AAPCO: SFIREG WC/Water Quality & Pesticide Disposal Meeting

WC members present included: Paul Andre, MO, Chair; Ambrose Charles, TX; Jeff Comstock, VT; A.G.Taylor, IL; John Hines, MN; Bruce Jacobson, SD; Roy Meyer, NJ; and Ann Wick, WA.

Also present were: Bob Batteese, President, AAPCO, Ron Gardner, NY, representing the American Association of Pesticide Safety Educators (AAPSE); Kennan Garvey, Jim Roelofs, Elaine Lyon, and Arty Williams, Field & External Affairs Division (FEAD), Office of Pesticide Programs (OPP), EPA; Phyllis Flaherty, Office of Compliance (OC), Office of Enforcement & Compliance Assurance (OECA); Carl Young, EPA Region VI, representing the EPA Regional Offices (ROs); and visitors.

I. Surface Water Issues Discussion

John Hines led the discussion, noting the previous SFIREG Issue Paper (see ATTACHMENT A) which had urged EPA to consider funding state monitoring of surface water for pesticide residues. The WC needs to follow up and decide whether EPA should pursue the IP, or whether it should be dropped. Hines said surface water was becoming a bigger issue all the time, and asked if funding for monitoring was something the WC still wanted EPA to consider. Paul Andre gave the background of the Pesticide Management Plan effort, noting the reasons why surface water had not been included here. In response, Kennan Garvey said this was not a good budget environment for domestic agencies such as EPA. Jim Roelofs noted that the IP had been given to the Environmental Fate and Effects Division (EFED), which had not been willing to support the budget initiative last year. Roelofs noted other routes the states could take, and said that under the circumstances he wasn’t sure what to do about the WC request.

Andre noted a problem in MO of atrazine pollution of a small reservoir, and said the WC should keep pushing the issue of EPA support for surface water monitoring. A.G.Taylor noted the same type of problem existing in IL which, at this point, has not been mitigated by watershed management programs. Hines expressed the need for coordination of federal programs providing assistance to farmers. Garvey suggested a panel discussion of the issue at the June full SFIREG meeting. There was further discussion of surface water monitoring.

Charles Rock, Novartis, noted that funds were being garnered by growers for surface water monitoring, and that SLAs could learn from them. He said Novartis was sponsoring demonstration projects to determine the effects of using Best Management Practices (BMPs). Taylor responded that the time factor was important: states have to deal with the problem today and can’t wait ten years for new practices to be implemented. Rock noted the need for long term fixes, including incentives; Andre said these were needed to change behavior, but they were not the entire solution. Hines mentioned other uses of surface water than for drinking, e.g. for recreational purposes. Surface water is seen primarily as an ecological resource, rather than a source of drinking water per se. Andre said a panel for the WC’s Fall meeting would be a good idea. He suggested leaving the IP on EPA’s plate, and working with the Agency to decide when and how to push the idea of funding for surface water monitoring forward. The WC implicitly agreed with this approach.

II. Total Maximum Daily Load (TMDL) Implementation Rule

Bruce Jacobson asked who in EPA was in charge of the TMDL program, particularly the assessments. Is EPA planning to do the same thing for pesticides as it is for e.g. hog waste. In response, Michael Haire, Watershed Branch, Office of Water (OW), showed overheads explaining the concept of TMDLs and EPA’s efforts to implement the program (see ATTACHMENT B).

III. Conditional Registration Update and Discussion

Jim Jones, Director, Registration Division (RD), described RD’s efforts to regulate more aggressively new chemicals with ground water pollution potential. RD has been struggling the past five years to establish a more comprehensive framework for this effort. The most recent chemical has been isoxaflutole. Jones noted the message sent by the states that the earlier their participation in such conditional registration decisions, the better. The next time around an earlier and greater degree of participation is highly desirable. In the case of isoxaflutole, the most recent compound conditionally registered, state participation was late and not entirely satisfactory, but the situation did represent an improvement over previous conditional registrations. There is no potential registration of this kind currently in the pipeline, but Jones said he would contact the WC to discuss the regulatory framework for future conditional registrations.

Arty Williams noted that two efforts were underway in OPP to articulate how such chemicals as acetochlor and isoxaflutole might be treated in the future when they would be proposed for registration. One effort is establishment of a policy of disincentives for new chemicals with leaching potential when OPP does not have a good handle on what people may be exposed to. There are policy papers in draft on this topic. One of the biggest disincentives would be to balance leachers with lower health effects potential; obviously chemicals with such potential would be given priority in the registration process. Broad categories of things to be expected among the conditions of registration will be addressed in the policy papers, as will mitigation measures. In response to a question on availability of analytical methodology for new chemicals, Jones described the efforts of RD to persuade the OPP lab in Beltsville, MD to work more closely with SLAs to develop easier, cheaper, and more readily available methods. RD is aware of this problem, and is trying to work through it. Hines suggested the use of the regional lab concept for analyzing water samples for residues of new chemicals with difficult analytical methodology. Williams noted that monitoring has been required for each of the conditionally registered chemicals. States must decide on a case-by-case basis how they can best assist, particularly in providing advice on where monitoring should be conducted. Williams noted the need for balance between not involving states in actions concerning conditionally registered compounds and imposing too much resource expenditure and effort. Jones mentioned the time pressures on OPP for registration, including those coming from state departments of agriculture.

Andre asked about mechanisms for SLAs to provide information to OPP on conditionally registered chemicals, and vice-versa. Jones responded that SLAs should inform OPP through the Product Manager in case the registrant had not provided necessary information. How information is to be circulated around and back to the states, and what should be done with such information are important considerations. ACTION ITEM: Jones said RD would prepare for the WC a list of conditional registrations on the basis of ground water leaching potential (ed note: See ATTACHMENT C for the list).

IV. Update on Isomer Federal Register Notice and Discussion

Williams noted that questions had arisen concerning chemical isomers of registered compounds with ground water leaching concerns. Rick Keigwin, Registration Support Branch, RD, referred to the April 28 Federal Register Notice entitled "Pesticides; Request for Comment on Pesticide Registration Proposal for Isomeric Active Ingredients" (see ATTACHMENT D), and said the comment period was likely to be extended for 30 days, i.e. until July 30. Keigwin urged that interested parties submit comments. Previously RD had decided on a case-by-case basis whether to register isomers of existing compounds as new active ingredients. As a result of a lawsuit involving metalaxyl and its isomer methanoxin, EPA agreed to seek public comment on how such situations should be handled. Recently, isomers have always been treated as new a.i.s, but this is not necessarily the way to go. Keigwin noted that other options exist in addition to the three listed in the FR Notice. Williams asked that SLAs consider whether isomers should always be considered new a.i.s, or whether this should be handled on a case-by-case basis. Charles Rock said that for EPA not to consider isomers as new a.i.s would send the wrong message to industry. Many isomers are lower in environmental toxicity and can result in lower environmental loading in most cases. The different CAS number required for each isomer should be an easy cut for recognition of the isomer as a new a.i. Keigwin pointed out that reduced loading does not necessarily mean less hazard to the environment. The risk could be higher with less application if the isomer were of higher toxicity. The question of monitoring implications of the three options was also raised.

V. Review of Water Quality Pesticide Regulatory Education Program Agenda

Williams presented the draft agenda for the July 27-31 PREP course to the WC for review. The focus of the course differs from that of past courses, in that policy and policy making are more significant, and that technical issues will be considered within this context. She went over the agenda, and asked for WC input. There was relatively little. Andre asked that any comments be submitted to Williams, John Hines, or himself by June 15.

VI. National Pollutant Discharge Elimination System Issues

Mark Dyner, Pesticide Division, Office of General Counsel (OGC), noted that a key question now was whether direct application of pesticides to surface waters constitutes a point discharge requiring a permit under the Clean Water Act (CWA). He gave a number of examples of such application, including for irrigation purposes, killing of trash fish, etc. There has been litigation on the issue. Thus far, the Office of Water (OW) has not issued a public statement of EPA’s position. Dyner reviewed two court cases, the most recent of which, in Oregon, has precipitated discussion of the issue. In that case, the court agreed that direct application of a pesticide to an irrigation canal was an application of a pollutant under the CWA, but accepted the respondent’s argument that the application had been approved by EPA. The court urged the plaintiffs to request EPA to require placement of the NPDES restriction on the label. Dyner noted that it was not clear under FIFRA whether EPA had the authority to require this restriction on the label. He said the court had also misunderstood NPDES statements on some labels. EPA had never intended to create a legal obligation where none previously existed; rather the statements were simply notices of CWA requirements. The OR case is now on appeal to the 9^th Circuit; the Agency is contemplating submission of an amicus brief. In response to a question as to why a court case would drive EPA action, Dyner said that if the case were to be decided by the 9^th Circuit, it would be case law, and EPA would have to recognize the decision in its actions. Jeff Kempter, OPP, noted that the real question is whether all aquatic herbicides require an NPDES permit, an interpretation toward which OW is leaning. This may require a decision at the Administrator level. Dyner noted a consensus within the Agency that EPA does not wish to impose an undue burden on farmers. Andre asked if the WC felt any need to take action, but there was no reaction among members.

VII. Status of Efforts between EPA and Texas Dept. of Agriculture on Aquatic Herbicide Issues (see ATTACHMENT E for a one-page document by Ambrose Charles, TX Dept. of Agriculture, entitled "Synopsis of Aquatic Herbicide Use Issues in Texas). Charles noted that no permitting was currently required, and that legislative action in this area was uncertain.

VIII. Coordination Efforts between OPP and OW on Water Assessments and Issues

Evelyn Washington, Standards & Risk Management Division, OW, noted the 7 key goals for coordination between OW and OPP as follows:

1. Common human health risk assessment for pesticides

2. Common methods for assessing the occurrence of pesticides in drinking water

3. Set joint priorities for monitoring, assessment, and regulation of pesticides in drinking water

4. Consistency in science policy

5. Resolve overarching policy issues regarding EPA’s regulatory approaches to risk reduction when OPP’s assessment shows aggregate risk exceeds acceptable levels (RISK CUP ISSUE)

6. Consistency in fish advisories and fish action levels for pesticides

7. Consistency in ecological risk assessment and risk management

Washington presented a set of overheads outlining the chronological steps being taken to implement cooperation between the two EPA offices (see ATTACHMENT F)

IX. Office of Enforcement and Compliance Assurance (OECA) Update

Phyllis Flaherty, Chief, Agricultural Branch, Office of Compliance (OC), noted the new OECA stress on core programs, with more emphasis on outreach and training and less on new initiatives. Emphasis is to be placed on joint EPA/SLA planning, with a higher level of coordination and communication between senior Regional Office managers and state program managers. OC intends to work with SLAs to analyze the extent of compliance, with a need for data collected by the states to be entered into the OC data system. Flaherty said Cooperative Agreement Guidance for FY2000 was almost out; it contains more focus on mid-year and end-of-year reviews. There is a need to redo the Guidance so that all the pieces fit together; for example, the Guidance now contains many references to past documents. The question was raised as to why OC requires a mid-year report, and OPP does not. Roy Meyer noted that Region II was not requiring NJ to submit a mid-year report. Thus, it would be embarrassing to the RO if such a report were required by OC. Meyer also said that the incompatibility of computer systems was making communication difficult. Flaherty suggested NJ explore the use of the CATS system. The lack of RO travel funds was noted.

Flaherty then covered a range of inspector related issues. OC believes the need exists to improve inspector training and provide it more frequently. A problem is being created by retirement of many senior inspectors. A draft OC policy document will be issued within the next month dealing with federal credentials, tribal authorities, training of federal inspectors, etc. Flaherty urged the states to review the document and submit comments. OC is working on a revision of the Federal Inspector’s Manual, and Flaherty is setting up a work group with SLA representation to assist. Finally, the annual Section 7 mailout will go out shortly.

X. Office of Pesticide Programs (OPP) Update

Jim Roelofs reviewed the following topics: 1. the proposed PR Notice dealing with mandatory vs. advisory labeling statements just went out for comment. This should be an agenda item for the full SFIREG which Chair Tobi Jones should decide how to handle. The comment period closes August 2; 2. The Section 18 Rule, required by FQPA for tolerance procedures, has been signed. The Preamble contains a set of AAPCO/NASDA recommendations and requests comment thereon. However, EPA takes no position on the recommendations at this point; 3. The European Economic Community (EEC) has issued a directive on baby foods stating that no detectable residues of pesticides is the ideal, but, if this proves unattainable, then .01 ppm should be the standard; 4. At a meeting of the FIFRA Scientific Advisory Panel on May 27, the Environmental Fate & Effects Division presented "Proposed Methods for Determining Watershed-based Percent Crop Areas and Considerations for Applying Crop Area Adjustments to Surface Water Screening Models"; 5. The American Crop Protection Association (ACPA) has proposed conducting a national drinking water survey, and gave the proposed protocol to EFED on May 17. The Survey will not be limited to ground water as was EPA’s survey. According to Charles Rock, the survey is intended to be a long term cost saving measure which will involve a pooling of resources on the part of registrants to help when EPA Data Call-Ins take place. There are too many data gaps at present; some states have no data on pesticide residues in drinking water. Cost of the survey is uncertain, but it will be cheaper to pool resources rather than require individual companies to do their own monitoring. Rock suggested that Tom Gilding, ACPA, brief the WC at its next meeting.

XI. Committee Reports (see ATTACHMENT G)

TX - Ambrose Charles reported that TX was trying to get a 24(c) registration for the herbicide Arsenal to control salt cedar in Southwest Texas. He also noted that data on waste pesticide collections was now available on the Dept. of Agric.’ website.

NJ - Roy Meyer reported that the NJ Pesticide Office was involved for the first time in the setting of water quality standards (see also Larry Rosenmann’s NY report)

WA - see Ann Wick’s report. Wick asked the WC and EPA for advice on alternative devices for chemigation and fertigation. Jim Roelofs said he would take the issue back to whoever is currently the resident expert in OPP on chemigation for an opinion. Wick also noted a problem arising in the Pacific Northwest in connection with salmon and clean water that will be brought to EPA’s attention.

SD - see Bruce Jacobson’s report. Jacobson noted damage to corn in several states being caused by isoxaflutole (Balance) use in accordance with label directions. Andre asked that such information be sent to Joanne Miller, the isoxaflutole Product Manager.

VT - no report

MN - see John Hines’ report

NY - no report from Ron Gardner (AAPSE repr.)

IL - see A.G.Taylor’s report. He also noted a watershed management program in IL for atrazine.

KY - see Ernest Collins’ report

FL - Dennis Howard noted a kill of several hundred pelicans in the Lake Apopka area. Also,high levels of toxaphene and chlordane have been found in birds following implementation of a watershed restoration project. Howard stressed the need for getting canceled/suspended pesticides into a storage area. He also noted a problem with arsenic in ground water.

NC - Henry Wade noted a problem of contamination of 88 wells in an old apple orchard area by BHC, DDT, DDE, lead arsenate, and lindane. The problem has been referred to NC and Region IV Superfund offices.

The meeting was adjourned at 10:45 a.m.