EPA considers rules for more pesticide application regulations

Cheyenne – Several court cases that ended up in the 6th Circuit Federal District Court have said the Environmental Protection Agency (EPA) should regulate the application of pesticides as a point-source pollutant.
That’s according to Wyoming Ag Business Association Executive Director Keith Kennedy, who added that any applicator applying in, on, or near water would need a NPDES permit under the court mandate. Kennedy was present to inform Wyoming Farm Bureau members at their late-February Legislative Meeting.
He said new container containment regulations are set to take effect Aug. 16, 2011.
“If you have mini-bulk containers, get them back to your retailer this year so they can properly dispose of them,” said Kennedy. “Get those in to your retailer so they don’t become your headache later on.”
Kennedy says the new rules are the result of 20 years’ work by the EPA to integrate the Endangered Species Act (ESA) with pest applications.
“The rules would require you to have an ESA bulletin for the pertinent county for that month,” said Kennedy. “There are no ESA restrictions in Wyoming from now through August, but that doesn’t relieve you of the need to have a hard or electronic copy of the bulletin for the month in which you’re making an application.”
Kennedy said that if EPA happens to wander in, an operator has 24 hours to produce what they ask of him. “If someone wants to inspect, you can ask for an administrative warrant, which gives you 24 hours to get your documents together.”
He added the Ag Business Association will retain the bulletins on their website so people can easily find them.
Regarding the National Pollution Discharge Elimination System, Kennedy said EPA proposed a rule integrating the Clean Water Act and the Pesticide Act in 2006.
“It was overturned in late 2008 by the 6th Circuit court, and EPA asked for a stay to draw up general permits. Those new regulations would go into effect April 9, 2011,” he said.
Those rules wouldn’t allow application in or near any water of the U.S. after April 9, 2011 without coverage under a general or special permit, which covers mosquito control, aquatic weed and algae control, area-wide pest control – which includes rangeland, forests, urban areas and ditchbanks.
According to Kennedy, irrigation water returns are exempt from CWA regulations. “Your actual field application would not require permit, but spraying ditch along field would require you to be covered by permit,” he said.
“When I first heard ‘permit’ I foresaw a one- or two-page document, but it’s really 100 to 150 pages with specific guidelines,” said Kennedy. “There are requirements to show the maintenance on application equipment, including your planter and sprayer.”
Addressing who needs a permit, Kennedy said, “Under the current draft, any application must be made by an entity with a NAICS (North American Industry Classification System) number would need a permit, and this may prohibit a lot of homeowner applications – EPA hasn’t clarified that.”
Under a general permit applicators wouldn’t have to file for a permit with the Wyoming Department of Environmental Quality (DEQ), or whichever entity ends up regulating applications. However, Kennedy said if an applicator surpasses a certain threshold he’d have to file a notice of intent, and an annual report of the pesticides used under the permit.
Regarding what the “threshold” is, Kennedy said thus far it’s either acreage – the total acreage of land or acres of surface water, or a length of ditch.
“Imagine what an ag retailer will go through,” said Kennedy. “If you filed a notice of intent, he has to file that on his paperwork, as well as a notice for those covered by the permit that don’t have to file a notice of intent.”
Kennedy said any state, federal or local government agency would have to file, regardless of the amount of product applied. “Public utilities include irrigation districts,” he noted, adding that grazing districts could also be included in the definition of “any entity specifically tasked with managing property for the control of pests on lands not owned.”
Plus, Kennedy said commercial or business entities, which includes farms and ranches, if they’re large enough have to apply for a permit regardless of how much pesticide will be applied.
In addition to the notices of intent and permits, Kennedy said applicators will have to file an annual report to the EPA region or state that issued the general permit.
“The EPA is hoping the states with NPDES permitting authority will draw up their own general permit so much of the headache is shifted onto the state,” said Kennedy. “In every state there are portions regulated by the federal government, and in Wyoming the original boundaries of the Wind River Reservation would be governed by an EPA permit.”
He said if a producer farms on both sides of that line he’d have to file with both the regional EPA in Denver, Colo. and the DEQ.
“Even if you don’t pass the threshold you have to abide by requirements of the permit, especially recordkeeping and other provisions, which we’ve all been doing the last 15 years without having to show all the documentation,” said Kennedy. The rules state a notice of intent must be filed 10 days prior to commencing discharge or when an applicator thinks he’ll surpass the threshold.
“My biggest worry with the notice of intent is that the CWA has ‘citizen suit provisions,’ and all the sudden your neighbor is filing suit under the CWA that somehow you harmed them,” added Kennedy.
The EPA will take comments on the new application rules this spring. “When the advance notice of public rulemaking is put forth, I urge you to comment even though it’ll happen in April and May when you’ll be busy,” he told the WyFB members, noting there’s been no indication of public hearings. “EPA is on short timeline and has said all public comments will be limited to 30 days.”
Kennedy said not to visit the regulations website and simply say you oppose the rule, but, “Be very specific about what you do not like and what type of burden it will place on your business, as well as the specific dollars it will cost you to comply with the regulation.”
Christy Hemken is managing editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.