[Federal Register Volume 75, Number 107 (Friday, June 4, 2010)]
[Notices]
[Pages 31775-31785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13468]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9159-2]
Draft 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 draft permit and notice of public meetings.
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SUMMARY: All ten EPA Regions today are proposing a draft NPDES general
permit for point source discharges from the application of certain
pesticides to waters of the United States. Once finalized, this permit
will be available to operators 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
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 two-year stay of the Court's mandate to provide time to
draft and implement the permit noticed today. The stay of the mandate
expires on April 9, 2011; where after, NPDES permits will be required
for all point source discharges to waters of the United States of
biological pesticides, and chemical pesticides that leave a residue.
This Federal Register notice briefly summarizes the requirements in
this draft general permit for pesticides applications to waters of the
U.S. EPA is soliciting public comment on all aspects of the draft NPDES
permit. This Federal Register notices also includes a list of specific
issues about which the Agency is particularly asking for comment.
Supporting documentation to the permit is contained in an accompanying
fact sheet. The public is encouraged to read this fact sheet to better
understand the permit requirements. The fact sheet and permit can be
found at http://www.epa.gov/npdes/pesticides.
DATES: Comments on the draft general permit must be received on or
before July 19, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2010-0257, by one of the following methods:
1. http://www.regulations.gov: Follow the online instructions for
submitting comments.
2. E-mail: [email protected].
3. Mail to: Water Docket, U.S. Environmental Protection Agency,
Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460,
Attention: Docket ID No. EPA-HQ-OW-2010-0257.
4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301
Constitution Avenue, NW., Washington, DC 20004, Attention: Docket ID
No. EPA-HQ-OW-2010-0257. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-
0257. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA
[[Page 31776]]
cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses. For
additional information about EPA's public docket visit the EPA Docket
Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at a docket facility. The Office
of Water (OW) Docket Center is open from 8:30 until 4:30 p.m., Monday
through Friday, excluding legal holidays. The OW Docket Center
telephone number is (202) 566-2426, and the Docket address is OW
Docket, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington,
DC 20004. The Public Reading Room is 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.
Public meetings and public hearing: EPA will hold three (3) public
meetings in: Albuquerque, New Mexico on June 14, 2010; Boise, Idaho on
June 16, 2010; Boston, Massachusetts on June 21, 2010; and a public
hearing in Washington, DC on June 23, 2010. The focus of each meeting/
hearing is to present the draft general permit and the basis for the
draft permit requirements, and to answer questions concerning the draft
permit. At these meetings, any person may provide written or oral
statements and data pertaining to the draft permit. The date, time and
location of the public meetings and public hearing are as follows:
Albuquerque, New Mexico: Monday, June 14, 2010, at the CNM
Workforce Training Center, Room 101, 5600 Eagle Rock Avenue, NE,
Albuquerque, New Mexico, from 12 p.m.-3 p.m.
Boise, Idaho: Wednesday, June 16, 2010, at the Bureau of
Reclamation, Rooms 206 & 219, 1150 North Curtis Road, Boise, Idaho from
9 a.m. to 12 p.m.
Boston, Massachusetts: Monday, June 21, 2010, at EPA
Region 1, 5 Post Office Square--Suite 100, Conference Room 1529,
Boston, MA 02109-3912, from 1 p.m. to 4 p.m.
Washington, DC: Wednesday, June 23, 2010, at the EPA East
Building, Room 1153, 1301 Constitution Avenue, NW., Washington, DC
20004, from 10 a.m. to 1 p.m.
If you would like to present a statement at the public hearing in
Washington, DC, please contact Virginia Garelick at 202-564-2316 to
register your intent to provide a public statement. Speakers will be
given up to three minutes (or as time allows) to provide their comments
on a first come first served basis. Any additional comments will need
to be provided in writing. EPA will consider all comments received and
will include copies of such in the Administrative Record.
EPA encourages interested and potentially affected stakeholders to
attend one of the scheduled public meetings and provide oral or written
comments. Please note that the public meetings may close early if all
business is finished. Oral or written comments received at the public
meetings will be entered into the Docket for this permit. If you are
unable to attend, you may submit comments to the EPA Water Docket at
the address identified in the ADDRESSES section listed above.
More information on these meetings will be available on the
Internet at http://www.epa.gov/npdes/pesticides, including any
additional dates and locations if scheduled. Due to limited seating,
those wishing to attend EPA's public meetings are asked to please send
an e-mail message containing their name, telephone number and
organization to Virginia Garelick at [email protected]. An e-
mail message is not required, however. Anyone wishing to may attend
provided space is available. If you need a sign language interpreter at
any of these meetings, you should notify Ms. Garelick of such at least
ten business days prior to the meetings so that appropriate
arrangements can be made. For further information, including
registration information, please refer to the following Web site:
http://www.epa.gov/npdes/pesticides.
Webcast: EPA has scheduled a Webcast to provide information on this
draft permit and to answer questions for interested parties that are
unable to attend the public meetings or hearing. The webcast will be
broadcast on June 17, 2010, from 1 p.m. to 3 p.m. Eastern Standard Time
(EST). For information on how to register and attend the webcast, see
EPA's Web site at http://www.epa.gov/npdes/training.
FOR FURTHER INFORMATION CONTACT: For further information on this draft
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 e-
mail: [email protected].
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. What should I consider as I prepare my comments for EPA?
D. Finalizing This Permit
E. Who are the EPA regional contacts for this draft permit?
II. Statutory and Regulatory History
A. Clean Water Act
B. NPDES Permits
C. History of Pesticide Application Regulations
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
III. Scope and Applicability of This NPDES Pesticides General Permit
A. Geographic Coverage
B. Categories of Facilities Covered
C. Summary of Permit Terms and Requirements
D. Key Permit Provisions for Which EPA is Soliciting Comment
E. Permit Appeal Procedures
IV. Economic Impacts of the Pesticides General Permit
V. Executive Order 12866
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:
[[Page 31777]]
Table 1--Entities Potentially Regulated by This Permit
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Examples of
Category NAICS potentially affected
entities
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Agriculture parties--General 111 Crop Production. Producers of crops
agricultural interests, mainly for food and
farmers/producers, fiber including
forestry, and irrigation. farms, orchards,
groves,
greenhouses, and
nurseries that have
irrigation ditches
requiring pest
control.
113110 Timber Tract The operation of
Operations. timber tracts for
the purpose of
selling standing
timber.
113210 Forest Growing trees for
Nurseries Gathering reforestation and/
of Forest Products. or gathering forest
products, such as
gums, barks, balsam
needles, rhizomes,
fibers, Spanish
moss, ginseng, and
truffles.
221310 Water Supply Operating irrigation
for Irrigation. systems.
Public health parties 923120 Government
(includes mosquito or other Administration of establishments
vector control districts Public Health primarily engaged
and commercial applicators Programs. in the planning,
that service these). administration, and
coordination of
public health
programs and
services, including
environmental
health activities.
Resource management parties 924110 Government
(includes State departments Administration of establishments
of fish and wildlife, State Air and Water primarily engaged
departments of pesticide Resource and Solid in the
regulation, State Waste Management administration,
environmental agencies, and Programs. regulation, and
universities). enforcement of air
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.
Public health parties 923120 Government
(includes mosquito or other Administration of establishments
vector control districts Public Health primarily engaged
and commercial applicators Programs. in the planning,
that service these). administration, and
coordination of
public health
programs and
services, including
environmental
health activities.
924120 Government
Administration of establishments
Conservation primarily engaged
Programs. in 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.
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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 draft permit and fact sheet are
available on EPA's NPDES Web site at www.epa.gov/npdes/pesticides.
An electronic version of the public docket is available through
EPA's
[[Page 31778]]
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. What should I consider as I prepare my comments for EPA?
1. Submitting CBI
Do not submit this information to EPA through regulations.gov or e-
mail. Clearly mark all of the information that you claim to be CBI. For
CBI information on computer discs mailed to EPA, mark the surface of
the disc as CBI. Also identify electronically the specific information
contained in the disc that you claim is CBI. In addition to one
complete version of the specific information claimed as CBI, you must
submit a copy that does not contain the information claimed as CBI for
inclusion in the public document. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments in paper form that are mailed or delivered to
the Docket will be scanned and placed in EPA's electronic public
docket. Where practical, physical objects will be photographed, and the
photograph will be placed in EPA's electronic public docket along with
a brief description written by the docket staff.
2. Tips for Preparing Your Comments
When submitting comments, remember to:
Identify this permit by docket number and other
identifying information (subject heading, Federal Register date, and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a section or
part of this permit.
Explain why you agree or disagree, suggest alternatives,
and suggest substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Make sure to submit your comments by the comment period
deadline identified.
D. Finalizing This Permit
After the close of the public comment period on this draft, EPA
will issue a final permit. That final permit will be issued after all
public comments received during the public comment period have been
considered and appropriate changes made to this permit. EPA's response
to comments received will be included in the docket as part of the
final permit decision.
E. Who are the EPA regional contacts for this draft 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 e-mail at [email protected].
For EPA Region 2, contact Maureen Krudner at USEPA Region 2, 290
Broadway, New York, NY 10007-1866; or tel.: (212) 637-3874; or e-mail
at [email protected].
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 e-mail at [email protected].
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 e-
mail at [email protected].
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 e-mail at [email protected].
For EPA Region 6, contact Phillip Jennings at USEPA Region 6, 1445
Ross Avenue, Suite 1200, Mail Code: 6WO, Dallas, TX 75202-2733; or at
tel.: (214) 665-7538 or e-mail at [email protected].
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 e-mail at: [email protected].
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 e-mail
at: [email protected].
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 e-mail at: [email protected].
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 e-mail at: [email protected].
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).
A person may discharge a pollutant without violating the section
301 prohibition by obtaining authorization to discharge (referred to
herein as
[[Page 31779]]
``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 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
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.
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 or territory develops and
issues the permit with dischargers then obtaining coverage under the
permit, typically through submission of a Notice of Intent (NOI). A
general permit is also subject to public comment, as is being done
under this Federal Register notice, 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. 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 (Ninth Cir. 2003). 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.
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 (Ninth 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 (Ninth 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 (Second 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
[[Page 31780]]
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 (Ninth 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, 2nd Cir., No. 09-97-cv, 3/30/10.
E. 2006 Agency Rulemaking Excluding Discharges From Pesticides 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 Pesticides 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 (Sixth Circuit). 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 (Sixth
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.
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
general permits, 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 proposing this draft
general permit for four specific pesticide use patterns. The specified
use patterns may not represent every pesticide application activity for
which a discharge requires NPDES permit coverage. The four use patterns
included in this draft permit are generally consistent with what was
addressed 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.
III. Scope and Applicability of This NPDES Pesticides General Permit
A. Geographic Coverage
EPA will provide permit coverage for classes of discharges where
EPA is the NPDES permitting authority. The geographic coverage of
today's draft 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
The Commonwealth of Massachusetts, including Indian
Country lands
Indian Country lands within the State of Connecticut
The State of New Hampshire
Indian Country lands within the State of Rhode Island
Federal Facilities in the State of Vermont
EPA Region 2
Indian Country lands within the State of New York
The Commonwealth of Puerto Rico
EPA Region 3
The District of Columbia
Federal Facilities in the State of Delaware
EPA Region 4
Indian Country lands within the State of Alabama
Indian Country lands within the State of Florida
Indian Country lands within the State of Mississippi
Indian Country lands within the State of North Carolina
EPA Region 5
Indian Country lands within the State of Michigan
Indian Country lands within the State of Minnesota
Indian Country lands within the State of Wisconsin
EPA Region 6
Indian Country lands within the State of Louisiana
The State of New Mexico, including Indian Country lands
within the State of New Mexico, except Navajo Reservation Lands (see
Region 9) and Ute Mountain Reservation Lands (see Region 8)
The State of Oklahoma, including Indian Country lands
Discharges in the State of 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
[[Page 31781]]
or geothermal resources, including transportation of crude oil or
natural gas by pipeline
Indian Country lands within the State of Texas
EPA Region 7
Indian Country lands within the State of Iowa
Indian Country lands within the State of Kansas
Indian Country lands the State of Nebraska, except Pine
Ridge Reservation lands (see Region 8)
EPA Region 8
Federal Facilities in the State of Colorado, except those
located on Indian Country lands
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 the State of Montana
Indian Country lands within the State of North Dakota
Indian Country lands within the State of South Dakota, as
well as the portion of the Pine Ridge Reservation located in Nebraska
(see Region 7)
Indian Country lands within the State of Utah, except
Goshute and Navajo Reservation lands (see Region 9)
Indian Country lands within the State of Wyoming
EPA Region 9
The Island of American Samoa
Indian Country lands within the State of Arizona as well
as Navajo Reservation lands in New Mexico (see Region 6) and Utah (see
Region 8)
Indian Country lands within the State of California
The Island of Guam
The Johnston Atoll
The Midway Island and Wake Island
The Commonwealth of the Northern Mariana Islands
Indian Country lands within the State of Nevada, as well
as the Duck Valley Reservation in Idaho, the Fort McDermitt Reservation
in Oregon (see Region 10) and the Goshute Reservation in Utah (see
Region 8)
EPA Region 10
The State of Alaska, including Indian Country lands
The State of Idaho, including Indian Country lands within
the State of Idaho, except Duck Valley Reservation lands (see Region 9)
Indian Country lands within the State of Oregon, except
Fort McDermitt Reservation lands (see Region 9)
Federal Facilities in the State of Washington, including
those located on Indian Country lands within the State of Washington
B. Categories of Facilities Covered
Today's draft 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
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 pests in this use category
include but are not limited to mosquitoes and black flies.
Aquatic Weed and Algae Control--to control weeds and algae
in water and at water's edge.
Aquatic Nuisance Animal Control--to control invasive or
other nuisance species in water and at water's edge. Aquatic nuisance
animals in this use category include, but are not limited to fish,
lampreys, and mollusks.
Forest Canopy Pest Control--aerial application of a
pesticide over a forest canopy to control the population of a pest
species (e.g., insect or pathogen) where to target the pest effectively
a portion of the pesticide unavoidably will be applied over and
deposited to water.
The scope of activities encompassed by these pesticide use patterns
is described in greater detail in Part 2.2 of this draft general
permit.
C. Summary of Permit Terms and Requirements
Coverage Under This Permit
This permit will be available to operators of discharges to waters
of the U.S. from the application of (1) biological pesticides, and (2)
chemical pesticides that leave a residue for the following pesticide
use patterns: mosquito and other flying insect pest control; aquatic
weed and algae control; aquatic nuisance animal control; and forest
canopy pest control. Not eligible for coverage under this permit are
discharges to waters of the U.S. identified as impaired for the
specific pesticide or its degradates being applied and any discharges
to outstanding national resource waters (i.e., Tier 3 waters under
anti-degradation regulations). To obtain authorization under this
permit an operator must meet the eligibility requirements identified
above and if the operator knows or reasonably should have known that
its activities will exceed any annual treatment area threshold
described in Part 1.2.2 of the permit, then an NOI must be submitted
for permit coverage.
Threatened and Endangered Species and Critical Habitat
Section 7(a)(2) of the Endangered Species Act (ESA) requires that
EPA consult with the U.S. Fish and Wildlife Service and U.S. National
Marine Fisheries Service (collectively called the ``Services'') to
ensure that the permit is not likely to jeopardize the continued
existence of any threatened or endangered species or adversely affect
its critical habitat. Consultation between EPA and the Services is
currently ongoing with the results of that action to be included in the
final permit. As a result of these consultations, EPA may need to
consider adding conditions to the permit to further protect listed
species and critical habitat. These requirements may include additional
effluent limitations, monitoring, planning, recordkeeping, and/or
reporting. A more detailed discussion of the permit conditions that may
be considered is provided in Part III.10.F. of the permit fact sheet.
Based on consultation to date, EPA included language in the draft
general permit that would require:
--Any operator that is required to submit an NOI to indicate in that
NOI whether threatened and endangered species and/or its critical
habitat are present in the area where permit coverage is being
requested;
--Where a pre-existing ESA Section 7 or Section 10 action already
addresses discharges from activities also covered under this permit,
that the conditions and/or requirements of those actions are
incorporated as enforceable conditions of this general permit; and
--All operators to notify the Services if they become aware of any
adverse incident to a Federally-listed threatened or endangered species
or its critical habitat, that may have resulted from a discharge from
their pesticide application.
EPA requests comment on appropriate measures to protect endangered and
threatened species, including the possible measures discussed in Part
III.10.F of the draft Permit Fact Sheet.
Technology-Based Effluent Limitations
The draft permit, in Part 2, requires all operators to minimize
pesticide discharges into waters by doing the following: (1) Use the
lowest effective amount of pesticide product per application and
optimum frequency of pesticide applications necessary to control the
target pest; (2) perform
[[Page 31782]]
regular maintenance activities to reduce leaks, spills, or unintended
discharges of pesticides associated with the application of pesticides
covered under this permit; and (3) maintain application equipment in
proper operating condition by calibrating and cleaning/repairing such
equipment on a regular basis to ensure effective pesticide application
and pest control. Operators that exceed an annual treatment area
threshold must also implement Integrated Pest Management (IPM)
practices that require these operators to: (1) Identify and assess the
pest problem; (2) evaluate effective pest management; and (3) follow
appropriate procedures for pesticide use.
It is important to note that although the FIFRA labeling is not an
effluent limitation, if the permittee is found to have applied a
pesticide in a manner inconsistent with the relevant water-quality
related FIFRA labeling requirements, EPA will presume that the effluent
limitation to minimize pesticides entering the Waters of the United
States has been violated under the NPDES permit. Therefore, use
inconsistent with certain FIFRA labeling requirements could result in
the permittee being held liable for CWA violation as well as a FIFRA
violation.
Water Quality-Based Effluent Limitations
In addition to the technology-based effluent limitations, the
operator is required to control its discharge as necessary to meet
applicable water quality standards. In general, EPA expects that
compliance with the technology-based effluent limitations and other
terms and conditions in this permit will meet the water-quality
effluent limitation. Part 3 contains permit conditions to prohibit any
discharges that causes or contributes to an excursion of any applicable
numeric or narrative EPA-approved State, territory, or tribal or EPA
promulgated water quality standard.
Site Monitoring
Part 4 requires entities to monitor to assess compliance with this
permit. Permittees must monitor for observable adverse incidents in the
treatment area and where pesticides are discharged to waters of the
United States. Specifically operators are required to visually monitor
for adverse impacts (as defined in the permit) during application, or
during post application surveillance that is conducted as a regular
part of doing business.
Pesticide Discharge Management Plan
An operator who is subject to Part 2.2 of this permit (i.e., one
who is required to submit an NOI) must prepare a pesticide discharge
management plan (PDMP) for its pest management area. Operators who know
or should have reasonably known prior to commencement of discharge,
that they will exceed an annual treatment area threshold identified in
Part 1.2.2 for that year, must develop a PDMP prior to first pesticide
application covered under this permit. Operators who do not know or
would reasonably not know until after commencement of discharge, that
they will exceed an annual treatment area threshold identified in Part
1.2.2 for that year, must develop a PDMP prior to exceeding the annual
treatment area threshold. Operators commencing discharge in response to
a declared pest emergency situation as defined in Appendix A, that will
cause the operator to exceed an annual treatment area threshold, must
develop a PDMP no later than 90 days after responding to the declared
pest emergency. The PDMP must include information on the pesticide
discharge management team, pest management area, control measure,
including evaluation and selection of pest management, and schedules
and procedures for pest surveillance, equipment maintenance,
application rate and frequency, assessing environmental conditions,
spill prevention, spill response, adverse incident response, and
pesticide monitoring. The PDMP, together with the additional
documentation requirements in Part 7, document the practices the
operator is implementing to meet the effluent limitations in this
permit.
Corrective Action
Part 6 outlines situations that require operators to review and
revise their control measures. Changes to control measures must be made
before the next pesticide application that results in a discharge or,
if not possible, as soon as practicable. This draft permit also
outlines the procedures for notification, reporting, and documentation
of corrective actions for adverse incidents, spills and leaks and other
situations triggering the need for such actions.
Recordkeeping and Annual Reporting
In Part 7, operators required to submit an NOI are required to keep
certain records of their pesticide discharges to demonstrate compliance
with the permit conditions. This draft permit specifies which records
must be kept and the timeframe for record retention. In addition, any
operator who is required to submit an NOI must submit an annual report
to EPA. The draft permit specifies the information that must be
included in the annual report and the timeframe for submission.
D. Key Permit Provisions for Which EPA Is Soliciting Comment
EPA seeks comment on all aspects of this draft general permit and
the accompanying fact sheet; however, in particular, EPA is soliciting
comments on the following aspects of this permit:
Number of Entities Covered Under This Permit
This general permit provides coverage for the following four use
patterns: mosquito and other flying insect pest control; aquatic weed
and algae control; aquatic nuisance animal control; and forest canopy
pest control. To gain a better understanding of the universe of
permittees that would be covered under this permit, EPA is soliciting
information on the numbers, types and sizes of entities that conduct
pesticide application for each use pattern. Entities include those who
decide that application of pesticides is necessary (for example,
mosquito control districts, counties, irrigation control districts and
other local governments) as well as those entities that apply the
pesticides (for example, for-hire commercial applicators).
Activities Covered
This general permit provides coverage for the following four use
patterns: mosquito and other flying insect pest control; aquatic weed
and algae control; aquatic nuisance animal control; and forest canopy
pest control.
EPA believes that these four use patterns would encompass the
majority of pesticide applications that would result in point source
discharges to waters of the U.S. This draft permit would not provide
coverage for other pesticide use patterns; however, EPA is still
exploring whether other use patterns should be included. Specifically,
EPA has not included most use patterns that target land-based pests and
flying pests that are not near or over water. EPA is seeking comment on
whether certain pesticide application activities targeting such pests
may involve unavoidable point-source discharges to waters of the United
States. EPA is also requesting comment on whether this general permit
should provide coverage for any such activities, and if so, which
activities should be covered. If, after considering comments, EPA
expands coverage of this permit, the effluent limitations for the
[[Page 31783]]
additional use patterns would likely be similar to what is being
proposed in this draft permit. Due to the likely similarities between
such additional activities and the associated effluent limitations, EPA
expects that there will not be a need to re-propose the general permit
to cover such additional activities in the final permit. In this case,
entities in the newly included use pattern(s) could seek coverage under
this general permit. Any point source discharges of pollutants to
waters of the United States not covered by this or another general
permit will need coverage under an individual permit. EPA also requests
comments on how the effluent limitations provided in this permit could
apply to the additional activities and whether there are additional or
different effluent limitations that might be appropriate for such
activities. EPA is also soliciting comments on whether it should
exclude from coverage under the general permit all discharges to waters
that are impaired generally for ``pesticides'' rather than only
excluding from coverage those discharges to waters that are impaired
for the specific pesticide being applied or its degradates.
Limitations on Coverage
This permit does not authorize coverage for certain discharges to
pesticide-impaired waters and Tier 3 waters. Specifically, this permit
does not authorize discharges of pesticides or their degradates to
waters impaired for those specific pesticides or degradates.
Additionally, this permit does not authorize discharges to outstanding
national resource waters (Tier 3 waters). EPA would like input on
whether it is appropriate to exclude these discharges from coverage
under the general permit or if there are conditions that could be added
to the general permit that could adequately address these situations.
Sharing of Responsibilities
This permit establishes requirements to control discharges from the
application of pesticides that are specific to the discharge regardless
of who is defined as the ``operator'' of the discharge. An ``operator''
is defined as that entity required under the NPDES program to obtain
permit coverage for point source discharges of pollutants to waters of
the United States. As written, this permit acknowledges that in many
instances, the entity making the decision to apply pesticides is
different than the entity that actually applies the pesticides (for
example, a mosquito control district may decide that a pesticide
application is needed and enter into a contract with a for-hire
commercial applicator to perform the application). EPA, however,
defines both of these entities as ``operators.'' EPA drafted this
permit with the intent of clarifying which entity is expected to
implement which permit conditions with the goal of minimizing
duplication of effort while still providing flexibility for multiple
operators to decide how compliance with permit conditions will be
achieved. Generally, the entity making the decision to apply pesticides
is responsible for complying with provisions of the permit leading up
to the actual application of the pesticide (such as IPM identifying and
assessing the pest problem) and any activities after application of the
pesticide. The applicator of the pesticide, if different, is
responsible for those permit requirements that occur during or directly
related to the actual application of the pesticide (such as maintaining
and calibrating equipment). EPA is interested in whether the approach
in this draft general permit is clear and if it provides a logical
approach to the expected sharing of responsibilities.
Notices of Intent
In general, as set forth in 40 CFR 122.28(b)(2), dischargers
seeking coverage under a general permit must submit a notice of intent
(NOI) to be covered by the permit. However, 40 CFR 122.28(b)(2)(v)
provides EPA the authority to cover entities under a general permit
without requiring the submission of an NOI. In Part 1.2.2 of this
permit, EPA proposes annual treatment area thresholds for the
submission of NOIs. EPA is proposing this NOI framework to: (1) Obtain
NOIs from the largest dischargers, (2) eliminate duplicative reporting
by multiple operators for an individual discharge, and (3) clarify the
type of entity responsible for submitting the NOI. Operators that do
not exceed an annual treatment area threshold are covered automatically
under this permit without the need to submit an NOI. EPA is interested
in feedback on whether this NOI framework strikes an appropriate
balance between capturing information on discharges from the largest
pesticide application activities and avoiding the imposition of
unreasonable burdens on operators whose pesticide application
activities affect smaller areas. EPA is also interested in information
on whether the size of the thresholds is appropriate, and whether they
result in obtaining NOIs from an appropriately targeted set of large
dischargers.
If an NOI is required, it must contain either a map or narrative
description of the area and the waters of the United States and the
pesticide use patterns for which permit coverage is being requested for
the duration of the permit. Operators can identify specific waters or
request coverage for all waters within the area for which they are
requesting permit coverage. EPA is interested in feedback on whether
this approach adequately captures the areas and associated waters of
the United States for which permit coverage is being requested.
Technology-Based Effluent Limitations
This draft permit contains narrative technology-based effluent
limitations for the class and scope of activities and operators covered
under this permit. After much research and discussion with experts, EPA
determined that the effluent limitations identified in Part 2 of the
permit, including IPM practices for operators that will exceed an
annual treatment area threshold (i.e., those who must submit an NOI)
should be included in this general permit. Since this is the first
general permit for these types of discharges, EPA specifically requests
comments on this section for the following questions:
1. What types of government agencies/departments have the
responsibility or are mandated to perform pest control? Are they
already required to implement IPM? What specific IPM practices do they
already perform?
2. Are there private commercial entities that apply pesticides
below the threshold that should be expected to implement IPM? If so,
who are these and what IPM practices should they be required to
implement? Are any private commercial entities that apply pesticides
below the threshold currently implementing IPM practices? Is the use of
annual treatment area thresholds an appropriate mechanism for
establishing technology-based effluent limitations and if so, are the
thresholds provided in the draft general permit appropriate?
3. Are there more specific IPM procedures that we can incorporate
into this permit to better define IPM expectations of permittees above
or below the threshold? Would an EPA-developed IPM template be
practical and help? If so, what should be included? Are there industry-
specific templates already available?
4. Will requiring IPM of small public or private entities not
already required to implement IPM under this draft general permit force
them to go out of business or choose not to spray at the expense of
public health or the environment?
5. How much do the IPM procedures required in this permit cost?
[[Page 31784]]
6. Are entities above the thresholds already doing these practices?
If not, what would be the consequences/costs of these requirements?
Water Quality Based Effluent Limitations
EPA is soliciting comment on the water quality based effluent
limitations in this proposed permit, and whether other parameters or
narrative requirements would be appropriate.
Monitoring
EPA is requesting comment on the value, feasibility and safety of
visual monitoring during application and of post application
surveillance monitoring.
EPA is considering having the largest of the large applicators
provide ambient sampling data. How large would be appropriate for such
a requirement? Should these data be used to enhance the cycle of
information EPA will use in assessing the selected BMPs rather than
compliance? What types of monitoring requirements are appropriate for
each of the four pesticide use categories covered under this permit?
What would be the cost of monitoring? What are the best monitoring
methodologies when sampling for the residues of chemical pesticides?
What sampling approaches accommodate issues of safety and
accessibility? What timing and frequencies are best in these
situations?
Annual Reports
Any operator required to submit an NOI is also required to submit
an annual report that contains, among other things, a compilation of
pesticides applied, quantities applied, locations where pesticide
applications were made during the previous calendar year, and
information on any adverse incidents or corrective actions resulting
from discharges covered under this permit. The Agency is interested in
comment on the scope of operators required to submit annual reports and
the type, level of detail, and practical utility of the information
being requested.
E. Permit Appeal Procedures
Within 120 days following notice of EPA's final decision for the
general permit under 40 CFR 124.15, any interested person may appeal
the permit in the Federal Court of Appeals in accordance with Section
509(b)(1) of the CWA. Persons affected by a general permit may not
challenge the conditions of a general permit as a right in further
Agency proceedings. They may instead either challenge the general
permit in court, or apply for an individual permit as specified at 40
CFR 122.21 (and authorized at 40 CFR 122.28), and then petition the
Environmental Appeals Board to review any conditions of the individual
permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR 30886). See
also 40 CFR 23.12 for filing notice of judicial review requirements.
IV. Economic Impacts of the Pesticides 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 limits 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. Since EPA is developing a general
permit in the absence of existing national Effluent Limitations
Guidelines or Best Professional Judgment (BPJ) effluent limitations in
other NPDES-issued permits, the Agency performed an economic impact
analysis of the Pesticides General Permit for the purpose of examining
the economic achievability of complying with the technology-based
effluent limitations embodied in the permit. The economic impact
analysis is included in the administrative record for this permit.
Based on that analysis, EPA expects that there will be minimal burden
on entities, including small businesses, covered under the general
permit. EPA is asking for additional information during the public
notice of the draft permit and will update the analysis as appropriate
for the final permit.
V. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or Tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. It has been determined
that this is a significant regulatory action under the terms of EO
12866 and it was therefore submitted to OMB for review. A summary of
substantive changes made during OMB review, including an identification
of those made at the suggestion of OIRA, is included in the docket.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: May 26, 2010.
Ira W. Leighton,
Deputy Regional Administrator, EPA, Region 1.
Dated: May 26, 2010.
Kevin Bricke,
Acting Director, Division of Environmental Planning and Protection, EPA
Region 2.
Dated: May 27, 2010.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA
Region 2.
Dated: May 26, 2010.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
Dated: May 26, 2010.
James D. Giattina,
Director, Water Protection Division, EPA, Region 4.
Dated: May 26, 2010.
Tinka G. Hyde,
Director, Water Division, EPA Region 5.
Dated: May 26, 2010.
William K. Honker,
Deputy Director, Water Quality Protection Division, EPA Region 6.
Dated: May 26, 2010.
Glenn Curtis,
Chief, Wastewater and Infrastructure Management Branch, EPA Region 7.
Dated: May 27, 2010.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships and Regulatory
Assistance, EPA Region 8.
Dated: May 26, 2010.
[[Page 31785]]
Alexis Strauss,
Director, Water Division, EPA Region 9.
Dated: May 26, 2010.
Michael A. Bussell,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2010-13468 Filed 6-3-10; 8:45 am]
BILLING CODE 6560-50-P