louisiana department of environmental quality (ldeq) louisiana pollutant discharge elimination...
TRANSCRIPT
Louisiana Department of Environmental Quality (LDEQ) Louisiana Pollutant
Discharge Elimination System (LPDES)
Pesticide General Permit (PGP)LAG870000
1
Regulatory and Statutory Background to LDEQ’s Pesticide
General Permit
2
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:
1. Application of pesticides directly to waters of the United States in order to control pests. Examples:
– applications to control mosquito larvae– aquatic weeds
3
• 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.4
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.
5
Rule and Litigation 2006 Final CWA Pesticides Rule,
cont’d
Example: Direct Application to Water for Aquatic Pests (“To”) – Covered by 2006 Rule
6
Example: Aerial Mosquito Control (“Over”) – Covered by 2006 Rule
7
Example: Weed and Insect Control Near Water (“Near”) –
Covered by 2006 Rule
8
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.
9
• 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.
10
EPA 2006 Rule Litigation on Rule
• 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.
Background: EPA 2006 Rule6th Circuit’s Decision
11
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.
12
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.
13
14
Schedule:EPA Pesticide General Permit
States Must Also Complete By April 2011
Jun 2009
Sep/Oct 2
009
Apr 2010
Feb 2011
Apr 2011
Discuss
w/ S
tates and st
akeholders
Propose D
raft Perm
its (a
ll use
patterns)
States Must
Issue
Final Perm
its
Finalize Perm
its
4-5 mo. 8 mo.8 mo. 2 mo.
Court Grants
2-yr Stay
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.
15
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
16
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.
17
LDEQ’s Pesticide General Permit Contents
18
Applicability
• All dischargers of pesticides in accordance with state laws and regulations within the following 4 use categorizations:
1. Mosquito and Other Flying Insect Pest Control2. Aquatic Weed and Algae Control3. Aquatic Nuisance Animal Control4. Forest Canopy Pest Control
• Additionally stormwater runoff from facilities which handle or use pesticides not covered under the Multi-Sector General Permit.
19
• 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
Applicability (cont’d)
20
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
• LDEQ’s PGP does not apply in areas which are exempt from LPDES permitting:1. Discharges associated with the normal operation
of a vessel2. Discharges from agricultural and silvicultural
activities including stormwater runoff from orchards, cultivated crops, pastures, range lands, and forest lands
3. Return flows from irrigated agriculture4. Land applications without runoff
Exemptions
22
Exemptions (cont’d); Irrigation Return Flow
23
Exemptions (cont’d); Agricultural Stormwater
24
1. Discharges which have limits assigned to them in the Louisiana Water Quality Management Plan.
2. Discharges of restricted use pesticides to waterbodies which have impairments for the restricted use pesticide as identified on the 303(d) list.
3. Discharges of pesticides to waterbodies which have impairments for that pesticide as identified on the 303(d) list.
The PGP Shall Not Apply To
25
4. Discharges which are likely to have unauthorized adverse effects upon threatened or endangered species.
5. Discharges which adversely affect properties listed or eligible for listing in the National Register of Historic Places.
6. Discharges having evidence of causing or have the reasonable potential to cause or contribute to a violation of a water quality standard.
The PGP Shall Not Apply To (cont’d)
26
7. Discharges covered under another LPDES permit
8. 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.
The PGP Shall Not Apply To (cont’d)
27
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
28
• 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
Effluent Limitations; Water Quality and Technology
29
• 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.
Effluent Limitations; Water Quality and Technology
30
• 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
Effluent Limitations; Water Quality and Technology
31
• 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.
Effluent Limitations; Water Quality and Technology
32
• 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.
Private Applicators
33
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):1. Agricultural Pest Control2. Forest Pest Control3. Ornamental and Turf Pest Control4. Seed Treatment5. Aquatic Pest Control6. Right-of-Way and Industrial Pest Control7. Industrial, Institutional, and Health Related Pest Control8. Public Health Control
34
• The 8 use categories under LDAF regulations are inclusive of the 4 use categories defined in LDEQ’s PGP. Equivalency is established below:
Commercial Applicators (cont’d)
Use Authorization under PGP: Commercial Categorization, LDAF:
Mosquito and Other Flying Insect Pest Control
Public Health Pest Control
Aquatic Weed and Algae Control Right-of-Way and Industrial Pest Control; Public Health Pest Control
Aquatic Nuisance Animal Control Right-of-Way and Industrial Pest Control; Public Health Pest Control
Forest Canopy Pest Control Forest Pest Control
35
• Most of the discharges resulting from application of pesticides under the PGP lie under the commercial applicator category.
Commercial Applicators (cont’d)
36
• 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
Monitoring of Commercial Applicators
37
• 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.
Monitoring of Commercial Applicators
38
• 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
Record Keeping
39
• The following information is required to be retained:1. Owner/operator name, address, and license number2. Certified applicator, name, address, and certification
number3. Customer name and address4. Product/brand name5. EPA registration number6. Restricted/general use pesticide7. Application date
Record Keeping (cont’d)
40
8. Crop/type of application9. Location of application10. Size of area treated (acres, square feet, or minutes of
spraying)11. Rate of application12. Total amount of product (concentrate) applied13. Applicator14. 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.
Record Keeping (cont’d)
41
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.
42
• LAC 7.XXIII.191, 193, 195, and 197 specify identification, declaration, response (including remediation activities), and termination of the emergency condition.
Emergency Conditions
43
• 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.
Penalties
44
Memorandum of Agreement (MOA) Louisiana Department of
Environmental Quality (LDEQ) and Louisiana Department of
Agriculture and Forestry (LDAF)
45
MOA LDEQ and LDAF
• LDEQ and LDAF have entered into a MOA to:1. Outline responsibilities in the administration of
the PGP.2. Determine compliance program responsibilities3. Establish the basis for an outreach program
relative to the LPDES PGP.4. Set up effective information exchange between
the 2 agencies regarding administration and enforcement of the PGP
46
• 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
Administration of the PGP
47
– 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
Administration of the PGP (cont’d)
48
• 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.
Compliance
49
• LDEQ and LDAF will conduct a joint outreach program to:– Private individuals– Public– Parish and Municipal Governments
Outreach
50
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 26 2011, LVMA conference in Marksville February 1, 2011, LSWA conference in Lafayette March 24-25.
• Other outreach sessions are also being planned at this time.
• LDAF will share with LDEQ information conducted on registered and certified applicators/dischargers in violation of the PGP.
• This information shall include:1. Name of the applicator/dischargers2. Mailing, physical and email address3. Phone number4. LDAF certification and registration number as
applicable
Information Sharing
52
5. Description of location and identification of water body or source of water
6. Pesticide applicator/discharge points if known• LDAF will, upon completion of the
inspection, submit this information to LDEQ electronically or by mail.
Information Sharing (cont’d)
53
• LDAF and LDEQ shall participate in joint efforts to address the following activities:1. Surveillance, inspection, responses, and
enforcement actions.2. Compliance response actions.3. Permit issues related to impaired water bodies.4. Meetings and discussions with governmental
bodies.5. Issues relating to pesticide usage, regulation and
discharges.
Joint Activities
54
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.
55
PGP Speaker Contact Information
Bruce FieldingEnvironmental Scientist SeniorOffice of Environmental ServicesWater Permits Division(225)[email protected]
Customer Service Center225-219-LDEQ (5337) Toll Free 1-866-896-LDEQ (5337) Hours 8-4:30 M-F
56
PGP Speaker Contact Information
Melvin “Mitch” MitchellAdministratorOffice of Environmental ServicesWater Permits Division(225)[email protected]
57
Questions?
58
59