Over the past several years, there has been a debate over whether a special permit is required to apply pesticides to water bodies or near water where it is likely that there is drift or runoff into water bodies.
The United States Environmental Protection Agency (EPA) has contended that the Federal Insecticide, Fungicide, and Rodenticide Act as amended (FIFRA) addresses these situations and that a special permit is not required.
A lawsuit has been brought against the EPA by advocacy groups claiming that the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act, requires that a National Pollutant Discharge Elimination System (NPDES) permit be issued before a pesticide is applied to water bodies or in such a way that a pesticide is likely to enter the water body.
In Illinois, the Illinois Environmental Protection Agency is the state lead agency for this act and is responsible for issuing NPDES permits.
A similar lawsuit was brought against the EPA several years ago, and the EPA successfully argued that FIFRA regulations were sufficient for pesticide applications to and near water bodies without additional protections offered under the Clean Water Act. The EPA's aquatic pesticide use Final Rule issued November 27, 2006, held that because pesticides are purposefully applied to waters of the United States to manage pests, they are not pollutants.
Recent Court Action
This Final Rule was challenged in the 6th Circuit Court of Appeals. On January 7, 2009, the Court decided that the EPA Final Rule was not a reasonable interpretation of the Clean Water Act and held that NPDES permits are required for:
(1) All biological pesticide applications that are made in or over (including near) waters of the U.S.
(2) Chemical pesticide applications that leave a residue or excess pesticide in water when such applications are made in or over (including near) waters of the U.S.
Because irrigation return flows and agricultural runoff are specifically exempted from the Clean Water Act, they are not included in the decision to require NPDES permits.
The EPA chose not to appeal the decision, and instead requested a two-year stay, which was granted by the Court until April 9, 2011. The two-year period was requested so that a national NPDES template could be constructed, states with NPDES authority would have time to work with their partners to develop appropriate NPDES state permits, and there would be time for implementation.
Because only three judges of the 15-member 6th Circuit were involved in vacating the federal rule, petitioners outside of the EPA have requested an En Banc review of the decision by the full court. Although the court has issued the stay, they have not yet made a decision on the request for an En Banc review.
Pesticide Applications Impacted
Many large categories of mosquito insecticides and aquatic herbicide uses are covered. The EPA estimates that 5.6 million pesticide applications per year by 365,000 applicators will be subject to the court decision. These include 500 different pesticide active ingredients contained in approximately 3,700 product labels.
At least the following large categories are covered by the Court's decision when sprayed to, over, or near waters of the U.S:
1. Mosquito larvicides and adulticides
2. Herbicides used to control weeds in lakes and ponds
3. Insecticides used in wide-area insect suppression programs
4. Herbicides used in wide-area control programs directed at aquatic invasive plant species
5. Herbicides, insecticides, and other pesticides used in forestry programs when applied over waters of the U.S.
6. Products applied to kill fish, mussels, or other invasive aquatic species.
Clean Water Act & NPDES Permits
The Federal Water Pollution Control Act is administered by the EPA as well. Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation's waters by preventing point and nonpoint pollution sources, providing assistance to publicly-owned treatment works for the improvement of wastewater treatment, and maintaining the integrity of wetlands.
The National Pollutant Discharge Elimination System (NPDES) program controls direct discharges into navigable waters. Direct discharges or "point source" discharges are from sources such as pipes and sewers. NPDES permits, issued by either the EPA or an authorized state/tribe, contain industry-specific, technology-based, and/or water-quality-based limits and establish pollutant monitoring and reporting requirements.
The EPA has authorized 40 states to administer the NPDES program. A facility that intends to discharge into the nation's waters must obtain a permit before initiating a discharge. A permit applicant must provide quantitative analytical data identifying the types of pollutants present in the facility's effluent. The permit will then set forth the conditions and effluent limitations under which a facility may make a discharge.
An NPDES permit may also include discharge limits based on federal or state/tribe water quality criteria or standards that were designed to protect designated uses of surface waters, such as supporting aquatic life or recreation. These standards, unlike the technological standards, generally do not take into account technological feasibility or costs. Water quality criteria and standards vary from state to state (tribe to tribe) and site to site, depending on the use classification of the receiving body of water. Most states/tribes follow EPA guidelines that propose aquatic life and human health criteria for many of the 126 priority pollutants.
(Compiled by Phil Nixon from various sources, including a Montana Department of Agriculture Fact Sheet (http://agr.mt.gov/pestfert/NPDESstatus.pdf), an EPA PowerPoint presentation, Court documents, EPA Fact Sheets, and an Illinois EPA web page).
Illinois pesticide applicators now have a new resource they can use to help protect bees from potential exposure to nearby pesticide applications. A new website was launched this spring by the Illinois Department of Agriculture in cooperation with the Illinois State Beekeepers Association.
The goal of this effort is to increase communication between the pesticide user community and the state's beekeepers. Accidental exposure to inadvertent pesticide applications can have a detrimental effect on bees. Many applicators want to protect bees from their applications but simply don't know where the bee hives are located in relation to their application sites or they don't know who the beekeepers are. This site aims to provide this information.
Applicators can access the site, http://www.agr.state.il.us/programs/bees/index.html, and obtain a map with locations of honeybee colonies. The beekeeper's name and contact information is also included so proper notification can be given prior to application. Be aware however, that it is not required that beekeepers participate in this mapping system. Some have elected not to do so. Consequently, there could be additional hives in your area. Furthermore, the site is password protected and access is allowed only to licensed Illinois pesticide applicators.
This year, information about the web site was included with license application letters. If you've forgotten your previously issued password, you should contact the Illinois Department of Agriculture for another one.
For more information on protecting bees from pesticide exposure, please refer to these past Illinois Pesticide Review articles:
• Save the Queen! (Bee), https://webs.extension.uiuc.edu/ipr/i4143_829.html#2
• Bee Precautionary Labeling Statements, https://webs.extension.uiuc.edu/ipr/i4175_829.html#1.
This year was a very busy one for Operation S.A.F.E. (Self-regulating Application and Flight Efficiency) fly-ins in Illinois. The first was the annual Illinois Agricultural Aviation Association (IAAA) fly-in, held on May 4 and 5 at the Coles County Memorial Airport in Mattoon. The fly-in was sponsored by BASF, which assisted on the flightline collecting the spray data. Also assisting on the flightline was John Garr of GarrCo Products. Spray pattern and droplet size data were analyzed by members of the Department of Agricultural and Biological Engineering at the University of Illinois at Urbana-Champaign who are certified as S.A.F.E. analysts with the National Agricultural Aviation Association. Problem weather required a last-minute date change and a shortening of the fly-in overall. As a result, only five aircraft were able to make it, but it was a productive event for them, with 96 passes made over the flightline. In addition to the standard aircraft setup passes, a number of passes were run to test several drift reduction additives and downwind swath displacement.
To help the pilots unable to attend at Mattoon, a number of make-up fly-ins were scheduled at other Illinois locations. On May 28 and 29 in Pekin, the weather was good; 14 aircraft attended, with 90 passes made over the flightline. This fly-in was sponsored by Bayer, with Syngenta and BASF providing assistance on the flightline. On June 10 and 11 in Astoria, 6 aircraft participated and 66 passes were made over the flightline. The second day was used primarily to conduct tests on how using various spray components, including drift reduction additives and foliar fertilizers, affects spray pattern and droplet size. This work was followed up, again in Astoria, on June 18 and 19. Some interesting and potentially negative effects were noticed, and further testing is planned to better understand how application performance is affected when various products are added to the spray tank.
To cover northern Illinois, a fly-in was held on June 16 and 17 at the Rochelle Municipal airport, co-sponsored by Syngenta and BASF. In keeping with the theme for 2009 fly-ins, the first day was sparsely attended due to potentially stormy weather. But the storms held off for the most part, and all participating aircraft were pattern tested. The second day brought better weather and more aircraft. Over the two days, 12 aircraft were examined, with 117 passes flown over the flightline.
The final fly-in of the year was held in Kankakee on July 6. Only three aircraft were present, with only 15 passes made over the flightline, but the pilots who attended greatly appreciated the opportunity to have their aircraft tested before the busy part of the season started.
The University of Illinois was also invited to conduct two out-of-state Operation S.A.F.E. fly-ins, one in Ohio and another in Wisconsin. The Ohio fly-in, held April 27 through 29 in Cardington and sponsored by Syngenta, was a cooperative effort between the U of I and Kansas State University S.A.F.E. analysts. Ten aircraft participated, with 93 passes made over the flightline. During lunch on the second day, the analysts gave presentations covering the latest in aerial application research and how to calibrate an agricultural aircraft for spray droplet size. The Wisconsin fly-in was held in Baraboo, on May 11 and 12. As with the first Illinois fly-in, inclement weather forced a last-minute rescheduling. Seven aircraft made it to Baraboo to have their patterns tested, and 78 passes were made over the flightline.
What is a fly-in?
The purpose of an Operation S.A.F.E. fly-in is to ensure that aerial applications are made accurately and safely. At a fly-in clinic, an aerial applicator can view the spray pattern, determine the effective swath width, and examine the spray droplet size created by the aircraft. If corrections are needed, the applicator can adjust the aircraft setup and then immediately re-run the aircraft over the flightline to verify that the changes have improved the spray pattern or droplet size. In many cases an aerial applicator may run multiple series, checking the different setups for the various spray application rates used across a spraying season. For instance, nozzle orifice size, nozzle deflection angle, and the number of nozzles used on the boom can vary depending on the GPA the applicator is setting the aircraft up to apply.
A common question about fly-ins from those unfamiliar with agricultural aviation is who requires that aerial applicators attend them. The answer can be found in the S.A.F.E. acronym: the "S" stands for "self-regulating". No one requires pilots to bring their aircraft to a fly-in—it is completely voluntary, and participating demonstrates one's commitment to making accurate applications. Attending is not inexpensive: it can cost several thousand dollars for the fuel alone to travel to and participate in a fly-in. Despite the high cost and time commitment, many aerial applicators choose to attend Operation S.A.F.E. fly-ins, valuing the important opportunity to maximize their application performance.
For more information about Operation S.A.F.E. fly-ins and aerial applications, see these earlier issues of Illinois Pesticide Review: Vol. 17, No. 3 (May 2004); Vol. 18, No. 3 (May 2005); Vol. 19, No. 3 (May 2006); Vol. 20, No. 3 (May 2007); Vol. 21, No. 3 (May 2008).
Faithful readers of this newsletter—or at least those with a good memory—may remember when we first wrote back in November 2006 about the Turf Pesticides and Cancer Risk Database produced by Cornell University's program on Breast Cancer and Environmental Risk Factors (BCERF). This database is geared to residents of New York State, yet pesticide applicators anywhere can benefit from its useful information. If you are not already using the database, you can learn more in the original article (https://webs.extension.uiuc.edu/ipr/i4144_829.html). To access the database, visit http://envirocancer.cornell.edu/turf/index.cfm.
This past spring the database was updated, and it now contains EPA Cancer Risk Classifications on 114 pesticide active ingredients found in 3,223 turf and lawn care pesticides. New search methods have been added as well. Users can search by EPA registration number, product name, pesticide type, formation, active ingredient name, CAS number, and US EPA Cancer Risk Classification. I think the last option is particularly interesting.
Included are products currently registered for use as well as those that are no longer registered and those in the process of being cancelled. (Data output indicates the status of each product.) The database also contains PDF files of other risk documents, including short RED fact sheets, and more detailed IRED and RED documents (IRED = Interim Reregistration Eligibility Decision; RED = Reregistration Eligibility Decision). It is planned that updates will occur annually.
Why is the focus of the database on turf pesticides only? The program's website gives this answer: "It has been estimated that more pesticides are used on turf and lawns in the US than all agricultural pesticides combined. The potential for exposure to turf and lawn care pesticides exists for many groups, such as homeowners, pesticide operators, children and pets, among others. Yet information on the cancer risk of the chemicals found in these pesticides is hard to find. The Turf Pesticides and Cancer Risk Database was created to address this problem in New York State." Many turf pesticides are also labeled for other crops, making this database useful for many types of pesticide applicators.
(Michelle Wiesbrook, Adapted from an e-mail dated 7/17/09 from Suzanne M. Snedeker, Ph.D., Associate Director for Translational Research, Program on Breast Cancer and Environmental Risk Factors, Cornell Sprecher Institute for Comparative Cancer Research)
Recently, Jim Schuster participated in the Ohio Florists' Association Short Course and attended a presentation on safety. Pesticide safety is the primary focus of our profession as University of Illinois Extension Specialists, yet professional pesticide applicators deal with safety in various areas of the workplace whether it be working around large or dangerous machinery or equipment or simply moving heavy boxes. The fact of the matter is that we can find hazards anywhere if we look long and hard enough. If you are looking for a few simple ways to make your workplace safer for both you and your employees, this article is for you. Craig Lanken works with Risk Control 360 in Dublin, Ohio. Below he shares his top 10 safety components of a comprehensive program for a safer workplace. This information was gleaned from his presentation and accompanying handout.
One of the first components needed for a comprehensive safety program is visible and active management leadership. This includes authorizing the necessary resources for accident prevention, having regular safety discussion with employees, accepting responsibility for accidents, and assessing the success or failure of the company's safety program yearly if not more often.
The next component is obtaining employee involvement by encouraging employees to actively participate in maintaining a safe work environment. If there is an accident, have employees analyze and assess how to correct or prevent similar accidents in the future. Survey your employees. Ask how safe they perceive the working environment to be and seek ways to improve safety if needed. Certificates may be issued to honor their safety efforts. Be sure to recognize individuals for their efforts. For example, give verbal praise whether it be privately or in front of other employees. People like to be rewarded for their contributions.
Communication is another major component. Have regular accident prevention talks with employees. Make sure that they are aware they should bring any safety concerns to management. Remove any obstacles that would prevent this open communication.
The fourth component involves how your company handles accident treatment and the return to work after an accident. Conduct regular safety performance reviews. It is in everyone's best interest that you review and DOCUMENT all safety discussions. Injuries need to be reported immediately to the proper authorities. Investigate how and why the accident occurred. Have regular communication with injured employees and when possible, provide them transitional or modified work. It has been found in Ohio that if injured workers feel needed, they tend to be able to return to work sooner thus lowering costs.
Component five is timely notification of claims which can help if OSHA (Occupational Safety and Health Administration) becomes involved. Proper documentation on safety training is critical if OSHA investigates or becomes involved with an accident. OSHA uses the Occupational Safety and Health Act to ensure workers in this country are safe. OSHA regulations affect companies with more than 10 employees.
The sixth component is safety and health process coordination between management and employees. This includes identifying safety needs, developing strategies to improve safety, identifying and communicating new safety requirements, and compiling injury and illness-related records and tracking progress.
A written safety orientation and training plan is component number seven. Orientation and training should be done before there is an accident, so ideally, it should be done as soon as the employee is hired. For retention purposes, this training should be repeated on a regular basis. The training should include issues such as working around any hazardous material or equipment, handling accidents and injuries, and return to work policies. Be sure to document every training (formal and informal) that is held. Have employees sign that they attended, understood and were able to have their questions answered. This documentation may help in the event of a lawsuit or OSHA review.
In certain circumstances employees may not be able to read or write. Recognize their needs and provide written and verbal communication on safe work practices. Explain in a language they can understand what personal protective equipment is required for each job requirement. Different tasks such as pruning, mowing, or applying pesticides require different protective clothing and equipment. Again have employees sign that they were told about the proper safety protection, that they understood the verbal and/or written information provided and were able to have their questions answered. Include the date and time that the training or communication was conducted. Good records will serve you well in the long run.
Component number nine is having a written safety and health policy. It should describe management and employee responsibilities regarding safety. It should include the company's policy about injured workers being able to return to work. Review this policy with employees at the time of hiring and at regular safety meetings.
Finally the tenth component is good record keeping and data analysis. Identify any safety process problems, track compensation/claims expenses, use information for decision making (provided the correct data was recorded) and then find links between costs, accident prevention and profitability.
The above steps can help keep your employees safer, reduce health/injury claims and be useful in personnel injury claims and reviews conducted by OSHA.
For more information on risk management in the workplace, check out http://www.riskcontrol360.com/. They provide customized business solutions and offer online safety management training as well.
(Michelle Wiesbrook and Jim Schuster)