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Public Health Pesticides and the Clean Water Act: Current Status Joseph M Conlon Technical Advisor FIFRA vs CWA FIFRA CWA Cost/benefit Risk-based $7000/incident No citizen suits No cost/benefit Hazard-based $37,000/day Citizen suits Pesticide General Permit: Contents • • • • • • • Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting 3 Recordkeeping Pesticide General Permit: Contents • Fact sheet • • • • • • Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting Recordkeeping 4 Fact Sheet Components • Fact sheet will be public noticed with draft permit. • Fact sheet includes information such as: – Principal facts and significant factual, legal, methodological, and policy questions considered in preparing the permit. – Description of types of activities covered. – Types of discharges covered. – Rationale for permit requirements, incl. calculations and analysis. – Brief summary of the basis for permit conditions. Pesticide General Permit: Contents • Fact sheet • Notice of Intent • • • • • Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting Recordkeeping 6 Notice of Intent (NOI) • Type or scale of application – water-acres? • Identify the responsible entity – – – – – – Contact information - address, phone, email Description of entity Type of discharges (pesticide use patterns) Receiving stream(s) File electronically by > 10 days prior to discharge Authorization date – 10 days after EPA receipt • 25 (B) not “exempt” Pesticide General Permit: Contents • Fact sheet • Notice of Intent • Effluent Limits • • • • Pest Management Discharge Plan Monitoring Annual Reporting Recordkeeping 8 Technology-Based Effluent Limits General Concept • Minimize pesticide discharges – Based on integrated mosquito management practices – Minimize pesticide discharges by BMPs that are available and economically practicable – Use lowest effective amt. and optimize frequency of applications – Regular maintenance – Calibrate Technology-Based Effluent Limits Integrated Mosquito Management – Identify problem – Mosquito management • Prior/each year select for each treatment area • Water quality/non-target/resistance/feasibility/cost effectiveness – – – – – – No action Prevention Mechanical/physical methods Cultural methods Biological control Pesticides – Pesticide Use - larvicides are primary “Best Management Practices for Integrated Mosquito Management” •Mosquito Surveillance •Mapping •Action Thresholds •Physical Control or Source Reduction •Biological Control •Chemical Control •Monitoring for Efficacy/Resistance •Education and Community Outreach •Record-keeping Water Quality-Based Effluent Limitations • Narrative – Discharge must be controlled as necessary to meet numeric WQS – EPA may impose additional limitations or require individual permit Pesticide General Permit: Contents • Fact sheet • Notice of Intent • Effluent Limits • Pest Management Discharge Plan • Monitoring • Annual Reporting • Recordkeeping 13 Pesticide Discharge Management Plan - General • Within 90 days of NOI • Documents implementation of permit requirements • Can reference pre-existing IMM plans • Not subject to challenge Pesticide Discharge Management Plan - Components • • • • • Pesticide Discharge Management Team Problem Control measures Surveillance Schedules and procedures – – – – Spill prevention/response Equipment maintenance Adverse incident response plan Pesticide monitoring Pesticide Discharge Management Team • Person(s) responsible for: – – – – Managing mosquitoes Developing PDMP Taking corrective actions Pesticide applications Problem Description • Treatment area – description and boundaries • Mosquito management objective • Target species • Action thresholds • Applicable WQS and data source Description of Control Measures • Water quality/nontarget/resistance/feasibility/cost effectiveness – – – – – No action Prevention Mechanical/physical methods Cultural methods Biological control Description of Control Measures • Name of pesticide and EPA registration # • Procedures for determining lowest effective amt. and freq of application • Document why larviciding is not primary method Surveillance • Must document procedures for conducting pre and post-application surveillance – Where – When – How Schedules and Procedures • Spill prevention/response • Equipment maintenance/calibration • Adverse incident response procedure • Pesticide monitoring – Process for determining monitoring location – Schedule and procedures for monitoring – Person(s) responsible for monitoring Pesticide General Permit: Contents • • • • Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan • Monitoring • Annual Reporting • Recordkeeping 22 Site Monitoring • Required – “visual monitoring” of “application area” • • • • During application in daylight – except aerial/truck During post application efficacy check Unanticipated death/distress of non-targets Disruption of wildlife habitat, recreational, or municipal water – “enhanced visual monitoring” for some applications – No ambient water quality testing foreseen – yet Pesticide General Permit: Contents • • • • • Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring • Annual Reporting • Recordkeeping 24 Annual Reporting • • • • • • • • • Permittee’s name NPDES Permit tracking # Permittee’s mailing address Contact name, title, e-mail, phone # EPA registration #s Amount of product used Location/names of waters Mosquitoes controlled Submit electronically Pesticide General Permit: Contents • • • • • • Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting • Recordkeeping 26 Recordkeeping • Required to be on hand – Copy of permit – can be electronic – Copy of any adverse incident reports – Copy of NOI EPA Permit Issuance as Federal Action • Endangered Species Act (ESA) requires EPA consultation with USFWS and NOAA • EPA is discussing PGP with the Services • Discussions may result in additional permit requirements. Schedule 2 mo. 8 mo. 8 mo. 4 mo. Update • Cert petitions appealing 6th CCA decision to SCOTUS filed on 11 January 2010 • Congressional amicus curiae • AMCA filed amicus curiae in two cases involving CWA – NPDES – 6th Circuit (with NASDA, et al.) – Peconic – 2nd Circuit Supreme Court Cert Amicus Curiae • Industry - invasive species • Solicitor General Files in opposition – Argued opinion and should have deferred to EPA expertise – However: • Only applies to very narrow range of activities • Cited grant of 2 year stay • Sufficient time for general permit development to minimize potential disruptions Supreme Court Cert Environmentalist Amicus Curiae "Imagining catastrophe, Petitioners argue that the Sixth Circuit's opinion will sweep into the Act's permitting program a variety of activities Congress did not intend to regulate…they suggest that this case warrants review because other courts may mistakenly extend the Sixth Circuit's analysis beyond the opinion's holding.” Second Circuit • Peconic Baykeeper – Appealing dismissal of claims made against Suffolk County for spraying w/o permit – No precedence to abide by 6th Circuit – Court wants to wait until permit to be issued What Now? • Supreme Court to accept/deny Cert by February 22 – If accepted, oral arguments by October – If cert denied, mandates goes into effect 9 April 2011 • Second Circuit to opine April – June in Peconic