[Federal Register Volume 76, Number 215 (Monday, November 7, 2011)]
[Notices]
[Pages 68750-68756]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28770]
[[Page 68750]]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2010-0257; FRL-9487-9]
RIN 2040-ZA08
Final National Pollutant Discharge Elimination System (NPDES)
Pesticide General Permit for Point Source Discharges From the
Application of Pesticides
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final permit.
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SUMMARY: This notice announces the NPDES general permit for point
source discharges from the application of pesticides to waters of the
United States, also referred to as the Pesticide General Permit (PGP).
A draft PGP was published on June 4, 2010 for public comment. 75 FR
31775. All ten EPA Regions today are issuing the final NPDES PGP, which
will be available in those areas where EPA is the NPDES permitting
authority. This action is in response to the Sixth Circuit Court's
ruling that vacated an EPA regulation that excluded discharges of
biological pesticides and chemical pesticides that leave a residue from
the application of pesticides to, or over, including near waters of the
United States from the need to obtain an NPDES permit if the
application was done in accordance with other laws. EPA requested and
was granted a stay of the Court's mandate to provide time to draft and
implement the permit noticed today. The stay of the mandate expires on
October 31, 2011; after which, NPDES permits will be required for such
point source discharges to waters of the United States.
DATES: This action is effective on October 31, 2011.
FOR FURTHER INFORMATION CONTACT: For further information on this final
NPDES general permit, contact the appropriate EPA Regional Office
listed in Section I.F, or contact Jack Faulk, EPA Headquarters, Office
of Water, Office of Wastewater Management at tel.: (202) 564-0768 or
email: faulk.jack@epa.gov.
SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:
Table of Contents
I. General Information
A. Does this action apply to me?
B. How can I get copies of this document and other related
information?
C. Who are the EPA regional contacts for this final permit?
II. Statutory and Regulatory History
A. Clean Water Act
B. NPDES Permits
C. History of Pesticide Application Regulations Under FIFRA
D. Court Decisions Leading to the CWA Regulation Concerning
Pesticide Applications
E. 2006 Agency Rulemaking Excluding Discharges from Pesticide
Applications From NPDES Permitting
F. Legal Challenges to the 2006 NPDES Pesticides Rule and
Resulting Court Decision
G. Publication of the Draft NPDES Pesticide General Permit
III. Scope and Applicability of This NPDES Pesticide General Permit
A. Geographic Coverage
B. Categories of Facilities Covered
C. Summary of Permit Terms and Requirements
IV. Economic Impacts of the Pesticide General Permit
V. Executive Orders 12866 and 13563
I. General Information
A. Does this action apply to me?
You may be affected by this action if your application of
pesticides, under the use patterns in Section III.B., results in a
discharge to waters of the United States in one of the geographic areas
identified in Section III.A. Potentially affected entities, as
categorized in the North American Industry Classification System
(NAICS), may include, but are not limited to:
Table 1--Entities Potentially Regulated by This Permit
------------------------------------------------------------------------
Examples of
Category NAICS potentially affected
entities
------------------------------------------------------------------------
Agriculture parties--General 111 Crop Producers of crops
agricultural interests, Production.. mainly for food and
farmers/producers, forestry, fiber including
and irrigation. farms, orchards,
groves, greenhouses,
and nurseries that
have irrigation
ditches requiring
pest control.
113110 Timber The operation of
Tract Operations timber tracts for
113210 Forest the purpose of
Nurseries selling standing
Gathering of timber. Growing
Forest Products. trees for
reforestation and/or
gathering forest
products, such as
gums, barks, balsam
needles, rhizomes,
fibers, Spanish
moss, ginseng, and
truffles.
221310 Water Operating irrigation
Supply for systems.
Irrigation.
Pesticide parties (includes 325320 Pesticide Formulation and
pesticide manufacturers, and Other preparation of
other pesticide users/ Agricultural agricultural pest
interests, and consultants). Chemical control chemicals.
Manufacturing.
Public health parties 923120 Government
(includes mosquito or other Administration establishments
vector control districts and of Public Health primarily engaged in
commercial applicators that Programs. the planning,
service these). administration, and
coordination of
public health
programs and
services, including
environmental health
activities.
Resource management parties 924110 Government
(includes State departments Administration establishments
of fish and wildlife, State of Air and Water primarily engaged in
departments of pesticide Resource and the administration,
regulation, State Solid Waste regulation, and
environmental agencies, and Management enforcement of air
universities). Programs. and water resource
programs; the
administration and
regulation of water
and air pollution
control and
prevention programs;
the administration
and regulation of
flood control
programs; the
administration and
regulation of
drainage development
and water resource
consumption
programs; and
coordination of
these activities at
intergovernmental
levels.
[[Page 68751]]
924120 Government
Administration establishments
of Conservation primarily engaged in
Programs. the administration,
regulation,
supervision and
control of land use,
including
recreational areas;
conservation and
preservation of
natural resources;
erosion control;
geological survey
program
administration;
weather forecasting
program
administration; and
the administration
and protection of
publicly and
privately owned
forest lands.
Government
establishments
responsible for
planning,
management,
regulation and
conservation of
game, fish, and
wildlife
populations,
including wildlife
management areas and
field stations; and
other administrative
matters relating to
the protection of
fish, game, and
wildlife are
included in this
industry.
Utility parties (includes 221 Utilities.... Provide electric
utilities). power, natural gas,
steam supply, water
supply, and sewage
removal through a
permanent
infrastructure of
lines, mains, and
pipes.
------------------------------------------------------------------------
B. How can I get copies of this document and other related information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. EPA-HQ-OW-2010-0257. The official public
docket is the collection of materials that is available for public
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA
West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. Although
all documents in the docket are listed in an index, some information is
not publicly available, i.e., CBI or other information whose disclosure
is restricted by statute. EPA policy is that copyrighted material will
not be placed in EPA's electronic public docket but will be available
only in printed, paper form in the official public docket. Publicly
available docket materials are available in hard copy at the EPA Docket
Center Public Reading Room, open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Water Docket is (202) 566-2426.
2. Electronic Access. You may access this Federal Register document
electronically through the United States government on-line source for
federal regulations at http://www.regulations.gov.
Electronic versions of this final permit and fact sheet are
available on EPA's NPDES Web site at http://www.epa.gov/npdes/pesticides.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.regulations.gov to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. For additional information about EPA's public docket,
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the Docket Facility identified in Section
I.A.1.
C. Who are the EPA regional contacts for this final permit?
For EPA Region 1, contact George Papadopoulos at USEPA Region 1, 5
Post Office Square--Suite 100, Boston, MA 02109-3912; or at tel.: (617)
918-1579; or email at papadopoulos.george@epa.gov.
For EPA Region 2, contact Maureen Krudner at USEPA Region 2, 290
Broadway, New York, NY 10007-1866; or tel.: (212) 637-3874; or email at
krudner.maureen@epa.gov.
For EPA Region 3, contact Peter Weber at USEPA Region 3, 1650 Arch
Street, Mail Code: 3WP41, Philadelphia, PA 19103-2029; or at tel.:
(215) 814-5749; or email at weber.peter@epa.gov.
For EPA Region 4, contact Sam Sampath at USEPA Region 4, 61 Forsyth
Street SW., Atlanta, CA 30303-8960; or at tel.: (404) 562-9229; or
email at sampath.sam@epa.gov.
For EPA Region 5, contact Morris Beaton at USEPA Region 5, 77 West
Jackson Boulevard, Mail Code: WN16J, Chicago, IL 60604-3507; or at
tel.: (312) 353-0850; or email at beaton.morris@epa.gov.
For EPA Region 6, contact Jenelle Hill at USEPA Region 6, 1445 Ross
Avenue, Suite 1200, Mail Code: 6WO, Dallas, TX 75202-2733; or at tel.:
(214) 665-9737 or email at hill.jenelle@epa.gov.
For EPA Region 7, contact Kimberly Hill at USEPA Region 7, 901
North Fifth Street, Mail Code: XX, Kansas City, KS 66101; or at tel.:
(913) 551-7841 or email at: hill.kimberly@epa.gov.
For EPA Region 8, contact David Rise at USEPA Region 8, Montana
Operations Office, Federal Building, 10 West 15th Street, Suite 3200,
Mail Code: 8MO, Helena, MT 59626; or at tel.: (406) 457-5012 or email
at: rise.david@epa.gov.
For EPA Region 9, contact Pascal Mues, USEPA Region 9, 75 Hawthorne
Street, Mail Code: WTR-5, San Francisco, CA 94105; or at tel.: (415)
972-3768 or email at: mues.pascal@epa.gov.
For EPA Region 10, contact Dirk Helder, USEPA Region 10 Idaho
Operations Office, 1435 North Orchard Street, Boise, ID 83706 or at
tel.: (208) 378-5749 or email at: helder.dirk@epa.gov.
II. Statutory and Regulatory History
A. Clean Water Act
Section 301(a) of the Clean Water Act (CWA) provides that ``the
discharge of any pollutant by any person shall be unlawful'' unless the
discharge is in compliance with certain other sections of the Act. 33
U.S.C. 1311(a). The CWA defines ``discharge of a pollutant'' as ``(A)
any addition of any pollutant to navigable waters from any point
source, (B) any addition of any pollutant to the waters of the
contiguous zone or the ocean from any point source other than a vessel
or other floating craft.'' 33 U.S.C. 1362(12). A ``point source'' is
any ``discernible, confined and discrete conveyance'' but does not
include ``agricultural stormwater discharges and return flows from
irrigated agriculture.'' 33 U.S.C. 1362(14).
The term ``pollutant'' includes, among other things, ``garbage* * *
chemical wastes, biological materials * * * and industrial, municipal,
and agricultural waste discharged into water.'' 33 U.S.C. 1362(6).
One way a person may discharge a pollutant without violating the
section
[[Page 68752]]
301 prohibition is by obtaining authorization to discharge (referred to
herein as ``coverage'') under a section 402 National Pollutant
Discharge Elimination System (NPDES) permit (33 U.S.C. 1342). Under
section 402(a), EPA may ``issue a permit for the discharge of any
pollutant, or combination of pollutants, notwithstanding section
1311(a)'' upon certain conditions required by the Act.
B. NPDES Permits
An NPDES permit authorizes the discharge of a specified amount of a
pollutant or pollutants into a receiving water under certain
conditions. The NPDES program relies on two types of permits:
Individual and general. An individual permit is a permit specifically
tailored for an individual discharger. Upon receiving the appropriate
permit application(s), the permitting authority, i.e., EPA or a state
or territory, develops a draft individual permit for public comment for
that particular discharger based on the information contained in the
permit application (e.g., type of activity, nature of discharge,
receiving water quality). Following consideration of public comments, a
final individual permit is then issued to the discharger for a specific
time period (not to exceed 5 years) with a provision for reapplying for
further permit coverage prior to the expiration date.
In contrast, a general permit covers multiple facilities/sites/
activities within a specific category for a specific period of time
(not to exceed 5 years). For general permits, EPA, or a state
authorized to administer the NPDES program, develops and issues the
general permit with dischargers then obtaining coverage under the
already issued general permit, typically through submission of a Notice
of Intent (NOI). A general permit is also subject to public comment, as
was done for this permit on June 4, 2010, and is developed and issued
by a permitting authority (in this case, EPA).
Under 40 CFR 122.28, general permits may be written to cover
categories of point sources having common elements, such as facilities
that involve the same or substantially similar types of operations,
that discharge the same types of wastes, or that are more appropriately
regulated by a general permit. Given the vast number of pesticide
applicators requiring NPDES permit coverage and the discharges common
to these applicators, EPA believes that it makes administrative sense
to issue this general permit, rather than issuing individual permits to
each applicator. Entities still have the ability to seek individual
permit coverage. The general permit approach allows EPA to allocate
resources in a more efficient manner and to provide more timely
coverage. As with any permit, the CWA requires the general permit to
contain technology-based effluent limitations, as well as any more
stringent limits when necessary to meet applicable state water quality
standards. Courts have approved of the use of general permits. See
e.g., Natural Res. Def. Council v. Costle, 568 F.2d 1369 (DC Cir.
1977); EDC v. U.S. EPA, 344 F.3d 832, 853 (9th Cir. 2003).
C. History of Pesticide Application Regulation Under FIFRA
EPA regulates the sale, distribution and use of pesticides in the
United States under the statutory framework of FIFRA to ensure that,
when used in conformance with FIFRA labeling directions, pesticides
will not pose unreasonable risks to human health and the environment.
All new pesticides must undergo a rigorous registration procedure under
FIFRA during which EPA assesses a variety of potential human health and
environmental effects associated with use of the product. Under FIFRA,
EPA is required to consider the effects of pesticides on the
environment by determining, among other things, whether a pesticide
``will perform its intended function without unreasonable adverse
effects on the environment,'' and whether ``when used in accordance
with widespread and commonly recognized practice [the pesticide] will
not generally cause unreasonable adverse effects on the environment.''
7 U.S.C. 136a(c)(5). In performing this analysis, EPA examines, among
other things, the ingredients of a pesticide, the intended type of
application site and directions for use, and supporting scientific
studies for human health and environmental effects and exposures. The
applicant for registration of the pesticide must submit data as
required by EPA regulations.
When EPA approves a pesticide for a particular use, the Agency
imposes labeling restrictions governing such use. Compliance with the
labeling requirements ensures that the pesticide serves an intended
purpose and avoids unreasonable adverse effects. It is illegal under
Section 12(a)(2)(G) of FIFRA to use a registered pesticide in a manner
inconsistent with its labeling. States have primary authority under
FIFRA to enforce ``use'' violations, but both the States and EPA have
ample authority to prosecute pesticide misuse when it occurs.
D. Court Decisions Leading to the CWA Regulation Concerning Pesticide
Applications
Over the past ten years, several courts addressed the question of
whether the CWA requires NPDES permits for pesticide applications.
These cases resulted in some confusion among the regulated community
and other affected citizens about the applicability of the CWA to
pesticides applied to waters of the United States. In 2001, the U.S.
Court of Appeals for the Ninth Circuit held in Headwaters, Inc. v.
Talent Irrigation District (Talent) that an applicator of herbicides
was required to obtain an NPDES permit under the circumstances before
the court. 243 F.3rd 526 (9th Cir. 2001).
In 2002, the Ninth Circuit in League of Wilderness Defenders et al.
v. Forsgren (Forsgren) held that the application of pesticides to
control Douglas Fir Tussock Moths in National Forest lands required an
NPDES permit. 309 F.3d 1181 (9th Cir. 2002). The court in Forsgren did
not analyze the question of whether the pesticides applied were
pollutants, because it incorrectly assumed that the parties agreed that
they were (in fact, the United States expressly reserved its arguments
on that issue in its brief to the District Court. Id. at 1184, n.2).
The court instead analyzed the question of whether the aerial
application of the pesticide constituted a point source discharge, and
concluded that it did. Id. at 1185).
Since Talent and Forsgren, California, Nevada, Oregon, and
Washington, all of which are within the Ninth Circuit, have issued
permits for the application of certain types of pesticides (e.g.,
products to control aquatic weeds and algae and products to control
mosquito larvae). Other States have continued their longstanding
practice of not issuing permits to people who apply pesticides to
waters of the United States. These varying practices reflected the
substantial uncertainty among regulators, the regulated community, and
the public regarding how the CWA applies to pesticides that have been
properly applied and used for their intended purpose.
Additionally, the Second Circuit Court of Appeals addressed the
applicability of the CWA's NPDES permit requirements to pesticide
applications. In Altman v. Town of Amherst (Altman), the court vacated
and remanded for further development of the record a District Court
decision holding that the Town of Amherst was not required to obtain an
NPDES permit to spray mosquitocides over waters of the United States.
47 Fed. Appx. 62, 67
[[Page 68753]]
(2nd Cir. 2002). The United States filed an amicus brief setting forth
the Agency's views in the context of that particular case. In its
opinion, the Second Circuit stated that ``[u]ntil the EPA articulates a
clear interpretation of current law--among other things, whether
properly used pesticides released into or over waters of the United
States can trigger the requirement for NPDES permits * * *--the
question of whether properly used pesticides can become pollutants that
violate the CWA will remain open.'' Id. at 67.
In 2005, the Ninth Circuit again addressed the CWA's applicability
to pesticide applications. In Fairhurst v. Hagener, the court held that
pesticides applied directly to a lake to eliminate non-native fish
species, where there are no residues or unintended effects, are not
``pollutants'' under the CWA because they are not chemical wastes. 422
F.3d 1146 (9th Cir. 2005).
Recently, the Second Circuit reaffirmed the recent Sixth Circuit
decision in ruling that trucks and helicopters that sprayed pesticides
should be considered point sources under the CWA. Peconic Baykeeper
Inc. v. Suffolk County, 600 F.3d 180 (2nd Cir. 2010).
E. 2006 Agency Rulemaking Excluding Discharges From Pesticide
Applications from NPDES Permitting
On November 27, 2006 (71 FR 68483), EPA issued a final rule
(hereinafter called the ``2006 NPDES Pesticides Rule'') clarifying two
specific circumstances in which an NPDES permit is not required to
apply pesticides to or over, including near water provided that the
application is consistent with relevant Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA) requirements. They are: (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.
F. Legal Challenges to the 2006 NPDES Pesticide Rule and Resulting
Court Decision
On January 19, 2007, EPA received petitions for review of the 2006
NPDES Pesticides Rule from both environmental and industry groups.
Petitions were filed in eleven circuit courts with the case, National
Cotton Council, et al, v. EPA, assigned to the Sixth Circuit Court of
Appeals. On January 9, 2009, the Sixth Circuit vacated EPA's 2006 NPDES
Pesticides Rule under a plain language reading of the CWA. National
Cotton Council of America v. EPA, 553 F.3d 927 (6th Cir. 2009). The
Court held that the CWA unambiguously includes ``biological
pesticides,'' and ``chemical pesticides'' that leave a residue within
its definition of ``pollutant.'' Specifically, the application of
chemical pesticides that leaves no residue is not a pollutant. The
Court also found that the application of pesticides is from a point
source. Thus, point source discharges of biological pesticides and
chemical pesticide residues to Waters of the United States require an
NPDES permit. This also means (as also supported by other court cases)
that point source discharges to waters of the United States from
pesticides applied for forest pest control activities need to obtain an
NPDES permit (see Section III.1 of the Fact Sheet for further
discussion).
Based on the Court's decision, chemical pesticides that leave no
residue do not require an NPDES permit. However, EPA assumes for
purpose of this permit that all chemical pesticides have a residue,
and, therefore would need a permit unless it can be shown that there is
no residual. Unlike chemical pesticides (where the residual is the
pollutant), the Court further found that biological pesticides are
pollutants regardless of whether the application results in residuals
and such discharges need an NPDES permit.
In response to this decision, on April 9, 2009, EPA requested a
two-year stay of the mandate to provide the Agency time to develop a
general permit, to assist NPDES-authorized states to develop their
NPDES permits, and to provide outreach and education to the regulated
community and other stakeholders. On June 8, 2009, the Sixth Circuit
granted EPA the two-year stay of the mandate until April 9, 2011. On
November 2, 2009, Industry Petitioners of the Sixth Circuit Case
petitioned the Supreme Court to review the Sixth Circuit's decision. On
February 22, 2010, the Supreme Court issued its decision denying
petitions to review the Sixth Circuit decision.
As a result of the Court's decision on the 2006 NPDES Pesticides
Rule, at the end of the two-year stay, NPDES permits will be required
for point source discharges to waters of the U.S. of biological
pesticides, and of chemical pesticides that leave a residue. Until
April 9, 2011, the rule remains in effect and NPDES permits are not
required.
In response to the Court's decision, EPA is issuing this final
general permit for four specific pesticide use patterns with an
effective date of April 9, 2011, i.e., the date upon which NPDES
permits are required for discharges from the application of pesticides.
The specified use patterns may not represent every pesticide
application activity for which a discharge requires NPDES permit
coverage; however, the Agency believes these four use patterns
represent a significant portion of those activities for which permit
coverage is now required and is consistent with the use patterns EPA
contemplated in the 2006 NPDES Pesticides Rule.
Neither the Court's ruling nor EPA's issuance of this general
permit affects the existing CWA exemptions for irrigation return flow
and agricultural stormwater runoff, which are excluded from the
definition of a point source under Section 502(14) of the CWA and do
not require NPDES permit coverage.
G. Publication of the Draft NPDES Pesticide General Permit
EPA worked closely with states and other stakeholders to develop
the PGP. Because 44 states are required to develop their own permits,
EPA held three face-to-face meetings and regular conference calls with
environmental and agricultural agencies in each state, in order to
share information and ideas on how to permit this new class of NPDES
permittees. EPA also conducted or attended approximately 150 meetings
with industry experts, environmental interest groups, and other
interested stakeholders.
EPA published the draft NPDES Pesticide General Permit and
accompanying fact sheet in the Federal Register on June 4, 2010 (75 FR
31775) soliciting comments on that permit, and accepted public comments
through July 19, 2010. In addition, EPA held three public meetings, a
public hearing, and three national webcasts to further educate
stakeholders on the conditions included in the draft permit and to get
feedback on specific areas for which EPA sought additional information
to support finalization of the permit. EPA also conducted formal
consultation with the Tribes. EPA received over 750 written comment
letters on the draft permit from a variety of stakeholders, including
industry; federal, state, and local governments; environmental groups;
academia; and individual citizens. EPA considered all comments received
during the comment period in preparing the final general permit. EPA
responded to all significant comments in the Response to Comment
Document which is available as part of the docket to this permit.
[[Page 68754]]
H. Posting of the Draft Final NPDES Pesticide General Permit
On April 1, 2011, EPA posted a pre-publication version of its draft
final Pesticide General Permit for discharges of pesticide applications
to U.S. waters. This draft final permit was not considered a ``final
agency action,'' and the Agency did not solicit public comment on this
draft final permit. EPA provided a preview of the draft final permit to
assist states in developing their own permits and for the regulated
community to become familiar with the permit's requirements before it
was to become effective. This reflected EPA's commitment to
transparency and responding to the needs of stakeholders. The draft
final permit posted on April 1, 2011 contains largely identical
requirements to the final permit being published today. The principal
change is the addition of conditions to protect listed species as a
result of consultation with the National Marine Fisheries Service
(NMFS) under the Endangered Species Act (ESA). There have also been
changes to the timing of NOI submission deadlines and some additional
clarifying changes, but these do not alter the intent of the pre-
publication version posted in April.
III. Scope and Applicability of the NPDES Pesticide General Permit
A. Geographic Coverage
The PGP will provide permit coverage for discharges in areas where
EPA is the NPDES permitting authority. The geographic coverage of
today's final permit is listed below. Where this permit covers
activities on Indian Country lands, those areas are as listed below
within the borders of that state:
EPA Region 1
Massachusetts, including Indian Country lands within
Massachusetts
Indian Country lands within Connecticut
New Hampshire
Indian Country lands within Rhode Island
Federal Facilities within Vermont
EPA Region 2
Indian Country lands within New York
Puerto Rico
EPA Region 3
The District of Columbia
Federal Facilities within Delaware
EPA Region 4
Indian Country lands within Alabama
Indian Country lands within Florida
Indian Country lands within Mississippi
Indian Country lands within North Carolina
EPA Region 5
Indian Country lands within Michigan
Indian Country lands within Minnesota, excluding Sokaogon
Chippewa Community
Indian Country lands within Wisconsin, excluding Lac du
Flambeau Band of Lake Superior Chippewa Indians and Fond du Lac
Reservation
EPA Region 6
Indian Country lands within Louisiana
New Mexico, including Indian Country lands within New
Mexico, except Navajo Reservation Lands (see Region 9) and Ute Mountain
Reservation Lands (see Region 8)
Oklahoma, including Indian Country lands
Discharges in Texas that are not under the authority of
the Texas Commission on Environmental Quality (formerly TNRCC),
including activities associated with the exploration, development, or
production of oil or gas or geothermal resources, including
transportation of crude oil or natural gas by pipeline, including
Indian Country lands within Texas
EPA Region 7
Indian Country lands within Iowa
Indian Country lands within Kansas
Indian Country lands within Nebraska, except Pine Ridge
Reservation lands (see Region 8)
EPA Region 8
Federal Facilities within Colorado, including those on
Indian Country lands within Colorado as well as the portion of the Ute
Mountain Reservation located in New Mexico
Indian Country lands within the State of Colorado, as well
as the portion of the Ute Mountain Reservation located in New Mexico
Indian Country lands within Montana
Indian Country lands within North Dakota
Indian Country lands within South Dakota, as well as the
portion of the Pine Ridge Reservation located within Nebraska (see
Region 7)
Indian Country lands within Utah, except Goshute and
Navajo Reservation lands (see Region 9)
Indian Country lands within Wyoming
EPA Region 9
American Samoa
Indian Country lands within Arizona as well as Navajo
Reservation lands within New Mexico (see Region 6) and Utah (see Region
8), excluding for Hualapai Reservation
Indian Country lands within California
Guam
Johnston Atoll
Midway Island and Wake Island and other unincorporated
U.S. possessions
Northern Mariana Islands
Indian Country lands within Nevada, as well as the Duck
Valley Reservation within Idaho, the Fort McDermitt Reservation within
Oregon (see Region 10) and the Goshute Reservation within Utah (see
Region 8)
EPA Region 10
Alaska, including Indian Country lands
The State of Idaho, including Indian Country lands within
Idaho, except Duck Valley Reservation lands (see Region 9), excluding
Puyallup Tribe Reservation
Indian Country lands within Oregon, except Fort McDermitt
Reservation lands (see Region 9)
Federal Facilities in Washington, including those located
on Indian Country lands within Washington, excluding Puyallup Tribe
Reservation
B. Categories of Facilities Covered
The final general permit regulates discharges to waters of the
United States from the application of (1) biological pesticides, and
(2) chemical pesticides that leave a residue for the following four
pesticide use patterns.
Mosquito and Other Flying Insect Pest Control--to control
public health/nuisance and other flying insect pests that develop or
are present during a portion of their life cycle in or above standing
or flowing water. Public health/nuisance and other flying insect pests
in this use category include mosquitoes and black flies.
Weed and Algae Pest Control--to control weeds, algae, and
pathogens that are pests in water and at water's edge, including
ditches and/or canals.
Animal Pest Control--to control animal pests in water and
at water's edge. Animal pests in this use category include fish,
lampreys, insects, mollusks, and pathogens.
Forest Canopy Pest Control--application of a pesticide to
a forest canopy to control the population of a pest species (e.g.,
insect or pathogen) where, to target the pests effectively, a portion
of the pesticide unavoidably will be applied over and deposited to
water.
[[Page 68755]]
The scope of activities encompassed by these pesticide use patterns
is described in greater detail in Part III.1.1. of the fact sheet for
the final general permit.
C. Summary of Permit Terms and Requirements
The following is a summary of the final PGP's requirements:
The PGP defines Operator (i.e., the entity required to
obtain NPDES permit coverage for discharges) to include any (a)
Applicator who performs the application of pesticides or has day-to-day
control of the application of pesticides that results in a discharge to
Waters of the United States, or (b) Decision-maker who controls any
decision to apply pesticides that results in a discharge to Waters of
the United States. There may be instances when a single entity acts as
both an Applicator and a Decision-maker.
All Applicators are required to minimize pesticide
discharges by using only the amount of pesticide and frequency of
pesticide application necessary to control the target pest, maintain
pesticide application equipment in proper operating condition, control
discharges as necessary to meet applicable water quality standards, and
monitor for and report any adverse incidents.
All Decision-makers are required, to the extent not
determined by the Applicator, to minimize pesticide discharges by using
only the amount of pesticide and frequency of pesticide application
necessary to control the target pest. All Decision-makers are also
required to control discharges as necessary to meet applicable water
quality standards and monitor for and report any adverse incidents.
Coverage under this permit is available only for
discharges and discharge-related activities that are not likely to
adversely affect species that are federally-listed as endangered or
threatened (``listed'') under the Endangered Species Act (ESA) or
habitat that is federally-designated as critical under the ESA
(``critical habitat''), except for certain cases specified in the
permit involving prior consultation with the Services and Declared Pest
Emergencies. The permit contains several provisions addressing listed
species, including for certain listed species identified in the permit
as NMFS Listed Resources of Concern, that Decision-makers whose
discharges may affect these resources certify compliance with one of
six criteria which together ensure that any potential adverse effects
have been properly considered and addressed. These NMFS Listed
Resources of Concern for the PGP are identified in detail on EPA's Web
site at http://www.epa.gov/npdes/pesticides. These provisions were
added as a result of consultation between EPA and the National Marine
Fisheries Service (NMFS), as required under Section 7 of the Endangered
Species Act. Other requirements that address protection of listed
species include the waiting periods between submission of an NOI and
authorization to discharge, and specific permit conditions requiring
compliance with the results of any ESA Section 7 consultation with the
Services, or ESA Section 10 permit issued by the Services.
Certain Decision-makers (i.e., any agency for which pest
management for land resource stewardship is an integral part of the
organization's operations, entities with a specific responsibility to
control pests (e.g., mosquito and weed control districts), local
governments or other entities that apply pesticides in excess of
specified annual treatment area thresholds, and entities that discharge
pesticides to Tier 3 waters or to Waters of the United States
containing NMFS Listed Resources of Concern) are required to also
submit a Notice of Intent (NOI) to obtain authorization to discharge
and implement pest management options to reduce the discharge of
pesticides to Waters of the United States. Certain large Decision-
makers must also develop a Pesticide Discharge Management Plan (PDMP),
submit annual reports, and maintain detailed records. Certain small
Decision-makers are required to complete a pesticide discharge
evaluation worksheet for each pesticide application (in lieu of the
more comprehensive PDMP), an annual report, and detailed recordkeeping.
Permit conditions take effect as of October 31, 2011; however,
Operators with eligible discharges are authorized for permit coverage
through January 12, 2010 without submission of an NOI. Thus, for any
discharges commencing on or before January 12, 2012 that will continue
after this date, an NOI will need to be submitted no later than January
2, 2012 to ensure uninterrupted permit coverage, and for any discharge
occurring after January 12, 2012, no later than 10 days before the
first discharge occurring after January 12, 2012.
The following is a summary of permit terms and requirements
modified from the draft PGP public noticed on June 4, 2010:
Expanded the forest canopy pest control use pattern to
also include pesticide application activities performed from the
ground;
Expanded eligibility provisions to provide for coverage
for discharges to Tier 3 waters from pesticide applications made to
restore or maintain water quality or to protect public health or the
environment that either do not degrade water quality or that only
degrade water quality on a short-term or temporary basis;
Eliminated the requirement for certain Applicators to
submit NOIs;
Revised annual treatment area thresholds (which trigger
the need for NOI submission and implementation of more comprehensive
Pest Management Measures and documentation);
Delayed discharge date for which NOIs are required for a
little more than two months after permit issuance;
Refined definitions of ``Operator,'' ``Applicator,'' and
``Decision-maker,'' for purposes of delineating responsibilities under
the permit between Applicators and Decision-makers based on EPA's
expectation for these two groups of Operators;
Added requirement for Applicators to assess weather
conditions in the treatment area to ensure pesticide application is
consistent with all federal requirements;
Added requirement for certain Operators to document visual
monitoring activities, Provided different responsibilities for small
Decision-makers to complete a pesticide discharge evaluation worksheet
in lieu of a more comprehensive PDMP, annual report, and detailed
recordkeeping; and
Added specific permit conditions for states and Tribes in
accordance with CWA section 401 certifications.
IV. Economic Impacts of the Pesticide General Permit
As a result of the Sixth Circuit Court decision on EPA's 2006 NPDES
Pesticides Rule, operators of discharges to waters of the U.S. from the
application of pesticides now require NPDES permits for those
discharges. EPA expects that costs associated with complying with the
effluent limitations under this general permit will be similar to costs
under individual permits for similar activities; however,
administrative costs for both EPA as the permitting authority and
operators as permittees are expected to be lower under this general
permit than under individual permits. In other words, the general
permit itself can be expected to reduce rather than increase costs for
permittees as compared to the baseline of individual permitting.
EPA expects the economic impact on covered entities, including
small businesses, to be minimal. EPA requested additional information
during
[[Page 68756]]
the public notice of the draft permit and updated the analysis as
appropriate for the final permit. A copy of EPA's economic analysis,
titled, ``Economic Analysis of the Pesticide General Permit (PGP) for
Point Source Discharges from the Application of Pesticides'' is
available in the docket for this permit. The economic impact analysis
indicates that the PGP will cost approximately $10.0 million dollars
annually for the 35,200 operators in the areas for which EPA is the
permitting authority. Knowing that most applicators and decision-makers
are small businesses, EPA conducted a small entity economic analysis.
Based on available data, this permit will not have a significant
economic impact on a substantial number of small entities. The economic
impact analysis is included in the administrative record for this
permit.
V. Executive Orders 12866 and 13563
Under Executive Order (EO) 12866 (58 FR 51735 (October 4, 1993))
this action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21,
2011) and any changes made in response to OMB recommendations have been
documented in the docket for this action.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: October 31, 2011.
H. Curtis Spalding,
Regional Administrator, EPA, Region 1.
Dated: October 31, 2011.
Ariel Iglesias,
Deputy Director, Division of Environmental Planning and Protection,
EPA Region 2.
Dated: October 31, 2011.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA,
Region 2.
Dated: October 31, 2011.
Jon M. Capacasa,
Director, Water Division, EPA Region 3.
Dated: October 31, 2011.
Gail Mitchell,
Acting Director, Water Protection Division, EPA, Region 4.
Dated: October 31, 2011.
Tinka G. Hyde,
Director, Water Division, EPA Region 5.
Dated: October 31, 2011.
William K. Honker,
Acting Director, Water Quality Protection Division, EPA Region 6.
Dated: October 31, 2011.
Karen A. Flournoy,
Acting Director, Water, Wetlands, and Pesticides Division, EPA
Region 7.
Dated: October 31, 2011.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships and
Regulatory Assistance, EPA Region 8.
Dated: October 31, 2011.
Alexis Strauss,
Director, Water Division, EPA Region 9.
Dated: October 31, 2011.
Michael A. Bussell,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2011-28770 Filed 11-4-11; 8:45 am]
BILLING CODE 6560-50-P