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October 10, 2003

Water Docket
Environmental Protection Agency
Mail Code 4101T
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Re: Interim Statement and Guidance on Application of Pesticides to Waters of the United States in Compliance with FIFRA, Docket ID# OW-2003-0063.

We appreciate the opportunity to comment on EPA's Interim Statement and Guidance on Application of Pesticides to Waters of the United States in Compliance with Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). We submit these comments on behalf of Beyond Pesticides/National Coalition Against the Misuse of Pesticides, a national network committed to pesticide safety and the adoption of alternative pest management strategies that reduce or eliminate a dependency on toxic chemicals, New Jersey Environmental Federation, Clean Ocean Action, and Agricultural Resources Center. Together we write to urge the EPA to reconsider its assessment that the application of pesticides to water is consistent with FIFRA, does not constitute the discharge of a pollutant, and should not require a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act.

FUNDAMENTAL DIFFERENCES BETWEEN FIFRA AND CWA

We believe that FIFRA and CWA are complementary laws that do not cause confusion. As long as these two statutes have fundamentally different standards and methods in determining whether a pesticide will have unreasonable adverse effects on the environment and/or human health, then it is not acceptable to claim that satisfaction of one automatically satisfies the other - especially when the satisfaction proposed is for the weaker of the two statutes.

The purposes of both statutes, while similar are clearly distinct and nonequivalent. The protective purpose of CWA is "[to restore and maintain] the chemical, physical and biological integrity of the Nation's waters," 33 U.S.C. § 1251(a). FIFRA's purpose is similar in that it seeks to protect human health and the environment from harm caused by pesticides through a pesticide registration system but it is not specifically charged with ensuring the chemical, physical and biological integrity of U.S. waterways.

As stated by the court in Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526, 531 (9th Cir. 2001), "[t]o resolve whether a FIFRA label controls whether a permit is required under CWA, [the court] must interpret the two statutes 'to give effect to each … while preserving their sense and purpose." The court further explains, "[w]hen two statutes are capable of co-existence, it is the duty of the courts … to regard each as effective." Id. (quoting Resource Invs., Inc. v. U.S. Army Corps of Eng'rs, 151 F.3d 1162, 1165 (9th Cir. 1988)).

The CWA statute is more stringent than FIFRA. CWA § 301 has a "zero discharge" standard, meaning any amount of discharge, no matter how small, without a permit, constitutes a violation of the CWA. (See Natural Resources Defense Council v. Costle, 568 F.2d 1369, 1374 (1972)). Risk assessment, on the other hand, used under FIFRA is weaker than a "zero harm" standard. Risk/benefit allows a certain amount of pollution (i.e. risk) in exchange for controversial calculations of benefit and use a threshold of harm (usually one-in-a-million) that can vary upon EPA discretion. Since the CWA statute is more stringent in its oversight of U.S. waterways, FIFRA should not be allowed to override the CWA.

FIFRA label precautions do not automatically satisfy the requirements of CWA. As the Court in Headwaters explains, "…a FIFRA label and a NPDES permit serve different purposes. FIFRA establishes a nationally uniform labeling system to regulate pesticide use, but does not establish a system for granting permits for individual application of pesticides. The CWA establishes national effluent standards to regulate the discharge of all pollutants into the waters of the United States, but also establishes a permit program that allows, under certain circumstances, individual discharges. FIFRA's labels are the same nationwide, and so the statute does not and cannot consider local environmental conditions. By contrast, the NPDES program does just that." Headwaters at 531 (9th Cir. 2001). Put simply, FIFRA's broad labeling requirements do not provide adequate protection against specific, individual impacts to water bodies regulated under CWA.

EPA itself has stated that compliance with a FIFRA label does not ensure compliance with all other laws, such as the CWA. In the Amicus Brief filed in the Headwaters case, the agency stated exactly that. "[I]n approving the registration of Magnacide H, EPA did not warrant that a user's compliance with the pesticide label instructions would satisfy all other federal environmental laws." Headwaters, 243 F.3d at 531. League of Wilderness v. Forsgren, 309 F.3d 1181 (9th Cir. 2001) is also worth noting. In that case, the court rules that the aerial application of insecticides over streams and rivers requires a CWA permit.

Without the complimentary oversight of CWA, there is essentially no protection of waterways whose aquatic ecosystems might be particularly vulnerable to certain pesticides. For example, pesticides containing synthetic pyrethroids are extremely toxic to mosquitoes, but they are equally toxic to lobsters, shrimp, nymphs and zooplankton (with LC50 values less than 1.0 parts per million). Such pesticides are also deadly to fish, tadpoles, and frogs - all of which may reside in the same aquatic environments that are permitted for use under FIFRA (such as swamps and marshes).

Under jurisdiction of the CWA, (and more specifically NPDES), changes in the chemical composure of waterways are monitored, measured, and generally protected from adverse affects from the application of pesticides. FIFRA, on the other hand, has little information or power over the actual use of a pesticide once it is registered, except that its use must comply with the warnings on the label. In applying a pesticide in or over a waterway, there may be indirect effects such as the killing of beneficial, non-targeted biota, increases in cumulative toxicity levels and combinations of separately applied pesticides that synergize to increase the overall levels of toxicity. Such indirect affects can impact waterways differently. Each waterway should be monitored separately upon the application of pesticides to ensure that the integrity of the aquatic ecosystem is maintained. These dangers are insufficiently guarded by FIFRA alone.

PESTICIDES CAN BE POLLUTANTS

By not recognizing that pesticides can be pollutants to the environment, and to waterways in particular, the agency is doing a great disservice to conservation and environmental protection. In contradiction to the agency's reasoning, we believe that Congress did make an exhaustive list of every single pollutant and that it did not intend for pesticides to be excluded from its definition of pollutant (even as "chemical wastes"). This is apparent in CWA § 502(6)(13), which reads,

"The term 'toxic pollutant' means those pollutants, or combinations of pollutants, including disease-causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will, on the basis of information available to the Administrator, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring."

As Senator Edmund Muskie, a primary sponsor of the CWA, stated: "Sometimes a particular kind of matter is a pollutant in one circumstance, and not in another" (117 Cong. Rec 38,838). This statement underscores the importance of considering each discharge of pesticide on a case by-case basis. Since FIFRA does not specifically consider the composure of individual water bodies, or consistently test and regulate the synergy of products, multiple applications, or the simultaneous use of several products with distinct purposes (i.e. an herbicide used in the same time period as a larvicide), the need for dual jurisdiction is apparent. Dual jurisdiction will provide the public with a secured state of safety.

Just because a toxic chemical, or pesticide, (and its residue) has an intended and perhaps useful purpose registered by FIFRA does not mean it cannot be classified as a chemical waste. Recent case law supports this view. In Headwaters, the Court held that the residue from acrolein, a toxic chemical that is lethal to fish and other wildlife but beneficial in killing aquatic weeds, "left in [the] water after its application qualifies as a chemical waste product and thus as a 'pollutant' under CWA," Headwaters, 243 F.3d at 533.

In Hudson River Fisherman's Ass'n v. City of N.Y., 940 F.2d 649 (2d Cir. 1991), the Court reasoned that chlorine, an antimicrobial pesticide, is indeed a pollutant because: (1) "chlorine inhibits much of the life in the aquatic food chain…," and (2) even "the EPA, the agency charged with the administration of the [CWA], in its published regulations and guidelines cites chlorine as an example of a 'pollutant'" Id. at 1101-02 (citing 49 Fed. Reg. 37998, 38028 (1984)).

The Agency further argues that pesticides applied consistent with FIFRA are "on the contrary to" a waste when "applied to perform their intended purpose of controlling target organisms in the environment." This raises the question of efficacy. By this logic, a pesticide that fails to perform its intended purpose is a chemical waste. Complete EPA evaluation of test data on the actual effectiveness of adulticides used for public health mosquito control uses is lacking. Furthermore, a number of studies cast serious doubt on the efficacy of aerial sprays and fogging outside of controlled environments even when used in accordance with label instructions (Vaidyanathan, R. 1997. J. Am. Mosq. Control Assoc. 13(4):348-355; Mount et al. 1996. J. Am. Mosq. Control Assoc. 12 (4):601-608; Pimentel, David. BioScience Vol. 36, No. 2. American Institute of Biological Sciences, 1986.).

FIFRA LABELS ARE INSUFFICIENT TO PROTECT WATERWAYS

Of utmost importance, EPA's consideration of this issue must take into account the clarity of the labels themselves and whether or not such labels can adequately protect U.S. waterways to the same degree that the CWA would protect such waterways and their ecosystems.

Due to severe toxicity to fish and aquatic organisms, EPA distinctly requires the labels of the chemicals used in adulticides to state: "do not apply directly to (or over) water". Yet, in a technical provision under the EPA Label Review, it allows such aquatic applications of adulticides, even though the chemicals used are proven to be harmful to aquatic ecosystems (EPA Label Review Manual Chapter 9, section 1.C). In a 2001 conference on the issue, the EPA admitted the discrepancy between the label precaution (do not apply to water) and the actual use of the adulticide. Mosquito control directions… were… "presumed to have their own set of aquatic precautionary statements. This point is not clear on labels themselves; it is only discussed in EPA's Label Review Manual." (EPA 2001 Region II Inter-Regional Mosquito Control Conference Issue III, Recommendation 3 available at http://www.epa.gov /oppf ead1/ cb/ppdc/2003/mosquitocont.htm.)

At that same conference, it was noted in EPA recommendations that, "[T]he goal of aquatic hazard statements is not to prevent absolutely any residues from ever reaching water and possibly harming some aquatic organisms. Rather the purpose is to enable the user to recognize and minimize risks, in the context of carrying out an effective public health pest control program." Id.

This lack of clarity between law, intention, and use is simply unacceptable. More unacceptable, is that highly toxic organophosphates (such as chlorpyrifos, malathion, fenthion, and naled) and pyrethroids (such as permethrin, sumithrin, and resmethrin) are allowably - through a technical provision - being deposited into our waterways despite the known hazards to aquatic life of such deposits, without any oversight from the agency that is in charge of maintaining integrity U.S. waterways, the CWA.

The Agency's consideration of the circumstances of how a pesticide is applied (i.e. its consistency with FIFRA requirements) is absolutely relevant but should not be the only measure upon which a pesticide may or may not be harmful to an aquatic ecosystem. EPA's proposal for circumstance (2) is too broad and would endanger our waterways with the deposit of chemicals known to be toxic to fish and other wildlife into waterways without proper oversight from the CWA. Circumstance (2) reads: "The application of pesticides to control pests that are present over waters of the United States that results in a portion of the pesticides being deposited to waters of the United States; 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 insecticides are applied over water for control of adult mosquitos".

An example of how FIFRA-approved labels do not protect our wetlands and waterways follows. EPA's fact sheet on synthetic pyrethroids distinctly states, "…pyrethroids are toxic to fish and to bees". (EPA, April 17, 2002.) Yet, the product website for Anvil, a synthetic pyrethroid popularly used by public agencies for widespread mosquito control, brags that, "It's perfect for use around inlets, creeks, swamps and marshes…." (Clark Mosquito Control Products, Inc. http://www.cmosquito.com/cmcp/Anvil.asp last visited 10/5/03).

The FIFRA approved label for both Anvil 2+2 ULV and Anvil 10+10 ULV, which are commonly used aerial and ground application mosquito sprays, state: "Cleaning of equipment or disposal of wastes must be done in a manner that avoids contamination of bodies of water or wetlands. This product is toxic to fish. For terrestrial uses, do not apply directly to water, or to areas where surface water is present or to intertidal areas below the mean high water mark." However, under "Use Areas" the label also reads, "For use in mosquito adulticiding programs…in vegetation surrounding parks, woodlands, swamps, marshes, overgrown areas and golf courses." (EPA Reg. No. 1021-1688-8329 and 1021-1687-8329).

Swamps and marshes both typically contain surface water and are defined as types of wetlands (The Stony Brook-Millstone Watershed Association, www.thewatershed.org, last visited 10/5/03). The Army Corps of Engineers, the agency that regulates under the CWASec§404, defines a wetland as, "Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas" (Environmental Laboratory. (1987). "Corps of Engineers Wetlands Delineation Manual," Technical Report Y-87-1, U.S. Army Engineer Waterways Experiment Station, Vicksburg, MS. p.A14). Surface water is then defined as: "Water present above the substrate or soil surface." Id. A12.

In the United States, wetlands such as marshes and swamps are considered essential components of the natural system and the "filters" of our entire aquatic ecosystem. They harbor groups of species that play a fundamental and imperative role in feeding the rest of the environment. In fact, the disappearance of wetlands has so alarmed biologists that Congress has instituted a national "no net loss" requirement for land management. As Montana's Department of Public Health points out, "Maintaining the natural functions of wetlands and restoring impaired wetlands to natural healthy fully functioning wetlands should be of vital concern to the public and mosquito control agencies." (MT Dept. of Health, Wetlands, http://www.dphhs.state.mt.us/ last visited 10/5/03.)

In the label analysis of just two commonly used insecticide products (Anvil), we find that the only enforcement protection mechanism under FIFRA to protect aquatic life is vague and non-specific (i.e. do not contaminate wetlands, do not apply to areas where surface water is present, for use in swamps and marshes) despite the toxicity to fish, crustaceans and invertebrates. FIFRA alone does not adequately protect and nurture the species and ecosystems found in U.S. waterways and wetlands in the same manner as does CWA under the permitting process of NPDES.

As a NPDES permit under CWA necessitates a deeper level of specificity in its regulation of the application of pollutants in or over U.S. waterways, it could also be argued that fewer lawsuits would result from the complimentary adoption of both FIFRA and CWA statutes.

LACK OF CWA OVERSIGHT SENDS THE WRONG MESSAGE

The bolstered popularity of widespread public aerial spraying, fogging and ground application of organophosphates (such as chlorpyrifos, malathion, fenthion, and naled) and pyrethroids (such as permethrin, sumithrin, and resmethrin) coupled with the public concern over West Nile virus has led the spraying of aquatic environments to become common practice of many county, city and state government mosquito programs, despite the warnings on the labels.

EPA's proposal will send the wrong message to governing bodies across the country. By allowing pesticides to be deposited in and over waterways without a permit the agency is in effect promoting the use of adulticides rather than larvicides. This is mainly because is well recognized that adulticides are cheaper and easier (though largely ineffective and potentially dangerous) than the implementation of a coherent integrated pest management program based on prevention and the biology of the pest (California Dept. of Health Annual Report, August 2001. p.38-42). If one of the intentions of the agency is to promote best practices for mosquito and aquatic management and in particular prevention and larval control as advocated by the American Mosquito Control Association, then it should at the very least remove from its proposal circumstance (2) which would encourage the application of adulticides known to be toxic to aquatic species to waterways without any other agency oversight.

DAMAGE FROM COMMON PRACTICES DESPITE WARNINGS ON FIFRA LABELS

As the EPA is well aware, the number of studies on the impacts of pesticides on aquatic ecosystems and their surrounding area has waned since the phasing out of organocloride products, such as DDT, some 20 to 30 years ago. However, because there is not an abundance of current studies does not mean that harm is not occurring. Two studies, one in Georgia and one in California's San Joaquin valley, based on USGS water quality testing results, revealed higher than acceptable concentrations of pesticides (sometimes more than 10 times higher than proposed limits), which are believed to be adversely affecting aquatic life. The studies both listed malathion and chlorpyrifos; two very popular adulticides (U.S. Geological Survey Water-Resources Investigations Report 94-4183. Northwest Coalition for Alternatives to Pesticides and Washington Toxics Coalition. Poisoned Water. 2002). Widespread use of these and other adulticides over our waterways, without proper oversight of the NPDES under the CWA, will undoubtedly result in unacceptable concentrations.

Below are a few examples of pesticide incident reports some organizations of this report have received. They serve to illustrate how our waterways are insufficiently protected by FIFRA labels and need dual protection from CWA:

· After mosquito sprays containing malathion were deposited into the waterways in Long Island, CT in 1999, a widespread die-off of crabs and lobsters ensued, destroying the livelihood of numerous individuals. A study now shows that lobsters are far more sensitive to malathion than FIFRA and others believed. (See attached study by Dr. Sylvain de Guise in Appendix A.)

· An aerial and ground spraying campaign using malathion and pyrethroids throughout New York City and Staten Island in 1999 and 2000 targeted land as well as wetlands, creeks, ponds, lakes, rivers, bays, sound and ocean resulting in the death of numerous fish and uncounted beneficials.

· A group of citizens in Nashville, TN and a community organization called Earthmatters are currently investigating the 2003 death of over 200 fish after a number of ponds that were sprayed with Anvil 2+2. Civil groups in the area are collecting pesticide incident reports - six of which have already been collected with little effort.

· Herbicide sprays in 2001 along the shores of Lake Okeechobee in Florida resulted in large numbers of fish deaths.

CONCLUSION

In conclusion, we ask EPA to consider the impacts of this "harmonization" on the proliferation of pesticide spraying that is ensuing in our communities and over our waterways. As a matter of common law as well as common sense, we identify the need for regulation of our aquatic environments by both FIFRA and CWA. These are statutes with different standards and approaches that serve complementary but different purposes. For this reason, the two should not be "harmonized" down to the lowest statutory standard nor should one should trump the other, as proposed by the EPA. We ask EPA to set a standard of limited and precautionary use of pesticides to protect our waterways, our health, the health of our children and the health of our environment.

We understand that policymakers and citizens are concerned about the juggling of proper land management and protecting the public from health threats like West Nile virus. As organizations in daily communication with the public, we also know that people are equally concerned about the wide scale application of pesticides and its associated health and environmental hazards. The misuse of toxic pesticides over our national waterways is unacceptable. EPA's proposal, and specifically circumstance (2) in the proposal, will send the wrong message to cities across the country, retaining the practice of spraying pesticides over and in our waterways despite its toxicity to fish and other wildlife. The dual jurisdiction of NPDES under CWA and label registration under FIFRA is imperative to ensure the preserved integrity of public health and our natural environment.

We look forward to hearing how our comments will be incorporated into the final guidance document.

Sincerely,

Beyond Pesticides/NCAMP
Eileen Gunn
701 E Street, SE
Washington, DC 20003
Tel. (202) 543-5450
http://www.beyondpesticides.org

New Jersey Environmental Federation
Jane Nogaki
223 Park Ave
Marlton, NJ 08053
Tel. (856) 767-1110

Clean Ocean Action
Sandy Hook
P.O. Box 505
Highlands, New Jersey 07732-0505
Tel. (732) 872-0111

Agricultural Resources Center
206 New Bern Place
Raleigh, NC 27601
Tel. (919) 833-5333

Community & Children's Advocates
Against Pesticide Poisoning (CCAAPP)

P.O. Box 5388
Ventura, CA 93005-0388
Tel. (805) 654-4186