Draft NPDES Pesticides General Permit (PAG-15) [40 Pa.B. 7434]
[Saturday, December 25, 2010]In the past, Pesticides discharges were administered by the United States Environmental Protection Agency (EPA) through the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C.A. §§ 136—136y). On November 27, 2006, the EPA issued a final rule clarifying that ''the application of pesticides directly to water to control pests,'' and ''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'' provided that the application is consistent with relevant FIFRA requirements an National Pollution Discharge Elimination System (NPDES) permit was not required. On January 9, 2009, the Sixth Circuit court vacated the EPA's rule under a plain language reading of the Federal Clean Water Act (33 U.S.C.A. §§ 1251—1387). National Cotton Council of America v. EPA, 553 F.3d 927 (6th Cir., 2009).
The Court held that the CWA includes ''biological pesticides'' and ''chemical pesticides'' with residuals within its definition of ''pollutant.'' Therefore, an application of chemical pesticides that leaves no residual is not a discharge of a pollutant, and the applicator need not obtain an NPDES permit. However, chemical pesticide residuals are pollutants as applied if they are discharged from a point source for which NPDES permits are required. Biological pesticides, on the other hand, are always considered a pollutant under the CWA regardless of whether the application results in residuals or not, and require an NPDES permit for all discharges from a point source.
In response to the Court's decision, the EPA proposed a General Permit to cover certain discharges resulting from pesticide applications. Also, states that are authorized to issue NPDES permits will be required to develop their NPDES permits to cover these discharges.
This Pesticides General Permit is available to operators who discharge to waters of this Commonwealth from the application of biological pesticides or chemical pesticides that leave a residue for one of the following use patterns: mosquito and other flying insect pest control; aquatic weeds and algae control; aquatic nuisance animal control; or forest canopy pest control. A Notice of Intent (NOI) is required if an operator's annual treatment area thresholds exceed 640 acres for mosquitoes and other flying insect pest control and forest canopy control and 100 acres for treatment in waters or 20 linear miles of treatment area at water's edge for aquatic weed and algae control and aquatic nuisance animal control. The General Permit establishes effluent limitations in the form of continued implementation of technology based and water quality based effluent limitations along with site specific control measures that minimize discharge of pesticides to water of this Commonwealth. The proposed NOI fee for coverage under this Pesticides General Permit is $250.
This draft permit is being proposed to authorize point source discharges to waters of this Commonwealth from the application of pesticides for specific pesticide use patterns, as defined in the NOI Instructions, Draft Permit, and Fact Sheet of the permit. The Department of Environmental Protection (Department) is soliciting comment on this permit.
Written Comments: The Department is seeking comments on draft Pesticides General Permit Document Nos. 3800-PM-WSFR0345a-g. Interested persons may submit written comments on these draft Pesticides General Permit documents by January 24, 2011. Comments submitted by facsimile will not be accepted. The Department will accept comments submitted by e-mail. A return name and address must be included in each e-mail transmission.
Written comments should be submitted to Dharmendra Kumar, Department of Environmental Protection, Bureau of Water Standards and Facility Regulation, Division of Planning and Permit, Rachel Carson State Office Building—11th Floor, P. O. Box 8467, Harrisburg, PA 17105-8774 or dkumar@state.pa.us.
Contact: Questions regarding the draft Pesticides General Permit document should be directed to Dharmendra Kumar at (717) 783-2288 or dkumar@state.pa.us.
JOHN HANGER,
Secretary[Pa.B. Doc. No. 10-2466. Filed for public inspection December 23, 2010, 9:00 a.m.]
