Source:  CropLife America, 4/5/11

EPA has made improvements in its draft final general permit for certain pesticide applications that result in discharges to U.S. waters, but industry stakeholders still have a number of concerns, including language to minimize the discharge of pesticides. Meanwhile, a National Environmental Law Center (NELC) attorney says there are two key problems with the draft final permit involving water quality monitoring requirements and the use of least toxic alternatives, but he notes EPA can improve the permit over time.

The agency issued a pre-publication draft final permit on April 1 -- around 10 months after it unveiled its draft proposed permit covering: mosquito and other flying insect pest control; weed and algae pest control; aquatic animal pest control; and forest canopy pest control. The move is the culmination of a process that began when the agency was sued over its 2006 rule that largely eliminated aquatic pesticide applications from NPDES permitting requirements. The 6th Circuit Court of Appeals struck down that rule but stayed its ruling -- first until April 9 and then until Oct. 31 -- to give EPA time to implement a permitting program.

In its draft final permit, the agency has increased the thresholds above which a notice of intent (NOI) must be filed and specifically exempted small businesses from a lot of recordkeeping requirements, Jim Skillen, director of science and regulatory issues at Responsible Industry for a Sound Environment, tells Pesticide & Chemical Policy.

Under the draft proposed permit issued last summer, operators were to file an NOI when an annual treatment area exceeded 20 acres or 20 linear miles at water's edge for aquatic weed, algae and animal pest control, and when an annual treatment threshold exceeded 640 acres for forest canopy and mosquito and other flying insect pest control.

Under the draft final permit, entities responsible for mosquito and forest canopy pest control --other than federal and state agencies and mosquito control districts -- will have to submit an NOI when the annual treatment area exceeds 6,400 acres. Entities other than federal and state agencies responsible for aquatic weed, algae and animal control, and irrigation and weed control districts, will have to file an NOI when the annual treatment area exceeds 20 linear miles or 80 acres of water.

But while Skillen says both the larger thresholds and the small business exemptions are helpful, applicators are still being directed to "minimize" the discharge of pesticides. In addition, integrated pest management considerations are still required for those who must submit an NOI, although the name has changed to pest management measures. Both are problematic, according to Skillen.

He notes there are many instances where the pesticide label authorizes a range for the allowable application rate, but the lowest rate in a range might not be the most effective in certain circumstances.

"That language is problematic because it asks you walk a tightrope," he says, noting a third party could file a lawsuit and challenge the rate used 15 months after the pesticide was applied, which may not have been the lowest rate in the range. The language "gives them a right to second guess what you did," Skillen says.

In addition, while IPM was replaced with pest management measures, "the verbiage is still the same," Skillen says. IPM includes a series of steps to be taken before a pesticide is applied, but in the case of the permit, an entity has already gone through those steps and has decided to use a pesticide. Now EPA wants all those steps documented, Skillen says.

Another lingering concern for Skillen is the placeholder for Endangered Species Act conditions that the draft final permit still contains. "We have no clue what those will be or the impact to [RISE] members," he says, expressing apprehension about the new conditions that may come out of the ongoing consultation between EPA and the federal wildlife agencies.

"Would the small business exemption apply to taking endangered species? I don't know," he says, adding he would guess the ESA conditions would make the permit more onerous.

Thresholds not the biggest problem
NELC staff attorney Joseph Mann has his own issues with the agency's draft final permit. Mann represented the Toxics Action Center and Environment Maine in the lawsuit against EPA's 2006 rule.

Mann says the increased NOI action thresholds are discouraging -- spatial thresholds might be objective but they don't account for "particularized harm in particularized streams." The size of a water body may or may not be an indicator of what harm a pesticide can cause, Mann tells P&CP. EPA could have used a number of things to trigger NOI requirements, such as a water body's use or the presence of certain organisms in a water body.

Mann notes NOIs are important because those entities that must file them are subject to more rigorous reporting requirements. But the thresholds are not the biggest problem with the permit in his opinion. Mann highlights the lack of a mandate to use the least toxic alternative in the permit and the lack of a requirement for in-stream monitoring before and after applying pesticides as his biggest concerns.

While the permit does require visual monitoring after application to look for possible adverse effects, such as the death of a non-target organism, only numerical measurements from in stream monitoring will truly provide information about a pesticide's propensity to cause harm to water quality. "It's not likely water quality impacts are going to be reported given visual monitoring requirements," Mann says.

But "EPA doesn't have to get the answer right on the first try" in terms of the permit, Mann says. "You can get better as you go," he says, but adds it's a little disappointing that the agency "didn't put its best foot forward" initially.