ATTACHMENT

National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS Permit Program Fact Sheet

Pesticide General NPDES/SDS Permit Mosquito & Other Flying Insect Pest Control MNG870000

Forest Canopy Pest Control MNG873000 Aquatic Nuisance Animal Pest Control MNG874000

Vegetative Pests & Algae Control MNG876000

Public Comment Period Begins: January 18, 2011 Period Ends: February 17, 2011

Proposed Action: General Permit Issuance

Permitting Contact Elise M. Doucette

Minnesota Pollution Control Agency St. Paul Office

520 Lafayette Road North St. Paul, MN 55155-4194

Phone: 651-757-2316 Fax: 651-297-8683 elise.doucette@state.mn.us

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Table of Contents

Purpose and Participation 3 Fact Sheet Purpose 3 Public Participation 3

Introduction 4 Clean Water Act Permit Authority 4 Federal Insecticide, Fungicide and Rodenticide Act 4 EPA’s Final Rules 5 Sixth Circuit Court’s Decision to Vacate EPA’s Final Rule 5 How the Court Decision Affects the NPDES Program 6

Permit Eligibility 7 Applicable Statutes for General Permit Development 7 Use Patterns 7 Activities Not Covered by this Permit 9 Applicability and Eligibility 10 Exclusions 11 Sharing Responsibilities 12 Requirement to Submit a Notice of Intent (NOI) 14 Permittees Not Required to Submit NOIs 18 Discharge Authorization Date 18

Technology-Based Effluent Limitations 19 Background 19 “Minimize” Discharge of Pesticides to Waters of the State 22 Integrated Pest Management Practices 25

Water Quality-Based Effluent Limitations 28 Background 28 Water Quality Standards 28 FIFRA Registration Risk Assessment and Development of Water Quality Standards 30 Other Water Quality-Based Effluent Limit Considerations 35

Additional Permit Requirements 40 Site Monitoring 40 Adverse Incident Notifications and Reporting 42 Corrective Action 44 Pesticide Discharge Management Plan 45 Recordkeeping and Annual Reporting 48

Appendices

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Purpose and Participation Fact Sheet Purpose This fact sheet outlines the principal issues related to the preparation of the Draft Pesticide General Permits: Mosquito & Other Flying Insect Pest Control Permit, Forest Canopy Pest Control, Nuisance Aquatic Animal Control, and Vegetative Pests and Algae Control. This fact sheet documents the decisions that were made in the determination of the effluent limitations and conditions of this permit.

Public Participation You may submit written comments on the terms of the draft permit or on the Commissioner’s preliminary determination. Your written comments must include the following:

1. A statement of your interest in the permit application or the draft permit. 2. A statement of the action you wish the Minnesota Pollution Control Agency (MPCA) to take,

including specific references to sections of the draft permit that you believe should be changed.

3. The reasons supporting your position, stated with sufficient specificity as to allow the Commissioner to investigate the merits of your position.

You may also request that the MPCA Commissioner hold a public informational meeting. A public informational meeting is an informal meeting which the MPCA may hold to help clarify and resolve issues.

In accordance with Minn. R. 7000.0650 and Minn. R. 7001.0110, your petition requesting a public informational meeting must identify the matter of concern and must include the following: items 1 through 3 identified above; a statement of the reasons the Minnesota Pollution Control Agency (MPCA) should hold the meeting; and the issues you would like the MPCA to address at the meeting.

In addition, you may submit a petition for a contested case hearing. A contested case hearing is a formal hearing before an administrative law judge. Your petition requesting a contested case hearing must include a statement of reasons or proposed findings supporting the MPCA decision to hold a contested case hearing pursuant to the criteria identified in Minn. R. 7000.1900, subp. 1 and a statement of the issues proposed to be addressed by a contested case hearing and the specific relief requested. To the extent known, your petition should include a proposed list of witnesses to be presented at the hearing, a proposed list of publications, references or studies to be introduced at the hearing, and an estimate of time required for you to present the matter at hearing.

You must submit all comments, requests, and petitions during the public comment period identified on page 1 of this notice. All written comments, requests, and petitions received during the public comment period will be considered in the final decisions regarding the permit. If the MPCA does not receive any written comments, requests, or petitions during the public comment period, the Commissioner or other MPCA staff as authorized by the Commissioner will make the final decision concerning the draft permit. During the public comment period, however, you may

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request that the draft permit be presented to the MPCA Citizens’ Board (Board) for final decision. You may participate in the activities of the Board as provided in Minn. R. 7000.0650.

Comments, petitions, and/or requests must be submitted by the last day of the public comment period to:

Elise M. Doucette Minnesota Pollution Control Agency

520 Lafayette Road North St. Paul, Minnesota 55155 elise.doucette@state.mn.us

The permit will be issued if the MPCA determines that the proposed Permittee or Permittees will, with respect to the facility or activity to be permitted, comply or undertake a schedule to achieve compliance with all applicable state and federal pollution control statutes and rules administered by the MPCA and the conditions of the permit and that all applicable requirements of Minn. Stat. ch. 116D and the rules promulgated thereunder have been fulfilled.

More detail on all requirements placed on the facility may be found in the Permit document.

INTRODUCTION Clean Water Act Permit Authority The objective of the Clean Water Act (CWA) is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The CWA establishes the basic structure for regulating discharges of pollutants into the waters of the U.S. and regulating quality standards for surface waters. Under the CWA, the U.S. Environmental Protection Agency (EPA) has implemented pollution control programs such as setting wastewater standards for industry. The CWA made it unlawful to discharge any pollutant from a point source into navigable waters. To control such discharges, EPA created the National Pollutant Discharge Elimination System (NPDES) permit program. In 1974, the Minnesota Pollution Control Agency was given authorization from EPA to issue NPDES permits.

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) FIFRA governs the labeling, distribution, sale, and use of pesticides, including insecticides and herbicides. Its objective is to protect human health and the environment from unreasonable adverse effects of pesticides. It establishes a nationally uniform labeling system requiring the registration of all pesticides sold in the United States, and requiring users to comply with the national label. In Minnesota, the Minnesota Department of Agriculture (MDA) is the authority that regulates under the statutory framework of FIFRA. Under FIFRA, these agencies are required to consider the effects of pesticides on the environment by determining, among other things, whether a pesticide ‘‘will perform its intended function without unreasonable adverse effects on the environment,’’ and whether ‘‘when used in accordance with widespread and commonly recognized practice [the pesticide] will not generally cause unreasonable adverse effects on the environment.’’ (7 U.S.C. 136a[c][5]). In performing this analysis, EPA and MDA examine the ingredients of a pesticide, the intended type of application site and directions for use, and supporting scientific studies for human health and environmental effects and exposures.

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When a pesticide is approved for a particular use, the EPA and MDA impose restrictions through labeling requirements governing such use. The restrictions are intended to ensure that the pesticide serves an intended purpose and avoids unreasonable adverse effects. It is illegal under Section 12(a)(2)(G) of FIFRA to use a registered pesticide in a manner inconsistent with its labeling. The state of Minnesota has primary authority under FIFRA to enforce “use” violations, but both the MDA and EPA have ample authority to prosecute pesticide misuse when it occurs.

EPA’s Final Rule Since 2001, several court cases tested the relationship between FIFRA and the CWA. In response to the concerns of stakeholders, EPA issued two interpretive guidance documents (2003 and 2005),1

and in 2005 proposed rulemaking to formalize its long-standing position on CWA-FIFRA issues.2 EPA’s position was that a CWA permit is not required when pesticide application is done in a manner consistent with FIFRA and its regulations.

On November 20, 2006, EPA adopted a final regulation which codified that NPDES permits are not required for pesticide applications as long as the discharger follows FIFRA label instructions. This is referred to as the “Final Rule.”3 According to this new regulation, pesticides applied under the following two circumstances are not pollutants and, therefore, are not subject to NPDES permitting requirements:

1. The application of pesticides directly to waters of the United States in order to control pests. Examples of such applications include applications to control mosquito larvae, aquatic weeds, or other pests that are present in waters of the United States.

2. The application of pesticides to control pests that are present over waters of the United States, including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of the United States in order to target the pests effectively; for example, when insecticides are aerially applied to a forest canopy where waters of the United States may be present below the canopy or when pesticides are applied over or near water for control of adult mosquitoes or other pests.

On January 19, 2007, EPA received petitions for review of the 2006 Final Rule from environmental and industry groups. Petitions were filed in eleven circuit courts. The petitions for review were consolidated in the Sixth Circuit Court by an order of the Judicial Panel on Multidistrict Litigation under The National Cotton Council of America, et al, v. EPA.

Sixth Circuit Court’s Decision to Vacate EPA’s Final Rule On January 7, 2009, the Sixth Circuit Court determined that EPA’s Final Rule is not a reasonable interpretation of the CWA and vacated the Final Rule. The court stated that under a plain language reading, the CWA unambiguously includes “biological pesticides” and “chemical pesticides” with residuals within its definition of “pollutant.” Specifically, an application of

1 U.S. Environmental Protection Agency, “Interim Statement and Guidance on Application of Pesticides to Waters of the United States in Compliance with FIFRA,” 68 Federal Register 48385, August 13, 2003. 2 U.S. Environmental Protection Agency, “Application of Pesticide to Waters of the United State in Compliance With FIFRA, proposed rulemaking and notice of interpretive statement,” 70 Federal Register 5093, February 1, 2005. 3 U.S. Environmental Protection Agency, “Application of Pesticides to Waters of the United States in Compliance with FIFRA,” nal Rule, 70 Federal Register 68483, November 27, 2006.

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chemical pesticides that leaves no excess portion is not a discharge of a pollutant, and the applicator need not obtain an NPDES permit. However, chemical pesticide residuals are pollutants as applied if they are discharged from a point source for which NPDES permits are required. Biological pesticides, on the other hand, are always considered a pollutant under the CWA regardless of whether the application results in residuals or not and require a NPDES permit for all discharges from a point source.4

In response to this decision, on April 9, 2009, EPA requested a two-year stay of the mandate to provide the Agency time to develop general permits, to assist NPDES-authorized states to develop their NPDES permits, and to provide outreach and education to the regulated community. On June 8, 2009, the Sixth Circuit granted EPA the two-year stay of the mandate. On November 2, 2009, industry petitioned the Supreme Court to review the Sixth Circuit’s decision. On February 22, 2010, the Supreme Court denied the request to hear industry’s petition, leaving the April 2011 effective date unchanged.

As a result, on April 9, 2011, NPDES permits will be required for discharges to waters of the U.S. of biological pesticides, and of chemical pesticides that leave a residue. In response to the Court’s decision, EPA decided to propose a general permit to cover certain discharges resulting from pesticide applications, called the Pesticide General Permit, or PGP. Because Minnesota has NPDES authority, the MPCA is proposing a general permit similar to the EPA’s permit, with consideration to Minnesota-specific concerns.

How the Court’s Decision Affects the NPDES Program EPA estimates that nationwide, approximately 365,000 pesticide applicators perform 5.6 million applications a year that may result in a discharge. EPA’s proposed permit covers only six of the fifty states (and many other smaller areas, such as most U.S. territories and Indian Country lands) for which EPA assumes approximately 10 percent of the applications will occur in these areas based on the fact that approximately 10 percent of the population lives in these areas. The remaining 90 percent of pest control activities will occur in areas covered under state-issued NPDES permits. If each applicator needs NPDES permit coverage, this represents an approximately 65 percent increase in the number of NPDES Permittees (up from EPA’s current estimate of 565,000 Permittees annually). EPA acknowledges that it has been difficult to derive definitive estimates of the number of activities actually conducted and potentially covered under the PGP and points to two main limitations of the available data. First, there is not a direct source of information on the number of applicators and applications made for these pesticide Use Patterns. As a result, the estimates were derived from secondary sources of information, and generalizing assumptions were sometimes made. Second, the CWA does not define the terms “application” or “applicator” as it relates to discharges from pesticide applications. Thus, available data may not all use similar definitions of these terms.

In Minnesota, the MDA licenses Commercial Pesticide Applicators, allowing persons to apply pesticides for hire. A Non-Commercial Pesticide Application License allows a person to use a Restricted Use Pesticide (RUP) in the performance of job duties on property owned and controlled by the applicator’s employer. Several of these categories allow the application of pesticide into or over waters, including: (1) Aquatic, (2) Rights of Way, (3) Mosquito Control,

4 http://www.ca6.uscourts.gov/opinions.pdf/09a0004p-06.pdf.

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and (4) Forestry Categories. There are 2,498 licensed applicators in these 4 categories. This number does not include application events. The Minnesota Department of Natural Resources (DNR) issues Aquatic Plant Management (APM) permits for the application of pesticides to public waters under Minn. Rules ch. 6280. DNR issued 2,727 permits in 2008 for application of aquatic pesticides. One permit may have multiple Permittees. Again, this number does not reflect the application events.

Like EPA, the numbers of activities that may require coverage under the PGP are difficult to determine. Note that the above information only encompasses licensed applicators and applications done within compliance of state rules and statutes. Also, not all activities require a licensed applicator or DNR permit. For example, application by a homeowner of a general-use pesticide (not a Regulated Use Pesticide) does not require a licensed applicator, and if a general-use pesticide is applied to non-public water, then no DNR permit is required.

PERMIT ELIGIBILITY Applicable Statutes for General Permit Development This fact sheet has been prepared according to the Title 40 Federal Code of Regulations (40 CFR) §§ 124.8 and 124.56 and Minn R. 7001.0100, subp. 3 in regards to a draft NPDES/SDS permit to discharge into waters of the state of Minnesota.

Section 301 (a) of the CWA and Minn. R. 7001.0210 provide authority to the MPCA to issue a single permit to a category of Permittees whose discharges are the same or substantially similar. This single NPDES/SDS permit that can apply to numerous facilities is referred to as a general permit. Minn. R. 7001.0210 states that a general permit can be issued if the MPCA determines that:

i. There are several permit applicants or potential permit applicants who have the same or substantially similar operations, emissions, activities, discharges or facilities;

ii. The permit applicants or potential applicants discharge, emit, process, handle, or dispose of the same types of waste;

iii. The operations, emissions, activities, discharges, or facilities are subject to the same or substantially similar standards, limitations and operating requirements; and

iv. The operations, emissions, activities, discharges or facilities are subject to the same or substantially similar monitoring requirements.

The MPCA along with EPA and other states reviewed data to determine if a category, or categories, of pesticide application activities to waters of the state met the stipulated criteria for development of a general permit for pest control activities.

Use Patterns EPA and MPCA found that four Use Patterns would encompass the majority of pesticide applications that would result in point source discharges to waters of the state and generally represent the Use Patterns intended to be addressed by EPA’s 2006 rule that is now vacated. These Use Patterns include the discharge to waters of the state from the application of biological or chemical pesticides that leave a residue (herein collectively “pesticides) where the pesticide application is for the control of:

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Mosquito and Other Flying Insect Pest Control: This Use Pattern includes the application, by any means, of pesticides in or above waters of the state to control insects that breed in, develop, or spend a portion of the life cycle in or above standing or flowing water. Applications of this nature usually involve the use of ultra low volume sprays or granular larvicides discharged over large swaths of mosquito breeding habitat and may occur several times per year. This permit also includes black flies and other insects that develop or are present during a portion of their life cycle in or above standing or flowing water.

Forest Canopy Pest Control: This Use Pattern includes aerial application of a pesticide over a forest canopy to control a pest population. To target this type of pest population effectively, a portion of the pesticide will unavoidably be applied over and/or deposited in waters of the state. Applications of this nature usually occur over large tracts of land, and are typically made in response to specific outbreaks. MPCA understands that for this Use Pattern pesticides will be unavoidably discharged into waters in the course of controlling pests that are present near or over waters as a result of the spraying over a forested area. These pests are not necessarily aquatic (e.g., airborne non-aquatic insects) but are detrimental to industry, the environment, and public health. Note: MPCA recognizes that mosquito adulticides may be applied to forested areas, in which case the application would be covered under the “Mosquito and Other Flying Insect Pest Control” Use Pattern. This Use Pattern does not include terrestrial vegetative. For information on vegetative pest control in waters of the state, see the “Vegetative Pest and Algae Control” Use Pattern.

Aquatic Nuisance Animal Control: This Use Pattern includes the application, by any means, of pesticides into waters to control invasive or other nuisance animals in waters of the state. Control of these pests may be done for purposes such as fisheries management, invasive species eradication or equipment maintenance. Applications of this nature are usually made over an entire water body as the target pests are mobile. Treatments are generally made several years apart. In Minnesota, the pests of concern vary, but can include zebra mussels, faucet snails, lamprey and rough fish.

Vegetative Pests and Algae Control: This Use Pattern includes the application, by any means, of pesticides or other chemicals to control algae and vegetative pests (either terrestrial or aquatic) in water of the state where the discharge is unavoidable. The most obvious discharges are those directly to a water of the state done for a variety of purposes, including control of invasive and noxious species or nuisance plants and algae that impact recreational uses. Control of shoreland vegetation can also be conducted where application results in a discharge. Also, right-of-ways (ROW) such as road ditches act as conveyances of water; therefore, many are considered waters of the state. This applies to wetlands as well where application of pesticides for control of vegetative pests is done by a utility company or other entity. Applications in this Use Pattern may be single spot treatments of infestations or staged large scale treatments intended to clear several acres of waterway. Treatments may be singular or occur several times per year.

In Minnesota, the more phosphorus in a water body, typically the more algae is present. Phosphorus comes from both external sources and internal sources. Once external sources are sufficiently controlled and internal sources (lake sediments) are determined to be a persistent

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source of phosphorus, lake managers may decide to apply chemicals to inhibit phosphorus release from sediments (nutrient inactivation). Because nutrient inactivation products are not registered pesticides, EPA and MDA do not regulate their use and dischargers of nutrient inactivation chemicals do not need to be licensed applicators. Traditional nutrient inactivation chemicals include aluminate sulfate or sodium aluminate (alum), calcium hydroxide/oxide, or iron compounds. Algae blooms typically decline in the water body after nutrient inactivation treatment because the treatment reduces the phosphorus levels that fuel algae growth. Because water clarity improves, plant growth often increases in the water body. Nutrient inactivation treatments may provide relief from algal blooms for many years or may be short-lived depending on the amount and the chemical used and environmental conditions of the water body. The permit allows whole lake or partial treatments for nutrient management projects. Unless specified otherwise in the permit, use of the term “pesticides” includes chemicals used to control excess nutrients.

EPA’s PGP is constructed in such a way as to cover all of the Use Patterns (identified above) in one document. States that are authorized to issue NPDES permits, such as Minnesota, developed their own NPDES permits to cover such discharges.

MPCA intends to issue a PGP for each of the abovementioned Use Patterns, meaning it will issue four separate general permits. The MPCA believes this allows Permittees a better understanding of the requirements. Minnesota has existing state regulations for the control of pests and found it easier to reference these regulations in separate permits. Each permit has specific requirements for the minimization of the discharge from the associated Use Pattern.

Activities Not Covered by this Permit Irrigation return flows and agricultural stormwater runoff: Irrigation return flows and agricultural stormwater runoff do not require NPDES permits, even when they contain pesticides or pesticide residues, as the CWA specifically exempts these categories per 40 CFR § 122.3. Nothing in this permit changes the effect of those statutory exemptions. Thus, for example, the application of a pesticide to an agricultural crop for the control of terrestrial pests that later runs off the field, either as irrigation return flow or stormwater runoff, is exempt from permit coverage even if that discharge to a water of the state is known to contain pesticide residuals.

Other stormwater runoff: Additionally, other stormwater runoff is either: (a) already required to obtain NPDES permit coverage as established in section 402(p) of the CWA or (b) classified as a non-point source discharge for which NPDES permit coverage is not required. Thus, neither the 2006 NPDES Pesticides Rule, the Sixth Circuit Court vacatur of that rule, nor this general permit have changed in any way the determination of whether certain types of stormwater runoff are required to obtain permit coverage or under which permit coverage is required. This is true whether the runoff contains pesticides or pesticide residues resulting from the application of pesticides.

Terrestrial Pests: This permit does not cover terrestrial applications for the purpose of controlling pests on agricultural crops or forest floors. This fact sheet does not address whether these activities would need an NPDES permit nor does this fact sheet identify every activity which may involve a point source discharge to waters of the state that would require a permit. While this permit only covers the 4 Use Patterns mentioned above, the existence of this general

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permit does not, by definition, obviate the possibility that an individual permit would be necessary if other types of pesticide applications that result in point source discharges to waters of the state.

Spray Drift: The MPCA’s decision to control each Use Pattern generally stems from EPA’s 2006 Final Rule. In promulgating this rule, EPA expressly noted that the rule did not cover either “spray drift” (the airborne movement of pesticide sprays away from the target application site into a water of the U.S.) or applications of pesticides to terrestrial agricultural crops. To address the vacated 2006 Rule, both EPA’s and MPCA’s permits are designed to cover activities in which it is unavoidable that some of the pesticides will be deposited into water in order to effectively target the pests. Consistent with the 2006 Rule, this permit does not cover spray drift resulting from pesticide applications. Instead, to address spray drift, EPA established a multi-stakeholder workgroup under the Pesticides Program Dialogue Committee (PPDC), an advisory committee chartered under the Federal Advisory Committee Act (FACA) to explore policy issues relating spray drift. On November 4, 2009, EPA issued a draft Pesticide Registration Notice (PR Notice)5 for public comment that focuses on improving the clarity and consistency of pesticide labels in order to reduce spray drift and prevent harm to human health and the environment. EPA is currently reviewing the public comments received.

Applicability and Eligibility Only Permittees meeting the eligibility requirements outlined in the permit may be covered under this permit. Specifically, this permit covers the discharge of pesticides (biological pesticides and chemical pesticides which leave a residue) to waters of the state resulting from the specified Use Pattern. As stated above, the Sixth Circuit found that if a chemical pesticide leaves any excess or residue after performing its intended purpose, such excess or residue would be considered a pollutant under the CWA. The Court also found that, unlike chemical pesticides, not only would the residue and excess quantities of a biological pesticide be considered a pollutant, but so too would the biological pesticide itself. Although the court did not define what a residual is, for purposes of this permit, EPA and MPCA assume that all chemical pesticides will leave a residual once the product has performed its intended purpose.

MPCA offers the following guidance with respect to the chemical pesticides covered by this general permit:

1. If the application of a chemical pesticide is made over a water of the state to control pests over the water, any amount of the pesticide that falls into the water of the state is “excess” pesticide and would require coverage by an NPDES/SDS permit. Based on field studies of pesticide applications, EPA expects that some portion of every application of a pesticide made over a water of the U.S. will fall directly into the water of the U.S. and thus assumes that applications will trigger the requirement for an NPDES permit. MPCA agrees, but because Minn. R. 7001.1030 states, “no person may discharge a pollutant from a point source into the waters of the state without obtaining a National Pollutant Discharge Elimination System permit from the agency,” the MPCA extends the above statement to waters of the state. MPCA has a responsibility to protect waters of the state under Minn.

5 The draft PR Notice and related documents are available in Docket EPA-HQ-OPP-2009-0628 at www.regulations.gov.

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Stat. § 115.03 and is not limiting its permit authority to only waters of the U.S. as defined in EPA’s permit.

2. If the application of a chemical pesticide is made into a water of the state to control a pest in the water of the state, once the pesticide no longer provides any pesticidal benefit, any amount of the pesticide that remains in the water of the state is a “residual” and would require coverage by an NPDES/SDS permit. Again, based on EPA field studies, the Agency expects that some portion of every application of a pesticide made into a water of the U.S. will leave a residual in the water of the U.S. and thus assumes every application will trigger the requirement for an NPDES permit. As stated above, MPCA extends this statement to waters of the state.

EPA offers that any person who wishes to contest either assumption above should submit scientific data. MPCA will not perform its own review of scientific data submittals, but will take direction from EPA once EPA’s review is complete. Permit coverage is needed while EPA reviews this information, but a permit may not be necessary if EPA receives information that convinces the agency that a chemical pesticide applied over water is not deposited in water and that a residue remains.

For purposes of this permit, MPCA is relying on existing regulatory definitions in 40 CFR §§ 174.3 and 158.2100(a) developed under FIFRA to define the term “biological pesticides.” For purposes of this permit, MPCA identifies biological pesticides (also called “biopesticides” under FIFRA regulations) to include microbial pesticides (40 CFR §158.2100[a]) and biochemical pesticides and plant-incorporated protectants (40 CFR § 174.3).

Exclusions The following discharges are not covered by this general permit and would require an individual permit:

Discharges to Water Quality Impaired Waters: Coverage under this general permit is only available for certain discharges to impaired waters. The permit is not available for the discharge of any pesticide to water that is impaired for the specific pesticide or degradates of that pesticide. However, discharges to waters which are impaired for pollutants other than the pesticide or its degradate are eligible for coverage. For example, application of the pesticide copper sulfate to a waterbody impaired for either copper or sulfates would not be eligible for coverage under this permit, because copper sulfate can degrade into these two substances. In this instance, the Permittee would have to choose between obtaining coverage under an individual permit for such a discharge or selecting some other means of pest management, e.g., using mechanical means or some other pesticide product. For purposes of this permit, impaired waters are those which have been identified by Minnesota pursuant to Section 303(d) of the CWA as not meeting applicable state water quality standards. A list of impaired waters, along with the pollutants or pollution identified as the cause of the impairment is available at MPCA’s website under “Minnesota's Impaired Waters and TMDLs” at www.pca.state.mn.us. The 303(d) list is not a final determination of impairments; however, it is the best available information for Permittees to use when deciding whether their discharges meet the eligibility requirements regarding water bodies impaired for specific pesticides. Also, discharges to waters impaired for temperature or some

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other indicator parameter, or for physical impairments such as “habitat alteration” are also eligible for PGP coverage. For this permit, EPA determined that it does not have information warranting a limitation for all impaired waters regardless of the impairment. In fact, in some instances, the application of a pesticide to water actually can improve the quality of the water such as when used to control algae growth that can deplete oxygen levels in water. Minnesota currently does not have any waters impaired for pesticides that would be covered by this permit. There are impairments for ‘legacy’ pesticides, but these chemicals no longer have registered uses or their registration as a pesticide has been cancelled.

Discharges to Waters Designated as Prohibited Outstanding Resource Value Waters: Tier 3 Waters are identified by EPA as waters of exceptional ecological significance, i.e., those which are important, unique, or sensitive ecologically. In Minnesota, these waters are called “Outstanding Resource Value Waters (ORVW)” and are listed in Minn. R. 7050.0180 subp. 3-5 and generally include the highest quality waters of the state. Water quality cannot be lowered in such waters. Minnesota’s rules consider Tier 3 Waters to be “Prohibited” ORVWs, meaning new or expanded discharge of any waste is not allowed. EPA and MPCA believe that blanket coverage under the PGP for discharges to Prohibited ORVWs is inconsistent with nondegradation requirements in Minn. R. 7050.0180. Additionally, in order to allow such discharges, the Agency would have to determine for all of these waters that such discharges would maintain and protect ORVW water quality. Instead, Permittees applying pesticides that could result in discharges to prohibited ORVWs must apply for individual permits. For more discussion on discharges to Restricted ORVWs, see page 34-36 of this Fact Sheet “Water Quality-Based Effluent Limitations.”

Discharges Currently or Previously Covered by another Permit: Section 2.2 of the permit describes situations where a Permittee is ineligible for coverage under this permit because of coverage under another permit. These include discharges currently covered under a point sources NPDES permit; discharges covered by a permit within the past five years prior to the effective date of this permit which established site-specific numeric water quality-based limitations; and discharges from activities where the associated NPDES permit has been or is in the process of being denied, terminated, or revoked by MPCA (although this last provision does not apply to the routine reissuance of permits every five years). The MPCA is including this last provision to be clear that it is not possible to obtain coverage by requesting termination of an individual permit and then submitting a Notice of Intent (NOI) for coverage under the PGP. To avoid potential conflicts with the anti-backsliding provisions of the CWA, transfer from an individual permit to the PGP is only allowed under limited conditions, including that the individual permit did not contain numeric water quality-based effluent limits. In order for a transfer to be permissible, MPCA must find compliance with all the conditions of the PGP are at least as stringent as meeting the conditions of the individual permit.

Sharing Responsibilities Throughout this fact sheet (and permit), MPCA uses “Permittee” when referring to individuals, groups, units of government or other entities whose discharges are eligible for coverage, who will be responsible for the terms of the permit, and who may be performing the application. Additionally, the terms “you” and “your” as used in the permit are intended to refer to the Permittee and their responsibilities under the permit.

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This general permit was developed with the understanding that there may be more than one responsible entity implementing it for a given discharge. In some instances, pesticide applicators are hired by a decision-making entity, such as a lake association or city. The parties have contractual agreements for the activity and associated responsibilities and expectations. In other instances, the decision-making entity may have licensed applicators on-staff. The MDA regulates Pesticide Applicator Licenses under Minnesota Statues 18B. Commercial pesticide applicator licenses are for pesticide applicators who apply any pesticide “for hire.” For hire means you charge or invoice for the service. Noncommercial licenses are for all pesticide applicators that apply RUP as part of their job on property owned or contracted by their employer.

In either instance, the applicator’s activities are covered by the PGP, except for the Vegetative Pests and Algae Control Permit (see below). If required, the decision-maker will obtain a Notice of Coverage by submitting a NOI. The permit states, “The Permittee who filed the NOI, including its employees, contractors, subcontractors, for-hire applicators, and other agents” are responsible for the conditions of the permit.” Therefore, both the decision-making entity (owns, leases, or otherwise has jurisdiction for the control of pests) and the pesticide applicator (commercial or noncommercial) are considered “Permittees” and are jointly and severally liable for meeting the conditions of the permit. MPCA strongly encourages Permittees to explore cost savings by sharing responsibilities for implementing the permit. Also, in the case that a violation was to occur, the MPCA may consider a written contract outlining responsibilities when determining the appropriate enforcement response to a violation.

For the Vegetative Pest and Algae Control PGP, the NOI submittal will require the signature of both the decision-making entity and the pesticide applicator. Many of the decision-making entities rely on for-hire applicators to choose the pesticide, the application method, and the time and frequency of application. MPCA found it beneficial to involve the applicator in the NOI process because of their experience with federal and state regulations, the aid they give their customers in understanding the regulations, and the increased responsibilities given to them by the customer.

Mosquito and Other Flying Insect Pest Control: For the purposes of this PGP, many entities that apply pesticides are state or local governments. Many cities and mosquito control districts have licensed applicators on staff to perform pest control duties.

Forest Canopy Pest Control: For this PGP, entities will likely be federal or state governmental agencies, such as U.S. Forest Service or MDA. Local governmental entities may also control for these pests. Again, these agencies may have licensed applicators on staff; however, in other instances, it may be less costly for these entities to use a for-hire applicator. Lastly, private companies or landowners may decide to control forest canopy pests, such as paper companies that own large tracts of forested areas. These entities may be more likely to use for-hire applicators.

Aquatic Nuisance Animal Control: This PGP can involve many different entities, but those done on a large scale are generally federal or state agencies involved with fish and wildlife management. Generally, these entities have licensed applicators on-staff. Smaller entities may

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include Lake Associations, Homeowner Associations or individual homeowners whose properties border waters of the state. Often groups join together to perform large scale treatments. Finally, private utilities or industries use pesticides to manage intake structures, although some of these activities are covered under existing NPDES/SDS permits. These last groups are more likely to use for-hire applicators.

Vegetative Pests and Algae Control: The last PGP includes the most diverse group, and can include individual homeowners or Homeowner Associations who live on waters of the state, Lake Associations, Local Governmental Entities (cities, counties, watershed districts, lake conservation districts, etc), State Governmental Entities (DNR in state parks, wildlife management areas, state-designated scientific and natural areas, etc, as well as Minnesota Department of Transportation to control right of ways [ROWs]), Utilities controlling ROWs (electricity, gas, railroads, etc) and various entities involved in wetland mitigation. Whether these entities have licensed applicators on staff or choose to hire a commercial applicator also varies.

In all the above-referenced Use Patterns, individuals may use pesticides as directed under FIFRA and Minnesota Regulations. Permit coverage is not limited to just industries or municipalities unless clearly specified. In many cases, the Threshold for submittal of a NOI will mean individuals will not have to submit a NOI and will only be required to meet the minimum requirements given in the permit. For more discussion, see the next Section of this Fact Sheet.

Requirement to Submit a Notice of Intent (NOI) Under 40 CFR § 122.28 (b)(2)(v), some pesticide dischargers may, at the discretion of the Director “be authorized to discharge under a general permit without submitting a notice of intent where the Director finds that a notice of intent requirement would be inappropriate.” In making such a finding, the Director must consider: “the type of discharge; the expected nature of the discharge; the potential for toxic and conventional pollutants in the discharges; the expected volume of the discharges; other means of identifying discharges covered by the permit; and the estimated number of discharges to be covered by the permit.”

As described above, the general permit is structured by pesticide Use Patterns. These Use Patterns were developed to include discharges that are similar in type and nature and therefore represent the type of discharges and expected nature of the discharges covered under this permit. When EPA analyzed the regulatory considerations, it gave particular weight to the expected volume of the discharges and the estimated number of discharges to be covered by the permit. After considering the universe of entities in light of the regulatory considerations, EPA and MPCA found a logical break between entities applying pesticides to larger areas versus smaller areas. EPA and MPCA also considered the expected volume of discharges from each Use Pattern. It is difficult to estimate the expected volume of discharges for each Use Pattern because control measures used by Permittees to meet the permit’s technology based effluent limitations may vary based on site-specific conditions. For example, the volume of the discharge may vary depending on the specific pesticide being used, the intensity of the pest pressure based on the specific pest problem, and the pest management strategy deemed to be most effective for the pest problem. Moreover, the lowest effective amount of pesticide product necessary to manage pests successfully will vary among Permittees depending on which control measures they utilize. Nonetheless, MPCA expects that, in general, the volume of the discharge will vary

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proportionally with the number of acres and linear miles treated. Therefore, for all Use Patterns, EPA and MPCA expect that the volume of the discharge for a given pesticide application will be lower when fewer acres or linear feet are treated over a calendar year. Moreover, while there may be more pesticide application activities to small treatments areas when compared to large treatment areas, the volume of discharges from applying to a small treatment area is believed to be substantially less on a per applicator basis and cumulatively less than the volume of discharges from applications made by applying to large treatment areas.

EPA and MPCA do not expect the potential for toxic and conventional pollutants in the discharges from pesticides to vary among Use Patterns. Both agencies would expect, however, that the potential for high concentrations of toxic or conventional pollutants in the discharge would be smaller when fewer acres or linear feet are treated. EPA and MPCA also considered other means of identifying types of discharges covered by this permit. EPA considered the available data from applicators of pesticides to state agencies pursuant to state law. EPA also considered ambient water sampling data, if available. EPA and MPCA recognize that the availability, quality, and uniformity of these data may be limited.

Lastly, EPA and MPCA considered the estimated number of discharges to be covered by the permit. While the exact number of entities and thus the number of Permittees which may be covered by this permit is unknown, EPA estimates that the PGP covers more than 30,000 applicators per year in the states for which EPA is the permitting authority. Of this total, a large majority represent applicators performing small pesticide treatments that EPA considers to have very low potential for impact. Thus, requiring an NOI from all dischargers would be a large burden of little value for permitting authorities and Permittees alike. See page 7 of this Fact Sheet for information on the estimated number of pesticide applications in Minnesota.

Based on the analysis outlined above, EPA has determined that it would be inappropriate to require Permittees that apply pesticides to relatively small areas to submit NOIs, and the MPCA agrees with the determination. Therefore, MPCA is exercising its discretion and not requiring these Permittees to submit NOIs. EPA developed annual treatment area thresholds for each Use Pattern that it believes will only exclude those operators making small-area applications from the NOI requirement because their discharges will be comparatively small. MPCA developed state-specific annual thresholds for submittal of an NOI.

To determine the appropriate annual treatment area thresholds that would trigger the NOI requirement, EPA’s Office of Water, Office of Pesticides, Pollution, and Toxic Substances, and Regional Offices, engaged in discussions with USDA, states as co-regulators, and representatives from industry including pesticide registrants, applicators, and land managers. Based on these discussions and EPA’s best professional judgment, EPA developed annual treatment area thresholds that differentiate between applications to small areas and those treatments to larger areas which are believed to have a greater potential for impact on waters of the U.S. MPCA also gathered information from MDA, DNR, and interested parties, and used this information in development of Minnesota-specific annual thresholds.

MPCA established that the following Permittees, if above the applicable Threshold for any calendar year, must submit an NOI under this permit:

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Thresholds Mosquitoes Federal and State governmental entities with pest control as an official function.

Local governmental entities with pest control as an official function and a pest management area1 of 6400 acres (10 square miles) or greater.

Other flying insect pests

Local governmental entities with pest control as an official function and apply 20 gallons pesticide or more per calendar year.

Threshold Forest Canopy Pest Control All Permittees with a pest management area1 of 640 acres (1 square

mile) or greater

Thresholds

Aquatic Nuisance Animal Control

Lakes All Permittees that apply to a treatment area3 of 20 acres or greater

Streams, ditches, rivers, etc All Permittees that apply to a treatment area3 of 20 linear miles or greater

Thresholds

Vegetative Pests and Algae Control

Lakes >20 acres in size

All Permittees that treat greater than 15% of the littoral zone2

All Permittees that treat the whole lake (ex: algae control) and whole and partial lake treatment for control of excess nutrients.

Streams, rivers, etc All Permittees that apply to a treatment area3 of 20 linear miles or greater

Ditches and Rights-of-Way All Permittees that apply to a treatment area3 of 1200 acres or greater.

1 Pest Management Area – The area of for which you are conducting pest management activities covered by this permit, both water and land, if applicable.

2 Littoral zone – means the surface area of a water body where the depth is 15 feet or less.

3 Treatment Area– The area of water (including any land, if applicable) to which pesticides are being applied. Multiple treatment areas may be located within a single “pest management area.” The “treatment area” includes the entire area, whether over land or water, where the pesticide application is intended to provide pesticidal benefits. In some instances, the treatment area will be larger than the area where pesticides are actually applied. For example, the treatment area for a stationary drip treatment into a canal should be calculated by multiplying the width of the canal by the length over which the pesticide is intended to control weeds. The treatment area for a lake or marine area is the water surface area where the application is intended to provide pesticidal benefits. Treatment area calculations for pesticide applications that occur where the discharge of pesticides directly to waters is unavoidable are determined by the linear distance over which pesticides are applied. For example, treating both sides of a five mile long river, stream, or ditch is equal to ten miles of treatment area. Note that calculations are only required when application to water is unavoidable.

Rationale for the Thresholds is as follows:

Mosquitoes and Other Flying Insect Pests: EPA believes that the vast majorities of mosquito control and abatement districts in the U.S. manage areas significantly larger than this threshold and may reasonably expect to exceed it during any given year. In Minnesota, many local units of

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government, mainly cities, treat for mosquitoes under authority of Minn. Stat. § 18G.14. Cities that apply to greater than 10 square miles have mosquito management plans and allocate city funds for control, making them capable of implementing the integrated pest management and control measures in the permit to sufficiently reduce pesticide discharges to waters of the state. Control of other flying insect pests is not as common in Minnesota as mosquito control. However, it does occur under Minn. R. 6280.1300 under authority of DNR. Under these rules, DNR requires a permit for black fly control that includes verified species identification. DNR allows only the use of Bacillus thuringiensis var. israelensis (Bti) and requires monitoring, reporting and restrictions on the type of waters where control can occur. In consultation with DNR, the MPCA has chosen a threshold of 20 gallons annually of pesticide used. This threshold will allow the treatment needs of small communities to continue while requiring entities doing more extensive control to implement NPDES permit controls.

Forest Canopy Pest Control: Forest canopy pest suppression programs are designed to aerially blanket large tracts of terrain throughout which Permittees may not be able to see waters of the state beneath the canopy. EPA has set the annual treatment area threshold at 640 acres for this Use Pattern with the understanding that this will exclude only the smallest applications from the NOI requirement. MPCA, in consultation with MDA, agrees that this Threshold will capture the largest applications while including private entities whose land is large enough that they qualify for state or federal funding for pest control. Therefore, MPCA believes the threshold appropriately captures most entities engaging in this Use Pattern, particularly public agencies managing large tracts of land.

Aquatic Nuisance Animal Control: Invasive and nuisance aquatic animals are most commonly treated by public agencies such as departments of fish and game or water management districts that manage areas of surface water in excess of 20 acres. The high mobility and prolific breeding ability that necessitate control of aquatic animals usually means that their treatment most often occurs in the entirety or large portions of the water bodies they inhabit. For example, fishery management treatments using rotenone must occur in the entire lake and, thus any treatment to a lake of more than 20 acres in area will trigger the treatment area threshold. EPA and MPCA expect that for this reason, only spot treatments to eradicate small emergent populations of sessile animals or treatments to very small water bodies might be excluded from an NOI requirement. Therefore, MPCA believes the threshold appropriately captures the relatively large entities engaging in this Use Pattern.

Aquatic Weed and Algae Control: For this PGP, the treatment area threshold corresponds to DNR’s Minn. R. ch. 6280 titled Aquatic Plants and Nuisances. DNR’s Aquatic Plant Management (APM) Permit program regulates pesticide applications in public waters. The threshold in this permit has been set using DNR’s existing APM program limits, but extends to all waters of the state. MPCA, in consultation with DNR, believe entities treating greater than 15 percent of the littoral zone on lakes 20 acres or greater and performing whole lake treatments for the control of phytoplankton on lakes 20 acres or greater should be required to implement the control measures in this permit. In Minnesota, waters of the state such as rivers, streams and ditches may require pest management. MPCA remained consistent with EPA’s permit when addressing rivers and streams. However, in consultation with Minnesota Department of Transportation (MNDOT) and various counties, MPCA has determined that a Threshold of 1,200

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acres of treatment area is more appropriate to capture the largest applicators to ditches. This conservatively assumes that one third of road ditches that receive pesticide treatment in a MNDOT district will have standing water at the time of application. MPCA chose a ‘treatment area’ rather than a ‘pest management area’ to capture the larger applicators of pesticides, rather than just large counties, cities, or utilities. MPCA decided to use acreage as a threshold since right-of-ways can have varying width, management can be done using spot treatments and FIFRA label requirements and restrictions are often in acres and not miles. MPCA believes the Threshold appropriately captures the relatively large applications but excludes a significant number of small applications performed in Minnesota.

Permittees Not Required to Submit NOIs Permittees whose discharges are authorized by this permit but are not required to submit an NOI to obtain a Notice of Coverage would automatically be covered under the permit for their pesticide application and would be authorized to discharge in accordance with the permit requirements as soon as the permit becomes effective. Nevertheless, MPCA emphasizes that these Permittees are still be subject to the applicable requirements contained within the permit. This includes recording the amount of pesticides applied or the area the pesticides are applied (whichever is applicable to the Threshold unit of measurement) to determine if the Threshold will be exceeded during the calendar year.

Discharge Authorization Date MPCA is asking Permittees to submit a NOI no earlier than 6 months after permit issuance, but no later than 9 months. This will allow MPCA to develop an electronic system of NOI receipt and Notice of Coverage issuance. This period is only in place for the first 9 months of the permit term. After this period, Permittees discharging a pesticide are expected to submit a NOI prior to exceedences of a Threshold, as outlined in the table above. MPCA believes an electronic process will streamline NOI submittals, allow the Agency to respond in a timely manner and reduce resources needed to manage this permit. The table in Section 4 of the permit specifies applicable deadlines for different categories of Permittees to submit NOIs. Timing for NOI submittal is based on a Permittee’s determination that they will exceed a Threshold during the calendar year. For Permittees making such a determination prior to commencement of discharge, an NOI is due prior to commencement of discharge. The Permittee is authorized to discharge upon receipt of MPCA’s Notice of Coverage. For Permittees making a determination after commencement of discharge (it was unexpected or unforeseen that a Threshold would be exceeded for that year) an NOI is due once the Permittee determines that the Threshold will be exceeded. In this situation, the Permittee’s original authorization to discharge without having submitted an NOI expires when the Threshold is exceeded. The Permittee is reauthorized after receipt of the Notice of Coverage from the MPCA. For this reason, it is important that Permittees in this situation submit their NOI at least 10 days before the threshold will be exceeded. For Permittees commencing discharge in response to a declared emergency situation (as defined in Section 6.14 of the permit), discharge authorization is granted immediately, but a complete and accurate NOI is due no later than 30 days after commencement of discharge if that discharge has exceeded a Threshold. This is so that emergency response operations may be conducted without interruption. The deadlines are displayed in the following table:

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Category Discharge Authorization Date Permittees making a decision, prior to commencement of discharge, that they will exceed a Threshold identified in Section 1.3.

Issuance date of the Notice of Coverage

Permittees making a determination, after commencement of discharge, that they will exceed a Threshold identified in Section 1.3.

Original authorization as described in Section 1.5 expires when the Threshold is exceeded if a complete and accurate NOI has not been received by this time. Permittee is reauthorized after issuance of the Notice of Coverage.

Permittees commencing discharge in response to a declared emergency situation, as defined in Section 6.14

Immediately, for activities conducted in response to declared emergency situation. A complete and accurate NOI shall be submitted within 30 days of the declared emergency. Permittee is reauthorized after issuance of Notice of Coverage.

TECHNOLOGY-BASED EFFLUENT LIMITATIONS The Clean Water Act (CWA) requires that all point source discharges from existing facilities, or in this case, pesticide applications, meet technology-based effluent limitations6 (TBELs) representing the applicable levels of necessary control. Additionally, water quality-based effluent limitations (WQBELs) are required by CWA Section 301(b)(1)(C) as necessary where the technology-based effluent limitations are not sufficient to protect applicable water quality standards. Water quality-based requirements will be discussed in greater depth in the Water Quality-Based Effluent Limits portion of the fact sheet from pages 26-38.

Background TBELs are in many cases established by EPA in regulations known as effluent limitations guidelines, or “ELGs.” EPA establishes these regulations for specific industry categories or subcategories after conducting an in-depth analysis of that industry. Where EPA has not issued effluent guidelines for an industry, MPCA must establish effluent limitations for NPDES permits on a case-by-case basis based on their best professional judgment, or BPJ (40 C.F.R. § 125.3[c][2]). For this permit, no ELG applies. MPCA has established, using BPJ, that EPA’s TBELs are technologically achievable.

MPCA’s Authority to Include Non-Numeric TBELs: Under Federal and state regulations, non­numeric effluent limitations are authorized in lieu of numeric limitations, where “[n]umeric effluent limitations are infeasible.” (40 CFR 122.44[k][3]). As far back as 1977, courts have recognized that there are circumstances when numeric effluent limitations are infeasible and have held that EPA may issue permits with conditions (e.g., best management practices) designed to reduce the level of effluent discharges to acceptable levels7. Through the Agencies’ NPDES permit regulations, EPA and MPCA interpreted the CWA to allow best management

6 Natural Res. Def. Council, Inc. v. EPA, 673 F.2d 400, 403 (D.C. Cir. 1982) (noting that "section 502(11) defines 'effluent limitation' as 'any restriction' on the amounts of pollutants discharged, not just a numerical restriction"; holding that section of CWA authorizing courts of appeals to review promulgation of "any effluent limitation or other limitation" did not confine the court's review to the EPA's establishment of numerical limitations on pollutant discharges, but instead authorized review of other limitations under the definition) (emphasis added). In Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977), the D.C. Circuit stressed that when numerical effluent limitations are infeasible, EPA may issue permits with conditions designed to reduce the level of effluent discharges to acceptable levels. 7 Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369 (D.C.Cir.1977).

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practices (BMPs) to take the place of numeric effluent limitations under certain circumstances.8

Courts have held that the CWA does not require the EPA or MPCA to set numeric limitations where such limits are infeasible.9

Decision to Include Non-Numeric TBELs in This Permit: As described above, numeric effluent limitations are not always feasible because the discharges pose challenges not presented by other types of NPDES-regulated discharges. The TBELs in this permit are non-numeric based on the following facts:

• The point in time for which a numeric effluent limitation would apply is not easily determinable. For discharges from the application of pesticides, the discharges can be highly intermittent with those discharges not practically separable from the pesticide application itself. For example, the discharge from the application of a chemical pesticide to a water of the U.S. or water of the state is represented by the residual remaining in the ambient water after the pesticide is no longer serving its intended purpose (i.e., acting as a pesticide against targeted pests in the applied medium). Chemical pesticides applied directly to water are not considered pollutants until some time after actual discharge at which point the pesticides will have performed their intended function for pest control, dissipated in the waterbody, and broken down into other compounds to some extent, etc. This discharge also will have combined with any other discharges to that waterbody (be it from other point sources, non-point source runoff, air deposition, etc). Given this situation, it is not clear what would be measured for a numeric limit or when.

• For discharges from the application of pesticides, there are often many short duration pesticide discharges to surface waters from many different locations for which it would be difficult to establish a numeric limitation at each location. This variability makes setting numeric effluent limitations for pesticide applications extremely difficult. In this situation, requiring the use of standard control practices (i.e., narrative non-numeric effluent limitations) provides a reasonable approach to control pesticides discharges.

• The precise location for which a numeric effluent limitation would apply is not clear. Discharges from the application of pesticide are different from discharges of process wastewater from a particular industrial or commercial facility. In the later, effluent is more predictable, easily identified as an effluent from a conveyance (e.g., pipe or ditch). It can be precisely measured for compliance prior to discharge, and can be more effectively analyzed to develop numeric effluent limitations.

8 Federal Regulations at 40 CFR §122.44(k), entitled “Establishing limitations, standards, and other permit conditions (applicable to State NPDES programs ...),” provides that permits may include BMPs to control or abate the discharge of pollutants when: (1) “[a]uthorized under section 402(p) of the CWA for the control of stormwater discharges”; or (2) “[n]umeric effluent limitations are infeasible.” 40 CFR § 122.44(k). 9 . Citizens Coal Council v. United States Environmental Protection Agency, 447 F3d 879, 895-96 (6th Cir. 2006). The Sixth Circuit cited to Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 502 (2nd Cir. 2005), stating “site-specific BMPs are effluent limitations under the CWA.” Additionally, the Sixth Circuit cited to Natural Res. Def. Council, Inc. v. EPA, 673 F.2d 400, 403 (D.C.Cir.1982) noting that “section 502(11) [of the CWA] defines ‘effluent limitation’ as ‘any restriction’ on the amounts of pollutants discharged, not just a numerical restriction.”

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• Information needed to develop numeric effluent limitations is not available at this time. To develop numeric TBELs, EPA must fully evaluate factors outlined in 40 CFR § 125.3, such as the age of equipment and facilities involved, the process employed, the potential process changes, and non-water quality environmental impacts.

TBELs in this permit are presented specific to each pesticide Use Pattern to reflect the variations in procedures and expectations for the use and application of pesticides. These non-numeric effluent limitations are expected to minimize environmental impacts by reducing the discharge of pesticides to waters of the state, thereby protecting the receiving waters, including meeting of all applicable water quality standards.

The effluent limitations in this permit are expressed as specific pollution prevention requirements for minimizing the pollutant levels in the discharge. MPCA, with guidance from EPA, has determined that the combination of pollution prevention approaches and structural management practices required by these limits are the most environmentally sound way to control the discharge of pesticide pollutants to meet the effluent limitations. MPCA, with the help of EPA and other state agencies, such as MDA, continues to study the efficacy of various types of pollution prevention measures and BMPs.

Control Measures Used to Meet the TBELs: Just as there is variability in pesticide applications, there is variability in the control measures that can be used to meet the effluent limitations. Therefore, MPCA is not mandating the specific control measures Permittees must implement to meet the limitations. This is analogous to an industrial situation where discharges to waters of the state are via pipes and a numeric effluent limitation may be specified as a given quantity of pollutant that may be discharged, but MPCA would not specify what technology should be employed to meet that limitation. Thus, a given control measure may be acceptable and appropriate in some circumstances but not in others. In this respect, the non-numeric effluent limitations in this permit are similar to numeric effluent limitations, which also do not require specific control technologies as long as the limitations are met.

Control measures can be actions (including processes, procedures, schedules of activities, prohibitions on practices, and other management practices), or structural or installed devices to prevent or reduce water pollution. The key is determining what measure is appropriate for your situation in order to meet the effluent limits. In this permit, Permittees are required to implement site-specific control measures to meet these limits. The permit, along with this fact sheet, provides examples of control measures, but Permittees must tailor these to their situations as well as improve upon them as necessary to meet permit limits. The examples emphasize minimization over treatment.

MPCA notes that this permit uses both the term “control measures” and “best management practices (BMPs).” Use of the term control measure is intended to better describe the range of pollutant reduction practices that may be employed, whether they are structural, non-structural or procedural and includes BMPs as one of the components. The greater breadth of meaning for control measures is why MPCA uses this term in many parts of the permit. The approach to control measures in this permit is consistent with the CWA as well as its implementing regulations at 40 CFR §122.44(k)(4).

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“Minimize” Discharges of Pesticides to Waters of the State Section 3.1 of the permit states:

3.1 All Permittees must implement site-specific control measures to minimize the discharge resulting from application of pesticides to waters of the state.

Section 3.1 of this permit requires Permittees to implement control measures to meet the technology-based effluent limitations listed in (a) through (c) of that Section. It also provides Permittees with important considerations for the implementation of their specific control measures. MPCA recognizes that not all of these considerations will be applicable to every site nor will they always affect the choice of control measures. If Permittees find their control measures are not minimizing discharges of pesticide adequately, the control measures must be modified as expeditiously as practicable (See Section 3.15-3.19 and Section 4.29 of the Permit and page 42-44 of this Fact Sheet).

The non-numeric TBELs require Permittees to “minimize” discharges of pesticide. Consistent with the control level requirements of the CWA, the term “minimize” means to reduce and/or eliminate pesticide discharges to waters of the state through the use of control measures to the extent technologically available and economically achievable and practicable. The MPCA believes that for many pesticide applications minimizing discharges of pesticides to waters of the state can be achieved without using highly engineered, complex treatment systems. The specific limits included in Section 3.1 and Section 4.7-4.11 emphasize effective “low-tech” approaches, including using the lowest effective amount and frequency of application of pesticide product, performing regular equipment maintenance and calibration, accurately identifying the pest problem, efficiently and effectively managing the pest problem, and properly using pesticides.

Permittees must comply with all applicable statutes, regulations, and other requirements including, but not limited to requirements contained in the labeling of pesticide products approved under FIFRA (“FIFRA labeling”). Although the FIFRA label and labeling requirements are not effluent limitations, it is illegal to use a registered pesticide inconsistent with its labeling. If Permittees are found to have applied a pesticide in a manner inconsistent with any relevant water-quality related FIFRA labeling requirements, MPCA will presume that the effluent limitation to minimize pesticides entering the waters of the state has been violated under the NPDES permit. EPA, and therefore the MPCA, considers many provisions of FIFRA labeling – such as those relating to application sites, rates, frequency, and methods, as well as provisions concerning proper storage and disposal of pesticide wastes and containers – to be requirements that affect water quality. For example, a Permittee, who is a pesticide applicator, decides to use a mosquito adulticide pesticide product with a FIFRA label that contains the following language, "Apply this product at a rate not to exceed one pound per acre." The applicator applies this product at higher than the allowable rate, which results in excess product being discharged into waters of the state. This application would be considered a misuse of the pesticide under the FIFRA label. Because of the misuse, the MPCA would determine that the effluent limit that requires the Permittee to minimize discharges of pesticide products to waters of the state was also violated. Therefore, pesticide use inconsistent with certain FIFRA labeling

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requirements could result in the Permittee being held liable for a CWA violation as well as a FIFRA violation.

Section 3.1 of this permit contains the general effluent limitations that apply to all Permittees, regardless of Use Pattern. These effluent limitations are generally preventative in nature, and are designed to minimize pesticide discharges into waters of the state. All Permittees, regardless of whether required to submit an NOI to obtain an NOC, are required to minimize the discharge of pesticides to waters of the state by doing the following:

3.1 a. Use the lowest effective amount of pesticide product per application and optimum frequency of pesticide application necessary to control the target pest, consistent with reducing the potential for development of pest resistance, and apply pesticides in accordance with the product label or labeling and in a manner that will not cause unreasonable adverse effects to the environment.

As noted earlier, it is illegal to use a pesticide in any way prohibited by the FIFRA labeling. Also, use of pesticides must be consistent with any other applicable Federal or state laws. To minimize the total amount of pesticide discharged, Permittees must consider lower application rates, frequencies, or both to accomplish effective control keeping in mind pesticide resistance. Using the lowest effective rate ensures maximum efficiency in pest control with the minimum quantity of pesticide while reducing the amount of pesticide available that is not performing a specific pest-control function. This can result in cost and time savings to the user. To minimize discharges of pesticide, Permittees should base the rate and frequency of application on what is known to be effective against the target pest or necessary for resistance management.

Permittees must also consider pest resistance to pesticides when reducing discharges from application of pesticide. Pest resistance develops because intensive pesticide use kills the susceptible individuals in a population, leaving only the resistant ones to reproduce. Resistance can result in the loss of effectiveness of pesticides with relatively favorable environmental and human health risks and increase reliance on riskier pesticides. When resistance occurs, users may increase rates and frequency of application in an attempt to maintain pesticide effectiveness. This can lead to the loss of efficacy and increased exposure to the pesticide. Therefore, resistance management techniques must be considered and adopted by pesticide users. Pesticide applicators should be aware of the potential for pest resistance to develop by considering the pest, the pesticide and its mode of action, the number of applications and intervals, and application rates. Several pest management tactics help prevent or delay the occurrence of pesticide resistance. One tactic is to reduce dosages in order to avoid establishing a population of resistant organisms and instead allowing some survivors to pass on genes for susceptibility. Another is to apply pesticides over limited areas to reduce the proportion of the total pest population exposed to the pesticide, thereby maintaining a large pool of individuals still susceptible to the pesticide. A third tactic to prevent development of resistant pest populations is to rotate pesticides with different modes of actions against the pests rather than depend on a single mode of action10.

10 See National Pesticide Applicator Certification Core Manual, Chapter 1 – Pest Management for additional information on pesticide resistance.

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3.1 b. Perform regular maintenance activities to minimize potential for leaks, spills, and unintended/accidental release of pesticides from pesticide containers to waters of the state in accordance with Minn. Stat. § 115.061.

Common-sense and good housekeeping practices enable pesticide users to save time and money and reduce potential for unintended discharges of pesticides to waters of the state. Regular maintenance activities should be practiced and improper pesticide mixing and equipment loading should be avoided. When preparing the pesticides for application be certain that you are mixing them correctly and preparing only the amount of material that you need. Carefully choose the pesticide mixing and loading area and avoid places where a spill will discharge into waters of the state. Some basic factors operators should consider are:

• Inspect pesticide containers at purchase to ensure proper containment. • Maintain clean storage facilities for pesticides. • Regularly monitor containers for leaks. • Rotate pesticide supplies to prevent leaks that may result from long term storage. • Promptly deal with spills following manufacturer recommendations.

The above practices are in addition to complying with Minn. Stat. 18B.07, which limits the types of water used for filling equipment, as well as prohibiting the cleaning of equipment in or near a surface water that because of slope or other conditions could result in a pesticides or other materials entering waters of the state as a result of overflow, leakage, or other causes. Other restrictions exist throughout Minn. Stat. 18B on pesticide equipment.

3.1 c. Maintain application equipment in proper operating condition by calibrating and cleaning/repairing such equipment on a regular basis to ensure effective pesticide application and pest control. You must ensure the rate of pesticide application is calibrated (i.e. nozzle choice, droplet size, etc.) to deliver the precise quantity of pesticide needed to achieve greatest efficacy against target pest.

To minimize discharges of pesticide, Permittees must ensure that the rate of application is calibrated (i.e. nozzle choice, droplet size, etc.) to deliver the appropriate quantity of pesticide needed to achieve greatest efficacy against the target pest. Improperly calibrated pesticide equipment may cause either too little or too much pesticide to be applied. This lack of precision can result in excess pesticide being available or result in ineffective pest control. When done properly, equipment calibration can assure uniform application to the desired target and result in higher efficiency in terms of pest control and cost. It is important for applicators to know that pesticide application efficiency and precision can be adversely affected by a variety of mechanical problems that can be addressed through regular calibration. Sound calibration practices to consider are:

• Choosing the right spray equipment for the application. • Ensuring proper regulation of pressure and choice of nozzle to ensure desired

application rate. • Calibrating spray equipment prior to use to ensure the rate applied is that required for

effective control of the target pest.

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• Cleaning all equipment after each use and/or prior to using another pesticide unless a tank mix is the desired objective and cross contamination is not an issue.

• Checking all equipment regularly (e.g., sprayers, hoses, nozzles, etc.) for signs of uneven wear (e.g., metal fatigue/shavings, cracked hoses, etc.) to prevent equipment failure that may result in inadvertent discharge into the environment.

• Replacing all worn components of pesticide application equipment prior to application.

Again, the above practices are done in conjunction with existing Minnesota Statutes regulating calibration of pesticide application equipment.

Integrated Pest Management Practices In addition to the TBELs described above that apply to all Permittees; MPCA is requiring Permittees that submit a NOI and receive a NOC to also comply with additional TBELs. EPA and MPCA have found that integrated pest management (IPM) is economically achievable for these large applications and is not requiring these additional limitations from Permittees who treat areas below the Thresholds at this time because of concerns about potential unintended consequences of such a requirement. MPCA expects that many of the Permittees issued a NOC are already performing some of the IPM practices required in these additional TBELs. MPCA is not requiring these additional effluent limitations from Permittees who treat areas below the Threshold at this time because we are still unclear whether it is economically achievable for small applications to implement IPM and because of concerns about potential unintended consequences of such a requirement, such as an inability to conduct essential public health and safety operations due to a reduction of available funds or manpower. Additionally, Permittees whose discharges of pesticides to waters of the state are solely from pesticide research and development activities do not have to comply with these additional TBELs to the extent the limits may compromise the research design.

The additional TBELs in Section 4 are based on IPM practices. IPM, as defined in FIFRA, is a sustainable approach to managing pests by combining biological, cultural, physical, and chemical tools in a way that minimizes economic, health, and environmental risks. (FIFRA, 7 U.S.C. 136r-1). IPM is not a single pest control method, but rather a series of pest management evaluations, decisions and controls. In evaluating available and relevant information, EPA found that some commercial (for-hired applicators) and non-commercial (e.g., state governments, federal governments, local governments, utilities) entities are currently implementing IPM practices or components of IPM to minimize pesticide use. For example, “Federal agencies shall use Integrated Pest Management techniques in carrying out pest management through procurement and regulatory policies, and other activities (7 USC 136r-1).”

MPCA believes requiring IPM practices in this permit will reduce discharges of pesticide to waters of the state. Section 4 of this permit requires Permittees issued a NOC to identify the pest problem, to evaluate and implement efficiently and effectively pest management, and to properly use pesticides. Permittees are required to perform each of these permit conditions prior to the first pesticide application covered under this permit and at least once each calendar year thereafter. Requirements for documentation of the specific measures implemented are contained on page 47 under “Recordkeeping and Annual Reporting.”

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Permittees required to perform IPM practices will be required to do the following, regardless of Use Pattern:

4.9 IPM Practices – Part 1: Identify the Problem

Permittees are required to identify the pest problem, identify the target pest, and establish an action threshold. Understanding the pest biology and ecology will provide insight into selecting the most effective and efficient pest management strategies (pesticidal or non-pesticidal methods), and in developing an action threshold. An “action threshold” is a point at which pest populations or environmental conditions indicate that pest control action must be taken. Action thresholds help determine both the need for control actions and the proper timing of such actions. It is a predetermined pest level that is deemed to be unacceptable. In some situations, the action threshold for a pest may be zero (i.e., no presence of the pest is tolerated). This is especially true when the pest is capable of transmitting a human pathogen (e.g., mosquitoes and the West Nile virus). In areas where aquatic weeds are problematic, it may be preferable to use an aquatic herbicide as a preventive measure rather than after weeds become established. In some situations, even a slight amount of pest damage may be unacceptable for ecological or aesthetic reasons. Sometime pre-emergent pesticide application is needed, as preventive measure to keep aquatic weeds at bay. Action thresholds can vary by pest, by site, and by season. Often the action threshold is expressed as the number of pests per unit area. Action thresholds may be difficult to establish. In a new IPM program, a practical approach is to establish an action threshold for the major pests. As Permittees gain insight and experience into specific pest management settings, the action levels can be revised up or down.

To identify the problem at a treatment area, Permittees may use existing data to meet the conditions of the permit. For example, a mosquito district may use surveillance data from an adjacent district to identify mosquito species at their pest management area. Permittees may also use relevant historic site data.

4.10 IPM Practices – Part 2: Pest Management Strategies

Permittees are required to implement efficient and effective means of pest management that most successfully minimizes discharges to waters of the state resulting from the application of pesticides. Permittees must evaluate both pesticide and non-pesticide methods. Permittees must consider and evaluate the following options: no action, prevention, mechanical/physical methods, cultural methods, biological control agents, and pesticides. In the evaluation of these options, Permittees must consider impacts to water quality, impacts to non-target organisms, pest resistance, feasibility, and cost effectiveness. Combinations of various management methods are frequently the most effective pest management strategies over the long term. The goal should be to emphasize long-term control rather than a temporary fix.

4.11 IPM Practices – Part 3: Pesticide Use

Once pesticides are selected to manage the pest, Permittees are required to conduct pest surveillance and assess environmental conditions to reduce the impact on the environment. Pest surveillance is important to properly time the need for pest control. To reduce the impact on the

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environment and non-target organisms, Permittees are required to apply pesticide when the action threshold has been met. As noted earlier, pest action thresholds help determine both the need for control actions and the proper timing of such actions.

Specific IPM language is included in EPA’s Proposed Pesticide Permit Fact Sheet. See the page numbers below for specifics on each of the following Use Patterns:

• Mosquitoes Control – p. 37-49 • Black Fly Control - p. 49-59 • Forest Canopy Pests Control - p. 66-71 • Aquatic Nuisance Animal Control - p. 61-66 • Vegetative Pests and Algae Control - p. 56-61

Although IPM strategies in the above section of this Fact Sheet are for all Use Patterns, MPCA and DNR have experience with non-pesticide chemicals used for treatment of algae and include more detailed requirements in the permit. Often, this activity is called whole or partial lake treatment using alum or ferric chloride and will now be regulated in the Vegetative Pest and Algae Control permit. In the past, MPCA has suggested continuous pH monitoring during chemical application. Nutrient inactivating chemicals such as alum and ferric chloride are known to alter the pH of the receiving water. pH levels outside of the 6 to 9 range can result in increased dissolved metals. Dissolved metal levels may result in aquatic toxicity. Therefore, in approving these systems, MPCA has asked entities to:

• Maintain a pH of between 6 and 9 SU • Notify the public, local entities that manage surface waters/watersheds, and the DNR

Fisheries’ Office of the activity, and • Provide MPCA with copies of any water quality monitoring reports.

In reviewing approval of these systems, MPCA considers the purity of the chemical added, whether treatment is necessary, that the positive and negative impacts of treatment are known, and that non-point sources of pollution have been addressed. MPCA also recommends follow-up monitoring of lake and tributaries after the treatment.

In the past, MPCA has issued individual NPDES/SDS permits for both in-line and off-line systems that inject nutrient inactivating chemicals into stormwater and/or waters of the state for control of phosphorus. In these permits, MPCA has requested flow and chemical monitoring (dependent on the non-pesticide chemical proposed for treatment), records of chemicals used and amount, phosphorus loading removed, proper management and disposal of any residual solids, and other indicators of water quality and system effectiveness. These systems will not be covered under this term of the general permit. MPCA believes the alteration of flow and construction needed for some of these systems does not lend well to a general permit. Please contact MPCA for further information concerning in-line treatment systems.

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WATER-QUALITY-BASED EFFLUENT LIMITATIONS Background The CWA requires NPDES permits to include TBELs for all discharges and then if necessary for a specific discharge, water quality based effluent limitations (WQBELs). Permit writers are to assess whether the TBELs 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 state water quality standard, including state narrative criteria for water quality (see 40 CFR §122.44[d]).”

To address effluent limits in this permit, we must assess state water quality standards. Minnesota water quality standards are found in Minn. R. chs. 7050 and 7052 (Lake Superior Basin). The rules include:

1. The beneficial use classification system applicable to waters of the state. 2. Narrative and numeric water quality standards to protect those beneficial uses. 3. Nondegradation (antidegradation) provisions and other provisions to maintain and protect

the existing uses and high quality waters of the state. 4. General policies addressing implementation issues (e.g., low flows, variances, mixing

zones). In Minnesota Rules, this is listed as a requirement to protect and maintain surface waters in a condition which allows for maintenance of all existing beneficial uses.

Water Quality Standards Water Quality Standards are expressed in two ways - Narrative and Numeric.

Narrative Water Quality Standards: A narrative water quality standard is a statement that prohibits unacceptable conditions in or upon the water. Narrative standards are sometimes called “free froms” because they help keep surface waters free from visible and basic types of water pollution, or free from the effects of such pollution (e.g., impacts to aquatic organisms or ecosystems as measured by disruptions, disturbances or declines in populations, ecosystem health, etc.). Most narrative standards protect aquatic life, recreation, or aesthetic beneficial uses. These “free froms” are described in Minn. R. 7050.0210, subp. 2: “No sewage, industrial waste, or other wastes shall be discharged from either point or nonpoint sources into any waters of the state so as to cause any nuisance conditions, such as the presence of significant amounts of floating solids, scum, visible oil film, excessive suspended solids, material discoloration, obnoxious odors, gas ebullition, deleterious sludge deposits, undesirable slimes or fungus growths, aquatic habitat degradation, excessive growths of aquatic plants, or other offensive or harmful effects.”

Relevant to pesticides, Minn. R. 7050.0150, subp. 3 states that “For all Class 2 waters, the aquatic habitat (including waters of the state and stream bed) shall not be degraded in any material manner, there shall be no material increase in undesirable slime growths or aquatic plants, including algae, nor shall there be any significant increase in harmful pesticide or other residues in the waters, sediments, and aquatic flora and fauna; the normal fishery and lower aquatic biota upon which it is dependent and the use thereof shall not be seriously impaired or endangered, the species composition shall not be altered materially, and the propagation or migration of the fish and other biota normally present shall not be prevented or hindered by the discharge of any sewage, industrial waste, or other wastes to the waters.” Minn. R. 7050.0150,

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subp. 5 to 7 lists factors MPCA uses to determine if surface waters are in compliance with applicable narrative standards, such as the more general narrative standards in Minn. R. 7050.0210, subp. 2, including Indices of Biological Integrity and restrictions on pollutants in fish tissue.

The narrative standards above (Minn. R. 7050.0150, 7050.0210, and 7050.0217) describe the objectives for Class 2 standards. Class 2 waters include all waters that support or may support fish or other aquatic life, fish consumption, recreational purposes (e.g. boating and swimming), and drinking water (if designated) (see Minn. R. 7050.0140, subp. 3). These uses also address the principle requirements of the CWA. Class 2 standards are protective of:

1. No less than 95% of all the species in any aquatic community (or greater, if important species are very sensitive).

2. Human consumers of fish/edible aquatic organisms/drinking waters, meaning exposure from noncarcinogenic chemicals shall be below levels expected to produce known adverse effects; and the incremental cancer risk from carcinogenic chemicals (individual or mixed) shall not exceed 1 in 100,000 (combined risk described in Minn. R. 7050.0222).

3. Wildlife that eat aquatic organisms (most sensitive species/population), including greater protection for endangered or threatened species under Endangered Species Act (ESA).

Numeric Water Quality Standards: The second way a Water Quality Standard is expressed is Numeric Water Quality Standards. Numeric water quality standards represent concentrations in water designed to protect a specific designated use and further implement the goals of the narrative standards. If the standard is not exceeded, the use should be protected. Numeric standards exist in Minn. R. 7050.0220 to 7050.0222 for the protection of Class 2 Waters, those designed to protect drinking water, aquatic life and recreation. Additionally, Minn. R. ch. 7052 includes aquatic life, human health, and wildlife standards for Great Lakes Initiative pollutants for surface waters in the Lake Superior Basin.

The purpose of Minn. R. 7050.0218 is to provide the methods for Class 2 and Class 7 numeric standards for toxic pollutants which may be discharged to surface waters and cause toxic effects, but do not have standards listed in rule. Therefore, methods are established to address on a site­by-site and case-by-case basis the discharge into surface waters of unlisted toxic pollutants. The procedures to develop site-specific criteria are listed in this part, and include adoption of EPA aquatic life criteria under section 304(a)(1) of the CWA (33 U.S.C. § 1314) as described in “Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Organisms and Their Uses.”

Development of Water Quality Standards: The CWA Section 304(a) requires EPA to develop and publish Ambient Water Quality Criteria (AWQC). AWQC provide the methods, data, and technical foundation to develop concentrations of pollutants that if not exceeded will protect beneficial uses including aquatic life, fish consumption and recreation. The methods in Minn. R. chs. 7050 and 7052 and those used to develop listed Class 2 numeric standards are based on EPA’s Office of Water 304(a) AWQC and guidance, supplemented with pollutant and state-specific considerations described in the water quality rules.

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States must adopt the EPA criteria into state rules before they have the legal status of a water quality standard. Many of Minnesota’s aquatic life toxicity-based (Class 2) standards are based on EPA AWQC. EPA must approve all state water quality standards. The EPA criteria provide the foundation for MPCA to develop water quality standards (WQS) and MPCA completes their own review of the data, including the possibility of including newer test results and modifications to address the two surface water aquatic community distinctions not part of EPA’s criteria: designated trout waters (Class 2A) and cool and warm water fisheries habitats and wetlands (Class 2B).

If EPA has not developed a criterion for a particular pollutant and there is a need for a standard, the MPCA can and has developed standards using methods in rule, EPA guidance, and expertise. Examples include standards for the herbicides atrazine, alachlor, acetochlor, and metolachlor. With few exceptions, if the Class 2 standards are met, other uses such as Class 3 and 4 (industrial or agricultural) uses are protected as well.

Class 2 standards for toxic chemicals have three parts, defined as follows:

1. Chronic standard (CS). The highest concentration of a toxicant to which aquatic organisms can be exposed indefinitely with no harmful effects, or to which humans or wildlife consumers of aquatic organisms can be exposed for a lifetime with no harmful effects.

2. Maximum standard (MS). A concentration that protects aquatic organisms from potential lethal effects of a short-term “spike” in toxicant concentrations. The MS is always equal to one half the final acute value.

3. Final acute value (FAV). The concentration that would kill about half of the exposed individuals of a very sensitive aquatic species. The FAV is most often used as an “end-of­pipe” effluent limit to prevent an acutely toxic condition in the effluent or the mixing zone.

MS and FAV are always toxicity-based to protect organisms from short-term exposures. Class 2 CSs for toxic chemicals are developed to protect three distinct populations; aquatic life, humans, and wildlife. Aquatic-based standards provide protection to aquatic organism, including plants, from harmful effects that might result from long-term or indefinite exposure to the pollutant. Wildlife-based standards are chronic standards based on the protection of wildlife species that eat aquatic organisms. Finally, human health-based standards are chronic standards based on protecting people who eat fish from Minnesota waters and consume water, either incidentally (swimming, wading, or other forms of recreation) or drinking (if the surface water is also designated for this use). With sufficient data, the MPCA calculates both an aquatic-based value and human health-based value and adopts the more restrictive of the two as the standard for that pollutant. In some specific cases, MPCA also calculate wildlife-based standards using the methods described in Minn. R. ch. 7052, and performs the same comparison.

FIFRA Registration Risk Assessment and Development of Water Quality Standards The development of Class 2 numeric water quality standards and the registration of pesticides in accordance with FIFRA rely on similar scientific data, methods, analytical procedures, and assessments. EPA has developed a foundation for both programs that have similar protection

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level goals and procedures between FIFRA requirements and those of the CWA, administered by EPA’s Office of Pesticide Program and EPA’s Office of Water, respectively.

Development of Water Quality Standards: To assist in making comparison to FIFRA registration risk assessments, a summary of the development of WQS aquatic toxicity methods follows. The aquatic toxicity-based Class 2 standards are developed using either a Tier I or Tier II method, depending on the robustness of the available data. Details of the Tier I or Tier II methods are found in MPCA water quality standards guidance and Minn. R. chs. 7050 and 7052. In summary, Tier I methods are used when there is sufficient data to meet a prescribed level of information on a range of aquatic organisms. Tier II methods are used if there is not enough data to perform Tier I methods.

For Tier I, a minimum of eight genus acute (short-term) toxicity values representing the following groups must be available:

1. Species in three families in the phylum Chordata, one of which must be a salmonid. 2. A freshwater crustacean. 3. A freshwater cladoceran. 4. A family in a phylum other than Chordata or Arthropoda. 5. Two other families not in the phylum Chordata.

Minnesota’s WQS require additional data when developing criteria for pesticides. If the chemical is an insecticide, one of the eight toxicity values required in two other families, not in the phylum Chordata, must be for an insect. If the chemical is a herbicide, the eight GMAVs must be supplemented with acute data for two plant species, one of which is an algal species. Tier II methods at a minimum require toxicity data for Osteichthyes (fish) and specific Daphnidae genera; if the pollutant is an insecticide or herbicide, there are additional species required as in Tier I. Minnesota also uses methods in Minn. Rule 7052.0100 for the development of standards and criteria (Tier I and Tier II) for the Lake Superior Basin. The acute values (and chronic depending again on the sufficiency of data) are evaluated in a statistical approach to arrive at a pollutant-specific FAV, MS, and CS. These values each have specific use and averaging period from one day to four-day averages.

In addition to the standards listed above, Minnesota’s WQS also include classification of all groundwater and certain surface waters for drinking water use. These waters are designated as Class 1 and include applicable numeric standards under Drinking Consumption WQS, applied in addition to the Class 2 CSs. Drinking Consumption standards are the EPA’s Safe Drinking Water Act Standards. Class 2 CSs apply only in surface waters and include drinking water protection when deriving the human health-based CS. Class 2 Human Health-based CSs (HH-WQS) are developed by MPCA based on EPA and the Minnesota Department of Health’s (MDH) toxicological data. Exposure for drinking water use is 2 Liters per day (L/d) and 70 kg for body weight, the same intake rates as EPA. Incidental water in consideration of recreational exposure is 0.01 L/d. MPCA uses a higher fish intake rate then EPA’s defaults based on regional sport fishing surveys (30 grams per day). Class 2 CSs serve as the primary foundation for assessing surface waters.

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FIFRA Risk Assessment: To register a pesticide, the EPA Office of Pesticide Program must determine that its use in accordance with the label will not cause “unreasonable adverse effects on the environment” (FIFRA sec. 3[c][5]). In Minnesota, MDA may review such determinations as needed. As part of pesticide registration and ongoing registration review, EPA considers label clarity and compliance, misuse, product chemistry, human health, ecological effects, and environmental fate. EPA conducts a risk assessment, and implements risk mitigation measures by placing restrictions, warnings and use directions on the label to ensure that pesticide use does not cause any “unreasonable adverse effects on the environment,” which includes human health. The MDA may conduct a state-specific review of similar components of pesticide registration. A registration review process exists to make sure the assessment of risk evolves as policies and practices change. This ensures that registered pesticides continue to meet the statutory standard of “no unreasonable adverse effects.”

Again, to assist in making comparison to WQS aquatic toxicity methods, a summary of the development of FIFRA registration assessments follows. As set forth in FIFRA (40 CFR pt. 158) applicants for registration must provide EPA with a suite of product chemistry, residue chemistry, toxicity, environmental fate and ecotoxicity studies to support their application. To support outdoor uses, studies are required that provide information related to the environmental fate and transport of the chemical and that measure the acute and chronic toxicity to terrestrial and aquatic organisms. EPA estimates pesticide concentrations in aquatic environments to determine if exposure to an active ingredient is at a level that could cause unreasonable adverse effects. EPA estimates the concentration in water using:

1. Peer-reviewed simulation modeling. 2. Monitoring data, when sufficient. Sources include USGS and EPA datasets. 3. Environmental Fate Data. For aquatic-use pesticides (i.e., those applied directly to water),

EPA looks at environmental fate data to simulate partitioning of the pesticide between the water column and bottom sediment in a standard ride paddy. This is a conservative model because it considers the initial amount of pesticide used, not the amount degraded in the water body after the pesticide has performed its intended function.

EPA reviews available ecotoxicity data to determine if the pesticide is sufficiently toxic at its estimated exposure concentrations to cause unreasonable adverse effects. Sources include direct study submissions in support of registration and open literature. The typical assessment endpoints are for reduced survival from acute exposure and for survival, growth and reproductive impairment from chronic exposure. Other sublethal effects on survival, growth and reproduction are also considered. Generally, these studies include a suite of aquatic toxicity studies defined in 40 CFR pt. 158, subp. D and are studies on laboratory test organisms in the following taxonomic groups, from which the most sensitive values are selected:

1. Freshwater fish 2. Freshwater invertebrates 3. Estuarine/marine fish 4. Estuarine/marine invertebrates 5. Algae and aquatic plants

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The ecological risk is then characterized and risk quotients are compared to the Level of Concern (LOC). LOCs are criteria used to analyze the potential risk to non-target organisms and the need to consider regulatory action. If a risk of concern is identified, risk mitigation measures are considered. EPA derives FIFRA Aquatic Life Benchmarks by multiplying the most sensitive toxicity values (i.e., the lowest acceptable toxicity value for the most sensitive species within the taxa) by their respective LOC. These values are considered estimates of the concentrations below which pesticides are not expected to have potential adverse effects for that particular taxon. If an EPA National Recommended Water Quality Criterion for ambient water quality is not available for a given pesticide, EPA provides states with Aquatic Life Benchmarks derived from singular toxicity endpoints taken from pesticide registration studies.11 These benchmarks can be used to interpret monitoring data, and to identify and prioritize sites and pesticides that may require further investigation, or to identify those pesticides that might require development of regulatory standards based on concentrations approximating or exceeding the benchmarks.

In addition to the aquatic toxicity studies above, pesticide registration includes assessment, testing requirements, and measures to protect human health, both directly from product use (i.e. personal protection requirements) and indirectly from leaching into drinking water (surface and groundwater). Relevant to surface water applications, EPA requires registrants submit environmental fate and concentration data, specific suites of mammalian toxicity test results for active ingredients and certain environmental degradates, as well as actual groundwater and surface water monitoring results collected by the registrant, EPA, or States. Human health assessment requires animal assay testing and in a few cases incorporation of epidemiology results. The evaluations tend toward maximum exposure scenarios. Expectations that concentrations could exceed human health Levels of Concern for drinking water uses (DWLOCs) would be reflected in the approved registration, application rates, and label or other use restrictions.12 Because pesticide registration considers the benefits as well as risks of product use, there are some product uses that can exceed DWLOCs and are labeled and restricted as such (e.g. some aquatic use herbicides) because of the important environmental or human health benefits they provide (e.g. management of exotic species and disease vectors). These label restrictions have included approval of use by State regulatory agencies; in Minnesota the Department of Natural Resources permits the use of these products with oversight on human health and ecological protections.

Summary: As outlined above, Minnesota’s process of developing water quality standard is very similar to the process used by EPA during the pesticide review and registration process. The similarities are more easily understood through a closer look at the registered pesticides for which Minnesota has established water quality standard. Minnesota has promulgated numeric standards in Minn. R. 7050 for some pesticides that will be covered under this permit, including glyphosate, 2, 4- dichlorophenoxyacetic acid (2, 4-D), and parathion. The water quality standard for glyphosate is 700 µg/L for drinking water Class 1 and Class 2A and 2Bd waters. This numeric limit applies to drinking water and trout streams. It does not apply in Class 2B waters. Glyphosate is the active ingredient in an aquatic-use pesticide designed to control annual and perennial weeds and woody plants. A review of glyphosate products found an example label with

11 Correspondence to SFIREG, November 3, 2006 from Office of Water director. 12 http://www.epa.gov/pesticides/factsheets/riskassess.htm.

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a maximum application rate over water of 7.5 pints per acre. Other label restrictions apply depending on the water body where the pesticide is applied.

While the water quality standard is linked to the allowable concentration of glyphosate in a water body and the label rates are linked to the amount that can be applied at a specific place and time, both values were derived using EPA risk assessment methods. Both were derived by considering the potential impact of glyphosate on human health; in addition, the registration and label review utilize toxicity results on an array of species, including invertebrates, fish and some plants and the sensitivity of these organisms and incorporate the observed results of ambient water quality monitoring, if available. While Minnesota does not have comparable Class 2 water quality standards for glyphosate, EPA’s Aquatic Life Benchmarks serve as screening values to assess any need for application of site-specific water quality criteria.13

Although the values are derived for different purposes, they are linked through risk assessment. Thus, for all pesticides used under these permits, the MPCA expects the application of a registered pesticide to a water of the state in accordance with label instructions in combination with the additional requirements described in the NPDES general pesticide permit will not result in a violation of the water quality standards, whether narrative or numeric.

To provide additional assurance that pesticide use authorized by the permit is protective of designated uses, the permit has additional safeguards. The Permittee must control the discharge as necessary to meet applicable state water quality standards. Any discharge that results in an excursion of an applicable water quality standard is prohibited. If at any time the Permittee or MPCA determines that the discharge has the reasonable potential to cause or contribute to an excursion of a state water quality standard, the Permittee must take corrective actions and document and report the excursion(s) to MPCA. Furthermore, MPCA may impose additional WQBELs on a site-specific basis, or require the operator to obtain coverage under an individual permit, if information in an NOI, required reports, or from other sources indicates that, after meeting TBELs in this permit, the discharges are not controlled as necessary to meet applicable water quality standards. An additional safeguard exists for drinking waters. In Minnesota, the DNR requires that applications to drinking water sources first gain approval from the MDH under Minn. R. 6280.0250 subp. 5. MPCA also notes that this permit does not cover discharges of any pesticide into a water impaired for that pesticide or its degradates or waters designated as ORVW Prohibited waters. While not specifically framed as effluent limitations, these eligibility limitations further help to protect water quality on a water-body-specific basis.

Protection of surface waters is the foundation of MPCA’s and MDA’s programs. MDA monitors pesticides for comparison to MPCA’s numeric water quality standards for some pesticides covered under the permits (e.g. 2,4-Dichlorophenoxyacetic acid, chlorpyrifos, and parathion). The agencies have the tools to direct monitoring to examine water quality concerns. MPCA also conducts biological monitoring to ensure healthy aquatic communities. Surface waters impaired for invertebrate or fish communities are listed as impaired on the 303(d) list and subsequent TMDLs provide another tool to identify concerns for pesticide stressors.

13 http://www.epa.gov/oppefed1/ecorisk_ders/aquatic_life_benchmark.htm.

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In summary, based on the requirements in this permit in addition to FIFRA, MPCA expects that compliance with the TBELs and other terms and conditions in this permit will meet applicable state WQBELs. The MPCA tentatively finds that the proposed activity will result in the attainment of water quality standards; that all existing uses of waters of the state will be met; that all technically and economically reasonable measures to avoid or minimize the discharge of pesticides to waters of the state have been incorporated into the proposed permit; and that this permit will benefit the community at large by allowing for control of pest organisms.

Other Water Quality Based Effluent Limit Considerations Secondary Treatment Standards: Minn. R. ch. 7053 includes effluent limits and treatment requirements for discharges of sewage, industrial wastes, and other wastes. This rule contains “General Requirements for Discharges to Waters of the State” in Minn. R. 7053.0205, including:

1. Untreated Sewage Prohibited. 2. Nuisance Conditions Prohibited. 3. Inadequate Treatment Prohibited. 4. Maintain equipment to meet highest level of effluent quality.

MPCA believes that by addressing the narrative standards in Minn. R. ch. 7050 and inclusion of permit requirements to, among other things, evaluate integrated pest management and to only apply pesticides when necessary to meet public health or recreational needs will satisfy Secondary Treatment Standards. Also, much of the language in Minn. R. 7053.0205 are included as restrictions in the “Total Facility Requirements” chapter of the permit.

Lake Superior Basin Water Quality Standards: Minn. R. ch. 7052 “establishes aquatic life, human health, and wildlife water quality standards and criteria for Great Lakes Initiative (GLI) pollutants; nondegradation standards for surface waters of the state in the Lake Superior Basin including, on a limited basis as described in item B, Class 7 waters; and implementation procedures for deriving effluent limitations from these standards and criteria.” To address nondegradation, Minn. R. 7052.0300 state, “Where designated uses of the waterbody are impaired, there must be no lowering of the water quality with respect to the GLI pollutants causing the impairment.” New or expanded discharges to an outstanding international resource water of a Bioaccumulative Substances of Immediate Concern (BSICs) are subject to nondegradation standards and implementation procedures. This is also required for new or expanded discharge (for which there is a control document) to a high quality water of a Bioaccumulative Chemical of Concern (BCC).

The following pesticides are listed in Minn. R. 7052.0350 as BCCs: Chlordane, DDT, dieldrin, lindane, and toxaphene. With the exception of Lindane, all are also BSICs. However, all the pesticides listed are considered “legacy” pesticides, meaning they no longer have registered uses or their registration as a pesticide has been cancelled. Chlordane was cancelled in 1983, DDT has no registered uses as of 1972, dieldrin was cancelled in 1987, and toxaphene in 1986. Lindane had all agricultural uses cancelled after 2007, but is still used in head lice and scabies treatments and is regulated by the FDA, not under FIFRA, and a discharge under this permit is not expected. Therefore, because no BCC and/or BSICs are discharged under this permit, no nondegradation analysis is necessary for discharges in the Lake Superior Basin

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Nondegradation: Minn. R. 7050.0180 states that “maintenance of existing high quality in some waters of outstanding resource value to the state is essential to their function as exceptional recreational, cultural, aesthetic, or scientific resources. To preserve the value of these special waters, the agency will prohibit or stringently control new or expanded discharges from either point or nonpoint sources to outstanding resource value waters.”

For ORVW-restricted waters (Minn. R. 7050.0180, subp. 6), a new or expanded discharge may occur if there is no prudent and feasible alternative to the discharge. A “new” discharge is one not in existence before the designation of the water as an ORVW (dates vary). This is also the date for establishing whether a discharge is “expanding,” but this depends on increased loading of one or more pollutants.

For all waters (Minn. R. 7050.0185), “It is the policy of the agency that water quality conditions that are better than applicable water quality standards and are better than levels necessary to support existing beneficial uses must be maintained and protected unless the commissioner finds that, after full satisfaction of this part, a lowering of water quality is acceptable. In allowing a lowering of water quality, the existing beneficial uses must be fully maintained and protected.” A “new” discharge is one not in existence before January 1, 1988. This is also the date for establishing whether a discharge is “expanding,” but depends on the increased loading of one or more pollutants. A significant discharge is (a.) a new discharge of greater than 200,000 gpd and discharges to any water other than a Class 7, or (b.) an expanded discharge that expands by greater than 200,000 gpd and discharges to any water other than a Class 7, or (c.) a new or expanded discharge containing a toxic pollutant at a rate likely to increase the concentration in the receiving water by more than 1% over baseline.

Discharges to ORVW-Prohibited waters (Minn. R., 7050.0180, subp. 3-5) are not allowed under the general permit. If a Permittee wishes to discharge to these waters, they would need to apply for an Individual Permit and MPCA would evaluate nondegradation at that time.

To address nondegradation for ORVW-Restricted waters and all waters (Minn. R. 7050.0180, subp. 6 and 7050.0185), MPCA needs to define “new” and “expanded” for the application of pesticides and the associated Use Patterns. It is difficult to determine if discharges of pesticides under this permit meet the definition of new or expanded discharge to ORVWs or new or expanded significant discharges to all waters. The MPCA has not regulated these activities in the past, nor have other state agencies gathered information needed to make this determination. When determining whether a discharge is “new,” MPCA considered that registered pesticides have been used under authority of FIFRA since its inception in 1972. The earliest designation date of ORVW-Restricted lakes and the Mississippi River is 1984. Therefore, discharges of pesticides were allowed under the authority of FIFRA prior to the designation date of an ORVW, making it reasonable to conclude that no discharger should be considered “new.”

FIFRA labeling ensures that pesticides and quantities used are appropriate for the desired target organisms. Pesticide labels also include appropriate application rates that, if exceeded, would be a violation under FIFRA. This permit imposes additional restrictions such as minimizing the discharge of pollutions resulting from the application of pesticides. The lowest effective

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application amount and frequency reduces the amount of pesticide available that is not performing a specific pest-control function. By meeting the FIFRA requirements and following the best management practices listed in the permit, discharges occurring after issuance of the general permit will result in the same, if not a decrease, in pesticides discharged to waters of the state. Therefore, when relating allowable loading before with the allowable loading after permit issuance, no discharges should be considered “expanding.”

The requirement to evaluate integrated pest management and to only apply pesticides when necessary to meet public health or recreational needs will further ensure that pesticide application is done so in a way that results in minimal environmental impact. Controlling pests is important for human health and the environment. For example, control of nuisance organisms such as mosquitoes is important for the health of the general population. Targeting aquatic or non aquatic invasive species is essential to maintain balanced ecosystems. The permit requirements are an extra safeguard for the environment. The general permit allows for the continued use of pesticides while ensuring that the aquatic environment is protected from unintended adverse impacts. Alternatives to pesticide use require evaluation in the permit. For example, Permittees are asked to select and implement efficient and effective means of pest management that minimize discharges to waters of the state, including the use of both non-pesticide and pesticide methods. The Permittee must develop pest management strategies by evaluating the following management options: no action, prevention, mechanical/physical methods, cultural methods, and biological control agent. The Permittee must develop these options considering impact to water quality, non-target organisms, pest resistance, feasibility, and cost effectiveness. In this way, the permit requires evaluation of prudent and feasible alternatives prior to the discharge of a pesticide.

The preliminary conclusion is that no nondegradation analysis is needed at this time. This preliminary assessment was conducted per Minnesota’s nondegradation rules and was based on the information available to the MPCA at the time the draft permit was written.

“Pollutants” as determined in National Cotton Council v. EPA: This permit provides coverage for point source discharges from certain applications of pesticides, as identified in Section 1 of the permit. Discharges from the application of both chemical and biological pesticides are covered under this PGP consistent with the Sixth Circuit Court’s reading of the CWA term “pollutant” in National Cotton Council v. EPA.

For chemical pesticides, the discharges covered under this permit are the residues after the pesticide has performed its intended purpose. For chemical or conventional pesticides applied directly to waters (e.g., for aquatic weed control and aquatic nuisance pest control), it is the pesticide residue, including excess pesticide that is present outside of the treatment area or within the treatment area once the target pests have been controlled that is considered a pollutant under this permit. For any pesticide applied over water (e.g., mosquito control), any pesticide or pesticide residue that is incidentally deposited in waters of the state is considered a pollutant since the intended purpose of the application is to target pests above the water. Therefore, the concentrations of “pollutants” will be no higher, and in many instances significantly lower, than the product concentrations considered in EPA’s assessment when registering these products.

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Discharges of biological pesticides require permit coverage regardless of whether or not a residue exists. Biological pesticides are also referred to as “biopesticides” or “biochemical pesticides.” Under FIFRA, Biochemical pesticides are defined as pesticides that are (a) naturally-occurring substance or structurally-similar and functionally identical to a naturally-occurring substance; (b) have a history of exposure to humans and the environment demonstrating minimal toxicity, or in the case of a synthetically-derived biochemical pesticides, is equivalent to a naturally-occurring substance that has such a history; and (c) have a non-toxic mode of action to the target pest(s). (40 CFR § 158.2000 [a]). For the purposes of this permit, the term “biological pesticides” will be used. Two classes of biological pesticides are relevant to this permit: microbial pesticides and biochemical pesticides.

Microbial pesticides consist of a microorganism (e.g., a bacterium, fungus, virus, or protozoan) as the active ingredient. The most widely used microbial pesticides are subspecies and strains of Bacillus thuringiensis, or Bt. This is a bacterium that occurs naturally in the soil, insects and plant surfaces. The mode of action is a crystalline protein produced by Bt that, when ingested by the target species, interferes with their normal digestive process and eventually leads to cell rupture and death. It is most effective during the larval stage. As stated in the definition above, microbial pesticides are naturally occurring substances and the mode of action is non-toxic.

Biochemical pesticides are naturally occurring substances that control pests by non-toxic mechanisms. By contracts, conventional pesticides are generally synthetic materials that directly kill or inactivate pests. Biochemical pesticides include substances, such as insect sex pheromones that interfere with mating, as well as naturally-occurring repellants and attractants. For example, various scented plant extract can attract insect pests to traps, or repel them, like citronella oil. Again, these pesticides do not have a toxic mode of action.

Biological pesticides are usually inherently less toxic than conventional pesticides and generally only affect the target pests and closely related organisms. Often, they are effective in very small quantities and decompose quickly thereby resulting in lower exposures and largely avoiding the pollution problems caused by chemical pesticides. When used as a component of IPM programs, biological pesticides can greatly decrease the use of chemical pesticides. Also, because biological pesticides do not work through a toxic mode of action, they are less likely to result in an excursion of a water quality standard. It is important to remember that the effective use of biological pesticides requires users to have a very good understanding of pest management.

In this permit, the WQBELs are as follows:

3.2 Your discharge must be controlled as necessary to meet applicable numeric and narrative state water quality standards in accordance with Minn. R. ch. 7000, 7050, 7052, and 7053 including the narrative standards governing nondegradation for all waters and ORVWs.

3.3 If at any time you become aware, or MPCA determines, that your discharge causes or contributes to an exceedance of applicable water quality standards, you must take corrective action as required in Section 3.15-3.19 of this Permit (Corrective Action).

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3.4 MPCA may impose additional water quality-based limitations or require you to obtain coverage under an individual permit if information in your NOI, required reports, or other sources indicates that your discharges are not controlled as necessary to meet applicable water quality standards.

Section 3.2 includes the general requirement to control discharges as necessary to meet water quality standards, while Section 3.3 implements this requirement in more specific terms by imposing on Permittees a responsibility to take corrective action in response to an excursion of applicable water quality standards, whether discovered by MPCA or by the Permittee. Failure to take such corrective action is a violation of the permit. Additionally, the permit includes a provision, in Section 3.4 and 4.6 that specifies that MPCA may determine that additional technology-based and/or water quality-based effluent limitations are necessary, or may deny coverage under this permit and require submission of an application for an individual NPDES permit, as detailed in Section 4.49 through 4.54 (Individual or Alternative General Permits).

EPA expects the proposed general permit contains requirements necessary to ensure that water quality is protected, and Minnesota agrees. For example, the Permittees that apply pesticides over the Threshold in Section 1.3 must implement IPM control measures under Section 4. As stated above, EPA expects that the TBELs are as stringent as necessary to meet water quality standards. These effluent limitations require Permittees to minimize the discharge of pesticides through the use of the most efficient and effective means of pest management options, including pesticide and non-pesticide methods. The technology-based effluent limitations require ALL Permittees to use the lowest effective amount of pesticides and optimum frequency for effective management of target pests, perform regular maintenance activities on pesticide containers and application equipment, and maintain and calibrate equipment. To ensure that pesticide discharges are minimized, Permittees who submit an NOI must consider human health and ecological impact, pest resistance, feasibility, and cost effectiveness and include prevention, mechanical/physical methods, cultural methods, and biological control agents prior to choosing pesticide application as the method of control. Permittees must identify target pest species and areas where those pests occur, identify the possible sources of the problem, and establish action thresholds for implementing pest management strategies. The technology-based effluent limitations also require Permittees who submit an NOI and are issued an NOC to conduct surveillance prior to each pesticide application to assess the treatment area and to determine when pest action thresholds are met.

The general permit includes several other provisions that the EPA and MPCA expect to provide further protections beyond compliance with FIFRA requirements. For one, Section 3.5-3.7 of the permit requires Permittees monitor pesticide applications activities to minimize discharges and during any post-application monitoring to determine effectiveness of the pesticide treatment. Section 3.11-3.14 of the general permit contains requirements for ALL Permittees to document and report Adverse Incidents involving non-target organisms or the environment, and Section 3.15-3.19 requires Permittees to take corrective action if it is determined that revising control measures can help to prevent future incidents. An Adverse Incident report calls due attention to a situation in which water quality may be impacted by pesticide use and may indicate that corrective action is required to ensure that water quality standards are further protected during future applications. The permit also requires Permittees to take corrective actions to eliminate

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other situations such as unauthorized releases (i.e., spills or leaks) or the failure to meet applicable water quality standards. MPCA expects this approach will further reduce discharges of pesticides to waters of the state from the Use Patterns covered under this permit.

Each Permittee is required to control its discharge as necessary to meet applicable water quality standards. To see further explanation concerning compliance, see pages 71 to 87 of EPA’s Fact Sheet.

ADDITIONAL PERMIT REQUIREMENTS Site Monitoring (Sections 3.5 – 3.7) Monitoring is required in any NPDES permit specifically for the purpose of demonstrating compliance with the permit conditions. There are a variety of monitoring methods that a “traditional” NPDES permit may require, including end-of-pipe monitoring to show compliance with relevant effluent limitations prior to discharging to a receiving waterbody. Monitoring may also pertain to actions taken to ensure that record keeping or other permit control activities are being properly implemented. Pursuant to CWA section 308 and 402(a)(2), 40 CFR 122.43(a), and other applicable implementing regulations, the requirements discussed below have been included in the permit. The monitoring requirements of this permit are narrative and demonstrate compliance by using currently established pesticide use routines for monitoring pest control. For instance, the permit requires routine visual inspections to be conducted as part of the application activity or as part of post-application pest surveillance. The permit also calls for records to be kept that coincide with the Threshold units for that permit. The monitoring requirements of the permit are reasonable measures of good pest management practice, that the conscientious Permittee should be currently employing, to ensure environmental health and safety and optimal control of pest organisms.

Monitoring of pesticide discharges poses several challenges not generally encountered in “traditional” NPDES permitting situations. For example, there is no “wastewater discharge” per se from pesticide applications that is analogous to end-of-pipe discharges. For chemical pesticide applications, at the time of application the pesticide contains both the portion serving its intended purpose as well as the potential residual for which monitoring data would be appropriate. Thus, monitoring the “outfall” in this case would merely provide data on the amount of the product as applied and would not be useful for comparing with any type of effluent limitation or water quality standard.

EPA considered requiring ambient water quality monitoring, but determined that it was infeasible for the following reasons:

1. Uncertainty - Ambient water quality monitoring would generally not be able to distinguish whether the results were from the pesticide application for which monitoring is being performed, or some other upstream source.

2. Lack of applicable measurable standards - Pesticide-specific water quality standards do not exist at this time for the vast majority of constituents in the products authorized for use under this permit.

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3. Safety and Accessibility - Pesticides, particularly those often applied over waterbodies in remote areas, hazardous terrain, and swamps that are either inaccessible or pose safety risks for the collection of samples.

4. Difficulty of residue sampling for chemical pesticides - For chemical pesticides, the “pollutant” regulated by the permit is the residue that remains after the pesticide has completed its activity, and it is this residue that would be the subject of any water quality monitoring requirement. However, the point at which only “residue” remains is not practically discernable at this time for all pesticides.

5. Usefulness of data – EPA found that some states questioned the value of ambient water quality monitoring data obtained from state permitting programs.

Given the questionable ability of ambient water quality data to demonstrate permit compliance, MPCA has determined that there are suitable alternative monitoring activities to determine permit compliance, other than ambient water quality monitoring, for this permit.

Additionally, in assessing the appropriateness of requiring ambient water quality monitoring, EPA also considered Whole Effluent Toxicity (WET) testing as a possible option for assessing Permittee compliance with permit conditions; however, WET testing in an NPDES permit program is best used to monitor whether an Permittee’s discharge is toxic and not whether a receiving stream (i.e., the ambient environment), that may be influenced by a number of different discharges from different Permittees and different sources, is toxic. In addition, WET testing would not indicate the actual source of the toxicity. If a waterbody is found to be toxic or to contain pollutants above water quality standards, it can be quite complex to identify the source of the toxicity, which may or may not actually be the NPDES Permittee performing the monitoring.

Thus, the monitoring program that MPCA has developed for this permit has been tailored to accommodate the unique situations related to pesticide applications. Visual monitoring is required in the permit to determine if any pesticide use practices need to be revised to ensure that avoidable adverse impacts to the environment do not occur. Monitoring records required by those Permittees who submit NOIs will establish a history that may indicate if or when practices need to be reconsidered.

All Permittees must monitor the amount of pesticide used to ensure that the lowest effective amount and optimum frequency is balanced with the potential for development of pesticide resistance. MPCA understands that appropriate application rates are variable depending on conditions, and expects Permittees to use their best professional judgment in combination with the label requirements in determining the appropriate amount of product needed to optimize efficacy of the treatment. All Permittees must also monitor their operation to ensure the integrity of application equipment by calibrating, cleaning, and repairing equipment on a regular basis to reduce the potential for leaks, spills, and unintended/accidental release of pesticides to waters of the state.

Visual monitoring assessments are required as a means of identifying, for example, instances of detrimental impact to non-target organisms, disruption or degradation of wildlife habitat, or the prevention of designated recreational or municipal uses of a waterbody that may possibly be related to the Permittee’s use of pesticides in a given area. Visual monitoring will consist of spot

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checks in the area to and around which pesticides are applied for possible and observable Adverse Incidents, such as fish kills and/or distressed fish or macro-invertebrates. Visual monitoring assessments are also required during the pesticide application when feasibility and safety allow. Visual monitoring is not required during the course of treatment when that treatment is performed in darkness as it would be infeasible for the inspector to note adverse effects under these circumstances. Additionally, scenarios such as application from an aircraft or a moving road vehicle, watercraft, or off-road wheeled or tracked vehicle when an applicator is the driver often preclude visual monitoring during pesticide application. A visual monitoring assessment must also be conducted during any post-application surveillance to determine the efficacy of the pesticide treatment. Visual monitoring of this type is only required if the Permittee performs post application surveillance in the normal course of business. MPCA expects that visual assessments may reasonably be conducted during applications and efficacy inspections may be conducted on foot or from a stationary vehicle.

Adverse Incident Notification and Reporting (Sections 3.11 – 3.14) The permit requires Permittees to take specific actions in response to identified Adverse Incidents which have resulted from a discharge from the Permittee’s pesticide application. Namely, Permittees are required to provide oral notice within 24 hours and then follow-up with a written report within 15 days of becoming aware of the Adverse Incident. MPCA defines an “Adverse Incident” in Section 15.4, but generally it is defined as any effect of a pesticide’s use that is unexpected or unintended.

Permittees must notify the Minnesota Duty Officer immediately of any identified Adverse Incident and provide basic information about it. The purpose of this requirement is twofold: (1) to provide an opportunity for the Agency to respond to these incidents as soon as reasonably can be expected, and (2) to provide a basis for potential corrective actions. MPCA does not expect this initial notification to be detailed but merely a reporting of the date of the finding, a general discussion of the incident and a review of the necessity to conduct corrective action. The permit requires Permittees to document the information, including the date and time you notified the Duty Officer and a description of any deviations from the notification requirements based on nuances of the Adverse Incident. For example, a Permittee may decide to notify multiple environmental contacts because of the severity of the Adverse Incident. This type of information should be included in the written documentation of the notification as described below.

Permittees must provide a written Adverse Incident Report to the MPCA within 15 days of discovering the Adverse Incident. MPCA believes Adverse Incident information associated with discharges from the application of pesticides is useful because the information:

1. Provides the MPCA with an indication of the effectiveness of the permit in controlling discharges to protect water quality, including data upon which the MPCA may base future permit decisions (e.g., modifications to or reissuance of this permit).

2. May be considered when reviewing applications for registration of new pesticides that are chemically similar to existing pesticides.

3. May be considered in ecological risk assessment and during deliberations on risk management decisions.

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4. May be reviewed to determine trends that may indicate potential ecological impacts with an existing pesticide and/or to track improvements when mitigation measures are applied.

5. Provides information on the nature, extent, and severity of incidents to decision-makers, stakeholders, and the public.

6. Provides MPCA with information on which to assess compliance with regulatory requirements, including documentation and reporting.

Currently, there is no database that includes adverse reporting from anyone other than the registrant under 6(a)(2) of FIFRA. MPCA does not consider inclusion of Adverse Incident reporting in the NPDES permit to be a duplicative because pesticide registrants are not likely to be directly covered under the permit. Requiring Adverse Incident Reporting and follow-up corrective actions may address the lack of a universal, mandatory legal duty for pesticide users to report Adverse Incidents, at least for the pesticide Use Pattern covered by this permit.

MPCA acknowledges that assessing and correcting Adverse Incidents may be complicated in certain instances. For example, symptoms associated with Adverse Incidents are often vague or mimic other causes which may lead to incorrect diagnoses. Thus, it may be difficult to identify and track chronic effects resulting from pesticides discharges. It may also be difficult to observe adverse effects because of limited visibility or access such as dead fish poisoned in a wetland under dense vegetation or in sparsely populated areas or because scavengers scatter or devour carcasses before discovery. However, MPCA believes that it is important to identify to the extent feasible situations where adverse effects occur where discharges from the application of pesticides also occur. Immediately observable signs of distress or damage to non-target plants, animals and other macro-organisms within the treatment area may warrant concern for a possible Adverse Incident related to a discharge of pesticides during application. MPCA acknowledges that some degree of detrimental impact to non-target species is to be expected and is acceptable during the course of normal pesticide treatment. MPCA expects Permittees to use their best professional judgment in determining the extent to which non-target effects appear to be abnormal or indicative of an unforeseen problem associated with an application of pesticides. During a visual inspection, Permittees should watch for distressed or dead juvenile and small fishes, washed up or floating fish, fish swimming abnormally or erratically, fish lying lethargically at the water surface or in shallow water, fish that are listless or nonresponsive to disturbance, the stunting, wilting, or desiccation of non-target submerged or emergent aquatic plants, and other dead or visibly distressed non-target organisms including amphibians, turtles, and macro-invertebrates.

These observations must be noted unless they are deemed not to be aberrant. For example, distressed non-target fish are to be expected when conducting a treatment with rotenone and non­target vegetation will be stressed near the target of contact herbicides. It should be noted that observation of these impacts does not necessarily imply that a pesticide has been misused or that there has been a permit violation or an instance of noncompliance, but may provide cause for further investigation of local water quality or reconsideration of Best Management Practices. Not reporting such incidents, however, is a permit violation.

An Adverse Incident Report is not required under this permit in the following situations: (1) you are aware of facts that clearly establish that the Adverse Incident was not related to toxic effects

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or exposure from the pesticide application; (2) you have been notified in writing by MPCA that the reporting requirement has been waived for this incident or category of incidents; (3) you receive information notifying you of an Adverse Incident but that information is clearly erroneous; (4) an Adverse Incident occurs to pests that are similar in kind to pests identified as potential targets on the FIFRA label. However, the Permittee shall document the situations and submit the information to the MPCA that justifies that the Adverse Incident was not caused by the Permittees activities. This must be submitted to the MPCA within 15 days and records of all visual inspections, even for these situations, must be kept on site with the Permittee.

Corrective Action (Sections 3.15 – 3.19 and Section 4.29) Corrective actions in this permit are follow-up actions a Permittee must take to assess and correct problems. They require review and revision of control measures and pesticide application activities, as necessary, to ensure that these problems are eliminated and will not be repeated in the future. The permit makes clear that the Permittee is expected to assess why a specific problem has occurred and document what steps were taken to eliminate the problem. Compliance with many of the permit’s requirements (those related to reporting and recordkeeping and some of those related to operation and maintenance) can be accomplished immediately, and therefore, are not considered problems that trigger corrective actions. It should be noted that a situation triggering corrective action is not necessarily a permit violation and, as such, may not necessarily trigger a modification of control measures to meet effluent limitations. However, failure to conduct corrective action reviews in such cases does constitute a permit violation.

Situations Requiring Revision of Control Measures for ALL Permittees: MPCA considers the situations listed in Section 3.15 and 3.14 as requiring corrective action to be of significant concern. Thus, MPCA is requiring ALL Permittee, regardless of whether the Permittee submitted an NOI, to assess the cause of these situations which may be affiliated with the discharge from the application of pesticides and to take any necessary steps to eliminate the situation and ensure that the situation will not be repeated in the future. The purpose of corrective action requirements is to ensure compliance through increased accountability and oversight. MPCA views ongoing assessment of control measure effectiveness and corrective actions as integral to an effective pesticide management program.

Corrective Action Deadlines: The permit requires that corrective action be completed “before the next pesticide application that results in a discharge, if practicable, or if not, as soon as practicable thereafter.” MPCA emphasizes that this timeframe is not a grace period within which a Permittee is relieved of any liability for a permit violation. MPCA is adopting this flexible deadline to account for the variation in types of responses (e.g., evaluate situation and select, design, install, and implement new or modified control measures) that may be necessary to address any identified situations of concern. MPCA recognizes that in rare cases a corrective action review may identify the need for substantial improvements to the Permittee’s control measures, and does not want to limit the selection and implementation of such controls with an inflexible deadline. Another possibility is that MPCA or the Permittee may determine that further monitoring is needed under Section 3.19 of the permit to pinpoint the source of the problem, and this monitoring may need to be conducted during future pesticide application activities. However, MPCA believes that in the vast majority of cases, corrective action reviews will identify responses that can be taken quickly, either before the next pesticide application that

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results in a discharge or shortly thereafter. MPCA expects Permittees to justify any schedules for selecting, designing, installing, and implementing new or modified control measures. When any of the situations listed under Sections 3.15 and/or 3.16 take place, the Permittee must take steps to ensure the problems causing any violation are eliminated. If the original inadequacy constitutes a permit violation, then that violation is not excused by response within the timeframe MPCA has allotted for corrective action, though MPCA may consider this when determining the appropriate enforcement response to a violation. MPCA assumes that Permittees will need less time to make minor repairs or change practices than to make substantial operational changes or equipment repair. A timeframe, albeit flexible, is included specifically so that problems are not allowed to persist indefinitely. Failure to take the necessary corrective action within the stipulated timeframe constitutes an additional and independent permit violation.

Effect of Corrective Action: The occurrence of a situation described in Section 3.15 or 3.16 may, but does not implicitly, constitute a violation of the permit. Sections 3.17 and 3.18 explains that taking corrective action does not absolve the Permittee of any liability for a permit violation requiring that action; however, failure to take required corrective action will constitute an original or an additional permit violation. MPCA will consider the appropriateness and promptness of corrective action in determining enforcement responses to permit violations. MPCA or a court may impose additional requirements and schedules of compliance more stringent than specified in this permit. Those requirements and schedules will supersede those of Section 3.15 and 3.16 if such requirements conflict.

Corrective Action Documentation: Permittees required to obtain an NOC are not required to immediately notify MPCA of any event described in Sections 3.15 and 3.16 of the permit, but must document basic information describing the event and the Permittees’ response to that event within 15 days as described in Section 4.29. This does NOT include Adverse Incidents or reportable spills or leaks (Minn. Stat. § 115.061[b]) which already have notification and reporting requirements in the permit and in state statute. For events triggering correct action where the Permittee determines that a revision to control measures is NOT necessary, the Permittee must still document the review and the basis for this determination. MPCA is not requiring Permittees to submit this documentation to the MPCA. Rather, MPCA expects Permittees to retain this information on-site and upon request, to make any such records available to MPCA or any other federal, state, or local regulatory agency governing pesticide applications. A summary of this information must also be included in the Annual Report for Permittees subject to the annual reporting requirement.

Pesticide Discharge Management Plan (Sections 4.12 – 4.28) This permit requires any Permittee required to submit an NOI and obtain an NOC to develop a Pesticide Discharge Management Plan (PDMP). Developing a PDMP helps Permittees ensure they have (1) taken steps to identify the pest problem, (2) evaluated pest management options and (3) taken appropriate control measures to control pesticide discharges. The PDMP itself does not contain effluent limitations; rather it constitutes a tool both to assist the Permittee in documenting what control measures it is implementing to meet the effluent limitations, and to assist the permitting & compliance authority in determining whether the effluent limitations are being met. A PDMP is a “living” document that requires periodic reviews and must be kept up­

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to-date. Where control measures are modified or replaced to meet effluent limitations, such changes must be documented in the PDMP.

Permittees may choose to reference other documents, such as a pre-existing integrated pest management (IPM) plan or spill prevention and response plan, rather than recreating the same text in the PDMP. It is not required that a Permittee must have authored the pre-existing plan in order to use it. When referencing other documents, the Permittee is responsible for ensuring his/her PDMP and the other documents together contain all the necessary elements for a complete PDMP, as specified in Section 4.14. In addition, the Permittee must ensure that a copy of relevant portions of those referenced documents is attached to the PDMP and is located on-site and is available for review consistent with Section 4.27 and 4.28 of the permit.

PDMP Team: The permit requires that a qualified individual or team of individuals be identified to manage pesticide discharge, including the pesticide applicator. Identification of a pesticide team ensures that appropriate persons (or positions) are identified as necessary for developing and implementing the plan. Inclusion of the team in the plan provides notice to staff and management (i.e., those responsible for signing and certifying the plan) of the responsibilities of certain key staff for following through on compliance. The PDMP team is responsible for developing and revising the PDMP, implementing and maintaining the control measures to meet effluent limitations, and taking corrective action where necessary. The PDMP must clearly describe the responsibilities of each team member to ensure that each aspect of the PDMP is addressed. MPCA expects most Permittees will have more than one individual on the team, except for small entities with relatively simple plans and/or staff limitations. The permit requires that team members have ready access to any applicable portions of the PDMP and the permit.

Problem & Pest Management Area Description: A detailed pest management area description assists Permittees in subsequent efforts to identify and set priorities for the evaluation and selection of control measures taken to meet effluent limitations and in identifying necessary changes in pest management. The description must include identification of the target pest(s), source of the pest problem, and source of data used to identify the problem. The permit allows use of historic data or other available data. If you use other site data, you must document in this section why data from your site is not available or not taken within the past year and explain why the data is relevant to your site. Additionally, the pest management area descriptions should include any sensitive resources in the area, such as unique habitat areas, rare or listed species, or other species of concern that may limit pest management options. The permit requires that the PDMP include a description of the action threshold(s) established for the target pest, including a description of how they were determined. An action threshold is a level of pest prevalence at which a Permittee takes action to reduce the pest population. The PDMP must also contain a general location map of the site that identifies the geographic boundaries of the area to which the plan applies and location of the waters of the state. To improve readability of the map, some detailed information may be kept as an attachment to the site map and pictures may be included as deemed appropriate. Permittees must identify the water quality standards applicable to their discharge. This must include a list of pesticide(s) or any degradates for which the water is impaired. Internet links to Minnesota water quality standards are available at: http://www.pca.state.mn.us/index.php/water/water-monitoring-and-reporting/water-quality-and­pollutants/water-quality-standards.html.

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Control Measure Descriptions: The permit requires that the PDMP include a description of the control measures to demonstrate how the Permittees specifically plan to meet the applicable technology-based or water quality-based effluent limitations. The description must include a brief explanation of the control measures to reduce pesticide discharge, including evaluation and implementation of the six pest management tools (no action, prevention, mechanical/physical methods, cultural methods, biological control agents, and pesticides). Permittees must consider impact to non-target organisms, impact to water quality, pest resistance, feasibility, and cost effectiveness when evaluating and selecting the most efficient and effective means of pest management to minimize pesticide discharge to waters of the state. All six pest management tools may not be available for a specific use category and/or treatment area. However, the PDMP must include documentation of how the six pest management tools were evaluated prior to selection. For the “no action” option, Permittees should document the impact of this option without any current pest management strategy at the site. For the “prevention” option, the Permittee should document the methods implemented to prevent new introductions or the spread of the pests to new sites such as identifying routes of invasion and how these can be intercepted to reduce the chance of invasion. Prevention may include source reduction, using pathogen-free or weed-free seeds or fill, exclusion methods (barriers), and/or sanitation methods, like wash stations, to prevent reintroduction by vehicles, personnel, etc. Some prevention management methods may fall under mechanical/physical or cultural methods as well. For the pesticide management option, Permittees must include a list of active ingredient(s) evaluated. Discussion should also identify specific equipment or methods that will prevent or reduce the risks to non­target organisms and pesticide discharges to waters of the state.

Schedules and Procedures: The following schedules and procedures, used to comply with the effluent limitations of the permit, must be documented in the PDMP:

1. Application Rate and Frequency Procedures - Permittees must describe the procedures for determining the lowest effective amount of pesticide and optimum frequency of pesticide applications to minimize discharges.

2. Spill Prevention and Response Procedures- Permittees must describe the spill prevention program for their pest management area. The program should address areas and activities at the site that typically pose a high risk for spills including loading and unloading areas, storage areas, process areas, and waste disposal activities. It should also address appropriate material handling procedures, storage requirements, and containment or diversion equipment that will minimize the potential for spills, or in the event of a spill, enable proper and timely response. As required in the permit, any spills or leaks that occur while covered under this permit must be documented. Documenting spills does not relieve Permittees of any reporting requirements established in 40 CFR pt. 110, 40 CFR pt. 117, and 40 CFR pt. 302, or any other statutory requirements relating to spills or other releases of oils or hazardous substances. The PDMP must document procedures for expeditiously stopping, containing, and cleaning up leaks, spills, and other release. In addition, the PDMP must include documentation of the procedures for notification of appropriate facility personnel, emergency response agencies, and regulatory agencies.

3. Pesticide Application Equipment Maintenance Procedures - Permittees must describe the preventive equipment maintenance program to keep the pesticide application equipment

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in proper operating condition, including how and when the following will be addressed: calibration, regular inspections, and cleaning/repairing of the application equipment to avoid situations that may result in leaks, spills, and other releases.

4. Pest Surveillance Procedures - Permittees must discuss how their pest surveillance programs assess the pest treatment area, to determine when the action threshold(s) is met. The discussion should also include surveillance method(s) selected.

5. Assessing Environmental Conditions Procedures - Permittees must discuss the procedures and methods to assess environmental conditions in the treatment area.

6. Adverse Incident Response Procedures - In the PDMP, Permittees must document appropriate procedures for responding to an Adverse Incident resulting from pesticide applications. Permittee must identify and document the course of action or responses to any incident resulting from pesticide applications; the chain of command notification for the incident, both internal to your agency/organization and external; and contact information (State/Federal, nearest emergency medical facility; and nearest hazardous chemical responder).

7. Pesticide Monitoring Schedules and Procedures - In the PDMP, Permittees must describe procedures for monitoring consistent with permit requirements, including the process for determining the location and timing of monitoring; a schedule and procedures for monitoring; the person (or position) responsible for conducting monitoring; and procedures for documenting any observed impacts to non-target organisms resulting from your pesticide discharge.

This permit requires that the PDMP be updated whenever any of the triggering conditions for corrective action(s) occur, or when a review following the triggering conditions requires the Permittee to revise his/her control measures as necessary to meet the effluent limitations in this permit. Keeping the PDMP up-to-date will help the Permittee ensure that the condition that triggered the corrective action does not reoccur. Permittees are also required to review the PDMP at least once a year or whenever necessary to update the pest problem description and pest management strategies at the pest management area. It is important to note that failure to update the PDMP in accordance with Section 4.24 through 4.26 is a recordkeeping violation, not a violation of an effluent limit. A copy of the current PDMP, along with all supporting maps and documents, must be kept at the address provided on the NOI and must be immediately available to representatives of state or local agencies governing pesticide applications at the time of an on-site inspection or upon request. This requirement is consistent with standard NPDES permit conditions described in 40 CFR §122.41. MPCA may provide access to portions of your PDMP to a member of the public upon request. Confidential Business Information (CBI) may be withheld from the public, but consistent with 40 CFR pt. 2, may not be withheld from MPCA.

Recordkeeping and Annual Reporting (Sections 3.8 – 3.10 and Sections 4.30 – 4.36) This permit requires Permittees to maintain certain records to help them assess performance of control measures and to document compliance with permit conditions. Sections 3.8 through 3.10 and of this permit describe recordkeeping requirements for ALL Permittees. The requirements for Permittees required to submit a NOI to obtain a NOC are in Sections 4.30 through 4.36. Permittees can rely on records and documents developed for other programs, such as requirements under FIFRA, provided all requirements of the permit are satisfied.

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ALL Permittees must keep records of acres, linear miles treated and/or the amount of pesticides applied. This record will help estimate when Permittees will exceed the Threshold listed in Section 1.3 of the permit. All Permittees must keep a copy of Adverse Incident reports and rationale for any determination that Adverse Incident reporting is not required consistent with Section 3.13. Permittees who are required to submit an NOI must keep additional records. All required records must be prepared as soon as possible but no later than 15 days following completion of the associated activity. Permittees must retain copies of these documents for a period of at least 5 years from the date of the pesticide application event per Minn. Stat. § 18B.37.

In addition to recordkeeping, MPCA is requiring Permittees required to submit an NOI to submit an Annual Report that contains basic information on their pesticide discharge to waters of the state. MPCA expects to have an online system available in time for submission of the first Annual Report (in early 2012) with the intent of streamlining the process. The information in the Annual Report will be used by MPCA to assess permit compliance and to determine whether additional controls on pesticide discharges are necessary to protect water quality. For example, these data will help the Agency identify where pesticide discharges are occurring and the types of pesticides being discharged. The Annual Report is a summary of the pest control activities for each applicable Use Pattern.

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