Regulatory and Statutory Background to LDEQ’s Pesticide General Permit

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, 2006 • Application 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 larvae • aquatic 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 canopy • Pesticides 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 Rule6th 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 RuleCourt 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 Sep/Oct 2009 Propose Draft Permits (all use patterns) Discuss w/ States and stakeholders Court Grants 2-yr Stay Finalize Permits States Must Issue Final Permits 4-5 mo. 8 mo. 8 mo. 2 mo. Apr 2010 Feb 2011 Apr 2011 Jun 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 Service • Association of States Interstate Water Pollution Control Administrators (ASIWPCA) • EPA Region 6 • EPA Headquarters • New Jersey Department of Environmental Protection • LDEQ 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 Universe • 13,012 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 LDAF • 500 different pesticide active ingredients contained in approximately 3700 product labels • Examples include: • Restricted Use Pesticide (RUP) – (AATREX 4 LHERBICIDE) which contains the pesticide active ingredient, Atrazine • Non-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, and • LAC 7:XXIII Subchapter H. Licensing Requirements. • These requirements are incorporated by reference into LDEQ’s PGP under Section A. Applicability.

18. LDEQ’s Pesticide General Permit Contents

19. Applicability • All dischargers of pesticides in accordance with state laws and regulations within the following 4 use categorizations: • Mosquito and Other Flying Insect Pest Control • Aquatic Weed and Algae Control • Aquatic Nuisance Animal Control • Forest Canopy Pest Control • Additionally 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 – Certifications • Subchapter H – Licensing Requirements • Subchapter I – Application of Pesticides • Subchapter J – Bulk Pesticides • Subchapter K – Mechanical Pesticide Equipment • Subchapter L – Commercial Application Equipment • Subchapter N – Record Keeping • Subchapter P – Pesticide Wastes • Subchapter 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 Containment • Subchapter S – Unused Pesticides • Subchapter U – Impoundments of Hazardous Wastes • Subchapter V – Impoundments by Commercial Applicators • Subchapter W – Emergency Procedures • Subchapter X – Water Protection • Subchapter Y – Pesticide Wastes

22. Exemptions • LDEQ’s PGP does not apply in areas which are exempt from LPDES permitting: • Discharges associated with the normal operation of a vessel • Discharges from agricultural and silvicultural activities including stormwater runoff from orchards, cultivated crops, pastures, range lands, and forest lands • Return flows from irrigated agriculture • Land applications without runoff

23. Exemptions (cont’d); Irrigation Return Flow

24. Exemptions (cont’d); Agricultural Stormwater

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 permit • Discharges 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 record • Ambient water quality data • Technical Data Revisions • Changes to the Regulations • Emerging 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 taken • No 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 applicable • Compliance 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 used • Equipment shall be maintained in proper operating condition by calibrating, cleaning, and repairing in accordance with established operational, mechanical, and LDAF protocols • All 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 Applicators • Private 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 Control • Forest Pest Control • Ornamental and Turf Pest Control • Seed Treatment • Aquatic Pest Control • Right-of-Way and Industrial Pest Control • Industrial, Institutional, and Health Related Pest Control • Public 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:

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 surroundings • Inspection of records • Take samples at any of the following locations: • Any site where an application of pesticides has been made by the applicator • Any base storage • Any containment tank for pesticides, which upon disposal are classified as hazardous waste • Any surface impoundment • Any wash pad • Any soils or water flowing or still at any location or adjacent to the base operation • Any 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 Keeping • Records 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 number • Certified applicator, name, address, and certification number • Customer name and address • Product/brand name • EPA registration number • Restricted/general use pesticide • Application date

41. Record Keeping (cont’d) • Crop/type of application • Location of application • Size of area treated (acres, square feet, or minutes of spraying) • Rate of application • Total amount of product (concentrate) applied • Applicator • Certification 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 Conditions • LAC 7.XXIII.191, 193, 195, and 197 specify identification, declaration, response (including remediation activities), and termination of the emergency condition.

44. Penalties • Under “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 responsibilities • Establish 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 needed • LDEQ 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. Compliance • LDAF 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 individuals • Public • Parish and Municipal Governments