NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Transcription

1 I. INTRODUCTION NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SPDES GENERAL PERMIT FOR POINT SOURCE DISCHARGES TO SURFACE WATERS OF NEW YORK from PESTICIDE APPLICATIONS FACT SHEET In January 2007, environmental and industry groups filed petitions for review of the United States Environmental Protection Agency s (EPA) 2006 National Pollutant Discharge Elimination System (NPDES) Pesticides Rule. The Petitions were consolidated from eleven circuit courts and assigned to the Sixth Circuit Court of Appeals (Court). On January 7, 2009, the Court, in The National Cotton Council of America, et al. v. United States Environmental Protection Agency, 553 F.3d 927 (6 th Cir., 2009) held that: (1) the Federal Clean Water Act (CWA) unambiguously includes biological pesticides, and chemical pesticides with residuals, within its definition of pollutant ; and (2) NPDES permits will be required for discharges to waters of the United States of biological pesticides, and of chemical pesticides that leave a residue. EPA requested, and was granted, a 2 year stay of the decision. In November 2009, industry petitioners petitioned the United States Supreme Court for review of the Sixth Circuit s decision in National Cotton Council. This request was denied. Thus, Court s mandate will take effect on April 9, Pursuant to 33 USC 1342(b), states may assume NPDES permitting responsibilities. In 1975, EPA approved the New Yorks State Pollutant Discharge Elimination System (SPDES) program. This SPDES general permit is administered through the SPDES program and issued under the authority of the New York State Environmental Conservation Law (ECL). ECL , , and (6). Pursuant to ECL (6), SPDES 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 SPDES general permit. For aquatic pesticide applications, the use of a SPDES general permit provides administrative efficiencies, allocation of resources, and timely coverage given the very large number of pesticide applications requiring permit coverage and the discharges common to these applications. New York agrees with EPA s conclusion that a SPDES general permit is the most effective and efficient means of addressing these pesticide applications rather than developing a series of individual SPDES permits. The SPDES general permit approach for pesticide applications is supported by EPA. EPA Fact Sheet June This SPDES general permit authorizes point source discharges to, in or over surface waters of New York State from the application of New York State registered pesticides labeled for aquatic 1

2 uses. Authorization of such discharges under this SPDES general permit will be required for operators applying pesticides labeled for aquatic uses on or after the effective date of this SPDES general permit. Pursuant to ECL (1) and 6 NYCRR Part , the term of this SPDES general permit is five (5) years from the effective date of this SPDES general permit. New York s SPDES general permit approach leverages the strong controls of the New York s existing pesticide management program by incorporating the key elements of that program in the SPDES general permit. Although the proposed permit is a general permit, the core of New York s existing approach for protecting waters from aquatic pesticide applications is a series of individual aquatic pesticide permits under , hereinafter refered to as Article 15 permit, that are tailored to specific applications of aquatic pesticides and locations of use. This SPDES general permit does not authorize any actions that are otherwise prohibited by New York s pesticide management program. Thus, New York s SPDES general permit does not authorize discharges to surface waters from applications of pesticides that are not labeled for aquatic uses. Fees associated with coverage under this SPDES general permit are authorized by ECL Conformance to Recent Court Decisions The Department has structured this SPDES general permit to conform to recent relevant court decisions, as did EPA with its NPDES general permit for pesticide discharges. See: EPA Fact Sheet June Public participation for SPDES permits is specifically defined in ECL Water keeper Alliance, Inc. v. EPA The 2 nd Circuit in Waterkeeper Alliance, Inc. v. EPA involved a challenge to EPA s Concentrated Animal Feeding Operation (CAFO) Rule, including permitting requirements and effluent limitation guidelines. 399 F.3d 486 (2 nd Cir. 2005). As the requirement to develop and implement a Nutrient Management Plan (NMP) was one of the best management tools required by the CAFO Rule, the NMP actually imposed restrictions on the discharges from CAFOs, which the 2 nd Circuit held were essentially effluent limitations. Thus, the NMPs need to be part of the SPDES permit to regulate CAFOs, and furthermore, subject to agency and public review. The Pesticide Discharge Management Plan (PDMP) in this SPDES general permit is different from the NMP. In this SPDES general permit, the Department establishes explicit effluent limitations (water quality based and technology based) in Parts I.A and III.A of this SPDES general permit. Those effluent limitations are separate and distinct from recordkeeping requirements, through the PDMP in Part III.B. The PDMP is not a limitation and does not itself impose requirements on discharges The PDMP is rather a tool for operators to document, among other things, how control measures will be implemented to comply with the permit s effluent limitations. EPA Fact Sheet June The PDMP is also not a best management practice and so could not be considered an effluent limitation as the 2 nd Circuit held with the NMP. [T]he operator is free to change as appropriate the control measures used to meet the effluent limitations contained in the permit. This flexibility helps ensure that the operator is able 2

3 to adjust its practices as necessary to ensure continued compliance with the permit s effluent limitations. EPA Fact Sheet June In New York, operators covered by permits other than this SPDES general permit can not make changes to the control measures that are not consistent with conditions in those permits. In such scenarios, revision of control measures must be evaluated by the Department. Quantities, rates and concentrations of the pesticides that are discharged are not restricted by the PDMP, and therefore, the PDMP is not an effluent limitation. ECL (15) and As stated in Part. I.A. of this SPDES general permit, the operator must apply in accordance with the New York State registered pesticide that is labeled for aquatic use. Instead, the requirement to develop a PDMP is a permit term or condition authorized under ECL (1) 1 and ECL EPA Fact Sheet June The PDMP conditions in the SPDES general permit are in accordance with ECL because the operator is documenting information on how it is complying with the effluent limitations (and inspection and evaluation requirements) contained elsewhere in the SPDES general permit. EPA Fact Sheet June The PDMP requirements in the SPDES general permit are the same as conditions mandating collection of information in other SPDES permits in accordance with ECL EPA Fact Sheet June In Part III.B, this SPDES general permit requires the PDMP to be updated upon certain triggering events, or least once a year. Thus, where an update to the PDMP is required by this SPDES general permit, and that update isn t made, then such would be a violation of the recordkeeping requirements of the this SPDES general permit and not the effluent limitations of this SPDES general permit. According to the 2 nd Circuit, the challenged CAFO Rule inappropriately did not require that the NMP be made publicly available 3. With this SPDES general permit, the PDMP is available to the public via the Department upon request. Environmental Defense Center v. EPA In 2003, the 9 th Circuit for the Court of Appeals rendered a decision in Environmental Defense Center v. EPA. 344 F.3d 832 (9 th Cir. 2003). 4 EDC challenged EPA s MS4 regulations (Phase II rule) on several grounds, including that the rule failed to provide for public participation as required by the CWA because the public does not have notice of or opportunity for a hearing regarding an NOI. The 9 th Circuit held that 33 USC 1342(j) and 33 USC 1342(b)(3) require a copy of each permit application and permit be available to the public and 33 USC 1342(a)(1) requires that the public have an opportunity for a hearing before a permit is issued. The NOIs, not the MS4 General Permit, have the substantive information in them as to the reduction of discharges the maximum extent practicable and so are functionally equivalent to permit applications and subject to availability and hearing requirements. The 9 th Circuit was unconvinced by EPA s argument that 1 SPDES permits issued pursuant hereto shall include provisions requiring compliance with the following, where applicable; 1. effluent limitations 2 SPDES permits shall include the following provisions, terms, requirements and conditions; 8. recording, reporting monitoring, and sampling requirements under the Act. 3 Waterkeeper discusses public participation with respect to the NMP and does not really address public participation with respect to NOIs. 4 Waterkeeper v. EPA 399 F.3d 486 (2 nd Cir. 2005) discusses public participation with respect to the nutrient management plan and does not really address public participation with respect to NOIs. 3

4 the NOIs are publicly available through the public participation minimum control measure because that only requires the design of a program consistent with the requirements. Additionally, the Freedom of Information Act (FOIA)/Freedom of Information Law (FOIL) do not provide adequate public participation because those statutes only apply to documents in the regulating entity s possession and the MS4 Phase II Rule does not require that EPA have a copy of every NOI. In conclusion, the 9 th Circuit remanded the MS4 Phase II Rule to EPA. Following the EDC decision, EPA has yet to revise its regulations and only issued a memo pertaining to implementation of that decision. The Department, though, began noticing NOIs for public comment through the SPDES MS4 General Permit (GP ). In EDC, the 9 th Circuit held that the NOIs, not the MS4 General Permit, have the substantive information in them as to the reduction of discharges the maximum extent practicable and so are functionally equivalent to permit applications and subject to availability and hearing requirements. There is no substance provided in the NOI for thisspdes general permit, but instead, it is a certification that the operator meets the requirements to obtain coverage under this SPDES general permit. This is distinct from the MS4 Phase II Rule, where the 9 th Circuit found NOIs to be functionally equivalent to an individual permit application. Moreover, with this SPDES general permit, there is no flexibility in what is in a PDMP; all of the information required is explicitly listed out in this SPDES general permit. Additionally, New York has created a PDMP template, which is subject to public review and comment. Also, in EDC, the 9 th Circuit was unconvinced by EPA s argument that the NOIs are publicly available through the public participation minimum control measure. Pursuant to 6 NYCRR Part (d)(1), New York must receive an NOI for each covered entity under a SPDES general permit. Thus, FOIL would provide an adequate avenue for the public to obtain an NOI. The NOI under this SPDES general permit is a self certification by the operator that he/she is eligible for permit coverage. Additionally, EDC involved a challenge to the Phase II stormwater rule, but with this SPDES general permit, there is no rule providing the parameters of the water program regulating pesticide discharges. The challenge (National Cotton Council) that resulted in the necessity to issue a water permit for pesticide discharges was to an EPA rule specifically exempting such activities from the necessity to have such a permit. Texas Independent Producers and Royalty Owners Assoc., et. al. v. EPA Texas Independent Producers and Royalty Owners Assoc., et. al. v. EPA, was rendered after the Waterkeeper and EDC decisions. 410 F.3d 964 (7 th Cir. 2005). The TIPROA case it is the most recent court decision on the issue of public participation and NPDES general permits, but specifically was a challenge for the NPDES general permit for stormwater discharges associated with construction activities. In that case, NRDC argued that EPA violated 33 USC 1342(j) and 33 USC 1342(a)(1) by not making the NOIs and Stormwater Pollution Prevention Plans (SWPPPs) available to the public and by failing to provide a right to a public hearing on the NOIs and SWPPPs. The 7 th Circuit disagreed with NRDC and deferred to EPA, as Congress had not spoken directly on the issue of public participation for NPDES general permits. EPA argued 4

5 that NOIs and SWPPPs are not permits or permit applications, and therefore, no public participation is required. EPA further argued that public comments are received on the NPDES general permit itself, and at that time, there is an opportunity to request a hearing. That is true for this SPDES general permit - the Department provides an opportunity for the public to comment and request a hearing on the SPDES general permit itself. Moreover, EPA said that the efficiencies of the general permitting scheme would be eviscerated with a requirement for comment and hearing on individual NOIs and SWPPPs, and such is inconsistent with Congress intent to allow the use of general permits. Public Notice Pursuant to ECL , the Department is providing a 30 day public notice period wherein comments can be submitted and a hearing requested regarding this SPDES general permit. Public Availability of Documents Part VI of this SPDES general permit requires the operator to retain a copy of all required records and those documents must be available to the Department upon request pursuant to 6 NYCRR Part 750. A PDMP is not required to be submitted to the Department; however, if a person would like a copy of the PDMP, a request can be made to the Department and the Department will request that the operator provide the Department with a copy of the PDMP. These requests will be treated pursuant to FOIL. EPA Fact Sheet June This Fact Sheet includes the following sections: Part II: Existing NYS Programs to Protect Water from Pesticides (Page 5) Part III: Permit Highlights and Basis for Permit Conditions (page 13) II. EXISTING NYS PROGRAMS TO PROTECT WATER FROM PESTICIDES New York State has a long and distinctive history of regulating pesticide applications for the protection of the State s water resources. New York was among the very first states to provide for the management and regulation of pesticides within the State s environmental quality programs and under the authority of environmental law. Under this structure, New York pesticide regulation is directly integrated with water quality management, wetlands management, fish and wildlife management, invasive species management, and programs to address spills, leaks and environmental remediation. The Department has the authority to commence enforcement actions for violations of Articles 15 and 33 of the ECL and the implementing regulations in 6 NYCRR Parts The compliance and enforcement of New York s overall approach to pesticide management for water resource protection have been successfully implemented for nearly 40 years. New York s existing pesticide management program - including New York s pesticide registration procedures, Article 15 and 24 permit controls, and all other requirements of Article 33 of the ECL, and 6 NYCRR Parts 325 through 329 for all uses of pesticides - achieves protection of the State s water resources through a combination of: 5

6 Intensive environmental and health impact analyses in the initial registration of a pesticide for use in the State; A series of requirements imposed upon pesticide applicators; Coordination of pesticide management within the Department of other associated environmental quality programs (Water, Fish & Wildlife and Wetlands, Environmental Permits), including SEQRA. The key elements of New York s pesticide management and related programs, discussed in the following sections, that provide for protection of New York s water resources include: Pesticide Registration Review and the NYS Accepted Pesticide Label Pesticide Application and Certified Applicator Requirements Aquatic Pesticide Application Permits Freshwater Wetlands Permits Following this review of elements of New York s pesticide management program, several other state programs, which are relevant to protecting New York s water resources from pesticide contamination are discussed, including: Watershed Management and Related Programs State Environmental Quality Review Act Environmental Impact Statement Review Hazardous Substance Leak and Spill Prevention and Response Pesticide Registration Review and the NYS Accepted Pesticide Label New York s pesticide registration review is authorized by Section of the ECL, and is addressed by regulations in 6 NYCRR Part 326. New York implements an independent State registration review of pesticides by evaluating all data with respect to New York conditions, including water resource impacts. The registration review establishes the New York State accepted pesticide label controlling all uses of the pesticide in New York, and includes interdisciplinary reviews from public health, water quality and fish and wildlife habitat programs. The Department s pesticide product registration program has developed a comprehensive interdisciplinary and interagency in-depth review of pesticide products that have been registered by EPA. This review evaluates all data submitted to EPA and may request supplementary data. With this supporting information, and with consideration for New York s environmental conditions and potential uses of the pesticide product in New York, New York then evaluates the potential impacts of the pesticide product on New York s water resources (including wetlands), public health and fish and wildlife. Although pesticide products are reviewed by EPA, evaluating pesticide exposure at the State level is very important to assure that factors unique to an area are considered during the registration review. Potential exposure to a pesticide may vary depending on regional use practices, an area's vulnerability to contamination and regulations applicable to that area. EPA's 6

7 task is to evaluate risks and benefits of pesticides to the nation as a whole. Pesticide product registration allows the Department to review the pesticides that are intended for sale and use in New York and require these pesticides to conform to regulatory standards. Examples of these requirements in New York State are described below. New York State has special circumstances that are not necessarily reflected in EPA decisions and requirements. For example, in accordance with 6 NYCRR Part 326.2(h) Any pesticide labeled for direct application to or in surface waters may be distributed, offered for sale, sold, purchased, possessed or used only by the holder of a valid commercial permit, certification identification card or purchase permit. This restriction, in effect, classifies all pesticides which the Department s product registration has identified as aquatic pesticides as restricted use pesticides, regardless of whether the EPA classifies them as restricted use or not. Also, 6 NYCRR Part 327.6(a)(4) and (5) limit the concentration of copper sulfate that can be applied, and the method by which copper sulfate can be applied for algae control. Similarly, for the herbicide 2,4-D, 6 NYCRR Part 327.6(c)(2), (4) and (5) limit the plants that can be targeted for control, the amount of liquid formulation of that can be applied, and the location in a water body wherein 2,4-D can be applied for control of aquatic macrophytes. The limits imposed in 6NYCRR Part 327 are more stringent then Federally-approved labels for these aquatic use pesticides. In another example, because of concerns raised regarding fish toxicity, New York entered into a negotiated agreement with the registrant of the aquatic herbicide Diquat. This agreement allows Diquat to be registered for use in New York State only under a Special Local Needs (SLN) Registration. This registration limits the amount of diquat that can be applied, how Diquat can be applied, and water depths at which Diquat can be applied. Through the registration process, New York State also imposed limits on the dosage of the herbicide, Fluridone, that can be applied in the liquid formulation in waters in the vicinity of drinking water intakes. In addition, even after a new aquatic pesticide active ingredient is registered in New York State, it still cannot be used until either a Supplemental Generic Environmental Impact Statement (SGEIS), an individual Environmental Impact Statement (EIS), or a Negative Declaration pursuant to SEQRA, that addresses the potential impacts to the waters of the State has been completed and accepted. Pesticide Application and Certified Applicator Requirements New York s existing requirements for pesticide applications and certified applicators are authorized by Article 33 and addressed in regulations in 6 NYCRR Part 325. These requirements provide for protection of all waters of the State, including both surface waters and groundwater. Article 33 and 6 NYCRR Part 325 specifically require that pesticides are to be used only in accordance with the New York accepted pesticide label and labeling directions or as modified or expanded and approved by the Department. As stated above, pesticides which the Department s product registration has identified as aquatic pesticides are restricted use pesticides in New York. A restricted use pesticide may be applied only by a certified pesticide applicator 7

8 (including persons working under the direct supervision of the certified applicator), or by an individual that has obtained a purchase permit. New York s pesticide application regulations, at 6 NYCRR Part and 325.7, establish certification and training requirements for pesticide applicators. The requirements of New York s pesticide applicator certification, including both training for water quality issues and supervision of technicians and apprentices, enable New York to communicate water quality protection needs to the field applicators of pesticides. All training courses to be conducted for all individuals applying for commercial technician certification or commercial or private applicator recertification credits must be approved by the Department in advance of the course being offered. Training courses and recertification training courses must include topics or components as prescribed by the Department. Such topics include, but are not limited to the following general standards: Integrated pest management principles and practices Label and labeling comprehension Pesticide safety Environment and water resource protection Pest identification and life cycle Pesticide hazards Equipment use and maintenance Application techniques Applicable state and federal laws and regulations. Many of these general standards have direct relevance to water resource protection, for all categories of certified commercial applicators, in which commercial applicators are expected to be able to demonstrate practical knowledge of the principles and practices of pest control and safe use of pesticides: New York s pesticide application regulations in 6 NYCRR Part 325 also provide for the inspection of any equipment, device or apparatus used for the commercial application of pesticides and may require repairs or other changes before approval is given for further use of such equipment. Aquatic Pesticide Application Permits New York s existing requirements for aquatic pesticide applications are authorized by Sections and of the ECL. The application of aquatic pesticides is regulated by the Department through two types of aquatic pesticide permits: the Aquatic Pesticide Application Permit and the Aquatic Purchase Permit. The combined use of these management tools provides oversight for the control of aquatic pests while preserving and protecting the waters of the State. As a point of reference, New York State received approxiamately 700 Article 15 permit applications in 2010 for controlling aquatic vegetation, nuisance aquatic animals, and mosquito larvae. 8

9 Aquatic Pesticide Application Permits, also referred to as an Article 15 permit, cover three categories of pest control, with implementing regulations in 6 NYCRR Parts 327, 328 and 329, respectively: Aquatic vegetation (Part 327); Nuisance animals, or undesirable fish (Part 328); and Aquatic insects (Part 329). The Article 15 permit is an individual permit that addresses application of a pesticide to a specific water of the State for control of a specific pest species. The Article 15 permit review process includes site-specific analyses of a wide range of factors and characteristics, including: Pest species and population characteristics; Waterbody characteristics and uses; Pesticide characteristics, including application technologies and degradation behavior; Endangered, threatened, rare or special concern species that may be affected; and Special water use restrictions and public notifications. Development of an individual Article 15 permit includes an interdisciplinary and interagency review to evaluate water quality, public health and fish and wildlife considerations. These reviews may include NYS Department of Health assessments related to water supply intakes and public health, Adirondack Park Agency evaluations, NYS Department of State assessments related to Coastal Zone Management, and assessments related to threatened and endangered species. An Article 15 permit application must include the following information: Applicant identification and related information (organization, agency or other entity name, where applicable; prior permit history for applicant; contact information; whether applicant is a riparian owner) Waterbody identification and related information (specific details on treatment location; water depths and characteristics; inlet and outlet streams and control devices; water level and outflow control plans during and following pesticide application; locations of all public and private water supply intakes, bathing areas, livestock watering, and access points; all known water uses; other details) Riparian owner and user notification and certification (including dates of treatment; right to consent or object to proposed pesticide treatment; water use restriction details; applicant must indicate whether all notifications have been completed and whether all affected riparian owners have been notified of the planned pesticide use and water use restrictions) Pesticide treatment information (pest species details; pesticide details including active ingredient percentage, EPA registration number; application details including rates, number of applications, specific location and dates of proposed applications; application method and equipment details; aerial application details and equipment details) 9

10 Freshwater wetlands information (presence of wetlands must be recorded and applicant must obtain additional Article 24 permit for the pesticide application, where applicable) Article 15 permits specify, in detail, all conditions and requirements associated with a direct application of pesticides to surface waters of New York as defined in Article 15 of the ECL. Application rates, methodologies, timing, frequency, location details, and other notifications are specified. The controls in the Article 15 permits address any discharges that may result from the pesticide application. The Article 15 permits are limited to the proposed pesticide application, and do not authorize any other discharges or pesticide applications that are not directly addressed by the Article 15 permit. Two specific exemptions identify pesticide applications to surface waters that are not required to obtain an Article 15 permit: The use of copper sulfate for algae control by or on behalf of a duly constituted water supply agency in its water supply (6 NYCRR Part 327.1(c)); and The treatment of waters that have no outlet to other waters and which are one acre or less in size and which lie wholly within boundaries of lands privately owned or leased by the individual making or authorizing the pesticide treatment (Article a). In the first case, copper sulfate applications must be made by a certified pesticide applicator in compliance with New York s pesticide regulations, and the applications are intended to address public water supply management needs. (Article 33 and 6 NYCRR Part 325) In the second case, when a planned pesticide application to a qualifying pond will be made by someone other than a certified applicator, the application must be in compliance with an Aquatic Pesticide Purchase Permit, also referred to as an Aquatic Pesticide Purchase Permit, specific to the planned waterbody pest control activity. The Aquatic Pesticide Purchase Permit is authorized by Section of the ECL and is addressed by regulations in 6 NYCRR Part 326. The Aquatic Pesticide Purchase Permit is required for the purchase and use of a restricted pesticide (including all pesticides labeled for aquatic uses) by a person that is not a certified applicator. The Aquatic Pesticide Purchase Permit is applicable to pesticide applications by an individual that is not a certified applicator to a pond of one acre or less in size which has no outlet to a surface water of the State and which lies wholly within the boundaries of lands privately owned or leased by a person (referred to as small private pond ). The Aquatic Pesticide Purchase Permit requires many details similar to the Article 15 permit (pest species, waterbody characteristics, pesticide details, application details and calculations, records of unused pesticide, prior purchase permit history, etc.). In addition to the Aquatic Pesticide Purchase Permit, protection of these small private ponds is also provided by all other requirements of New York s pesticide regulatory program which are applicable to pesticide applications to these ponds (e.g., pesticide registration review, compliance with pesticide label, and applicator requirements). 10

11 Freshwater Wetlands Permits Article 24 of the ECL authorizes the Department to issue Freshwater Wetlands Permits, consistent with the requirements of 6 NYCRR Part 663. These Freshwater Wetlands Permits address applications of pesticides to freshwater wetlands which meet the definition of the Freshwater Wetlands Act (Article 24 of the ECL) and which have an area of at least 12.4 acres or, if smaller, have unusual local importance as determined by the Commissioner of the Department of Environmental Conservation. The Freshwater Wetlands Permits may also address pesticide applications on land which is adjacent to and within 100 feet of the applicable freshwater wetlands. Article 24 also authorizes the Adirondack Park Agency to issue permits under 9 NYCRR Part 578 that address applications of pesticides to freshwater wetlands within the jurisdiction of the Adirondack Park Agency. The individual freshwater wetlands permits issued under the authority of Article 24 may address some of the same pesticide applications, which are also covered by an Article 15 permit. The Article 24 permit provides another level of review and approval for such pesticide applications that consider broader ecosystem impacts to the wetlands. Watershed Management and Related Programs Prevention of the growth of pest populations, which reduces the need to control pests through pesticide applications, is a key goal of many state environmental quality programs in New York. The most notable examples are programs designed to reduce the loading of nutrients and sediments that foster nuisance weed and vegetation growth in surface waters, and programs designed to limit the growth of invasive species that may damage ecosystems. Existing programs to reduce the loading of nutrients and sediments include Watershed Management programs, the Nonpoint Source Management program (including onsite wastewater management, and stream corridor management), the Agricultural Environmental Management Program, other SPDES permit programs (concentrated animal feeding operations, stormwater management, construction management, and sewage treatment), and site specific erosion and sediment control projects. Invasive species management programs include efforts to identify and detect non-indigenous aquatic species, particularly plants, that have a propensity to experience explosive population growth when introduced into new areas of suitable, uninfested habitat. These programs also work to eradicate such invasive aquatic species that do become established, preferably when the infestation is very small, and to educate the public regarding methods to prevent their further spread. Other outreach and public education activities at the state and local level (including the work of Soil and Water Conservation Districts in counties) assist through reducing nutrient and sediment loads from property owners (e.g., turf management) and invasive species (e.g., boat owner outreach). 11

12 In combination, these activities, at both the state and local level, make a significant contribution to preventing problems that might otherwise require control by pesticide applications. These activities provide a foundation for Integrated Pest Management by reducing the growth and development of pest populations and preventing problems caused by these pests. State Environmental Quality Review Act Environmental Impact Statement Review New York's State Environmental Quality Review Act (SEQRA) requires all state and local government agencies to consider environmental impacts equally with social and economic factors during discretionary decision-making. This discussion is limited to SEQRA aspects specifically related to aquatic pesticides in the existing pesticide management program. For aquatic weed control, all aquatic herbicides permitted in New York must be evaluated by an EIS developed in accordance with SEQRA associated with the Article 15 process. The application of SEQRA to aquatic pesticides in New York includes: Case specific environmental analyses of New York s waterbodies, Environmental and public health impacts of the pesticide, Pesticide alternatives and integrated pest management evaluations, Pesticide application technologies to maximize pest control effectiveness, and Mitigation measures to minimize environmental and health impacts from the pesticide. Initially, a Generic EIS (GEIS) was developed in 1981 for aquatic herbicides registered at that time, and each new aquatic herbicide registered since then must be addressed by a Supplemental EIS. The GEIS was prepared in accordance with 6 NYCRR Part 617. An EIS is a comprehensive analysis of the pesticide with respect to New York State environmental conditions and representative uses of the pesticide in New York. Among the components of each supplemental EIS for a particular aquatic herbicide are the following: Description of the Proposed Action Environmental Settings in New York Description of the Pesticide and Active Ingredient Significant Environmental Impacts Associated with the Pesticide Potential Public Health Impacts of the Pesticide Alternatives and Integrated Pest Management Mitigation Measures to Minimize Environmental and Health Impacts from Pesticides Unavoidable Environmental Impacts if Use of the Pesticide is Implemented Hazardous Substance Leak and Spill Prevention and Response New York s requirements related to handling and storage of hazardous substances and reporting, response and corrective action related to leaks, spills and accidents of hazardous substances address a broad range of substances, including pesticides. These requirements are included in 12

13 New York s Hazardous Substance Bulk Storage Regulations and Handling and Storage of Hazardous Substances Regulations in 6 NYCRR Parts 596, 597 and 598. Under 6 NYCRR Part , incident reporting is separately required. Pursuant to 6 NYCRR Part 595, all operators shall ensure that reporting and responses related to leaks, spills and accidents associated with storage, handing or unintended releases of pesticides under their control or during pesticide applications are in compliance with New York s Regulations for Releases Of Hazardous Substances Reporting, Response and Corrective Action. Where a leak, spill, or other release containing a hazardous substance or oil in an amount equal to or in excess of a reportable quantity established under either 40 CFR Part 110, 40 CFR Part 117, or 40 CFR Part 302 occurs in any 24-hour period, the operator must ensure notification to the National Response Center (NRC) immediately at (800) in accordance with the requirements of 40 CFR Part 110, 40 CFR Part 117, and 40 CFR Part 302 as soon as the operator has knowledge of the release, and must also ensure immediate notification to the New York State Spill Hotline at (800) Contact information must be in locations that are readily accessible and available in the area where the spill, leak, or other unpermitted discharge may occur. III. PERMIT HIGHLIGHTS AND BASIS FOR PERMIT CONDITIONS This overview of the basis for the conditions of this SPDES general permit is organized according to the sections of the permit, as follows: A. SPDES General Permit Coverage And Limitations B. Obtaining SPDES General Permit Coverage C. Requirements For Operators D. Corrective Measures E. Termination Of SPDES General Permit Coverage F. Records Maintenance And Retention Schedule G. Standard Permit Conditions Each section includes a discussion of the principal facts and methodologies, the associated authority for the permit requirements, and relevant statutory or regulatory references. A. SPDES GENERAL PERMIT COVERAGE AND LIMITATIONS SPDES General Permit Eligibility This SPDES general permit is issued pursuant to Article 17 Titles 7, 8. and Article 70 of the ECL. This SPDES general permit authorizes point source discharges to surface waters of the State by operators from the application to, in or over surface waters of the State of any New York State registered pesticide that is labeled for aquatic uses, including both biological pesticides and chemical pesticides labeled for aquatic uses. Consistent with National Cotton Council, which requires a NPDES permit for discharges to waters of the United States, New York is requiring a SPDES permit for discharges to waters of the State, except for groundwater 13

14 or discharges from aquatic pesticide applications to a small private pond (defined in the discussion of Aquatic Pesticide Purchase Permits in this Fact Sheet). New York s pesticide registration review program examines the environmental fate and mobility of pesticide residues and can deny registration to products for which mobility, including groundwater mobility, is a concern. The small private ponds have no outflow to other surface waters of the State and do not typically provide recharge to groundwater, so direct impacts on other such waters are effectively controlled. The likelihood of adverse incidents involving effects on non-target species, related to small private pond pesticide applications, is even further reduced by New York s pesticide registration review program, which has the capability of denying registration to products viewed as likely to cause adverse effects, or to request modifications of the USEPA approved pesticide label. A New York State accepted pesticide label incorporates measures that address environmental hazards to non-target species and protections against the occurrence of adverse incidents. Additionally, if a small pond owner were to notify a pesticide registrant regarding an adverse effect on a non-target species, the registrant is required by law to report those adverse effects and their resolution to both NYSDEC and the EPA (FIFRA 6(a) (2)). The regulatory requirements of 6 NYCRR Parts 325 through 329 already address the core requirements of the proposed PGP to minimize and control discharges of pesticides to all surface waters, including small private ponds. All aquatic pesticides are registered as State Restricted Use Pesticides. This requires that aquatic pesticides may only be purchased and used by a licensed and trained certified applicator or through an Aquatic Purchase Permit which restricts the location and use of the pesticides to a specific waterbody. The proposed PGP requirement to maintain records of pesticide use is addressed by two existing mechanisms: (1) ECL requires annual reporting of specific locations and quantities of aquatic pesticide usage by certified applicators, including those applications to small private ponds; and (2) the Aquatic Purchase Permit required under ECL documents the site specific aquatic pesticide usage by individuals who are not certified applicators, including applications to small private ponds. Finally, the potential for aquatic pesticide exposure to the public and other non-target organisms from small private pond pesticide applications is limited by : 1. The very small size of the waterbody, 2. These small private ponds are typically fed by groundwater discharge into, not out of, the pond, so the potential for pesticides in the pond to migrate out of the pond through a ground water connection is negligible, and 3. The small private ponds only include situations where the entire waterbody and adjacent land is owned or leased by a single person, as required pursuant to Policy DHSM-PES (September 22, 2005). Authorization for discharges requiring coverage under this SPDES general permit will be required on or after the effective date of this SPDES general permit. This SPDES general permit does not authorize point source discharges to surface waters of the State from terrestrial applications of any pesticides (those not to, in or over surface waters of the State). This is 14

15 consistent with the requirements of ECL and 6 NYCRR Part 325.2(b), which require that pesticides are to be used in accordance with label and labeling directions. This SPDES general permit is required pursuant to the National Cotton Council decision, which held: (1) the CWA unambiguously includes biological pesticides, and chemical pesticides with residuals, within its definition of pollutant ; and (2) NPDES permits will be required for discharges to waters of the United States of biological pesticides, and of chemical pesticides that leave a residue. The application to, in or over surface waters of the State of pesticides labeled for aquatic uses includes all pesticide applications currently required to obtain individual Article 15 permits addressing the specific site and pesticide application. The application also includes uses of pesticides labeled for aquatic uses that are required to obtain an individual Article 24 freshwater wetlands permit. In addition, this SPDES general permit authorizes other applications of pesticides labeled for aquatic uses to, in or over surface waters of the State that may not require Article 15 or 24 permits, such as mosquito adulticiding and algae control by public water suppliers. It is important to note that the major portion of the total usage of aquatic pesticides that have coverage under this SPDES general permit will be covered under Article 15 and/or Article 24 permits. This explains the numerous references to Article 15 and Article 24 permits in this SPDES general permit. This SPDES general permit does not address potential non-point sources of pesticides, consistent with the Federal approach and the decision of the Court. EPA Fact Sheet June This SPDES general permit also states that A pesticide registered in New York State has undergone an additional level of review beyond that conducted at the Federal level, which may result in the inclusion of additional label requirements and limitations where required by the Department for protection of human health and the environment. Operators covered by this SPDES general permit must comply with all aspects of New York State accepted pesticide label and any additional provisions in 6 NYCRR Parts 325 through 329, where applicable based on the type of pesticide application. These topics are addressed in Part II of this fact sheet. Maintaining Water Quality Pursuant to ECL (1) and 6 NYCRR Part , SPDES permits shall contain applicable effluent limitations. Pursuant to ECL and 6 NYCRR Part (a)(5)(i), this SPDES general permit must include provisions requiring compliance with effluent limitations and other limitations to ensure compliance with water quality standards and guidance values, where applicable. Pursuant to 6 NYCRR Part (f), SPDES general permits shall include applicable provisions as set forth in 6 NYCRR Part and 6 NYCRR Part Addtionally, the Department is authorized by 6 NYCRR Part (c) to set forth conditions that apply to any discharge under a SPDES general permit. 15

16 In accordance with the specified statutes and regulations, SPDES permits include technologybased effluent limitations for all discharges and then if necessary for a specific discharge, water quality based effluent limitations (WQBELs). Permit writers assess whether the technologybased effluent limitations are protective of water quality standards and if not, permit writers must also include WQBELs as necessary to ensure that the discharge will not cause, have the reasonable potential to cause, or contribute to an excursion above any narrative or numeric State water quality standard. This SPDES general permit includes a narrative statement that addresses WQBELs. In this SPDES general permit the WQBEL is as follows: The discharges from applications of pesticides must be controlled as necessary to meet applicable water quality standards. Where a discharge authorized under this SPDES general permit is later determined to directly or indirectly cause or have the reasonable potential to cause or contribute to the violation of an applicable water quality standard, the Department will notify the operator of such violation(s) and may take enforcement actions for such violations. The operator must take all necessary actions to ensure future discharges do not directly or indirectly cause or contribute to the violation of a water quality standard, and the operator must document these actions as required in Part IV and Part VI. Compliance with this requirement does not preclude, limit, or eliminate any enforcement activity as provided by the Federal and/or State law for the underlying violation. Additionally, if violations of applicable water quality standards occur, then coverage under this SPDES general permit may be terminated by the Department in accordance with 6 NYCRR Part (e) and the Department may require an application for an alternative SPDES general permit or individual SPDES permit. According to ECL , [i]t shall be unlawful for any person, direcly or indirectly, to throw, drain, run or otherwise discharge into such water organic or inorganic matter that shall cause or contribute to a condition in violation of the standards adopted by the department pursuant to section The first part of this WQBEL includes the general requirement to control discharges as necessary to meet water quality standards, and as required by ECL The second part of this WQBEL implements this requirement in more specific terms by imposing on operators a responsibility to take corrective action in response to an excursion of applicable water quality standards (Part IV), whether discovered by the Department or by the operator. Failure to take such corrective action is a violation of this SPDES general permit. Each operator is required to control its discharge as necessary to meet applicable water quality standards. In general, the Department expects that compliance with the other conditions in this SPDES general permit (e.g., Pesticide label requirements, Article 15 permit, Article 24 permit) will result in discharges that are controlled as necessary to meet applicable water quality standards. This conclusion is based on the cumulative effect of the factors described in more detail below: 16

17 1. Before any pesticide can be registered for use in New York, the Department conducts evaluations of both human health and ecological risk associated with pesticide use and either disallows or mitigates pesticides that appear to pose levels of unreasonable ecological risk. 2. EPA evaluated national scale ambient monitoring data, as well as the frequency of the identification of specific pesticides as the cause of water impairments, to assess whether pesticide residues are currently present in waters at levels that would exceed water quality standards. The monitoring data show that, in most samples, most pesticides were below ambient water quality criteria or benchmarks developed by EPA s Office of Pesticide Programs (OPP) as indicators of narrative water quality criteria. This analysis conducted by EPA is applicable to pesticides used in New York State as well. 3. Control measures specified in the pesticide SPDES general permit provide further protections (Part III). 4. Biological pesticides discharged to waters, by definition, do not work through a toxic mode of action. For chemical pesticides, the discharges covered under this SPDES general permit are the residues after the concentration of the pesticide in water has dissipated or degraded below the level at which it effectively controls the most sensitive target pest species. Thus, the residue is anticipated to be significantly lower than, the concentration of the pesticide as applied. This SPDES general permit requires operators to control discharges as necessary to meet applicable water quality standards. When the operator or the Department determines a discharge will cause or contribute to an excursion above any WQS, the operator must take corrective action to ensure that the situation is eliminated and will not be repeated in the future. If additional control measures are required, the Department expects the operator to vigilantly and in good-faith follow, document, and cooperate to eliminate the identified problem. 5. The pesticide SPDES general permit excludes coverage for pesticide applications that result in discharges of any pesticide to waters impaired for that pesticide of the degradates of that pesticide (Part I.C) 5 The above is consistent with EPA s approach in its Pesticides General Permit for Discharges from the Application of Pesticides. EPA Fact Sheet June Activities Which Are Ineligible for Coverage Under This SPDES General Permit The Department is authorized to require any discharger under a SPDES general permit to apply for and obtain an individual SPDES permit or apply for another SPDES general permit by 6 NYCRR Part (e). 5 New York does not have Tier 3 water bodies. New York Class N waters is equivalent to EPA s Tier 3 waters 6 NYCRR Part

18 This SPDES general permit lists four categories of discharges from applications of pesticides labeled for aquatic uses that are not eligible for SPDES general permit coverage. If an application of a pesticide labeled for aquatic uses is planned in any one of these categories, it would require coverage under a SPDES individual permit addressing the specific location and pesticide use. 1. Discharges to Water Quality Impaired Waters This SPDES general permit is not available for the discharge of a pesticide to water that is impaired for the specific pesticide or degradates of that pesticide. The purpose of this exclusion is to control the addition of pollutants that are known to have impaired a waterbody. This is consistent with ECL and 6 NYCRR Part (b). For purposes of this SPDES general permit, impaired waters are those which have been identified by the State, pursuant to Section 303(d) of the CWA as not meeting applicable State water quality standards. Impaired waters for purposes of this SPDES general permit include waters with EPA-approved Total Maximum Daily Loads (TMDLs) and waters for which EPA has not yet approved or the Department has not yet established a TMDL The 303(d) list is not a final determination of impairments, however, it is the best available information for operators to use when deciding whether their discharges meet the eligibility requirements regarding water bodies impaired for specific pesticides. EPA Fact Sheet June The New York State Section 303(d) List of Impaired/TMDL Waters is located at the following web address: If this web address and the related links on that webpage cannot be reached, the same information can be obtained by contacting the Department s Division of Water. The above is consistent with EPA s approach in its Pesticides General Permit for Discharges from the Application of Pesticides. EPA Fact Sheet June Discharges Currently or Previously Covered by an Individual SPDES Permit The purpose of the second exclusion, ineligibility where a discharge has been covered by an individual SPDES permit or discharges where the associated SPDES permit has been or is in the process of being denied, terminated or revoked by the Department, is to avoid potential conflicts with the anti-backsliding provisions of 6 NYCRR Part (c), whereby an operator may request termination of an individual SPDES permit and then obtain coverage under a general SPDES permit. Pursuant to 6 NYCRR Part (f), SPDES general permits shall include applicable provisions as set forth in 6 NYCRR Part At this time, there are no SPDES individual permits issued for point source discharges to surface waters of the State by operators from the application to, in, or over surface waters of the State of any New York State registered pesticide that is labeled for aquatic uses, including both biological pesticides and chemical pesticides labeled for aquatic uses. If in the future, an operator obtained a SPDES individual permit for such a discharge, the operator would then be ineligible for coverage under this SPDES general permit. 18

19 3. Discharges Determined to Require an Individual SPDES Permit or Another SPDES General Permit The third exclusion is intended to address special future circumstances, which may warrant coverage by an individual SPDES permit or another SPDES general permit pursuant to the bases set forth in 6 NYCRR Part (e). 4. Discharges Adversely Affecting Endangered or Threatened Species The purpose of this exclusion is to ensure that additional evaluation is completed regarding discharges of pesticides for protection of endangered or threatened species. Protection of endangered and threatened species is an important component of analyses for Article 15 permits, as well as Environmental Impact Statements for certain pest control activities, such as mosquito control programs. This evaluation is considered sufficient when review of the risks to endangered species has been accomplished in one of these other analyses. Similarly, if an endangered or threatened species could be impacted by a pesticide discharge, but the operator has obtained an Incidental Take Permit (also known as a Taking permit) in accordance with 6 NYCRR Part , then this evaluation has been satisfied. B. OBTAINING SPDES GENERAL PERMIT COVERAGE Notice of Intent (NOI) Submittal The Department is authorized by 6 NYCRR Part (d)(1) to require operators to obtain permission to discharge in accordance with a SPDES general permit by notifying the Department, in the format provided by the Department, of the discharger s intention to discharge in accordance with a SPDES general permit. All operators applying pesticides labeled for aquatic uses to, in or over surface waters of the State must submit a completed NOI form to the Department in order to be authorized to discharge to surface waters of the State. This includes certain operators that are exempt from Article 15 permit requirements (e.g., mosquito adulticiding, public water supply algae control). Coverage under this SPDES general permit is not required for discharges from aquatic pesticide applications to a small private pond, which are also exempt from Article 15 permit requirements. This is different than the EPA approach but consistent with 6 NYCRR Part (d)(1). EPA Fact Sheet June The definition of operator in the SPDES general permit requires that for each NOI covering a pesticide application eligible under this SPDES general permit, there shall be only one operator identified in the NOI. The operator may be an entity that satisfies either of the following two criteria: 1. The entity with control over the decision to perform pesticide applications eligible for coverage under this SPDES general permit, including the ability to modify those decisions, that results in a discharge to surface waters of the state; or 19

20 2. The entity who performs the application of a pesticide eligible for coverage under this SPDES general permit or who has day-to-day control of the application (i.e., they are authorized to direct workers to carry out those activities) that results in a discharge to surface waters of the state. The operator under this SPDES general permit must be the same as the permitee for an Article 15 permit addressing the same discharges. Having different entities with coverage can create confusion, inconsistency and inefficiency in administering permits requirements. This approach ensures that responsibilities are consolidated in the appropriate entity. For example, operators applying pesticides labeled for aquatic uses whose pesticide applications are also addressed by an Article 15 permit, do not have to complete the PDMP because the information submitted pursuant to these permits meets the purpose of the PDMP in documenting control measures to minimize discharges. An operator that is involved in applications to, in, or over surface waters of the State of pesticides labeled for aquatic uses may address multiple applications (including multiple treatment dates or treatment area locations) of such pesticides in a single NOI if: (1) the pesticide applications are authorized by a single permit under an Article 15 permit, or (2) the pest control activities address similar target pest species and the pest management areas or treatment areas are: (a) within contiguous locations owned by a single owner, or (b) lie within the jurisdiction of a governmental agency identified as the operator, or (c) lie within right-of-way easements held by the operator, provided that the provisions of the easements are not violated. As long as the operator complies with all requirements of this SPDES general permit, the Department believes that multiple pesticide applications can be covered under a single NOI for administrative efficiency without compromising the goal of protecting water quality. There may be multiple applications covered under one NOI, however all individual discharges will be addressed in the PDMP or Article 15 permit requirements. In addition, all pesticide discharges must comply with the control measures of the SPDES general permit and the New York State accepted pesticide label to minimize the discharge. The NOI must identify all target pests and pesticides associated with the discharge authorized under this SPDES general permit. Where an operator determines a need to obtain coverage for new or additional target pests or pesticides not identified in the original NOI, the operator shall submit a new NOI identifying all target pests and pesticides associated with the discharge. This requirement to accurately identify all target pests and pesticides is necessary to enable the Department to obtain documentation of the pesticide products in discharges covered by the SPDES general permit, and to ensure that these products are registered for control of the specified target pests. Addition of new treatment area size and location information for certain pesticide applications which are not also addressed by Article 15 or 24 permits (e.g., certain added mosquito control locations) does not require submission of a new NOI because this is the only practical way to provide coverage without overburdening the administrative workload on the Department and on operators. The additional treatment area locations will require documentation in the updated PDMP for these operators. 20