—the draft 2021 PGP. The draft 2021 PGP covers point source discharges from the application of pesticides to waters of the United States. Once finalized, the draft 2021 PGP will replace the existing permit, the 2016 PGP, which was issued for a five-year term in the Federal Register on October 31, 2016, and expires October 31, 2021, at midnight. The draft 2021 PGP has the same conditions and requirements as the 2016 PGP and would authorize 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 proposes to issue this permit for five (5) years in all areas of the country where EPA is the NPDES permitting authority. EPA solicits public comment on all aspects of the draft 2021 PGP. This Federal Register document describes the draft 2021 PGP in general and seeks comment as described in Section III.C, of this document. The Fact Sheet accompanying the permit contains supporting documentation. EPA encourages the public to read the Fact Sheet to understand the draft 2021 PGP better. (Regulations.gov/Summary)
March 16, 2021
Ms. Chelsea Durant
Office of Water, Office of Wastewater Management
EPA Headquarters
1200 Pennsylvania Avenue NW
Washington, D.C. 20460
Re: Draft General Permit Renewal for Point Source Discharges from Application of Pesticides (Draft 2021 Pesticide General Permit), National Pollution Discharge Elimination System (NPDES)
Dear Ms. Durant:
The Environmental Review Workshop has reviewed the Pesticide General Permit and has the following technical comments:
1) Part 1.6, Page 10: This section is confusing, as it implies that Operators may need to consult with the US Fish & Wildlife Service (FWS) or the National Marine Fisheries Services (NMFS) in order to be authorized permit coverage. We suggest revising this section accordingly after EPA has completed its consultation with FWS and NMFS. To realistically implement this requirement, EPA may need to establish a framework and guidance within which the Operators may follow necessary steps to comply with this requirement.
2) Part 1.2.5.2 - A new Decision-maker has taken over responsibility of the pest control activities covered under an existing NOI; At which point does the new Decision Maker file another NOI for continuation of coverage?
3) Part 2.1, Page 15: Outlines actions Applicators are required to take in order to “minimize the discharge of pesticides to waters of the US” and “to meet the effluent limitations of this permit.” however there is no requirement for record keeping which would provide the basis for achieving this goal. To this end, we recommend that Applicators under this permit be required to maintain a log of each pesticide application. This log should include the date and specific location of the application event, the name of applicator and whether they have proper certification, the type and amount of pesticide used, any other application details, and the results of visual monitoring. Adding this requirement would better ensure permittee compliance with the technology-based effluent limitations in Part 2 and provide documentation to realistically achieve the stated goal. In addition, the pesticide log should include a table of active ingredients/chemicals found in the pesticides.
4) Parts 2.1 and 2.2, Page 15: We suggest adding a requirement for both Applicators and Decision-makers to receive training on how to properly identify toxic and adverse effects on fish and aquatic plants, training that appears necessary to complete any necessary Adverse Incident notification. The definition of an Adverse Incident contained in Appendix A: Definitions, Page 41 is one when a toxic or adverse effect is observed. Toxic or adverse effects could include “fish that are listless” and “fish swimming abnormally.” However, to a pesticide applicator untrained in the different species of fish or aquatic plants, it may be difficult to determine whether fish or aquatic plants are exhibiting toxic or adverse effects as a result of pesticide application. This, in turn, could delay or prevent a required adverse incident notification. In summary, the provisions associated with the Adverse Incident reporting are unrealistic. A significant rewrite of this provision is needed which includes appropriate local regulatory oversight for regional management, training, and implementation.
5) Part 3, “all Operators must control discharges as necessary to meet applicable numeric and narrative state or tribal water quality standards for any discharges authorized under this permit, with compliance required upon beginning such discharge.” Given that Federal pesticide-specific ambient water quality criteria do not exist at this time for the vast majority of constituents in the products authorized for use under the draft 2021 PGP, how can there be adequate protection of water bodies if ambient water quality criteria are unknown? Could Operators be held liable if, at some point in the future, a water quality criterion is established for a constituent that was previously applied?
6) Part 5: Pesticide Discharge Management Plan: There is no requirement/suggestion to have an annual review of their plan if it has not been updated in over a year.
7) Part 5.1.3, Page 24, Paragraph 4: When Decision-makers evaluate pest management options in the development of their Pesticide Discharge Management Plan, we suggest the 2021 PGP contain stronger incentives to encourage Operators to move away from their continued use of pesticides. One possible incentive that the 2021 PGP could include would be a reduction in reporting requirements, if perhaps the Operator can demonstrate a reduction in its use of pesticides and a move towards the other pest management options like prevention or mechanical/physical methods.
8) Part 5.1.4 – Response Procedures: Consider adding training requirements for pesticide application and how to recognize adverse conditions. These could also be detailed in their Pesticide Discharge Management Plan (PDMP).
9) Part 6.1 (b) - “Operators become aware, or EPA concludes that Pest Management
Measures are not adequate/sufficient for the discharge to meet applicable water quality standards.” Are there water quality standards that can be referenced for the
Decision Makers/Operators?
10) Part 6.4.1.1, Page 27: Please include language in this section, clarifying the term “made aware of an adverse incident.” Consider a case, for example, when an Operator may have received a complaint “making them aware” of a possible adverse incident, but the Operator has not been able to “observe” until a later date. When would the adverse incident notification be required? For the sake of clarity, we suggest removing the term “made aware of” in both this section and in Appendix A: Definitions such that notification will be required after the Operator has actually observed the adverse incident.
11) Appendix A: Definitions, Page 42: In the definition for Annual Treatment Area Threshold, a description for calculating annual treatment area thresholds for Weed and Algae Control and Animal Pest Control is included, which stresses to “count each treatment area only once, regardless of the number of pesticide application activities performed on that area in a given year.” This non-additive calculation method is not consistent with how annual treatment area threshold is calculated for the other pesticide use patterns, and it does not accurately reflect the application treatment area. If the intent of using a non-additive calculation method is to limit the universe of permittees needing to submit NOIs, then perhaps the annual treatment area threshold for Weed and Algae Control and Animal Pest Control should simply be increased from 20 linear miles.
12) Why is it considered different from, for example, larvaciding directly onto a water body one day and adultaciding over the same water body the next day which counts as two applications over a number of acres. Compared to applying weed and algae control and animal pest control multiple times over a year only counts as one application?
13) Section 7.3 (b) and 7.4 (d): Equipment Calibration – These parts imply that equipment does not need to be calibrated if the Decision Maker is not the one applying the pesticide.
14) There does not appear to be any acknowledgment of the application of pesticide in wellhead protection areas. Should there be a restriction placed on pesticide applications in wellhead protection areas?
15) Given that Operators could be subject to liability for a CWA or FIFRA violation, why isn’t formal training/certification required for Operators?
16) Pages 81 and 82: Page 81: “Every two years states must identify, based on ambient sampling, water bodies that are not attaining water quality standards under CWA Section 303 (d). Page 82 states: “However, it is important to note that many states do not routinely monitor for many currently registered pesticides.” These statements appear to contradict one another.
17) EPA should commit to monitoring (aerial spraying) pre and post application for drift, retention in soil, and transfer through water as part of its research program or research partnership with other agencies– and to making this monitoring data available to the public. The herbicides used should be public information and be listed in a public notification before the application.
18) There does not appear to be a stated procedure for permit-related complaints be handled. Please add details to the General Permit to clarify that process.
19) The General Permit fails to specify which agencies will be responsible for the management of the permit. Please add details to the General Permit to clarify that responsibility. Also, with state and federal budgets being cut, please clarify how shortfalls in funding will be addressed.
20) A list of active ingredients/chemicals in pesticides should be added along with potential side effects they may have on non-targeted organisms and the soil. In addition, operators should receive training about the potential side effects of pesticides on the soil and those organisms.
21) This document should include an evaluation of the synergistic effects pesticides for species (e.g what happens multiple pesticides coalesce in a river where habitats are present?).
22) Appendix A2: The list of acronyms and abbreviations used in the document is incomplete. Some acronyms not listed in this section but mentioned in the document include:
CBI: Confidential Business Information
CZMA: Coastal Zone Management Act
CFR: Code of Federal Regulations
FFDCA: Federal Food Drug and Cosmetic Act
PIP: Plant Incorporated Protectants
WLA: Waste Load Allocation
MOS: Margin of Safety
LA: Land Allocation
PUD: Public Utility District.
When responses to these comments are available, please email those to us at This email address is being protected from spambots. You need JavaScript enabled to view it. or let us know where those can be viewed online.
Sincerely,
Laura Macklin B.S. - Project Manager (Associate in Arizona)
Stefanie Aschmann Ph.D. - Sr Reviewer (Associate in Washington)
Kent Apostol, Ph.D. - Sr. Reviewer (Associate in Washington)
Kazie Douglas B.S. - Reviewer (Associate in Colorado)
Aubrey Glynn P.E. - Sr. Reviewer (Associate in Illinois)
Barb Johnson P.E. - Sr. Reviewer (Associate in Minnesota)
Environmental Review WorkshopSM
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