[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Notices]
[Pages 4070-4074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00834]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2020-0005; FRL-10018-41-OW]
Draft National Pollutant Discharge Elimination System (NPDES)
Pesticide General Permit for Point Source Discharges From the
Application of Pesticides; Reissuance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of draft permit and request for public comment.
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SUMMARY: All ten Environmental Protection Agency (EPA) Regions are
proposing for public comment the draft 2021 National Pollutant
Discharge Elimination System (NPDES) pesticide general permit (PGP)--
the draft 2021 PGP. The draft 2021 PGP covers point source discharges
from the application of pesticides to waters of the United States. Once
finalized, the draft 2021 PGP will replace the existing permit, the
2016 PGP, which was issued for a five-year term in the Federal Register
on October 31, 2016, and expires October 31, 2021, at midnight. The
draft 2021 PGP has the same conditions and requirements as the 2016 PGP
and would authorize certain point source discharges from the
application of pesticides to waters of the United States in accordance
with the terms and conditions described therein. EPA proposes to issue
this permit for five (5) years in all areas of the country where EPA is
the NPDES permitting authority. EPA solicits public comment on all
aspects of the draft 2021 PGP. This Federal Register document describes
the draft 2021 PGP in general and seeks comment as described in Section
III.C, of this document. The Fact Sheet accompanying the permit
contains supporting documentation. EPA encourages the public to read
the Fact Sheet to understand the draft 2021 PGP better.
DATES: Comments on the draft 2021 PGP must be received on or before
March 16, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2020-0005, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting
comments.
Instructions: All submissions received must include the Docket ID
No. EPA-HQ-OW-2020-0005. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information, see the ``Public Participation'' heading of the
SUPPLEMENTARY INFORMATION section of this document. Out of an abundance
of caution for members of the public and our staff, EPA Docket Center
and Reading Room are closed to the public with limited exceptions, to
reduce the risk of transmitting COVID-19. Our Docket Center staff will
continue to provide remote customer service via email, phone, and
webform. We encourage the public to submit comments via https://www.regulations.gov or email, as there may be a delay in processing
mail and faxes. Hand deliveries and couriers may be received by
scheduled appointment only. For further information on EPA Docket
Center services and the current status, please visit us online at
https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: EPA Regional Office listed in Section
I.D. of this document, or you can send an email to [email protected]. You may
also contact Chelsea Durant, EPA Headquarters, Office of Water, Office
of Wastewater Management at tel.: 202-564-2290 or email:
[email protected]. Electronic versions of the draft 2021 PGP and
Fact Sheet are also available on
[[Page 4071]]
EPA's NPDES website at https://www.epa.gov/npdes/pesticide-permitting.
SUPPLEMENTARY INFORMATION: This section is organized as follows:
Table of Contents
I. General Information
A. Does this action apply to me?
B. Public Participation
C. Finalizing the Draft 2021 PGP
D. Who are the EPA regional contacts for this draft permit?
II. Background
III. Scope and Applicability
A. Geographic Coverage
B. Categories of Pesticide Use-Patterns Covered
C. Summary of the Permit and Changes From the 2016 PGP
IV. Cost Impacts of the Draft 2021 PGP
V. Executive Orders 12866 and 13563
VI. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
I. General Information
A. Does this action apply to me?
You may be affected by this action if you apply pesticides under
the use patterns in Section III.B of this document that result in a
discharge to waters of the United States in one of the geographic areas
identified in Section III.A of this document. Potentially affected
entities, as categorized in the North American Industry Classification
System (NAICS), may include, but are not limited to:
Table 1--Entities Potentially Regulated by the Draft 2021 PGP
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Examples of
Category NAICS potentially affected
entities
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Agricultural entities--General 111 Crop Producers of crops
agricultural interests, Production. mainly for food and
farmers/producers, forestry, fiber, including
and irrigation. farms, orchards,
groves, greenhouses,
and nurseries that
have irrigation
ditches requiring
pest control.
113110 Timber The operation of
Tract Operations. timber tracts for
the purpose of
selling standing
timber.
113210 Forest Growing trees for
Nurseries reforestation and/or
Gathering of gathering forest
Forest Products. products, such as
gums, barks, balsam
needles, rhizomes,
fibers, Spanish
moss, ginseng, and
truffles.
221310 Water Operating irrigation
Supply for systems.
Irrigation.
Pesticide parties (includes 325320 Pesticide Formulation and
pesticide manufacturers, and Other preparation of
other pesticide users/ Agricultural agricultural pest
interests, and consultants). Chemical control chemicals.
Manufacturing..
Public health parties 923120 Government
(includes mosquito or other Administration establishments
vector control districts and of Public Health primarily engaged in
commercial applicators that Programs. the planning,
service these). administration, and
coordination of
public health
programs and
services, including
environmental health
activities.
Resource management parties 924110 Government
(includes State departments Administration establishments
of fish and wildlife, State of Air and Water primarily engaged in
departments of pesticide Resource and the administration,
regulation, State Solid Waste regulation, and
environmental agencies, and Management enforcement of air
universities). Programs. and water resource
programs; the
administration and
regulation of water
and air pollution
control and
prevention programs;
the administration
and regulation of
flood control
programs; the
administration and
regulation of
drainage development
and water resource
consumption
programs; and
coordination of
these activities at
intergovernmental
levels.
924120 Government
Administration establishments
of Conservation primarily engaged in
Programs. the administration,
regulation,
supervision and
control of land use,
including
recreational areas;
conservation and
preservation of
natural resources;
erosion control;
geological survey
program
administration;
weather forecasting
program
administration; and
the administration
and protection of
publicly and
privately owned
forest lands.
Government
establishments
responsible for
planning,
management,
regulation and
conservation of
game, fish, and
wildlife
populations,
including wildlife
management areas and
field stations; and
other administrative
matters relating to
the protection of
fish, game, and
wildlife are
included in this
industry.
Utility parties (includes 221 Utilities.... Provide electric
utilities). power, natural gas,
steam supply, water
supply, and sewage
removal through a
permanent
infrastructure of
lines, mains, and
pipes.
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B. Public Participation
1. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2020-
0005, at https://www.regulations.gov. Once submitted, comments cannot
be edited or removed from the docket. EPA may publish any comment
received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Multimedia submissions (audio, video, etc.) must
be accompanied by a written comment. The written comment is considered
the official comment and should include discussion of all points you
wish to make. EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e. on the web,
cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
[[Page 4072]]
EPA is temporarily suspending its Docket Center and Reading Room
for public visitors, with limited exceptions, to reduce the risk of
transmitting COVID-19. Our Docket Center staff will continue to provide
remote customer service via email, phone, and webform. We encourage the
public to submit comments via https://www.regulations.gov as there may
be a delay in processing mail and faxes. Hand deliveries or couriers
will be received by scheduled appointment only. For further information
and updates on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets.
EPA continues to monitor information carefully and continuously
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and our Federal partners so that we can respond
rapidly as conditions change regarding COVID-19.
2. Will public hearings be held on this action?
EPA has not scheduled any public hearings to receive public comment
concerning the draft 2021 PGP. However, interested persons may request
a public hearing concerning the draft 2021 PGP pursuant to 40 CFR
124.12. Requests for a public hearing must be sent or delivered in
writing to the same email address ([email protected]) as provided above for
public comments prior to the close of the comment period. Requests for
a public hearing must state the nature of the issues proposed to be
raised in the hearing. Pursuant to 40 CFR 124.12, EPA shall hold a
public hearing if it finds, on the basis of requests, a significant
degree of public interest in a public hearing on the draft 2021 PGP. If
EPA decides to hold a public hearing, a public notice of the date,
time, and place of the hearing will be made at least 30 days prior to
the hearing. Any person may provide written or oral statements and data
pertaining to the draft 2021 PGP at any such public hearing.
To facilitate robust opportunities for public participation in the
permitting process during any interruptions caused by COVID-19, EPA
intends to utilize and encourages the use of electronic and telephonic
means of communication to the maximum extent possible under the law.
EPA will issue public notices and solicit comments on permit actions
via on-line tools and/or email. If public hearings are requested, EPA
will seek to conduct those hearings utilizing remote capabilities via
telephone and the internet.
C. Finalizing the Draft 2021 PGP
EPA intends to issue a final 2021 PGP on or prior to October 31,
2021 (the expiration date of the 2016 PGP). The final 2021 PGP will be
issued after all public comments received during the public comment
period have been considered and any appropriate changes are made to the
draft 2021 PGP. EPA will include its response to significant comments
received in the docket as part of the final permit decision. Once the
final 2021 PGP becomes effective, eligible Operators may seek
authorization under the new PGP as outlined in the permit. To ensure
uninterrupted permit coverage from the 2016 PGP to the 2021 PGP,
Operators who are required to submit a Notice of Intent (NOI) must
submit their NOI for coverage under the new permit prior to discharge
as outlined in the permit (no later than 10 or 30 days before
discharge). See Part 1.2.4 of the draft 2021 PGP.
D. Who are the EPA regional contacts for this draft permit?
For EPA Region 1, contact George Papadopoulos at tel.: (617) 918-
1579; or email at [email protected].
For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856;
or email at [email protected].
For Puerto Rico, contact Sergio Bosques at tel.: (787) 977-5838 or
[email protected].
For EPA Region 3, contact Carissa Moncavage at tel.: (215) 814-
5798; or email at [email protected].
For EPA Region 4, contact Sam Sampath at tel.: (404) 562-9229; or
email at [email protected].
For EPA Region 5, contact John Colletti at tel.: (312) 886-6106; or
email at [email protected].
For EPA Region 6, contact William F. Cooper at tel.: (214) 665-6443
or email at [email protected].
For EPA Region 7, contact Alex Owutaka at tel.: (913) 551-7584 or
email at: [email protected].
For EPA Region 8, contact Amy Clark at tel.: (303) 312-7014 or
email at: [email protected].
For EPA Region 9, contact Pascal Mues at tel.: (415) 972-3768 or
email at: [email protected].
For EPA Region 10, contact Bilin Basu at tel.: (206) 553-0029 or
email at: [email protected].
II. Background
Section 301(a) of the Clean Water Act (CWA) provides that ``the
discharge of any pollutant by any person shall be unlawful'' unless the
discharge is in compliance with certain other Sections of the Act. 33
U.S.C. 1311(a). The CWA defines ``discharge of a pollutant'' as ``(A)
any addition of any pollutant to navigable waters from any point source
and (B) any addition of any pollutant to the waters of the contiguous
zone or the ocean from any point source other than a vessel or other
floating craft.'' 33 U.S.C. 1362(12). A ``point source'' is any
``discernible, confined and discrete conveyance'' but does not include
``agricultural stormwater discharges and return flows from irrigated
agriculture.'' 33 U.S.C. 1362(14).
The term ``pollutant'' includes among other things ``garbage . . .
chemical wastes, biological materials . . . and industrial, municipal,
and agricultural waste discharged into water.'' 33 U.S.C. 1362(6).
A person may discharge a pollutant without violating the Section
301 prohibition by obtaining authorization to discharge (referred to
herein as ``coverage'') under a Section 402 NPDES permit (33 U.S.C.
1342). Under Section 402(a), EPA may ``issue a permit for the discharge
of any pollutant, or combination of pollutants, notwithstanding Section
1311(a)'' upon certain conditions required by the Act.
EPA issued the first Pesticide General Permit (``2011 PGP'') on
October 31, 2011, in response to the United States Sixth Circuit Court
of Appeals ruling vacating EPA's 2006 Final Rule on Aquatic Pesticides.
National Cotton Council of America. v. EPA, 553 F.3d 927 (6th Cir.
2009). EPA developed the PGP to control point source discharges of
biological pesticides and chemical pesticides that leave a residue into
waters of the United States. The PGP provides coverage for certain
point source discharges of pollutants to waters of the United States in
areas where EPA is the NPDES permitting authority. In 2016, EPA issued
the second PGP (``2016 PGP''). The 2016 PGP will expire at midnight on
October 31, 2021.
III. Scope and Applicability
A. Geographic Coverage
EPA provides permit coverage for classes of point source discharges
of pollutants that occur in areas where EPA is the NPDES permitting
authority. The geographic coverage of the draft 2021 PGP is listed in
Appendix C of the draft permit.
B. Categories of Pesticide Use-Patterns Covered
The draft 2021 PGP has the same requirements and conditions as
EPA's 2016 PGP and regulates the same discharges of pollutants to
waters of the United States from the application of (1)
[[Page 4073]]
biological pesticides, and (2) chemical pesticides that leave a
residue. The draft 2021 PGP applies to the following same pesticide use
patterns:
Mosquito and Other Flying Insect Pest Control--to control
public health/nuisance and other flying insect pests that develop or
are present during a portion of their life cycle in or above standing
or flowing water. Public health/nuisance and other flying insect pests
in this use category include mosquitoes and black flies.
Weed and Algae Pest Control--to control weeds, algae, and
pathogens that are pests in water and at water's edge, including
ditches and/or canals.
Animal Pest Control--to control animal pests in water and
at water's edge. Animal pests in this use category include fish,
lampreys, insects, mollusks, and pathogens.
Forest Canopy Pest Control--application of a pesticide to
a forest canopy to control the population of a pest species (e.g.,
insect or pathogen) where, to target the pests effectively, a portion
of the pesticide unavoidably will be applied over and deposited to
water.
The scope of activities encompassed by these pesticide use patterns
is described in greater detail in Part III.1.1 of the Fact Sheet for
the draft 2021 PGP.
C. Summary of the Permit and Changes From the 2016 PGP
Once issued, the final 2021 PGP will replace the 2016 PGP, which
was issued for a five-year term in the Federal Register on October 31,
2016 (81 FR 75816), and expires October 31, 2021, at midnight. The
draft 2021 PGP is similar to the 2016 PGP, and is structured in the
same nine parts: (1) Coverage under This Permit, (2) Technology-Based
Effluent Limitations, (3) Water Quality-Based Effluent Limitations, (4)
Monitoring, (5) Pesticide Discharge Management Plan, (6) Corrective
Action, (7) Recordkeeping and Annual Reporting, (8) EPA Contact
Information and Mailing Addresses, and (9) Permit Conditions Applicable
to Specific States (including Territories) and Indian Country.
Additionally, as with the 2016 PGP, the draft 2021 PGP includes nine
appendices with additional conditions and guidance for permittees: (A)
Definitions, Abbreviations, and Acronyms, (B) Standard Permit
Conditions, (C) Areas Covered, (D) Notice of Intent (NOI) form, (E)
Notice of Termination (NOT) form, (F) Pesticide Discharge Evaluation
Worksheet (PDEW), (G) Annual Reporting Template, (H) Adverse Incident
Report Template, and (I) Endangered Species Procedures.
The following is a summary of the draft 2021 PGP's proposed
requirements:
The PGP defines ``Operator'' (i.e., the entity required to
obtain NPDES permit coverage for discharges) to include any (a)
Applicator who performs the application of pesticides or has day-to-day
control of the application of pesticides that results in a discharge to
waters of the United States, or (b) Decision-maker who controls any
decision to apply pesticides that results in a discharge to waters of
the United States. There may be instances when a single entity acts as
both an Applicator and a Decision-maker.
All Applicators are required to minimize pesticide
discharges by using only the amount of pesticide and frequency of
pesticide application necessary to control the target pest, maintain
pesticide application equipment in proper operating condition, control
discharges as necessary to meet applicable water quality standards, and
monitor for and report any adverse incidents.
All Decision-makers are required, to the extent not
determined by the Applicator, to minimize pesticide discharges by using
only the amount of pesticide and frequency of pesticide application
necessary to control the target pest. All Decision-makers are also
required to control discharges as necessary to meet applicable water
quality standards and monitor for and report any adverse incidents.
Certain Decision-makers [i.e., any agency for which pest
management for land resource stewardship is an integral part of the
organization's operations, entities with a specific responsibility to
control pests (e.g., mosquito and weed control districts), local
governments or other entities that apply pesticides in excess of
specified annual treatment area thresholds, and entities that discharge
pesticides to Tier 3 waters (Outstanding National Resource Waters, 40
CFR 131.12(a)(3)) or to waters of the United States containing National
Marine Fisheries Service (NMFS) Listed Resources of Concern] are
required also to submit an NOI to obtain authorization to discharge and
to implement pest management options to reduce the discharge of
pesticides to waters of the United States. Within this group, certain
large Decision-makers (any (1) public entity that serves a population
greater than 10,000 or (2) private enterprise that exceeds the Small
Business Administration size standard as identified in 13 CFR 121.201)
must also develop a Pesticide Discharge Management Plan (PDMP), submit
annual reports, and maintain detailed records. Certain small Decision-
makers (any (1) public entity that serves a population of 10,000 or
less or (2) private enterprise that does not exceed the Small Business
Administration size standard as identified in 13 CFR 121.201) are
required to complete a pesticide discharge evaluation worksheet for
each pesticide application (in lieu of the more comprehensive PDMP), an
annual report, and detailed recordkeeping.
Deadlines for submittal of a Notice of Intent to be
covered, if required, are provided in Part 1.2.3, Table 1-2, of the
draft 2021 PGP.
EPA encourages the public to review and comment on all aspects and
provisions in the draft 2021 PGP. The draft 2021 PGP is similar to the
2016 PGP but includes minor changes which are listed below. See the
Fact Sheet accompanying the draft 2021 PGP for further discussion.
(1) Removes the out of date NOI provision that provided automatic
coverage for all Operators until January 12, 2017.
(2) Replaces the requirement to use EPA's eNOI system with EPA's
NPDES eReporting Tool (NeT) when preparing and submitting NOIs, NOTs,
and annual reports.
(3) Updates Appendix A, Definitions, Abbreviations, and Acronyms to
include the terms ``Pesticide discharges to waters of the United States
from pesticide application'' and ``pesticide residue,'' as defined in
40 CFR 122.2.
(4) Modifies Appendix B, Standard Permit Conditions, to ensure
consistency with 40 CFR 122.41.
(5) Updates Appendix C, Areas Covered, to add Indian Country within
Virginia and Indian Country within Indiana, and to remove the State of
Idaho.
IV. Cost Impacts of the Draft 2021 PGP
Based on the cost analyses performed for the 2011 PGP and 2016 PGP,
EPA expects the costs that covered entities, including small
businesses, will bear to comply with this permit will be minimal. Since
the draft 2021 PGP is similar to the 2016 PGP, EPA projects that the
draft 2021 PGP will have no incremental cost impacts on regulated
entities. Copies of EPA's cost impact analyses for the 2011 PGP and
2016 PGP are available in the docket for this permit. See the Fact
Sheet accompanying this draft permit for further discussion.
V. Executive Orders 12866 and 13563
The draft 2021 PGP is not a significant regulatory action and was
therefore not
[[Page 4074]]
submitted to the Office of Management and Budget (OMB) for review.
VI. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in E.O.
13175. It will neither impose substantial direct compliance costs on
federally recognized tribal governments, nor preempt tribal law. EPA
directly implements the NPDES Program, including the 2021 PGP when it
is finalized, in Indian Country; therefore, in compliance with EPA
Policy on Consultation and Coordination with Indian Tribes, EPA
consulted with tribal officials early in the process to permit tribes
to have meaningful and timely input into the renewal of the PGP. To
gain an understanding of, and where necessary, to address tribal
implications of the draft 2021 PGP, EPA conducted the following
activities:
May 8, 2020--EPA emailed notification letters to tribal
leaders initiating consultation and coordination on the renewal of the
PGP. The initiation letter was also posted on EPA's Tribal Consultation
Opportunities Tracking System (TCOTS) at https://tcots.epa.gov/.
June 9, 2020--EPA held an informational webinar open to
all tribal representatives and reserved the last part of the webinar
for official consultation comments. Fourteen tribal representatives
participated in the webinar. No official comments were received during
the webinar. The presentation was posted on the tribal portal website
at http://tcots.epa.gov.
EPA received no comments from tribes and tribal organizations
during the formal consultation period. Records of the tribal
informational webinar and a consultation summary are included in the
docket for this proposed action (Docket ID No. EPA-HQ-OW-2020-0005).
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: December 14, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.
Dated: December 14, 2020.
Javier Laureano,
Director, Water Division, EPA Region 2.
Dated: December 14, 2020.
Carmen R. Guerrero-P[eacute]rez,
Director, Caribbean Environmental Protection Division, EPA Region 2
Caribbean Office.
Dated: December 14, 2020.
Catherine A. Libertz,
Director, Water Division, EPA Region 3.
Dated: December 14, 2020.
Jeaneanne M. Gettle,
Director, Water Division, EPA Region 4.
Dated: December 14, 2020.
Tera L. Fong,
Director, Water Division, EPA Region 5.
Dated: December 14, 2020.
Charles W. Maguire,
Director, Water Division, EPA Region 6.
Dated: December 14, 2020.
Jeffery Robichaud,
Director, Water Division, EPA Region 7.
Dated: December 14, 2020.
Judy Bloom,
Manager, Clean Water Branch, EPA Region 8.
Dated: December 14, 2020.
Tom[aacute]s Torres,
Director, Water Division, EPA Region 9.
Dated: December 14, 2020.
Daniel D. Opalski,
Director, Water Division, EPA Region 10.
[FR Doc. 2021-00834 Filed 1-14-21; 8:45 am]
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