Presentation on theme: "Louisiana Department of Environmental Quality (LDEQ) Louisiana Pollutant Discharge Elimination System (LPDES) Pesticide General Permit (PGP) LAG870000."— Presentation transcript:
1 Louisiana Department of Environmental Quality (LDEQ) Louisiana Pollutant Discharge Elimination System (LPDES) Pesticide General Permit (PGP) LAG870000
2 Regulatory and Statutory Background to LDEQ’s Pesticide General Permit
3 Rule and Litigation 2006 Final CWA Pesticides Rule Rule published on November 27, 2006Application of a pesticide to waters of the U.S. consistent with FIFRA does not require an NPDES permit in the following two circumstances:Application of pesticides directly to waters of the United States in order to control pests. Examples:applications to control mosquito larvaeaquatic weeds
4 Rule and Litigation 2006 Final CWA Pesticides Rule, cont’d 2. Application of pesticides to control pests that are present over waters of the U.S., including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of the U.S.Examples:Aerially applied insecticides to a forest canopyPesticides applied over or near water for control of adult mosquitoes or other pests.
5 Rule and Litigation 2006 Final CWA Pesticides Rule, cont’d Louisiana regulation at LAC 33:IX.2315.A.8 which exempted pesticide application/discharges from LPDES permitting requirements is in the process of being removed.
6 Example: Direct Application to Water for Aquatic Pests (“To”) – Covered by 2006 Rule
7 Example: Aerial Mosquito Control (“Over”) – Covered by 2006 Rule
8 Example: Weed and Insect Control Near Water (“Near”) – Covered by 2006 Rule
9 EPA 2006 Rule Litigation on Rule In December, 2006 petitions for review were filed in 11 Circuit Courts. Petitions were consolidated in 6th Circuit.Environmental groups argued:Judicial review of rule belonged in district courts;EPA exceeded its authority under CWA;EPA may not exempt FIFRA-compliant applications of pesticides from the requirements of the CWA.
10 EPA 2006 Rule Litigation on Rule Industry petitioners argued final rule was arbitrary and capricious because it treats pesticides applied in violation of FIFRA as pollutants, while treating the same pesticides as non-pollutants when used in compliance with FIFRA.
11 Background: EPA 2006 Rule 6th Circuit’s Decision On January 7, 2009 the 6th Circuit Court of Appeals vacated the CWA pesticides rule, stating that the rule was not a reasonable interpretation of the CWA.
12 Background: EPA 2006 Rule EPA Response to Court’s Decision On April 8, 2009, EPA requested a two year stay of the mandate during which time EPA would:Develop general permits for areas where EPA is permitting authority.Work with NPDES-authorized states to develop their general permits.Provide education and outreach to stakeholders.
13 Background: EPA 2006 Rule Court Decision on Stay Request On June 8, 2009, the 6th Circuit granted EPA’s request and ordered a stay of the mandate until April 9, 2011.Industry petitioned for a rehearing en banc.On August 3, 2009 the Court rejected this request.It is unknown if Industry will petition the Supreme Court.Thus, EPA’s rule stating that NPDES permits are not required for pesticide applications applied to or over, including near waters of the U.S., remains in effect until April 9, 2011.As of April 10, 2011, discharges into a water of the U.S. from pesticide applications will require coverage under an NPDES permit.
14 Schedule: EPA Pesticide General Permit States Must Also Complete By April 2011 Propose Draft Permits (all use patterns)Discuss w/ States and stakeholdersCourt Grants 2-yr StayFinalize PermitsStates Must Issue Final Permits4-5 mo.8 mo.8 mo.2 mo.Jun 2009Apr 2010Feb 2011Apr 2011Sep/Oct 2009
15 Stakeholder Involvement LDEQ has worked closely with the following in the development of the PGP:the Louisiana Department of Agriculture and Forestry (LDAF),The Louisiana Farm Bureau,LSU Agricultural Extension ServiceAssociation of States Interstate Water Pollution Control Administrators (ASIWPCA)EPA Region 6EPA HeadquartersNew Jersey Department of Environmental ProtectionLDEQ has written a Memorandum of Agreement with LDAF detailing the administration and the sharing of information under LDEQ’s PGP as of January 13, 2011.
16 Permitted Universe13,012 certified applicators certified by LDAF to apply restricted use pesticides (7,671 private and 5,341 commercial)1200 licensed pesticide application businesses with a license issued by LDAF500 different pesticide active ingredients contained in approximately 3700 product labelsExamples include:Restricted Use Pesticide (RUP) – (AATREX 4 LHERBICIDE) which contains the pesticide active ingredient, AtrazineNon-Restricted Use Pesticide – (ASSASSIN), which contains the pesticide active ingredient, Permethrin
17 Notice of Intent (NOI) submittals LDEQ’s PGP permit has no NOI requirements.LDAF has equivalent requirements in its regulations at:LAC 7:XXIII Subchapter F. Certification, andLAC 7:XXIII Subchapter H. Licensing Requirements.These requirements are incorporated by reference into LDEQ’s PGP under Section A. Applicability.
19 ApplicabilityAll dischargers of pesticides in accordance with state laws and regulations within the following 4 use categorizations:Mosquito and Other Flying Insect Pest ControlAquatic Weed and Algae ControlAquatic Nuisance Animal ControlForest Canopy Pest ControlAdditionally stormwater runoff from facilities which handle or use pesticides not covered under the Multi-Sector General Permit.
20 Applicability (cont’d) LDEQ’s PGP incorporates the following LDAF regulations by reference as fully enforceable conditions of LDEQ’s Permit:Subchapter F – CertificationsSubchapter H – Licensing RequirementsSubchapter I – Application of PesticidesSubchapter J – Bulk PesticidesSubchapter K – Mechanical Pesticide EquipmentSubchapter L – Commercial Application EquipmentSubchapter N – Record KeepingSubchapter P – Pesticide WastesSubchapter Q – Spill Handling
21 Applicability (cont’d) LDEQ’s PGP incorporates the following LDAF regulations by reference as fully enforceable conditions of LDEQ’s Permit:Subchapter R – Pesticide ContainmentSubchapter S – Unused PesticidesSubchapter U – Impoundments of Hazardous WastesSubchapter V – Impoundments by Commercial ApplicatorsSubchapter W – Emergency ProceduresSubchapter X – Water ProtectionSubchapter Y – Pesticide Wastes
22 ExemptionsLDEQ’s PGP does not apply in areas which are exempt from LPDES permitting:Discharges associated with the normal operation of a vesselDischarges from agricultural and silvicultural activities including stormwater runoff from orchards, cultivated crops, pastures, range lands, and forest landsReturn flows from irrigated agricultureLand applications without runoff
25 The PGP Shall Not Apply To Discharges which have limits assigned to them in the Louisiana Water Quality Management Plan.Discharges of restricted use pesticides to waterbodies which have impairments for the restricted use pesticide as identified on the 303(d) list.Discharges of pesticides to waterbodies which have impairments for that pesticide as identified on the 303(d) list.
26 The PGP Shall Not Apply To (cont’d) Discharges which are likely to have unauthorized adverse effects upon threatened or endangered species.Discharges which adversely affect properties listed or eligible for listing in the National Register of Historic Places.Discharges having evidence of causing or have the reasonable potential to cause or contribute to a violation of a water quality standard.
27 The PGP Shall Not Apply To (cont’d) Discharges covered under another LPDES permitDischarges of pesticides to Outstanding Natural Resource Waters.However, there may be unusual situations where pesticide application may be allowed in order to maintain use and status of the water body as indicated in paragraph 8 under the phrase, “This general permit shall not apply to:”, located in Section A. Applicability of the PGP.
28 The PGP Shall Not Apply To (cont’d) Coverage under this permit may also be denied under the following conditions:Poor compliance recordAmbient water quality dataTechnical Data RevisionsChanges to the RegulationsEmerging National Restrictions and Constraints
29 Effluent Limitations; Water Quality and Technology Discharges shall not violate applicable state water quality standards. If a discharge causes or contributes to such a violation, then corrective action must be takenNo person shall apply/discharge a pesticide unless in accordance with state laws, LDAF regulations, and FIFRA laws. This includes, but is not limited to:Registration and Certification with LDAF when applicableCompliance with FIFRA labeling
30 Effluent Limitations; Water Quality and Technology LDEQ expects that compliance with FIFRA in addition to compliance with the conditions in the permit will control discharges as necessary to meet applicable water quality standards.
31 Effluent Limitations; Water Quality and Technology BMP type requirements:No more than the optimal amount of pesticides shall be usedEquipment shall be maintained in proper operating condition by calibrating, cleaning, and repairing in accordance with established operational, mechanical, and LDAF protocolsAll dischargers shall conduct spot checks in the area in and around pesticides application/discharge points
32 Effluent Limitations; Water Quality and Technology Adverse incident – means an incident that you have observed upon inspection or of which you become aware, in which:A person or non target organism may have been exposed to a pesticide residue.The person or non-target organism suffered a toxic or adverse effect.
33 Private ApplicatorsPrivate Applicator – pesticide applicator who does not apply pesticides for a fee and does not fall into category requiring commercial applicator certification at LAC 7:XXIII.125.
34 Commercial Applicators Commercial Applicator – applicator of which certification is required who applies pesticides for fee and/or one that falls under the following categories (LAC 7:XXIII.125):Agricultural Pest ControlForest Pest ControlOrnamental and Turf Pest ControlSeed TreatmentAquatic Pest ControlRight-of-Way and Industrial Pest ControlIndustrial, Institutional, and Health Related Pest ControlPublic Health Control
35 Commercial Applicators (cont’d) The 8 use categories under LDAF regulations are inclusive of the 4 use categories defined in LDEQ’s PGP. Equivalency is established below:Use Authorization under PGP:Commercial Categorization, LDAF:Mosquito and Other Flying Insect Pest ControlPublic Health Pest ControlAquatic Weed and Algae ControlRight-of-Way and Industrial Pest Control; Public Health Pest ControlAquatic Nuisance Animal ControlForest Canopy Pest ControlForest Pest Control
36 Commercial Applicators (cont’d) Most of the discharges resulting from application of pesticides under the PGP lie under the commercial applicator category.
37 Monitoring of Commercial Applicators Commercial applicators are subject semi-annual monitoring.Monitoring shall include:Inspection of physical surroundingsInspection of recordsTake samples at any of the following locations:Any site where an application of pesticides has been made by the applicatorAny base storageAny containment tank for pesticides, which upon disposal are classified as hazardous wasteAny surface impoundmentAny wash padAny soils or water flowing or still at any location or adjacent to the base operationAny application equipment
38 Monitoring of Commercial Applicators Authorized representatives of LDEQ shall have the same monitoring (inspection) authority plus all rights of entry and inspection authority in accordance with the LA Environmental Quality Act.
39 Record KeepingRecords shall be maintained for period of 3 years in accordance with the PGP.This is different than what is specified in LDAF regulations, which specifies a period of 2 years at LAC 7:XXIII.167.A and LAC 7:XXIII.167.B.The 3 year record retention requirement supersedes LDAF regulations
40 Record Keeping (cont’d) The following information is required to be retained:Owner/operator name, address, and license numberCertified applicator, name, address, and certification numberCustomer name and addressProduct/brand nameEPA registration numberRestricted/general use pesticideApplication date
41 Record Keeping (cont’d) Crop/type of applicationLocation of applicationSize of area treated (acres, square feet, or minutes of spraying)Rate of applicationTotal amount of product (concentrate) appliedApplicatorCertification number of applicator (if applicable)Records shall be maintained within 3 days of application for a commercial applicator and 7 days for a non-fee commercial applicator.
42 Reporting Routine reporting is not required by the PGP. All uncontained spills of more than 1 gallon liquid or 4 pounds dry weight must be reported to the director of Pesticides and Environmental Programs of LDAF within 24 hours by telephone and by written notice within 3 days.
43 Emergency ConditionsLAC 7.XXIII.191, 193, 195, and 197 specify identification, declaration, response (including remediation activities), and termination of the emergency condition.
44 PenaltiesUnder “Other Conditions” Section D.1.a, Negligent Violations, a permitted entity can be charged up to $25,000 per day.Under LAC 7:XXIII.173.A, a permitted entity can be charged up to $5,000 per day.Permitted entities may be held liable for penalties from both LDEQ and LDAF.
45 Memorandum of Agreement (MOA) Louisiana Department of Environmental Quality (LDEQ) and Louisiana Department of Agriculture and Forestry (LDAF)
46 MOA LDEQ and LDAF LDEQ and LDAF have entered into a MOA to: Outline responsibilities in the administration of the PGP.Determine compliance program responsibilitiesEstablish the basis for an outreach program relative to the LPDES PGP.Set up effective information exchange between the 2 agencies regarding administration and enforcement of the PGP
47 Administration of the PGP LDAF regulates all activities associated with the application/discharge, and use in accordance with the applicable requirements of the prescribed pesticide laws, rules and regulations. This includes:Registration and certification of all applicable pesticide applicators/dischargers
48 Administration of the PGP (cont’d) LDAF may solicit input from LDEQ regarding the application/discharge of pesticides into or near the waters of the state of Louisiana if neededLDEQ will provide LDAF with a copy of any final permit decision for discharges of pesticides into an Outstanding Natural Resource Waters (ONRW) or a waterbody which is impaired for applicable pesticides within 14 days after the permit decision is made
49 ComplianceLDAF and LDEQ will jointly evaluate and assess limitations, operations, maintenance and other activities for compliance with the PGP.LDEQ will maintain enforcement of the PGP.LDEQ will take appropriate action against violations of the PGP, including assessment and collection of penalties.
50 Outreach LDEQ and LDAF will conduct a joint outreach program to: Private individualsPublicParish and Municipal Governments
51 Outreach (cont’d)LDEQ proposes to hold a series of outreach sessions in the spring and summer of 2011 as detailed in the MOA discussed earlier.LDEQ will also present information about the permit at conferences such as the Environmental Regulatory Compliance Conference (ERCC) conference in Alexandria, January , LVMA conference in Marksville February 1, 2011, LSWA conference in Lafayette MarchOther outreach sessions are also being planned at this time.
52 Information SharingLDAF will share with LDEQ information conducted on registered and certified applicators/dischargers in violation of the PGP.This information shall include:Name of the applicator/dischargersMailing, physical and addressPhone numberLDAF certification and registration number as applicable
53 Information Sharing (cont’d) Description of location and identification of water body or source of waterPesticide applicator/discharge points if knownLDAF will, upon completion of the inspection, submit this information to LDEQ electronically or by mail.
54 Joint ActivitiesLDAF and LDEQ shall participate in joint efforts to address the following activities:Surveillance, inspection, responses, and enforcement actions.Compliance response actions.Permit issues related to impaired water bodies.Meetings and discussions with governmental bodies.Issues relating to pesticide usage, regulation and discharges.
55 LDEQ’s PGP Status and Proposed Milestones LDEQ’s Preliminary Draft PGP received approval from EPA Region 6 on December 17, 2010.LDEQ public noticed the draft permit on January 10, 2010.Upon completion of the public comment period, 2/16/11, LDEQ will coordinate internally and issue a final permit by 4/10/11.