[House Report 113-467]
[From the U.S. Government Publishing Office]
113th Congress Rept. 113-467
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
REDUCING REGULATORY BURDENS ACT OF 2013
_______
June 2, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Shuster, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 935]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 935) to amend the Federal
Insecticide, Fungicide, and Rodenticide Act and the Federal
Water Pollution Control Act to clarify Congressional intent
regarding the regulation of the use of pesticides in or near
navigable waters, and for other purposes, having considered the
same, report favorably thereon without amendment and recommend
that the bill do pass.
CONTENTS
Page
Purpose of Legislation........................................... 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 7
Legislative History and Consideration............................ 7
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Performance Goals and Objectives................................. 9
Advisory of Earmarks............................................. 9
Duplication of Federal Programs.................................. 9
Disclosure of Directed Rule Makings.............................. 10
Federal Mandate Statement........................................ 10
Preemption Clarification......................................... 10
Advisory Committee Statement..................................... 10
Applicability of Legislative Branch.............................. 10
Section-by-Section Analysis of Legislation....................... 10
Changes in Existing Law Made by the Bill, as Reported............ 13
Purpose of Legislation
The Reducing Regulatory Burdens Act of 2013, H.R. 935,
amends the Federal Insecticide, Fungicide, and Rodenticide Act
and the Federal Water Pollution Control Act to clarify
Congressional intent regarding the regulation of the use of
pesticides in or near navigable waters.
Background and Need for Legislation
THE FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
The Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) is a regulatory statute that governs the sale and use
of pesticides in the United States through the registration and
labeling of such products. Its objective is to protect human
health and the environment from unreasonable adverse effects of
pesticides, taking into account the costs and benefits of
various product uses. Pesticides regulated under FIFRA include
insecticides, herbicides, fungicides, rodenticides, and other
designated substances. The Environmental Protection Agency
(EPA) reviews scientific data submitted by chemical
manufacturers on toxicity and behavior in the environment to
evaluate risks and exposure associated with a product's use.
FIFRA prohibits the sale of any pesticide unless it is
registered and labeled indicating approved uses and
restrictions. It is a violation of federal law to use such a
chemical in a manner that is inconsistent with the label
instructions. If a registration is granted, EPA makes a finding
that the chemical ``when used in accordance with widespread and
commonly recognized practice it will not generally cause
unreasonable adverse effects on the environment.'' (7 U.S.C.
136a(c)(5)(D).) EPA then specifies the approved uses and
conditions of use of the pesticide, and this is required to be
explained on the product label.
THE CLEAN WATER ACT
The objective of the Federal Water Pollution Control Act
(commonly known as the Clean Water Act or the CWA) is to
restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. The primary mechanism for
achieving this objective is the CWA's prohibition on the
discharge of any pollutant without a National Pollutant
Discharge Elimination System (NPDES) permit. EPA has the
authority to regulate the discharge of pollutants either
through general permits or through individual permits. NPDES
permits specify limits on what pollutants may be discharged
from point sources and in what amounts. Under the CWA, 46
states have been authorized to implement NPDES permits and
enforce permits. EPA manages the Clean Water Act program in the
remaining states.
NPDES permits are the basic regulatory tool of the CWA. EPA
or an authorized state may issue compliance orders or file
civil suits against those who violate the terms of a permit. In
addition, in the absence of federal or state action,
individuals may bring a citizen suit in United States District
Court against those who violate the terms of an NPDES permit,
or against those who discharge without a valid permit.
LITIGATION
In over 30 years of administering the CWA, EPA did not
require the issuance of an NPDES permit for the application of
pesticides, when the pesticide is applied in a manner
consistent with FIFRA and its regulations. However, beginning
in the late 1990s, a number of citizen lawsuits were filed by
parties, contending that an NPDES permit is necessary when
applying a FIFRA-regulated product over, into, or near
waterbodies. These cases generated several Court of Appeals
decisions that created uncertainty among pesticide users
regarding the applicability of the CWA with regard to pesticide
use.
As the litigation continued, uncertainty grew among
stakeholders, prompting EPA to issue interim, and later final,
interpretive guidance in August 2003 and January 2005, and then
to undertake a rulemaking to clarify and formalize the Agency's
interpretation of the CWA as it applied to pesticide use. The
EPA rule was finalized in November 2006 (71 Fed. Reg. 68483
(Nov. 27, 2006)).
The 2006 EPA rule exempted, from CWA permitting
requirements, the application of pesticides in compliance with
FIFRA. The 2006 EPA rule codified EPA's long-standing
interpretation that the application of chemical and biological
pesticides for their intended purpose and in compliance with
pesticide label restrictions is not a discharge of a
``pollutant'' under the CWA, and therefore, that an NPDES
permit is not required. The rule defined specific circumstances
in which the use of pesticides in accordance with all relevant
requirements under FIFRA is not a CWA ``discharge of a
pollutant,'' explaining in detail the rationale for the
Agency's interpretation.
When the rule was finalized, environmental groups, as well
as farm and pesticide industry groups, filed petitions for
review of the rule in several federal Circuit Courts of Appeal.
The petitions were consolidated in the Sixth Circuit. The Sixth
Circuit ultimately vacated the rule on January 7, 2009, in
National Cotton Council v. EPA (553 F.3d 927; hereinafter,
National Cotton Council), concluding that the final rule was
not a reasonable interpretation of the CWA's permitting
requirements. The Court rejected EPA's contention that, when
pesticides are applied over, into, or near waterbodies to
control pests, they are not considered pollutants as long as
they comply with FIFRA, and held that NPDES permits are
required for all pesticide applications that may leave a
residue in water.
As a result of the Court's decision, EPA was required to
develop a new NPDES permitting process under the CWA to cover
pesticide use. EPA estimated that the ruling would affect
approximately 365,000 pesticide applicators that perform some
5.6 million pesticide applications annually. (U.S. EPA, Fact
Sheet for 2010 Public Notice of: Draft National Pollutant
Discharge Elimination System (NPDES) Pesticides General Permit
(PGP) for Discharges from
the Application of Pesticides to or over, including near Waters
of the U.S., at 14, available at http://www.epa.gov/npdes/pubs/
proposed_pgp_fs.pdf; hereinafter, EPA Fact Sheet.) This would
represent a large increase in the number of entities subject to
NPDES permitting.
The court's decision, which would apply nationally, was to
be effective seven days after the deadline for rehearing
expired or seven days after a denial of any petition for
rehearing. Parties had until April 9, 2009 to seek rehearing.
On April 9, 2009, the federal government chose not to seek
rehearing in the National Cotton Council case. The government
instead filed a motion to stay issuance of the Court's mandate
for two years to provide EPA time to develop an entirely new
NPDES permitting process to cover pesticide use. As part of
this, EPA needed to propose and issue a final NPDES general
permit for pesticide applications, for states to develop
permits, and for EPA to provide outreach and education to the
regulated community. Industry groups filed a petition seeking
en banc review, asking the full Sixth Circuit to reconsider the
decision from the three-judge panel.
On June 8, 2009, the Sixth Circuit granted EPA a two-year
stay of the Court's mandate, in response to their earlier
request. The Sixth Circuit denied the industry groups' petition
for rehearing in August 2009. The court-ordered deadline for
EPA to promulgate a new permitting process for pesticides under
the CWA was April 9, 2011. On March 3, 2011, EPA filed another
request for an extension with the court. On March 28, 2011, the
Sixth Circuit granted an extension through October 31, 2011.
Two petitions were filed with the Supreme Court in December
2009 by representatives of the agriculture community and the
pesticide industry, requesting that the Supreme Court review
the National Cotton Council case. A number of parties,
including numerous Members of Congress, filed amicus briefs
with the Supreme Court, in support of the petitions. Other
parties filed amicus briefs in opposition to the petitions. On
February 22, 2010, the Supreme Court denied the petitioners'
request without comment.
EPA DEVELOPMENT OF A NEW PERMITTING PROCESS TO COVER PESTICIDE USE
Following the court decision, EPA moved ahead with
developing a new NPDES permitting process to cover pesticide
use. The permit covers four pesticide uses: (1) mosquito and
other flying insect pest control; (2) aquatic weed and algae
control; (3) aquatic nuisance animal control; and (4) forest
canopy pest control. It does not cover terrestrial applications
to control pests on agricultural crops or forest floors, and
does not cover activities exempt from permitting under the CWA
(irrigation return flow, agricultural stormwater runoff) and
discharges that will require coverage under an individual
permit, such as discharges of pesticides to waterbodies that
are considered impaired under CWA section 303(d) for that
discharged pesticide. The permitting process imposes
administrative requirements on prospective pesticide users,
including filing a notice of intent, other reporting and
recordkeeping requirements, and in some cases monitoring and
other requirements.
IMPLICATIONS
The Committee has received testimony and other information
on the implications of the Sixth Circuit's holding in the
National Cotton Council case, and the new permitting process
that EPA has had to develop under the CWA as a result of that
holding, on state and local agencies, mosquito control
districts, water districts, pesticide applicators, agriculture,
forest managers, and other stakeholders. On February 16, 2011,
the Subcommittee on Water Resources and Environment of the
House Committee on Transportation and Infrastructure held a
joint hearing with the Nutrition and Horticulture Subcommittee
of the House Committee on Agriculture to consider means for
reducing the regulatory burdens posed by the case, National
Cotton Council v. EPA (6th Cir. 2009), and to consider related
draft legislation (hereinafter, the ``2011 Joint Hearing'').
EPA's general permit for covered pesticides has resulted in
expanded coverage under the NPDES program. As already noted,
EPA has estimated that approximately 5.6 million covered
pesticide applications per year by approximately 365,000
applicators are affected by the Court's ruling (EPA Fact
Sheet.)
EPA has had to establish a new permitting process to
conform its NPDES permit program to meet the Sixth Circuit's
mandate. Even so, much of the responsibility of developing and
issuing general permits has fallen on the states. Forty-six
states face increased financial and administrative
responsibilities to comply with the new permitting process.
According to a state witness at the 2011 Joint Hearing, the
implications on state resources associated with adding
pesticide applications to the NPDES program are far reaching,
in that states must not only develop permits, but must ensure
compliance with general and individual permits, which requires
inspections, monitoring, reporting, compliance assistance,
outreach, training, and more. (See, e.g., Testimony of Dr.
Andrew Fisk, on behalf of the Association of State and
Interstate Water Pollution Control Administrators (presented at
the 2011 Joint Hearing).) Some states have estimated that
creating a new NPDES permitting scheme for pesticide use in
their state has cost their state hundreds of thousands of
dollars.
The expanded permitting process also has added increased
resource demands on pesticide users who encompass a wide range
of individuals, from state, city, and county agencies, mosquito
control districts, water districts, pesticide applicators,
farmers, ranchers, forest managers, scientists, and others. Now
that the permitting requirements are in effect, federal, state,
and local agencies are expending resources to initiate and
maintain NPDES programs governing mosquito control,
silvicultural, and other pesticide applications. (See, e.g.,
Testimony of the Honorable John Salazar, Commissioner, Colorado
Department of Agriculture, on behalf of the National
Association of State Departments of Agriculture, Norman
Semanko, on behalf of the Idaho Water Users Association and the
National Water Resources Association, and Dominick Ninivaggi,
on behalf of the American Mosquito Control Association
(presented at the 2011 Joint Hearing).)
The new permitting process has increased both the
administrative difficulty and costs for pesticide applicators
to come into compliance with the law. Compliance no longer
means simply following instructions on a pesticide label.
Instead, applicators have to identify the relevant permit, file
with the regulatory authority a valid notice of intent to
comply with the permit, and have a familiarity with all of the
permit's conditions and restrictions. Some pesticide
applicators also face significant monitoring, reporting, and
recordkeeping costs imposed by their permits.
In addition to the costs of coming into compliance,
pesticide users are subject to an increased risk of litigation
and fines. Pesticide applicators not in compliance could face
fines of up to $37,500 per day per violation, not including
attorney's fees. Even though EPA's pesticide general permit
provides specific size thresholds and application types in or
near water to be regulated by the permit, nothing in the CWA or
the permit protects many other FIFRA-compliant pesticide
applications from CWA citizen suits. This creates an uncertain
liability for users applying pesticides to, for example, golf
courses and public utility rights of way, as well as private
homes and businesses, which are not covered by the general
permit. (See, e.g., Testimony of Dr. Andrew Fisk, on behalf of
the Association of State and Interstate Water Pollution Control
Administrators, the Honorable John Salazar, Commissioner,
Colorado Department of Agriculture, on behalf of the National
Association of State Departments of Agriculture, and Norman
Semanko, on behalf of the Idaho Water Users Association and the
National Water Resources Association (presented at the 2011
Joint Hearing).) Thus, while EPA may exercise its judgment and
refrain from prosecuting certain applicators, the applicators
remain vulnerable to citizen suits. Unless Congress acts,
hundreds of thousands of farmers, foresters, and public health
pesticide users will continue to operate under threat of
lawsuits.
The Sixth Circuit's decision also affects agriculture and
its ability to continue to provide the country with a safe and
reliable food supply. Pesticide use is an essential part of
agriculture. The Secretary of Agriculture, Hon. Thomas J.
Vilsack, has said that a permitting system under the CWA for
pesticide use ``is ill-suited to the demands of agricultural
production.'' (Letter, Hon. Thomas J. Vilsack, Secretary of
Agriculture, to Hon. Lisa P. Jackson, Administrator,
Environmental Protection Agency, Subject: The National Cotton
Council of America, et al., v. United States Environmental
Protection Agency (Mar. 6, 2009)).
Forest landowners also are affected under the new permit
scheme. The permitting requirements apply to the use of forest
pest control as a forest management tool. A concern is whether
states and private land owners have the flexibility and
resources to properly manage forest pests, such as gypsy moth,
mountain pine beetles, and forest tent caterpillar, under the
permit program. (See, e.g., Testimony of the Honorable John
Salazar, Commissioner, Colorado Department of Agriculture, on
behalf of the National Association of State Departments of
Agriculture (presented at the 2011 Joint Hearing).)
Moreover, the Sixth Circuit's holding has significant
implications for public health. The National Centers for
Disease Control officially recognizes the following as a
partial list of mosquito-borne diseases--Eastern Equine
Encephalitis, Japanese Encephalitis, La Crosse Encephalitis,
St. Louis Encephalitis, West Nile Virus, Western Equine
Encephalitis, Dengue Fever, Malaria, Rift Valley Fever, and
Yellow Fever. (Centers for Disease Control and Prevention,
http://www.cdc.gov/ncidod/diseases/list_mosquitoborne.htm.) The
permit program could result in delays in emergency responses to
insect and disease outbreaks and is diverting resources from
controlling environmental pests to administrative tasks,
monitoring, and potentially litigation. (See, e.g., Testimony
of the Honorable John Salazar, Commissioner, Colorado
Department of Agriculture, on behalf of the National
Association of State Departments of Agriculture, and Dominick
Ninivaggi, on behalf of the American Mosquito Control
Association (presented at the 2011 Joint Hearing).)
Mosquito control districts have reported that NPDES
compliance costs are resulting in mosquito control programs to
redirect control resources to comply with the regulatory
requirements. Many districts have reduced operations because of
administrative and monitoring costs and fears of increased
liability and potential litigation under the CWA associated
with complying with the permit requirements. In some states,
preventive mosquito control strategies such as comprehensive
larviciding are being curtailed in order to redirect resources
toward increased administrative and water monitoring costs.
Commercial applicators historically serving rural communities
and small municipalities are increasingly opting to cancel
their programs out of concern for increased exposure to
liability under the CWA. These reduced mosquito control
operations have resulted in an increased risk of vector-borne
disease such as West Nile Virus.
DEVELOPMENT OF LEGISLATION IN RESPONSE TO THE SIXTH CIRCUIT DECISION
As a result of concerns raised by federal, state, local,
and private stakeholders regarding the interrelationship
between FIFRA and the CWA and the concerns posed by the
permitting process under the CWA, the sponsors of H.R. 935
introduced legislation to respond to the Sixth Circuit's
holding in National Cotton Council and return the state of
pesticide regulation to the status quo, before the courts got
involved. H.R. 935 is based on technical assistance provided by
EPA's Office of General Counsel (without formal endorsement),
and is intended to be consistent with EPA's final rule from
November 2006. The bill amends FIFRA and the CWA to eliminate
the requirement of an NPDES permit for applications of
pesticides authorized for sale, distribution, or use under
FIFRA.
Hearings
No hearings were held on H.R. 935.
In the 112th Congress, the Subcommittee on Water Resources
and Environment held a joint hearing with the Nutrition and
Horticulture Subcommittee of the House Agriculture Committee to
consider means for reducing the regulatory burdens posed by the
case, National Cotton Council v. EPA (6th Cir. 2009), and to
consider related draft legislation. Representatives of the
Environmental Protection Agency, state water quality agencies,
a state agricultural agency, the irrigation community, and the
mosquito control community testified on the economic and
regulatory impacts of the Sixth Circuit decision in National
Cotton Council and on a discussion draft bill.
Legislative History and Consideration
On March 4, 2013, Subcommittee on Water Resources and
Environment Chairman Bob Gibbs introduced H.R. 935, the
``Reducing Regulatory Burdens Act of 2013.''
On October 29, 2013, the Committee on Transportation and
Infrastructure met in open session to consider H.R. 935, and
ordered the bill reported favorably to the House by voice vote
with a quorum present.
In the 112th Congress, the Committee on Transportation and
Infrastructure ordered a virtually identical bill (H.R. 872)
reported favorably to the House by roll call vote with a quorum
present. H.R. 872 passed the House of Representatives under
suspension of the rules by recorded vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires each committee report to include the
total number of votes cast for and against on each record vote
on a motion to report and on any amendment offered to the
measure or matter, and the names of those members voting for
and against. There were no record votes taken in connection
with consideration of H.R. 935, or ordering the bill reported.
A motion to order H.R. 935 reported favorably to the House was
agreed to by voice vote with a quorum present.
Committee Oversight Findings
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in this report.
New Budget Authority and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974, included below.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for H.R. 935 from the
Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 4, 2013.
Hon. Bill Shuster,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 935, the Reducing
Regulatory Burdens Act of 2013.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 935--Reducing Regulatory Burdens Act of 2013
H.R. 935 would prohibit the Environmental Protection Agency
(EPA) and states authorized to issue a permit under the
National Pollutant Discharge Elimination System (NPDES) from
requiring a permit for some discharges of pesticides authorized
for use under the Federal Insecticide, Fungicide, Rodenticide
Act (FIFRA). Under the bill, public and private entities would
no longer need to obtain an NPDES permit for certain discharges
of pesticides except in cases where the application of the
pesticide would not fall under FIFRA, or in cases where the
discharge is regulated as a stormwater, municipal, or
industrial discharge under the Clean Water Act.
Based on information from EPA, CBO estimates that enacting
this legislation would have no significant impact on the
federal budget. Any administrative savings to EPA that might
result from issuing fewer permits would be negligible because
EPA has delegated the authority to issue most NPDES permits to
states.
Pay-as-you-go procedures do not apply to H.R. 935 because
enacting the bill would not affect direct spending or revenues.
H.R. 935 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Susanne S.
Mehlman. This estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Performance Goals and Objectives
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
performance goals and objectives of this legislation are to
reduce regulatory burdens caused by duplicative regulatory
requirements associated with the use of pesticides in or near
navigable waters by amending the Federal Insecticide,
Fungicide, and Rodenticide Act and the Clean Water Act.
Advisory of Earmarks
Pursuant to clause 9 of rule XXI of the Rules of the House
of Representatives, the Committee is required to include a list
of congressional earmarks, limited tax benefits, or limited
tariff benefits as defined in clause 9(e), 9(f), and 9(g) of
rule XXI of the Rules of the House of Representatives. No
provision in the bill includes an earmark, limited tax benefit,
or limited tariff benefit under clause 9(e), 9(f), or 9(g) of
rule XXI.
Duplication of Federal Programs
Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013),
the Committee finds that no provision of H.R. 935 establishes
or reauthorizes a program of the federal government known to be
duplicative of another federal program, a program that was
included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-
139, or a program related to a program identified in the most
recent Catalog of Federal Domestic Assistance.
Disclosure of Directed Rule Makings
Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013),
the Committee estimates that enacting H.R. 935 does not
specifically direct the completion of any specific rule makings
within the meaning of section 551 of title 5, United States
Code.
Federal Mandate Statement
The Committee adopts as its own the estimate of federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act (Public Law 104-4).
Preemption Clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any Committee on a bill or joint
resolution to include a statement on the extent to which the
bill or joint resolution is intended to preempt state, local,
or tribal law. The Committee states that H.R. 935 does not
preempt any state, local, or tribal law.
Advisory Committee Statement
No advisory committee within the meaning of section 5(b) of
the Federal Advisory Committee Act was created by this
legislation.
Applicability of Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Public Law
104-1).
Section-by-Section Analysis of Legislation
Section 1. Short Title.
Section 1 of the bill designates the title of the bill as
the ``Reducing Regulatory Burdens Act of 2013.''
Section 2. Use of Authorized Pesticides.
Section 2 of the bill amends section 3(f) of FIFRA (7
U.S.C. 136a(f)) by adding at the end a new paragraph (5).
Paragraph (5) provides that, except as provided in section
402(s) of the Federal Water Pollution Control Act (CWA), the
Administrator or a state may not require a permit under the CWA
for a discharge from a point source into navigable waters of a
pesticide registered under FIFRA, or the residue of such a
pesticide, resulting from the application of such pesticide.
The exceptions provided in section 402(s) of the CWA are
provided in new subsection (s)(2), discussed further below.
The net effect of this provision is to exempt, from the
CWA's NPDES permitting process, a discharge from a point source
into navigable waters of a pesticide registered under FIFRA, or
the residue of such a pesticide, resulting from the application
of the pesticide, where the pesticide is used for its intended
purpose and the use is in compliance with pesticide label
requirements.
Therefore, as long as a pesticide is authorized for sale,
distribution, or use under FIFRA, the pesticide is used for its
intended purpose, and the use is in compliance with pesticide
label requirements, then there is no need for a user of the
pesticide to apply for and obtain an NPDES permit for that use.
Section 3. Discharges of Pesticides.
Section 3 of the bill amends section 402 of the Federal
Water Pollution Control Act (33 U.S.C. 1342) by adding at the
end a new subsection (s).
New subsection (s)(1) provides that, except as provided in
paragraph (2) of subsection (s), the Administrator or a State
shall not require a permit under the CWA for a discharge from a
point source into navigable waters of a pesticide authorized
for sale, distribution, or use under FIFRA, or the residue of
such a pesticide, resulting from the application of such
pesticide. This provision is aimed at mirroring the provision
added to FIFRA under section 2 of the bill.
This provision, like that in section 2 of the bill, is
intended to exempt from the CWA's NPDES permitting process,
subject to the exceptions in paragraph (2), a discharge from a
point source into navigable waters of a pesticide authorized
for sale, distribution, or use under FIFRA, or the residue of
such a pesticide, resulting from the application of the
pesticide, where the pesticide is used for its intended purpose
and the use is in compliance with pesticide label requirements.
As noted earlier, as long as a pesticide is authorized for
sale, distribution, or use under FIFRA, the pesticide is used
for its intended purpose, and the use is in compliance with
pesticide label requirements, then there is no need for a user
of the pesticide to apply for and obtain an NPDES permit for
that use.
Paragraph (2) of new subsection (s) provides certain
exceptions to the exemption from NPDES permitting provided in
paragraph (1). The categories of discharges listed in
paragraphs (2)(A) and (B) are not exempted and therefore
require an NPDES permit if those discharges contain a pesticide
or a residue of a pesticide as a component in those discharges.
None of the exceptions in paragraph (2) are intended to expand
the permitting authority of EPA or a state to require a permit
under the CWA, or to provide a backdoor way to narrow or negate
the exemption in paragraph (1) from the CWA's NPDES permitting
process of a discharge from a point source into navigable
waters of a pesticide authorized for sale, distribution, or use
under FIFRA, or the residue of such a pesticide, resulting from
the application of the pesticide, where the pesticide is used
for its intended purpose and the use is in compliance with
pesticide label requirements.
The exception in subparagraph (A) of paragraph (2) applies
to circumstances where there has been an application of a
pesticide in violation of a provision of FIFRA relevant to
protecting water quality, and as a result of that application
of the pesticide in violation of FIFRA, there has been a
discharge of a pesticide or residue of a pesticide that either
would not have occurred but for the violation of FIFRA, or the
amount of pesticide or residue of a pesticide contained in the
discharge is greater than would have occurred without the
violation of FIFRA. A violation of FIFRA is considered to be
relevant to protecting water quality only if that violation
results in the occurrence of a discharge of a pesticide or
residue of a pesticide from an application of the pesticide,
and that discharge either would not have occurred but for the
violation, or the amount of pesticide or residue of a pesticide
contained in the discharge is greater than would have occurred
without the violation.
Hence, a violation of FIFRA not involving or affecting a
discharge into navigable waters of a pesticide or residue of a
pesticide from an application of the pesticide (e.g., a
violation of a FIFRA requirement that a person mixing a
pesticide must wear protective clothing) does not trigger
permitting requirements under the CWA and is not a violation of
the CWA. Similarly, a violation of FIFRA, where a discharge of
a pesticide or residue of a pesticide did not occur even with
the FIFRA violation, or the amount of pesticide or residue of a
pesticide contained in the discharge is not increased as
compared to what would have occurred without the FIFRA
violation, does not trigger permitting requirements under the
CWA and is not a violation of the CWA. Enforcement under the
CWA under the circumstances presented in paragraph (2)(A)(i) or
(ii) would require proof of both a CWA violation and a FIFRA
violation.
It is the intent of the Committee that, regarding
biological pesticides, including those produced by plants, H.R.
935 shall not apply to plants because they are not a point
source. The exemption requires a discharge from a point source.
Moreover, section 402 of the CWA only requires an NPDES permit
for a point source discharge of a pollutant.
The bill is not intended to exempt from NPDES permitting
under CWA section 402 certain discharges of waste streams
merely because they may contain a pesticide or residue of a
pesticide as a component in them. Therefore, the exceptions in
subparagraphs (B) and (C) of paragraph (2) identify those types
of discharges that remain subject to NPDES permitting under CWA
section 402, even if those discharges may contain in them a
pesticide or residue of a pesticide as a component. The
categories of discharges described in subparagraphs (B) and (C)
are intended to encompass all of the types of discharges,
which, if they do contain as a component a pesticide or residue
of a pesticide, would continue to require an NPDES permit.
The exception in subparagraph (B) of paragraph (2) applies
to stormwater discharges regulated under subsection (p) of CWA
section 402. Discharges regulated under subsection (p) include
stormwater discharged from certain municipal stormwater
systems, certain areas associated with industrial activity,
certain construction sites, and certain other impervious areas.
The exception in subparagraph (C) of paragraph (2) applies
to the following other discharges regulated under subsection
(p) of CWA section 402: manufacturing or industrial effluent;
treatment works effluent; and discharges incidental to the
normal operation of a vessel, including a discharge resulting
from ballasting operations or vessel biofouling prevention.
``Manufacturing or industrial effluent'' under subparagraph
(C)(i) is intended to cover point source discharges of
wastewater from facilities with manufacturing or industrial
processes, where those discharges contain pollutants that are
pesticides. This may include wastewater discharges containing
pesticides from pesticide and other agricultural chemical
manufacturing and formulating facilities, and facilities,
including utilities, that use biocides to prevent fouling of
lines, mains, pipes, or cooling towers.
``Treatment works effluent'' under subparagraph (C)(ii) is
intended to cover point source discharges of wastewater from
treatment works, where those discharges contain pollutants that
are pesticides. The term ``treatment works'' is defined in
section 212 of the CWA.
``Discharges incidental to the normal operation of a
vessel, including a discharge resulting from ballasting
operations or vessel biofouling prevention'' under subparagraph
(C)(iii) is intended to cover point source discharges from
vessels that are subject to permitting under EPA's NPDES
vessels program that regulates incidental discharges from the
normal operation of vessels, where those discharges contain
pollutants that are pesticides. The vessels currently subject
to permitting under the NPDES vessels program consist of all
non-recreational, non-military vessels of 79 feet or greater in
length which discharge into navigable waters.
Recreational vessels as defined in section 502(25) of the
CWA are exempted from NPDES permitting in section 402(r) of the
CWA. It is the Committee's intent to leave undisturbed this
exemption from NPDES permitting for recreational vessels in
section 402(r). In addition, vessels of the Armed Forces, as
defined in section 312(a)(14) of the CWA, are not subject to
permitting under the NPDES vessels program. With the exception
of ballast water discharges, non-recreational vessels less than
79 feet in length, and all commercial fishing vessels,
regardless of length, currently are not subject to permitting
under the NPDES vessels program, although they may be in the
future when a moratorium from regulation established by Public
Law 112-213 ends on December 18, 2014.
The intent of the sponsors of the bill is to respond to the
Sixth Circuit's holding in the National Cotton Council case and
return the state of pesticide regulation to the status quo,
before any courts ruled on the applicability of the CWA to
pesticide applications regulated under FIFRA. H.R. 935
eliminates the requirement of an NPDES permit for the
application of pesticides authorized for sale, distribution, or
use under FIFRA.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
* * * * * * *
SEC. 3. REGISTRATION OF PESTICIDES.
(a) * * *
* * * * * * *
(f) Miscellaneous.--
(1) * * *
* * * * * * *
(5) Use of authorized pesticides.--Except as provided
in section 402(s) of the Federal Water Pollution
Control Act, the Administrator or a State may not
require a permit under such Act for a discharge from a
point source into navigable waters of a pesticide
authorized for sale, distribution, or use under this
Act, or the residue of such a pesticide, resulting from
the application of such pesticide.
* * * * * * *
----------
FEDERAL WATER POLLUTION CONTROL ACT
* * * * * * *
TITLE IV--PERMITS AND LICENSES
* * * * * * *
national pollutant discharge elimination system
Sec. 402. (a) * * *
* * * * * * *
(s) Discharges of Pesticides.--
(1) No permit requirement.--Except as provided in
paragraph (2), a permit shall not be required by the
Administrator or a State under this Act for a discharge
from a point source into navigable waters of a
pesticide authorized for sale, distribution, or use
under the Federal Insecticide, Fungicide, and
Rodenticide Act, or the residue of such a pesticide,
resulting from the application of such pesticide.
(2) Exceptions.--Paragraph (1) shall not apply to the
following discharges of a pesticide or pesticide
residue:
(A) A discharge resulting from the
application of a pesticide in violation of a
provision of the Federal Insecticide,
Fungicide, and Rodenticide Act that is relevant
to protecting water quality, if--
(i) the discharge would not have
occurred but for the violation; or
(ii) the amount of pesticide or
pesticide residue in the discharge is
greater than would have occurred
without the violation.
(B) Stormwater discharges subject to
regulation under subsection (p).
(C) The following discharges subject to
regulation under this section:
(i) Manufacturing or industrial
effluent.
(ii) Treatment works effluent.
(iii) Discharges incidental to the
normal operation of a vessel, including
a discharge resulting from ballasting
operations or vessel biofouling
prevention.
* * * * * * *
DISSENTING VIEWS
We agree, generally speaking, that duplicative Federal
regulation should be avoided as it has the potential to impose
financial or administrative burdens on regulated entities, with
no readily apparent benefit. In situations where Federal
regulations are truly duplicative, we agree that every effort
should be taken to eliminate duplication.
Yet with respect to pesticide application, we disagree that
the requirements of the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) and the Federal Water Pollution Control
Act, more commonly known as the Clean Water Act, are
duplicative with respect to protecting the quality of the
nation's waters, or protecting human health and the health of
the environment that is directly related to uses of these
waters.
Supporters of H.R. 935 suggest that application of a
pesticide in accordance with its FIFRA-approved label, alone,
should be sufficient to protect the nation's waters from
pesticide contamination. Yet, despite decades of regulating
pesticide use solely under FIFRA, pesticides continue to be
widely detected in surface and ground waters at levels
sufficient to cause significant impacts to the fish and
wildlife that rely on such waters, and at levels that have
exceeded the human health benchmark for pesticides in drinking
water. Moreover, it is likely that an even greater percentage
of waters may be contaminated by pesticides, as neither EPA nor
the States regularly sample waters for the presence of
commonly-used pesticides.
If the regulatory framework in which pesticide applications
were regulated under FIFRA but not the Clean Water Act (which
this legislation seeks to restore) was sufficiently protective
for the nation's waters, then why are pesticides currently
detected in 97 percent of streams in both agricultural and
urban areas?
Similarly, supporters of H.R. 935 have argued that
application of Clean Water Act to pesticide-use is excessively
burdensome, will cause significant delays in pesticide use
(including a corresponding impact on the nation's food supply
or public health), or will be used as a tool to ban the overall
use of pesticides. Yet, despite repeated requests for
information, we are unaware of any specific example where
application of the Clean Water Act requirements (over the past
two years) has prevented a pesticide applicator from performing
their valuable services. Similarly, we are unaware of any
instance where the Clean Water Act has been used to ban the use
of pesticides.
We believe that the Clean Water Act provides sensible and
complimentary benefits to the nation's efforts to protect water
quality by ensuring that an appropriate amount of pesticides
are being applied at appropriate times, and by providing a
mechanism to monitor any localized adverse impacts of
pesticides in a particular watershed.
We also believe that the Environmental Protection Agency
(EPA) and the States have done an admirable job of
consolidating the requirements of FIFRA and the Clean Water Act
in a way that, during the last two years of implementation, has
imposed no known impediment to pesticide applicators from
providing their services to both agricultural and public health
communities.
And, finally, we believe that Federal and State data make
it clear that application of pesticides in compliance with
FIFRA, alone, was insufficient to protect waterbodies from
being contaminated by pesticides; so, if we care about water
quality, returning to that regulatory structure (as would occur
with passage of H.R. 935) would seem unadvisable.
For these reasons, we oppose H.R. 935.
ISSUES RELATED TO PESTICIDE USE
According to the U.S. Geological Survey (USGS), about 1
billion pounds of conventional pesticides are used each year to
control weeds, insects, and other pests, resulting in a range
of benefits, including increased food production and the
prevention of insect-borne disease.
While pest control and fire suppression provide important
health and economic benefits, the relationship between the
legal use of chemical and biological pesticides and their
impacts on water quality--both in-stream and drinking water--
remains of concern. As noted in a 2006 report of the USGS,\1\
even properly applied pesticides can cause water quality
impairment once in the water. In certain situations, pesticides
can harm the aquatic ecosystem and diminish the value of the
water body as a drinking water source. Where that is the case,
other steps must be taken to protect the resource, additional
costs are incurred in removing chemicals from drinking water,
and public health can be compromised.
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\1\See Pesticides in the Nation's Streams and Ground Water, 1992-
2001. (http://water.usgs.gov/nawqa/pnsp/)
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Pesticides in the Nation's Streams and Groundwater
In 2006, the National Water-Quality Assessment (NAWQA)
program of USGS released its decadal assessment on pesticide
occurrence and concentrations in streams and groundwater, based
on the results from studies completed by USGS during the period
from 1992 to 2001. According to this report, at least one
pesticide was detected in water from all streams tested
throughout the nation, and pesticide compounds were detected
throughout most of the year from streams with agriculture (97
percent of samples), urban (97 percent of samples), and mixed-
land-use watersheds (94 percent of samples). In addition,
certain classes of pesticides (such as DDT), which have been
banned in the United States for decades, were found in the fish
tissue and bed-sediment samples from most streams in
agricultural, urban, and mixed-land-use watersheds. According
to USGS, the frequency of pesticide detections, especially
those that have not been used in the United States for decades,
suggests the persistence of pesticide impacts to the natural
environment.
State water pollution control agencies have similarly
identified a number of waterbodies that are currently
contaminated by pesticides. For example, in the Environmental
Protection Agency's (EPA) most recent National Summary of State
Information,\2\ States report that approximately 16,819 miles
of rivers and streams, 1,766 square miles of bays and
estuaries, and 260,342 acres of lakes are currently impaired or
threatened by pesticides--meaning that the particular waterbody
fails to meet (or is threatened on) a particular use, such as a
source of drinking water, fish, shellfish, and wildlife
propagation, or recreation. In the State of California, alone,
pesticides are listed as the number two source of water quality
impairment in the state, with 437 specific waterbodies being
impaired for 40 different categories of pesticides. EPA has
also suggested that the number of State waterbodies currently
impaired by pesticides may not reflect the actual number of
impaired waters because states do not test or regularly monitor
for a significant number of common pesticides.
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\2\See http://www.epa.gov/waters/ir/index.html.
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Pesticide detections in ground water are also common.
According to USGS, pesticides and pesticide compounds were
detected in the shallow ground water of agricultural areas (61
percent of samples), urban areas (55 percent of samples), and
mixed-land-use areas (33 percent of samples). While the data
suggests that surface waters are more vulnerable to pesticide
contamination, USGS suggested that ground water contamination
is also a concern because shallow ground water sources often
are used as a source of drinking water (typically in rural or
suburban areas) where such water is not treated before
consumption, and because ground water contamination is
difficult to reverse once it occurs.
According to USGS, other predictive factors for the
presence of pesticides in surface and ground waters are the
frequency of use of the pesticide and the relationship between
land and pesticide use. According to the report, the most
frequently detected herbicides used mainly for agriculture
during the study period--atrazine, metolachlor, cyanazine,
alachlor, and acetochlor--generally were detected most often
and at the highest concentrations in water samples from streams
in agricultural areas with their greatest use, particularly in
the Corn Belt of the United States. Five herbicides commonly
used in urban areas--simazine, prometon, tebuthiuron, 2,4-D,
and diuron--and three commonly used insecticides--diazinon,
chlorpyrifos, and carbaryl--were most frequently detected in
urban streams throughout the Nation. Similarly, USGS samples
also suggested a connection between seasonal use of pesticides,
such as spring use of herbicides in the Corn Belt and fall/
winter use of diazinon during the dormant period for San
Joaquin Valley almond growers, and the occurrence of pesticide
concentrations in stream water.
Pesticides in Sources of Drinking Water
According to EPA, the potential human health impacts of
pesticide exposure depend on the type of pesticide, and the
pathway, concentration, and duration of the exposure. According
to the Agency, the potential human health implications can
range from irritation of the skin and eyes, to impacts to the
nervous system, to impacts during the gestation and adolescent
development of children, to disruption of the hormone or
endocrine system, to their potential as a human carcinogen.
One potentially significant source of human exposure to
pesticides comes from consuming pesticide-contaminated drinking
water. As noted earlier, USGS has frequently detected the
presence of pesticides in streams and ground water throughout
the nation. In a separate study, USGS found pesticides (and
other man-made compounds) in the surface water sources for nine
community water systems in nine separate States throughout the
nation, serving communities ranging from 3,000 people to 2
million people.\3\ Finally, according to the U.S. Department of
Agriculture's Pesticide Data Program, in 2011, pesticides were
detected in 73 percent of all potable groundwater samples taken
by the agency, including 76 percent of samples taken from
schools and daycare facilities (pesticides detected in 281 of
372 samples), as well as a number of public drinking water
reservoirs and treated water supply.\4\
---------------------------------------------------------------------------
\3\See Man-Made Organic Compounds in Source Water of Nine Community
Water Systems that Withdraw from Streams, 2002-05. (http://
pubs.usgs.gov/fs/2008/3094/pdf/fs2008-3094.pdf)
\4\See U.S. Department of Agriculture, Pesticide Data Program--
Annual Summary, Calendar Year 2011. (http://www.ams.usda.gov/)
---------------------------------------------------------------------------
While, in the majority of these cases, pesticide detection
levels were below the currently-assessed human health
benchmarks for those detected pesticides that have
standards,\5\ USGS has found a number of incidents where
pesticide detection levels were above such benchmarks--where
the greatest potential impact is to communities with the least
resources to address these contaminants. Similarly, while the
pesticide detection levels were often below the current human
health benchmark, this does not address the equally troubling
question of what are the potential human health implications of
long-term, low-level exposure to pesticides, especially to the
health of children, pregnant women, and the elderly.
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\5\According to the 2006 USGS report, only 47 of the 83 pesticides
and degradates analyzed by USGS had drinking water standards (under the
Safe Drinking Water Act) or human health guidelines developed by EPA's
Office of Water. EPA does not have an appropriate human health standard
for a significant number of pesticides (and degradates) that are
currently present in the nation's surface and ground waters.
---------------------------------------------------------------------------
In addition, USGS found widespread occurrences of pesticide
``mixtures,'' typically in streams, that may increase the
toxicity of individual pesticides. According to the agency, the
frequent detection of pesticide mixtures complicates questions
on the potential risks to human health and the environment from
exposure to pesticides (either individually or in combination)
because little is known about them.
Additional studies have demonstrated that concentrations of
pesticides (and other manmade compounds) are generally not
affected by drinking water treatment facilities. According to
USGS and EPA, drinking water treatment facilities are typically
not designed to remove pesticides (and similar compounds) from
drinking water. As a result, if pesticides are present in
surface and ground waters that serve as a source of drinking
water, it is likely that these pesticides will continue be
detected in treated waters in the distribution system, as is
demonstrated in the data collected by the U.S. Department of
Agriculture's Pesticide Data Program.
In our view, the combination of these factors--the
frequency of pesticide detections in surface and ground waters,
the fact that some detections exceed human health benchmarks
(where there are appropriate benchmarks), the frequency and
uncertainty created by pesticide ``mixtures'', and the fact
that modem drinking water treatment technologies are not
designed to remove pesticides--compel us to move cautiously on
any legislative proposal that would reduce options for
minimizing the amount of pesticides being released into our
nation's waters.
FUNDAMENTAL DIFFERENCES BETWEEN THE CLEAN WATER ACT AND FIFRA
Over the past few years, there has been significant
interest in the statutory and regulatory relationship between
the Clean Water Act and FIFRA. Affected stakeholders, including
the agricultural, silvicultural, fire-suppression, and pest-
control communities, have expressed concern about how to
reconcile the requirements of both FIFRA and the Clean Water
Act when applying chemicals and pesticides directly onto or
near waters of the United States.
The goal of the Clean Water Act is to restore and maintain
the chemical, physical, and biological integrity of the
Nation's waters. To that end, the Act provides that, except in
compliance with a permit, the discharge of any pollutant from a
point source into the waters of the United States, which
includes wetlands, is unlawful. Under section 402 of the Act,
EPA\6\ or approved state agencies may issue permits that allow
the discharge of pollutants into the waters of the United
States.\7\ Under section 402(k) of the Act, any person who
discharges a pollutant in compliance with a permit issued under
the Act (including EPA's proposed pesticide general permit) is
deemed in compliance with the Act, and is not subject to
Federal enforcement action (under section 309) nor a citizen
suit brought by a third party (under section 505).
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\6\For purposes of the Pesticide General Permit, EPA would be the
regulatory authority in 4 states (ID, MA, and NH), the District of
Columbia, and all U.S. Territories (except the U.S. Virgin Islands).
The remaining 46 states would implement their own regulatory authority;
however, expectations are that many states would use the PGP as the
model for State authority.
\7\The Clean Water Act provides the Administrator of EPA with the
authority to issue general permits for certain discharges, such as the
application of pesticides, provided that the discharges will have only
a minimal adverse impact on the environment. In its proposed Pesticide
General Permit (PGP), EPA has proposed using its general permit
authority for the majority of applications of pesticides.
---------------------------------------------------------------------------
For the past thirty years, however, pesticide use has been
regulated under FIFRA, which was enacted to ensure that
pesticides are safe, effective, and meet risk-benefit tests
established by EPA to prevent unreasonable adverse effects on
human health and the environment through their intended and
approved use. Under FIFRA, EPA regulates the sale and use of
pesticides through registration and labeling of the estimated
21,000 pesticide products currently in use. FIFRA prohibits the
sale of any pesticide in the U.S. unless it is registered and
labeled to indicate approved uses and restrictions. It is a
violation of the law to use a pesticide in a manner that is
inconsistent with the label instructions.
These two statutes, although complementary in certain
respects, are not substitutes for one another or duplicative as
some have argued. FIFRA and the Clean Water Act were enacted to
achieve different objectives. Whereas the Clean Water Act was
enacted to restore and maintain the integrity of U.S. waters,
with a primary focus on the protection of local water quality,
FIFRA is primarily focused on ensuring that pesticides are
regulated and uniformly labeled indicating approved uses and
restrictions.
In protecting water quality, the Clean Water Act focuses on
the characteristics of specific water bodies, addressing site-
specific water quality impairments with individual plans
tailored to meet particular use goals. In contrast, FIFRA
focuses on uniform, national standards for pesticide
registration and labeling, and does not take (and, based on
information from EPA, traditionally has not taken) into
consideration the potential localized impact from the discharge
of chemicals into individual water bodies. In approving the use
of pesticides under FIFRA, EPA is directed only to consider
that the overall national economic benefits of allowing the use
of the product outweigh adverse environmental effects. Under
current FIFRA regulations, EPA does not warrant that compliance
with a FIFRA label satisfies all other Federal laws, or that
the use of a particular product is appropriate in every
situation.
It is simply incorrect to say that applying a FIFRA-
approved pesticide in accordance with its labeling requirement
is a surrogate for protecting water quality--as the application
of a FIFRA-approved pesticide, generally, does not take into
consideration the localized impact on water quality. This
fundamental distinction was highlighted by the Ninth Circuit
Court of Appeals, in the Headwaters, Inc. v. Talent Irrigation
District\8\ decision, which noted that the ``label's general
rules for applying [a pesticide] must be observed under FIFRA,
but where the [pesticide] will enter waters of the United
States, FIFRA provides no method for analyzing the local
impact,'' nor does FIFRA provide for any ``local monitoring''
of potential impacts.
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\8\243 F.3d 526, 529 (9th Cir. 2001).
---------------------------------------------------------------------------
While no hearings were held on H.R. 935 in the 113th
Congress, at a previous hearing\9\ on this issue, several
witnesses alluded to the EPA's risk assessment process
undertaken during a pesticide registration process as evidence
of FIFRA's ability to protect human health, the environment,
and water quality from the potential adverse impacts of
pesticides. However, we continue to question the adequacy of
this risk assessment process and its current ability to provide
this protection based on several concerns.
---------------------------------------------------------------------------
\9\See Joint Hearing before the Subcommittee on Nutrition and
Horticulture, Committee on Agriculture and the Subcommittee on Water
Resources and Environment, Committee on Transportation and
Infrastructure, entitled Hearing to Consider Reducing the Regulatory
Burdens Posed by the Case, National Cotton Council v. EPA (6th Cir.
2009) and to Review Related Draft Legislation, First Session, Serial
No. 112-10 (February 16, 2011).
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First, as stated above, we are concerned that, despite the
decades-long implementation of FIFRA pesticides continue to be
detected in surface and ground waters throughout the nation. It
would seem difficult to suggest that the thousands of miles of
streams and hundreds of thousands of lake acres which are
currently impaired by pesticides is proof that FIFRA is
protective of water quality. Similarly, it is difficult to
suggest that frequent detection of pesticides in the drinking
water sources of millions of Americans is proof that FIFRA is
protective of human health. However, that is the success rate
of FIFRA which H.R. 935 seeks to reinstate.
Second, we recognize that EPA, in developing its pesticide
general permit under the Clean Water Act, distinguished between
the discharge of pesticides, generally, and the discharge of
pesticides into a waterbody already impaired by pesticides.
According to the Agency's pesticide general permit, additional
precautions and impacts-analysis are warranted where the
intended discharge of a pesticide is into a pesticide-impaired
waterbody. We are concerned, however, that under H.R. 935, no
additional analysis or action would be required for the
discharge of pesticides into a pesticide impaired waterbody,
likely worsening water quality in a waterbody that already is
experiencing degraded conditions or impacts to fish, shellfish,
or wildlife.
In addition, we are concerned that industry-sponsored
claims that all registered pesticides have been thoroughly
assessed through EPA's-risk-assessment process are unfounded,
and that EPA has allowed pesticides to enter the marketplace
that have not undertaken a full risk-assessment through its
conditional registration process.
Under the conditional registration process, EPA can
authorize the use of new active ingredient pesticides for an
unspecified period of time during which the pesticide
registrant can test the pesticide and generate the data
necessary for full FIFRA registration. While the intent of this
provision was to provide authority to the agency to allow the
use of new pesticides to address special situations, such as
public health emergencies, when this authority improperly used
or tracked,\10\ untested (or under-tested) pesticides can
become widely used without a full understanding of the
implications of these pesticides to human health or the
environment. According to one outside survey of this program,
approximately 65 percent of more than 16,000 pesticides
currently in use were first approved using conditional
approvals. Some of these pesticides remain in use, years after
their initial conditional approval, without ever having
undergone a complete FIFRA registration and risk-assessment.
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\10\In March 2013, the Natural Resources Defense Council issued a
report, entitled Superficial Safeguards: Most Pesticides are Approved
by Flawed EPA Process, which expressed concern with EPA's use and
management of its conditional registration program. In this report, the
authors highlight specific examples where pesticides were allowed to
enter the marketplace, despite a lack of detailed information about
their impact to human health and the environment, and these products
continue to remain in the marketplace, years later, without requiring
full registration of these pesticides. (www.nrdc.org/health/pesticides/
files/flawed-epa-approval-process-IB.pdf)
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Finally, we are concerned that the current FIFRA labeling
process only subjects ``active ingredients'' to ecological risk
assessment testing protocols. However, many registered
pesticides are comprised of both ``active'' and ``inert''
ingredients; yet, the current FIFRA registration process does
not subject a pesticide's inert ingredients to the same risk
assessment process as active ingredients. According to EPA's
published list of ``Inert Ingredients Permitted for Use in
Nonfood Use Pesticide Products,'' the list of ``inert''
ingredients includes chemicals, including benzene,\11\
ethylbenzene,\12\ styrene,\13\ toluene,\14\ and vinyl
chloride.\15\
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\11\According to EPA's National Primary Drinking Water Regulations,
the potential health effects from long term exposure to benzene (above
the maximum contaminant level (MCL)) include anemia, a decrease in
blood platelets, and an increased risk of cancer. EPA has established a
public health goal of zero for the presence of benzene in drinking
water.
\12\According to EPA's National Primary Drinking Water Regulations,
the potential health effects from long term exposure to ethylbenzene
(above the maximum contaminant level (MCL)) include liver or kidney
problems. EPA has established a public health goal of 0.7 mg/
L2 for the presence of ethylbenzene in drinking water.
\13\According to EPA's National Primary Drinking Water Regulations,
the potential health effects from long term exposure to styrene (above
the maximum contaminant level (MCL)) include liver, kidney, or
circulatory system problems. EPA has established a public health goal
of 0.1 mg/L2 for the presence of styrene in drinking water.
\14\According to EPA's National Primary Drinking Water Regulations,
the potential health effects from long term exposure to toluene (above
the maximum contaminant level (MCL)) include nervous system, liver or
kidney problems. EPA has established a public health goal of 1.0 mg/
L2 for the presence of toluene in drinking water.
\15\According to EPA's National Primary Drinking Water Regulations,
the potential health effects from long term exposure to vinyl chloride
(above the maximum contaminant level (MCL)) include an increased risk
of cancer. EPA has established a public health goal of zero for the
presence of vinyl chloride in drinking water.
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As EPA notes, a chemical's characterization as ``inert''
does not mean ``non-toxic.'' In fact, many of the chemicals
currently listed on EPA's list of ``inert'' ingredients are
also identified on the Clean Water Act's ``priority toxic
pollutants'' list, established by section 307 of the Act, as
well as the list of ``hazardous substances'', established under
the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA). Considering the potential public health
and environmental implications from low-level exposure to these
chemicals, we are concerned with the implications of subjecting
the discharge of these chemicals, which are not subject to
ecological risk assessment testing protocols in the pesticide
registration process, into the nation's waters with less
scrutiny, as is proposed by H.R. 935.
EPA PESTICIDE GENERAL PERMIT
In the more than 30 years that EPA has administered the
Clean Water Act, the Agency has never issued a National
Pollutant Discharge Elimination System (NPDES) permit for the
application of a pesticide to target a pest that is present in
or over, including near, the water where such application
results in a discharge to waters of the United States. Instead,
as mentioned above, for decades, EPA has been regulating these
types of applications through FIFRA.
However, starting in 2001, several courts have held that
the Clean Water Act requires the issuance of a permit for the
application of pesticides to U.S. waters. In response to these
cases, the Bush Administration issued a rule (``the 2006
Rule'') that excluded certain pesticide applications from Clean
Water Act coverage. They were: (1) the application of
pesticides directly to water to control pests; and (2) the
application of pesticides to control pests that are present
over, including near, water where a portion of the pesticides
will unavoidably be deposited to the water to target the pests,
and in both instances provided that the application is
consistent with relevant FIFRA requirements.
In 2009, the 6th Circuit Court of Appeals in National
Cotton Council v. EPA, vacated EPA's 2006 Rule, and directed
the Agency to require a NPDES permit for discharges of
pesticides to U.S. waters related to their application. In its
ruling, the Court held that the Clean Water Act unambiguously
prohibits the discharge of any pollutant (the definition of
which includes ``chemical wastes'' and ``biological
materials'') into U.S. waters without a permit. The Court noted
that, because pesticides are often comprised of biological
materials or produce residual chemical wastes, they clearly
fall within the Act's definition of a pollutant, and therefore
require a permit before they may be applied to U.S. waters.
In response to the National Cotton decision, EPA was
compelled to develop a Clean Water Act permit for the discharge
of pesticides to U.S. waters which attempted to minimize the
impacts of the permit to existing pesticide operators, while at
the same time, attempted to minimize the adverse impacts of
pesticides on U.S. waters,
In June 2010, EPA proposed a draft NPDES Pesticide General
Permit, and accepted public comment and held three public
hearings on the draft permit. On October 31, 2011, the agency
issued its final Pesticide General Permit (PGP), which took
effect immediately upon publication.
Generally speaking, the PGP is designed to improve water
quality by minimizing discharges of pesticides to waters of the
United States. The PGP provides Clean Water Act protections for
the discharge of pesticides (biological pesticides and chemical
pesticides that leave a residue) under the following use
activities: (1) mosquito and other flying insect pest control;
(2) weed and algae pest control; (3) animal pest control; and
(4) forest canopy pest control. Consistent with FIFRA, the PGP
also requires that pesticides be applied consistent with their
FIFRA labeling requirements to be covered by the Clean Water
Act permit protections.
In accordance with the Clean Water Act, no permit is
required for the discharge of pesticides that do not reach the
waters of the United States (e.g. typical household use of
pesticides, or land application of pesticides that do not reach
jurisdictional waters), nor for agricultural stormwater and
irrigation return flows.
For those pesticide applications that are covered by the
Clean Water Act, the PGP does provide additional protective
measures beyond the FIFRA labeling requirements, again, with
the goal of minimizing the release of pesticides into U.S.
waters.
First, the PGP requires permittees to minimize pesticide
discharges through the use of pest management measures and
monitor for and report any adverse impacts of pesticide use.
For certain high-volume pesticide applicators, the PGP also
requires the use of ``integrated pest management'' techniques
(IPM),\16\ which should reduce the amount of pesticides being
discharged into U.S. waters.
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\16\FIFRA defines IPM as a ``sustainable approach to managing pests
by combining biological, cultural, physical, and chemical tools is a
way that minimizes economic, health, and environmental risks'', such as
requiring all operators to minimize pesticide discharges by using the
lowest effective amount of pesticide; performing regular equipment
maintenance; calibrating, cleaning, and repairing equipment; and
monitoring and reporting any adverse incidents. See 7 U.S.C. 136r-1.
USDA estimates that some level of IPM had been implemented on about 70
percent of the nation's crop acreage by the end of crop year 2000. See
Agricultural Pesticides: Management Improvements Needed to Further
Promote Integrated Pest Management (GA0-01-815 (2001)).
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The PGP also requires certain permittees to maintain
records on their use of pesticides, and to provide an annual
report to EPA that generally describes the amount, location,
and use of pesticides during the previous calendar year.
For a significant number of pesticide applicators, permit
coverage under the PGP is obtained by filing an electronic
``notice of intent'' with the agency.
As noted earlier, any pesticide applicator who complies
with the terms of the PGP (i.e., complies with the FIFRA
labeling requirements, and implements, where applicable, the
integrated pest management techniques) would be immune from
Federal, State, or private lawsuit under the Clean Water Act.
TWO-YEAR IMPLEMENTATION OF THE PESTICIDE GENERAL PERMIT
Prior to the implementation of the Pesticide General
Permit, several organizations and Congressional witnesses\17\
suggested that application of the Clean Water Act to pesticide
application would result in serious public health and economic
hardships. Claims ranged from the inability of agricultural and
forestry management operators to apply necessary pesticides, to
threatening local mosquito spraying operations that control
various mosquito-borne illnesses (e.g. West Nile Virus), to job
losses associated with complying with the terms of the PGP, to
an outbreak of frivolous lawsuits associated with pesticide
applications.
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\17\See Joint Hearing before the Subcommittee on Nutrition and
Horticulture, Committee on Agriculture and the Subcommittee on Water
Resources and Environment, Committee on Transportation and
Infrastructure, entitled Hearing to Consider Reducing the Regulatory
Burdens Posed by the Case, National Cotton Council v. EPA (6th Cir.
2009) and to Review Related Draft Legislation, First Session, Serial
No. 112-10 (February 16, 2011).
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Yet, in the two year period where the PGP has been in
place, we are unaware, despite repeated requests to both EPA
and the States, where any of these claims have materialized.
Moreover, we are not aware of any specific instance where the
application of the Clean Water Act to pesticide application has
prevented a pesticide applicator from performing their
services, nor are we aware of any effort by outside groups to
use the PGP as a tool to ban the use of pesticides.
In short, the sky has not fallen, as some were claiming
would occur. In the intervening two years, farmers and forestry
operators have successfully managed two growing seasons under
the PGP, including the most recent 2013 season for which USDA
has forecast a record crop yield for corn, and a significant
increase in production for soybeans. In addition, public health
officials throughout the country were able to address outbreaks
from mosquito-borne illnesses, while at the same time,
complying with the sensible requirements of both the Clean
Water Act and FIFRA.
Yet, if H.R. 935 were to be enacted, many of the water
quality and public health benefits provided by the Clean Water
Act would be lost.
For example, it is the Clean Water Act, and not FIFRA, that
directs pesticide applicators to minimize the amount of
pesticides that are being applied to or near U.S. waters
through the use of pesticide management plans and integrated
pest management techniques.
It is also the Clean Water Act, and not FIFRA, that is
requiring pesticide applicators to monitor for and report any
adverse impacts that result from pesticide spraying or use.
It is also the Clean Water Act, and not FIFRA, that
requires pesticide applicators to keep records on where and how
many pesticides are being applied at or near U.S. waters. In
our view, this will be critical information for determining why
so many U.S. waters remain impaired by pesticides, and what can
be done to minimize or eliminate this ongoing contamination of
our nation's waters.
Again, if H.R. 935 were to be enacted, we would return to a
regulatory structure that has resulted in widespread
contamination of our rivers, streams, groundwater, and drinking
water sources by pesticides.
CONCLUSION
We remain concerned with the potential adverse human health
and environmental impacts caused by the presence of pesticides
in our nation's surface waters, ground water, and drinking
water sources. In our view, it is difficult to suggest that the
continuing presence of pesticides, pesticide degradates, and
pesticide mixtures in the nation's waters is evidence that the
status quo regulatory structure is protective of human health
and the environment.
In addition, although we share the concerns of the
regulated community on the need to reduce needless regulatory
duplication, at this time, it is not clear that the primary
objectives of the Clean Water Act and FIFRA are duplicative.
With respect to the specific issue of how to address localized
adverse impacts of pesticides on water quality, the track-
record of FIFRA implementation (and case law) suggest an
inability to address localized impacts. While some have
suggested that FIFRA provides adequate legal authority to
address these impacts, the fact remains that, to date, it has
not. Yet, all that is contemplated under H.R. 935 is to remove
the one tool from the regulatory tool box; and not to augment
the protection of surface waters, ground water, and drinking
water sources under either statute.
For these reasons, we are opposed to H.R. 935.
Timothy H. Bishop.
Grace F. Napolitano.
Jerrold Nadler.
Donna F. Edwards.
Eddie Bernice Johnson.
Elizabeth H. Esty.