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EPA’s NPDES permit plans too ‘optimistic’

EPA’s NPDES permit plans too ‘optimistic’

The EPA’s plans for finalizing and implementing its NPDES general permit for applications of pesticides over water could result in a number of adverse consequences. The permit will impact small businesses. Nothing in the CWA or the proposed permit protects farmers from citizen suits for not obtaining a permit.

The Environmental Protection Agency’s plans for finalizing and implementing its NPDES general permit for applications of pesticides over water are “overly optimistic” and could result in a number of adverse consequences, one of the agency’s critics says.

According to reports, EPA now hopes to complete its National Pollutant Discharge Elimination System permit for applications of pesticides over water by December. EPA and most of the states would then begin implementing and enforcing the permit program starting next April.

Testifying at a Senate Agriculture Committee hearing, the president of CropLife America said not only do many believe EPA and the states won’t meet that schedule, but they worry that the permitting system will impose hardships on small businesses and negate many of the public health achievements of recent years.

“We are very skeptical about this overly optimistic timetable,” said Jay Vroom, the CropLife America president. “Even if things go smoothly, for the federal government and individual states to get all this work done well before April – and then for the regulated community to have time to get up to speed on compliance – seems nearly impossible to achieve.”

Vroom, whose members produce and sell most of the crop protection and biotechnology products used in the U.S., said EPA might not be up against the April 2011 court-imposed deadline if it had been willing to fight harder to defend its previous position that the Federal Insecticide, Fungicide and Rodenticide Act was the governing document for pesticide use.

“Never in the 62 years of FIFRA nor 38 years of the Clean Water Act has the federal government required a permit to apply pesticides “to, over or near” waters of the U.S. for control of such pests as mosquitoes, forest canopy insects, algae, or invasive aquatic weeds and animals, like Zebra mussel,” he said.

“As a matter of fact, Congress specifically omitted pesticides in 1972 when it enacted the CWA, and despite major rewrites since, never looked beyond FIFRA for the regulation of the regular, label-approved uses of pesticides.”

That is, until last year when the U.S. 6th Circuit Court of Appeals overturned EPA’s 2006 rule which specifically exempted from the Clean Water Act, NPDES permitting of aquatic pesticide applications.

“Agriculture and the rest of the pesticide user community are still baffled by the federal government’s choice not to more rigorously defend the 2006 rule,” said Vroom in testimony delivered on Sept. 23. “CropLife America believes the 6th Circuit got it wrong, and EPA should have done more to defend its previous rule.”


Burden on small business

Aside from the legal precedent, Vroom notes the permit will add performance, recordkeeping and reporting requirements to an estimated 1.5 million pesticide applications per year and pre-empt the science-based ecological review of pesticides and label requirements for uses regulated under the FIFRA.

“This one decision overnight will nearly double the population of entities requiring permits under CWA and affects state agencies, local municipalities, recreation, utility rights-of-way, railroads, roads and highways, mosquito control districts, water districts, canals and other water conveyances, commercial applicators, farm, ranches, forestry, scientists, and many, many others. This is an enormous burden – and we see no related benefit to protection of humans or the environment.”

Many of the businesses impacted by the permit are small businesses. “The permit will threaten their economic survival, either due to the cost of obtaining a permit or due to their vulnerability to citizen law suits under CWA,” he said.

“New requirements for monitoring and surveillance, planning, recordkeeping, reporting and other tasks will create significant delays, costs, reporting burdens and legal risks from citizen suits for hundreds of thousands of newly-minted permit holders without enhancing the environmental protections already provided by FIFRA compliance.”

To date, EPA’s proposed general permit only covers applications of pesticides registered for aquatic use and applied to water or forest canopies into or over flowing or seasonal waters, and conveyances to those waters; it would not cover pesticide applications registered and intended for terrestrial use.

“However, activists indicate that they believe most pesticide applications should require a permit if there is even a chance that the pesticide could come in contact with any ‘water,’ either flowing water or seasonal drainage ditches that could be a conveyance to a water of the U.S.,” said Vroom.

“So, even though EPA may not currently cover farmland and rangeland pesticide applications, nothing in the CWA or the proposed permit protects against citizen suits against farmers for not obtaining a permit. This establishes an uncertain, increased level of liability for farmers and ranchers, as well as users applying pesticides to golf courses and public utility rights of way, and private homes and businesses.”

CropLife America has a long history of working cooperatively with EPA and the U.S. Congress on issues affecting crop protection, human health and the environment, Vroom said. Recently, however, businesses that support American agriculture have seen serious deviations from the regular order, transparency and scientific integrity of the federal government’s pesticide review process.

“We hope that today’s hearing will put EPA, other agencies and agriculture back on a path to a more productive dialogue that leads to reasonable, timely, and consistent solutions to our shared concerns.”

Vroom thanked Agriculture Committee Chairman Sen. Blanche Lincoln, D-Ark., ranking member Sen. Saxby Chambliss, R-Ga., for introducing the FIFRA Paperwork Reduction Act, which is aimed at clarifying that permits are not required for pesticides applied in compliance with FIFRA.

“CropLife America knows that the oversight and action of this committee may well determine whether the pesticide program descends into further disarray – regulating based on unsupported science, activism and politics – or whether you can thoughtfully guide EPA back to the order of FIFRA’s transparent, science-based review and rigorous process.”

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