New TDA leadership learning pest control

Yesterday was the first Structural Pest Control Service Advisory Committee (SPCS-AC) meeting since the retirement of Jimmy Bush, and the new leadership showed up eager to listen and learn. Leading the meeting was David Kostroun, new Chief Administrator for Agriculture and Consumer Protection.  Also in attendance was Stephen Pahl (Administrator for Consumer Protection) and Leslie Smith (Director for Consumer Service Protection), who directly supervises Michael Kelly the Coordinator for SPCS.

David Kostroun is one of the good guys.  By that I mean that he's an entomologist and former Extension specialist (:-)).  He has has worked for TDA for 16 years, has little background in structural pest control, but is eager to be better acquainted with the industry.  Leslie Smith has 23 years in pesticide programs, but is also new to structural pest control, as is Stephen Pahl is a former TDA ag inspector. Over the next year or so it's important for all of us to get to know these new leaders, so if you run into any of them at industry functions I know they would like to meet you and learn about your interests and concerns.

Impact of Legislative Session on TDA

Last summer the agency that regulates pest control and oversees the state's agricultural programs was hit by the state legislature with a 40-45% budget cut.  This meant reducing TDA staff by 140 full-time equivalents (FTEs) and forcing the agency to rely even more on "cost recovery".  Fortunately the cuts did not affect inspector ranks, but it did require the agency to raise fees by 57%.  House bill 2742 also reinstated the agency's powers to regulate advertising and soliciting pest control business.

The budget cuts and layoffs spurred the agency to reorganize.  This fall the agency has gone from ten divisions to three: food and nutrition, Trade and Business Development, and Agriculture and Consumer Protection (home of the SPCS, our regulating agency). Jimmy Bush, former agency head who steered the SPCS for the past three years or so, retired at the end of August.  His successor, David Kostroun, has a big job in front of him as he tries to balance a smaller budget against the need to maintain public safety.  His mantra for the agency is "quality, consistency, and efficiency."

Clean Water Permit program for pest control

In earlier blog posts I wrote about the clean water permitting system slated for implementation this year. According to TCEQ staffer Joy Tegbe, the permitting system is scheduled to go into effect on November 2; although a recent article by the Delta Farm Press reports that a possible two-year moratorium is still being debated by Congress.  If the NPDES rules do go into effect, cities and agencies who meet the thresholds in the law will have 90 days to apply for permits to use pesticides that might be applied to, or drift into, waterways.  This will affect pesticide applications made for mosquito control, aquatic weed or animal control, area-wide pest control and forest canopy pest control.

Since my original post, several clarifications have been made about who is required to get a permit.  For one, the thresholds for groups requiring permits have been liberalized.  For example, a permit is only required for entities that apply pesticides for mosquito control, forest canopy pests or area-wide pest control to more than 6,400 acres of land.  A permit for pesticides to control of aquatic animal or plant pests will only be required when treating more than 100 acres of water or 200 miles of stream bank each year. Contrary to early reports, re-treatments of the same land or water are not counted toward the annual acreage count.  In other words, if you treat the same 640 acres ten times, you've still only treated 640 acres--not 6,400 acres as we were originally told.

Now that the cards are all on the table, I believe the new NPDES rules will not greatly affect us in the pest control industry, although some of you may be asked to help explain these rules to large customers, such as municipalities.  The requirement that will affect most people are those for Level II entities.  These are public or private entities that annually treat more than one acre and less than 6,400 areas of land with General or Restricted Use pesticides.  These folks will have to keep on hand a letter of self certification, stating their intention to comply with the state's general use permit.  Failure to have such a letter would put these folks out of compliance with the law.  Golf courses, cities, park systems, and school districts are likely Level II entities and will probably need letters.  Most homeowners and smaller scale pesticide users will be classified as Level III entities and will not self-certify, rather they will only be required to follow label directions and precautions.  More about self certification letters in another blog.

To read the whole permit: http://www.tceq.texas.gov/permitting/stormwater/pesticidegp_stakeholder_group.html
WARNING: this permit is long and dense reading.  If you have questions, I suggest calling a real human such as Joy Tegbe or James Moore at 512-239-4671.

Need for New Members
The SPCS-AC was formed two legislative sessions ago to serve as a sounding board for TDA on structural pest control issues. The committee gets its mandate from Chapter 1951.101 of the Texas Occupations Code, and consists of nine members (two experts in structural pest control application, three public members, one member from an institution of higher education knowledgeable in pest control, one member recommended by the pest control industry, a consumer member, and a designee of the commissioner of state health services).

Almost all of the advisory committee terms have either expired or will expire in February, meaning that the SPCS is accepting applications for most seats on the committee.  If you are interested, call Michael Kelly of the SPCS for an application.  The consumer seat on the committee has never been filled, so if you are a consumer with interest in the pest control industry, this is your chance to get involved.

NPDES permit requirements on hold for now

Last August I wrote about the recent court mandate that would require a Clean Water Act permit for activities like community mosquito control and aquatic weed control.  The April 9, 2011 deadline for implementing this new permitting system was rapidly approaching until yesterday, when the Sixth Circuit Court of Appeals granted the U.S. EPA a stay (delay) of the requirements until October 31, 2011.

According to the EPA website, the extension was requested by the agency to allow sufficient time for EPA to engage in Endangered Species Act consultation and complete the development of an electronic database to streamline requests for coverage under the Agency’s general permit. It also allows time for authorized states to finish developing their state permits and for permitting authorities to provide additional outreach to stakeholders on pesticide permit requirements.

Texas has already developed its own state permit, which lays out what Texas communities and businesses have to do to legally apply mosquito adulticides, aquatic herbicides, forestry insecticides and other pesticides to state waters and lands.  This stay will mean that cities, school districts, landowners and businesses in Texas and other states that apply pesticides to more than the minimum area specified in the rules, have more time to develop and submit their permits.

The stay is not related to political opposition to the Clean Water Act's extension into the pesticide world.  Environmental groups have pushed for the CWA to cover pesticide applications for years; however numerous groups (e.g., American Mosquito Control Association, National Cotton Council, Golf Course Superintendent's Association, National Association of State Departments of Agriculture, etc.) have fought hard against the expansion.  Until a court decision in 2009, pesticides were exempt from CWA requirements as long as pesticide labels were followed.  Permits must comply with the National Pollutant Discharge Elimination System (NPDES) of permits.  At least one bill, HR 872 the Reducing Regulatory Burdens Act, would amend the Federal Water Pollution Control Act to exempt pesticides from permit requirements.  That bill was recently voted on favorably (46-8) by the House Transportation and Infrastructure Committee.

NPDES legislative update

Earlier this month I sent a long post trying to summarize the latest legal developments concerning the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) and commercial pesticide applications.  I'm not going to be long-winded today, other than to say that there has been a lot of opposition to the court's decision to consider label-approved pesticide applications to, or over, water as a discharge of pollutants.  As a result, legislation was introduced on August 5th to explicitly exempt pesticides from other permitting requirements when pesticides are applied according to an approved label.  If passed, the bill would essentially side-step the legal ruling that declared certain pesticides as pollutants and requiring them to obtain an NDPES permit.  According to Senator Lincoln (D-AR), the bill's sponsor,

“Our legislation is very simple: as long as a producer is complying with FIFRA, then no Clean Water Act permit will be required. During the more than 35 years since the enactment of the Clean Water Act, the EPA has never required a permit for the application of FIFRA-registered crop protection products. Our bill would extend this common-sense approach and avoid duplicative, unnecessary burdens on our farmers, foresters, and ranchers.”

I've not had time to study response to this legislation, but I thought I would let you know about it before it's old news.  Here's a link to the bill at govtrack.  It's interesting that the drafters decided to amend FIFRA rather than the Clean Water Act.  This strategy is likely due to the hope that the bill will receive a more sympathetic hearing in the Agriculture Committee, and is therefore more likely to be passed out of committee. Stay tuned for more developments in this lively bit of pesticide history.

A primer on the NPDES and its potential impact on pest control

Clean water is in everyone's best interest. 
Guadalupe River State Park.

Last week the Advisory Committee for the Texas Department of Agriculture's Structural Pest Control Service met in Austin. The advisory committee meets quarterly to offer suggestions and feedback to TDA on rules and regulations pertaining to pest control in Texas. Much of the time in last week's meeting was spent learning about the upcoming EPA rules governing pesticide applications around waterways. If you haven't yet heard about this issue, it is a topic of hot debate right now among PMPs around the country.

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.)

In addition to defining these categories, the PGP set annual thresholds, above which applicators will be required to file an NOI.

• 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

As an example, if you apply mosquito adulticides to less than 640 acres (one square mile) a year, you will be covered by the state's general permit and will not have to file any paperwork.

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?  

If you want to learn more about the CWA changes regarding pesticides, go to the EPA site for NPDES.  If you have opinions that you want to share with TCEQ, the few months will be critical.  Under the impending court order this is one time government will move quickly.