Public Health Pesticides and the Clean Water Act: Current Status Joseph M Conlon Technical Advisor

FIFRA vs CWA FIFRACWA Cost/benefitNo cost/benefit Risk-basedHazard-based $7000/incident$37,000/day No citizen suitsCitizen suits

3 Pesticide General Permit: Contents Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting Recordkeeping

4 Pesticide General Permit: Contents Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting Recordkeeping

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.

6 Pesticide General Permit: Contents Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting Recordkeeping

Notice of Intent (NOI) Type or scale of application – water-acres? Identify the responsible entity –Contact information - address, phone, –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”

8 Pesticide General Permit: Contents Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting Recordkeeping

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 Mosquito Surveillance Mapping Mapping Action Thresholds Action Thresholds Physical Control or Source Reduction Physical Control or Source Reduction Biological Control Biological Control Chemical Control Chemical Control Monitoring for Efficacy/Resistance Monitoring for Efficacy/Resistance Education and Community Outreach Education and Community Outreach Record-keeping 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

13 Pesticide General Permit: Contents Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting Recordkeeping

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/non- target/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

22 Pesticide General Permit: Contents Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting Recordkeeping

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

24 Pesticide General Permit: Contents Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting Recordkeeping

Annual Reporting Permittee’s name NPDES Permit tracking # Permittee’s mailing address Contact name, title, , phone # EPA registration #s Amount of product used Location/names of waters Mosquitoes controlled Submit electronically

26 Pesticide General Permit: Contents Fact sheet Notice of Intent Effluent Limits Pest Management Discharge Plan Monitoring Annual Reporting 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 June 2009 Oct 2009 Apr/May 2010 Dec 2010 Apr 9, 2011 Discuss Prototype Public Comment on Draft Permits – 60/90 Days Mandate Issues Issue Final Permit 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 – 6 th Circuit (with NASDA, et al.) –Peconic – 2 nd 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 6 th 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