|Clean water is in everyone's best interest. |
Guadalupe River State Park.
At stake is whether PMPs will be subject to notification and permitting rules required under the Clean Water Act. To understand the issue, you must first understand something about the Clean Water Act itself and the recent court decisions affecting how the EPA administers the law.
The Clean Water Act
The Clean Water Act (CWA) was passed in 1972 (with significant amendments in 1977 and 1987) as the nation's premier law protecting the quality of water in navigable streams, rivers, lakes and wetlands. In Section 301(a), the Act prohibits discharging any pollutant unless the discharge is in compliance with permitting provisions of the Act (the CWA specifically exempted agricultural stormwater and irrigation discharges). According to the law, pollutants includes, among other things, “garbage… chemical wastes, biological materials …and industrial, municipal, and agricultural waste discharged into water.”
One way a person may discharge a pollutant legally is by obtaining a permit under the National Pollutant Discharge Elimination System (NPDES). Under section 402(a) of the law, EPA may issue permits to discharge pollutants if certain conditions are met. Two types of permits are available: individual and general. Permits are generally granted for a set period, no greater than five years. General permits are granted (usually by the state) when multiple facilities/sites/activities will generate pollution. To establish a general permit, the EPA or a state develops and issues the permit in advance. Permits generally cover certain types of activities and set the guidelines for what levels of discharge are covered by the permit. Anyone wishing to make a discharge into a waterway must request coverage under the permit through submission of a Notice of Intent (NOI).
Pesticides and the CWA
Nearly everyone agrees that the CWA has been a significant factor in improvements seen in the nation's riverways and coastal waters. However, pesticides have been a burr under the saddle of some environmentalists, as pesticide applications have remained largely unaffected and unregulated by the CWA. During the past 38 years, EPA has never issued a permit to apply a pesticide to a waterway. This is because the agency has considered all such applications come under the authority of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA), an EPA-regulated law that most of us in pest control are very familiar with. Among other things, FIFRA sets use guidelines for the use of every pesticide. Only label uses that do not pose an unreasonable adverse effect on the environment will be approved by the EPA. Such decisions are made following a comprehensive and expensive label approval process; hence it has historically been EPA's opinion that FIFRA adequately protected waterways from pesticides.
This position has been challenged in court numerous times over the years, leading EPA in November, 2006 to issue a final rule clarifying the two specific circumstances in which an NPDES permit was not required to apply pesticides to or around water. The rule said a permit was not required for: 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. The rule became effective on January 26, 2007.
All this changed on January 9, 2009. In the case, National Cotton Council of America v. EPA, the Sixth Circuit Court nullified (vacated) EPA’s Pesticides Rule. The Court held that whenever there is a residue that is left in water after a pesticide targets a pest (which is essentially always), that pesticide should be considered a pollutant under the CWA. The court went on to say that the CWA should, in fact, require that any applicator who applies pesticides into a waterway must first be required to obtain an NPDES permit.
The EPA responded to this decision by requesting a two-year stay of the mandate to provide the Agency and NPDES-authorized states time to develop general permits and to provide outreach and education to the regulated community. In June, 2009, the Sixth Circuit Court agreed and granted EPA the two-year stay. According to this ruling, the final plan must be implemented no later than April 10, 2011.
The National Pesticide Permit Plan
On June 2, 2010, the EPA revealed its plan to address the Sixth Circuit Court ruling. The plan includes a draft of a permit system for point source discharges for the application of pesticides to water. Called the Pesticides General Permit (PGP), the plan EPA revealed this spring will serve as a model for NPDES-authorized states (like Texas) to develop their own PGPs.
Perhaps the most significant part of the EPA national PGP is that it outlines what sort of pesticide applications will be required to get a permit. The plan identifies four types of pesticide applications that will require an NPDES permit:
- applications of pesticides to water for control of aquatic weeds
- applications of pesticides to forest canopies over streams and rivers
- community mosquito control
- aquatic nuisance animal pest control (e.g., piscicides for trash fish, zebra mussel, lamprey, etc.)
- Aquatic herbicide (or nuisance animal pesticide) applications in waters exceeding 20 acres of open water or 20 linear miles of shoreline application
- Forestry canopy applications greater than 640 acres
- Mosquito control applications to areas greater than 640 acres
On the surface, it appears to me that the NPDES permitting system, if similar to the EPA's general permitting plan now, probably will have little impact on the day-to-day operations of most pest control companies.
In Texas the agency that is developing our state's permit is the Texas Commission on Environmental Quality (TCEQ). According to Jimmy Bush, TCEQ is anxious to involve stakeholders in the process to develop a state permitting plan. The agency has set up a website about the issue, and, in fact, held its first stakeholder meeting today to discuss concerns. The Texas Pest Control Association was in attendance and will certainly report the issues discussed. The TCEQ is under a deadline to submit its final plan by December, 2010.
How will the new regulations affect you?
This is a complex law, and few people seem to understand it in all its complexities. From what I learned at TDA last week, however, the NPDES permitting system does not seem to be directly targeting the pest control industry. Nevertheless, there will be changes in the way pesticides are regulated in the state; and, as always, with change comes uncertainty. Some potential unanswered questions about the permitting process come to mind:
- Will terrestrial applications of pesticides eventually (perhaps through court action) come under the permitting process? This has not been the intent of rulings to date, and seems unlikely, but some urban pesticides have been showing up in urban stormwater runoff and it's possible that someone could argue in court that such applications should be construed as pollutants under the CWA.
- How will acreages of coverage be calculated for mosquito control? Will every yard fogged in community mosquito control programs be counted toward the acreage threshold, or will there be criteria for calculating acreage next to waterways? Currently the EPA PGP states that acreage will include "acreage over water or conveyances with a hydrologic surface connection to waters of the U.S. at the time of pesticide application." This is still a vague definition, in my opinion.
- How will mosquito mister systems be handled?
- What kind of additional paperwork, if any, will companies be required to keep? Right now it appears that everyone will be on the honor system to report whether or not your company exceeds the annual thresholds for water applications. What responsibilities will companies be required to bear in order to show they have NOT met the thresholds required for an NOI?
- What will the Notice of Intent look like and what requirements will it carry? This will be of greatest concern to forest managers and mosquito control districts; but it could affect larger companies who annually treat larger communities.
- Will large companies be allowed to consider individual franchises as independent entities, or will the Orkin and Terminix franchises around the state be required to pool their acres treated? If the latter, then larger companies will run increased risk of having to file an NOI.
- Should the pest control industry be happy that terrestrial pesticide applications seem to be outside the realm of these CWA rules, or should the industry prefer to be included in individual state permits so that the rules can be clearly known and thresholds set at reasonable levels?