Virginia Pollutant Discharge Elimination System (VPDES) General Permit Regulation for Discharges Resulting from the Application of Pesticides to Surface Waters
[9 VAC 25 ‑ 800]
Commenter:
Matthew J. Lohr, Commissioner, VA Dept of Agriculture and Consumer Services
9VAC 25-800 - General VPDES Permit for Pesticide Discharges
The Virginia Department of Agriculture and Consumer Services (VDACS) administers the provisions of Virginia's pesticide statute, Chapter 39 of Title 3.2 of the Code of Virginia, as well as the regulations promulgated by the Virginia Pesticide Control Board. VDACS also has delegated authority to enforce the provisions of FIFRA (the Federal Insecticide, Fungicide and Rodenticide Act). As such, VDACS is the primary agency for the regulatory oversight of pesticides in the Commonwealth.
VDACS and other members of the National Association of State Departments of Agriculture (NASDA) have voiced concerns about the 2009 ruling by the Sixth Circuit Court of Appeals in National Cotton Council v. U.S. Environmental Protection Agency that considered pesticide applications "in, over, or near" waters of the U.S. subject to permits under the Clean Water Act, rather than FIFRA. VDACS believes that the Court's decision failed to consider existing pesticide-related regulations under FIFRA while simultaneously expanding the scope of the Clean Water Act. We also believe that pesticide applications made in accordance with FIFRA adequately provide for human health and environmental protections and should therefore not be further regulated under the Clean Water Act. Nonetheless, we recognize that this particular regulatory action by the Virginia Department of Environmental Quality (DEQ) emanates from the Court's decision.
VDACS believes that the proposed regulation needs (i) to adequately reflect VDACS authority to administer the pesticide statute, (ii) to be compatible with the regulations promulgated by the Virginia Pesticide Control Board, and (iii) to impose on the regulated community only the administrative and financial burdens essential to complying with the Court's decision.
VDACS offers the following specific comments:
·As currently defined, the term "Operator" could lead to confusion because it provides that more than one person could be responsible for the same discharge resulting from a pesticide application. VDACS recommends that responsibility for compliance with the requirements of the general permit be assigned to the person who actually makes the decision to apply a pesticide that results in a discharge.
·The current thresholds in the general permit above which an operator must meet the requirements of the permit, including development of a pesticide discharge management plan, were not determined based upon actual data collected but rather were incorporated directly from the thresholds established in the draft federal permit. VDACS recommends that DEQ work with relevant Virginia stakeholders to determine appropriate thresholds in the Commonwealth.
Finally, VDACS recognizes the magnitude of the outreach efforts that will be necessary to ensure compliance by licensed pesticide businesses and certified pesticide applicators. VDACS stands ready to assist DEQ in these efforts.
