Comments of Tony Tweedale,
Montana-CHEER (Coalition for Health, Environmental &
Economic Rights), 640 Livingston Missoula, MT 59801 Tel. 406-721-5420,
[email protected]
Proposed Interim
Statement & Guidance on Application of Pesticides to
Waters of the U.S. In Compliance With FIFRA
Given that pesticides are explicitely a CWA Sec. 502(6)(13) "toxic pollutant" to water, which Act's goal is to achive zero discharge of toxics into water, then EPA will be breaking that law by allowing pesticides to be applied and enter waters of the USA without requiring its regulation of these toxics--i.e. requiring a CWA NPDES (discharge) permit. To make this proposed guidance legal you would have to show that pesticides are not regulated by the CWA.
This is a critical health issue because you are proposing to rely entirely on the weakness of the FIFRA registration statute that allows pesticide use when there is: "no unreasonable risk", after accounting for economic benefits to pesticide sellers, to health and ecosystems.
As you know, the health & ecologic costs of pesticide use are under-studied, and the benefits of alternatives to pesticides are hard to calculate. More, many ecological and chronic health effects of pesticides (e.g. immune, endocrine and most neurologic effects in mammals; and almost any effect other than death for other organisms) are simply not measured before use of pesticides is granted. Meanwhile the actually-independent toxicology literature fills in these industry-generated claims and the data gaps with multiple evidence that the pesticides pose far more risk than your registrations indicate. Finally, your own recent pesticide Label Manual & Label Statement Guidance empahsize the need to improve the very ambigous (therefore often useless) label use directions--use directions that are supposed to carry the weight of law because they must reflect EPA's determination of "no unreasonable risk".
These ailures of FIFRA to prevent serious risks are why you are making a mistake in preempting the CWA (the same mistake you make more broadly in your recent secret decision to allow registration to preempt all state court tort pesticide damage claims; or at least all those arisng from agricultural use). FIFRA registration is largely inadequate to protect from real risks, and that is why these other--both statutory and tort--protections exist (e.g. see your formal Pesticide Registration Notice #96-4, 1996). Do not deconstruct such fundamental protections.
Finally, when you
do decide or are forced to require discharge permits for pesticide application
into U.S. waters, do not allow general NPDES permits, which are so vague
and weak in their limits that they cannot take into account important
lcal conditions, e.g. threatened & endangered species, or other beneficial
uses of water, including by humans (e.g. drinking water).
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