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-------
NATIONAL WORKSHOP - August 26 & 27,1996
TABLE OF CONTENTS:
BACKGROUND 1
KEYNOTE ADDRESS 2
EPA's OFFICE OF WATER ADDRESS 13
PANEL PRESENTATIONS:
Panel on Proposed Regulation 19
Panel of State Lead Agencies 39
Panel of Regulated Industry 60
Panel of Other Federal Agencies 69
Panel of Tribal Lead Agencies . i • • • 77
FUNDING AND FLEXIBILITY 84
BREAK-OUT GROUP PRESENTATIONS:
Group A Report Out 91
Group B Report Out 96
Group C Report Out 99
PLENARY WRAP-UP SESSION 103
-------
-------
NATIONAL WORKSHOP - August 26 & 27,1996
BACKGROUND
On June 26, 1996, the Field Operations Division in the U.S.
Environmental Protection Agency's Office of Pesticide
Programs published a proposed regulation in the Federal
Register (FR 33260). The proposed regulation, for which a
120-day comment period was provided, would require that use
of five pesticides (Atrazine, Alachlor, Simazine, Cyanazine
and Metolachlor) be contingent upon the existence of, and hi
accordance with, an approved State Management Plan (SMP).
Each of these pesticides is either a "possible" or "probable"
human carcinogen. Because of their potential to reach ground
water, EPA has determined that they may cause unreasonable
adverse effects on the environment in the absence of effective
management measures provided by SMPs.
The proposed rule implements a key component of the
Agency's 1991 Pesticides and Ground Water Strategy, and
reflects many years of discussions and input from States and
other partners. Through the development and use of SMPs,
EPA is proposing to allow continued use of the five pesticides
by providing States and Tribes the flexibility to protect the
ground water in the most appropriate way for local conditions.
This approach capitalizes on the most effective and efficient
roles for State and Federal governments to collaborate in the
protection of the nation's ground water resources.
In an effort to continue the partnerships that have been built to
establish the SMP process, EPA hosted a public workshop on
August 26 and 27, 1996. The purpose of the workshop was to
continue dialogue regarding the SMP process and to provide
participants a forum to discuss the proposed rule, EPA's
rationale and regulatory approach, and issues that have arisen
as States and Tribes have developed their programs.
It was not the objective of EPA to reach consensus on any
issues at the workshop. Instead, ideas, issues, and questions
were sought to assist others in making informed comments on
the rule and assist EPA in learning about implementation
issues.
-------
KEYNOTE
ADDRESS
If this
partnership
approach works,
State
Management
as a model of an
inclusive and
cooperative
approach to
environmental
regulation.
SUSAN H. WAYLAND,
Deputy Assistant
Administrator,
EPA Office of
Prevention, Pesticides &
Toxic Substances
Ms. Susan Wayland:
Welcome. I'm gratified to see that so many of you made the
commitment to attend a workshop in Washington, D.C., hi
August, when the rest of the world is trying to get away from
the city. By definition, this is a dedicated and hardy crowd,
and it's great to see many old friends and new faces.
I think it is testimony to the importance of this issue that, in
spite of the vacation season, we have representatives from the
public sector, over 40 States, all 10 EPA Regional Offices, at
least three Tribal authorities, nearly a dozen pesticide
registrants, and numerous others from our sister Federal
agencies, particularly the U.S. Department of Agriculture
(USDA), the U.S. Geological Survey (USGS), and the
Extension Services.
Today in my time with you, I want to cover five areas. First, I
will describe the purpose and objectives of this workshop.
Then, I'll describe a bit how we got here, and our
accomplishments along the way. Third, I'll talk about the
Federal-State partnership and the goals of the program. Then
I'll describe new legislative events that affect our work here
today. And finally, I want to throw out some challenges for us
all for the next two days.
The impetus for this workshop is the publication of the
proposed SMP rule in the Federal Register this past June. This
is a significant milestone in our effort to protect public health
and the integrity of our nation's ground water resources. The
proposed rule represents the actual application — to five
specific chemicals — of a strategic approach that many of you
have helped to develop and refine over the years. For those of
you who are veterans of the long
-------
NATIONAL WORKSHOP - August 26 & 27,1996
Workshop
Expectations
campaigns to construct this program, thank you, thank you for
your dedication to this public process. For those of you who
are new to the issue, welcome. Many of you may be here to
get a clearer understanding of our expectations for this new
approach to pesticide regulation. Others of you may be
potentially affected by this rule, as pesticide users, or
registrants, or through an interest hi water quality. Your
purpose here may be to learn whether this program will protect
your interests and secure for all of us the ground water quality
goals expressed by these State programs. Whatever your
interest in this rule may be, we intend mis workshop to be of
benefit to you.
Let me comment hi more detail on some of our expectations
for the workshop. As you know, we are currently in the midst
of a 120-day public comment period on the proposed rule. The
comment period closes on October 24th. Your official
comments on the rule should be sent hi writing to the address
that we provided hi the Federal Register notice of June 26th.
Our purpose here hi these two days is not to collect comments
for the official record, but to provide an opportunity for as
much informal exchange of views and information as possible.
This will help all potential commentors to frame their issues.
We believe that, through the discussions held hi the next two
days, participants will:
*• have a clearer understanding of the provisions of the
proposed Rule so that they can provide informed,
comprehensive, formal comments;
> have a clearer understanding of EPA's rationale for
taking this regulatory approach with respect to the
chemicals involved;
> identify the predominant issues they face hi meeting
Rule requirements; and
>• suggest process improvements to resolve issues, assure
consistency, preserve flexibility, and achieve the
greatest economy of operation.
-------
History of the
SMP Program
In addition to these objectives, I hope that States, Tribes, and
Regions will also have the opportunity to:
> share information about how they plan to coordinate
with other States and Tribes in their Region, or hi
neighboring Regions;
> examine ways to share information among themselves
to keep informed of their progress during Management
Plan development; and
>• discuss inter-Regional and niter-State issues and views.
Let's turn now to the history of this program, because I think it
is important for all of our participants to appreciate some facts
about how we got here. Today it is official Administration
policy that Federal regulators should seek out the participation
of the States in developing regulations that affect them. It was
not always so, and for that reason, I think we can take pride in
the fact that the strategy for dealing with pesticides and ground
water was developed from the beginning through an inclusive
process, a process that brought together as many stakeholders
from the public and private sectors as possible.
This included State agricultural agencies, but also State
agencies responsible for health and water quality that had not
traditionally been involved with pesticide issues. It included
farmers. It included public interest groups. It included other
Federal agencies, notably USD A and USGS, staff from Capitol
Hill, and many pesticide producers. The process began with
two national meetings in 1986 and 1987 at Coolfont, West
Virginia.
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NATIONAL WORKSHOP - August 26 & 27,1996
As a result of the Coolfont meetings, stakeholders reached
basic agreement on the core principles of the strategy, and
especially on the idea of a Federal-State partnership in which
the basic roles are that:
* the Federal government should provide the regulatory
framework, define national goals, and provide technical
assistance; and
> the States should have the opportunity to tailor risk
management to local conditions, and carry out the
pesticide program hi conjunction with overall ground
water protection programs.
In addition to a partnership approach, the strategy also
promoted flexibility, recognizing that there are many options
for designing an effective program. There was a general
consensus that this division of roles and allowing flexibility for
different approaches to ground water problems would provide
effective, prevention-oriented risk management for ground
water resources. And it would preclude the need for more
stringent Federal measures that would be less sensitive to local
needs. This remains the basic core philosophy of the SMP
approach.
Our inclusive approach to developing ground water policy
didn't end when the Pesticides and Ground Water Strategy was
published in final form in 1991. It has carried through as we
went on to develop guidance documents and then to the
drafting of the current proposal itself. Throughout the history
of this program, the States and the Federal government have
worked hard, first to build and then to strengthen this
partnership. We have sat together at workshops, public
meetings, and Regional round tables across the country,
debating issues, working out definitions, and refining our
roles. It's been a very constructive and open process.
-------
We have a long way to go to fully achieve what was begun at
Coolfont, but we have covered a lot of ground since 1986.
And we do have accomplishments to show for it. We have
fashioned a common-sense partnership program and crafted its
basic technical guidance. We also have taken the first steps
toward development of SMPs through the development of
voluntary generic plans. These have been vehicles for helping
to build State capacity to assess and deal with ground water
risks through coordinated multi-agency efforts. All States have
developed or are in a stage of developing generic plans, as are
the District of Columbia, Puerto Rico, and several Tribes.
Some States have used their generic management plans to
incorporate protection strategies for all water, ground and
surface. Some have used the pesticide management plan as the
framework to deal with water quality issues on an intensive
basis in certain geographical areas. Many, many States have
reported unprecedented cooperation between agricultural,
environment, and health agencies within the State government
structure. My office has delivered, through the EPA Regions,
over $33 million in grants for ground water protection
purposes, and that's not counting the Office of Water's
contribution hi grants for ground water protection, or the
considerable financial and tune contributions from the States
and Tribes.
We have coordinated the design of SMP guidance with the
Office of Water to ensure that the components of a pesticide
plan will be compatible with Comprehensive State Ground
Water Protection Program (CSGWPP) plans and vice versa.
So we have many years, many dollars, and a tremendous
amount of work and energy invested in this collaborative
approach, and already we have many payoffs along the way.
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NATIONAL WORKSHOP - August 26 & 27,1996
TheSMP
Approach in
Perspective
Now, for the next few minutes, let's focus on the goals of the
SMP approach. The fundamental goal of the SMP is to
prevent contamination of ground water resources resulting
from the normal, registered use of pesticides. Since this
approach empowers the individual States and Tribes with the
responsibility for assessing the scope of their problem and the
choice of measures to deal with it, it is a considerable
innovation in the realm of pesticide regulation, which
historically has been a highly centralized Federal process. If
this partnership approach works, SMPs will serve as a model
of an inclusive and cooperative approach to environmental
regulation.
From the perspective of traditional pesticide regulation, one of
the benefits of this approach for many stakeholders is that by
developing and administering individual plans States can
provide for pesticide use that would otherwise be regulated
through assessments and management measures determined by
EPA alone. I think we need to take a lesson here from medical
history. In the old days, we used to deal with some ailments
by amputation. Then broad-scale antibiotics became available.
Now we have laser surgery and orthoscopic surgery.
In the same way, our principal tool for significant pesticide
risks has been cancellation and suspension. Now we are
tailoring our regulatory responses more precisely to the nature
and location of the environmental hazards we seek to address,
while minimizing side effects to agricultural production and
efficiency.
If this approach to providing for plans tailored to local
conditions should fail, however, the means for addressing
concerns about pesticides that contaminate ground water will
-------
surely revert to the blunt tools that EPA can bring to bear on a
national level. I think there is a great deal at stake here hi the
success of the SMP approach.
In addition to its role as an innovation in the field of pesticide
regulation, the Agency believes that the SMP approach should
be viewed as a piece of a larger mosaic that includes
regulatory, research, and legislative initiatives hi which
agricultural and environmental policy issues converge. While
we have stated hi our guidance documents that SMP
development should not wait for completion of CSGWPP
plans, we have consistently encouraged States, if feasible, to
coordinate and integrate pesticide management plan activities
with other programs having agricultural components. You are
familiar with many of the programs that EPA's Office of Water
coordinates. Since our next speaker will comment on these in
more detail, I'll only mention them briefly. There are many
complementary activities hi the Water programs, including:
*• Non-point Source programs
* Coastal Non-point Source programs
> State Water Quality grants
> Wellhead Protection (WHP) programs
* National Primary Drinking Water regulations
*• Underground Injection Control programs.
And I'm not even mentioning the USD A programs under the
Farm Bill and farm policies that dovetail with this issue.
So our challenge is not only to deal with pesticide and ground
water issues, but also to take the opportunity to make them
work comprehensively, and in harmony, with other important
water and agricultural programs. Let me now turn to more
recent legislation that affects our work here.
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NATIONAL WORKSHOP - August 26 & 27,1996
Legislative
Changes
Literally, within the past few weeks, the context of ground
water protection as related to pesticides has been further
changed by new legislation. The amendments to the Safe
Drinking Water Act (SDWA), for example, give new impetus
to the concept of source water protection, and the legislation
specifically cites SMPs for pesticides as one appropriate tool
toward that goal.
Another very important legislative change is included in the
new Food Quality Protection Act (FQPA), signed into law just
three weeks ago. Among a number of amendments to the
Food, Drug and Co,smetic Act is a requirement that in setting
the maximum residue limits (or tolerances) for pesticides on
foods, EPA must consider all routes of exposure to that
pesticide, including driiiking water.
With the new legislation, it's clear that protecting water quality
and, specifically, preventing pesticide contamination, now
takes on increased importance to an even wider body of
stakeholders than ever before. For example, the food
processing industry, which has a stake in pesticide tolerances,
now has a direct interest in whether a pesticide has a history of
water contamination, because that will be weighed in the
Agency's process of granting food tolerances. In addition,
both the Safe Drinking Water Act and the Food Quality
Protection Act include provisions for increased notification to
the general public about pesticide or other contaminant
exposure.
i
I think the basic message of these legislative changes is pretty
clear: now, more than ever, protecting water resources from
pesticide contamination demands to be addressed in a
responsible and effective manner. I believe that SMPs for
pesticides can be a valuable tool in addressing many of the
important goals of the new legislation.
-------
Challenges
I want to acknowledge the fact that we have seen some existing
State programs already serve to fulfill virtually all of the
requirements of SMPs as outlined in our guidance. We are
well aware that some States have taken very significant steps in
the area of protecting ground water resources from pesticide
contamination. Let me assure you that such efforts will
transition smoothly into SMPs. It is not our intention to ask
States with excellent programs to reinvent the wheel. Neither
is it our intention to impose regulation for its own sake. The
SMP concept is to tailor risk management measures in
proportion to the need for them. Thus, based upon a State's
existing program, and depending on the level of pesticide use
and the vulnerability of its ground water resources, a State may
propose few changes to its current program, or a vast array of
new management approaches.
I have talked a good deal about our relationship with States.
We have worked most closely with the States over the years
because of their central role in designing and carrying out the
actual Plans. However, we have always tried to be inclusive of
all points of view on ground water issues, because we
recognize that the success of this new approach depends on
broad acceptance of its principles, and a genuine desire to
make it work in practice. Now that we are entering the public
comment phase, it is particularly important for all stakeholders
to provide EPA with information and constructive suggestions
on how best to achieve the ground water protection goals
which are the heart of this proposal.
I want now to talk about some of the challenges before us. I
mink there are certain questions we need to be asking in the
next two days:
*• Will States and Tribes be ready to carry out the State
Management Plan rule by its effective date?
10
-------
NATIONAL WORKSHOP - August 26 & 27,1996
Closing Remarks
*• Are EPA Headquarters and Regional efforts meeting
State and Tribal needs at this stage of the rule
development?
* What assistance is needed from other Federal partners
in addition to EPA?
* ' Do all of our program activities — at the Federal, State,
and Tribal level — continue to promote the success of
this concept?
I believe that we've structured a workshop that will assist hi
answering these questions. We also hope that discussions of
ideas among all of you will provide us with key information to
help build a workable final program, and will give you the
information YOU need to comment effectively.
As we proceed with our discussions, let's ask ourselves several
pivotal questions:
* Are we keeping faith with our ground water protection
priorities in the development and review of State
Management Plans?
*• Can we ensure ground water protection on a consistent
basis nationwide while preserving critical State
flexibility to meet local needs ?
> Are we contributing constructively to this process in
order to make the strategy work?
In conclusion, I hope that each of you will bring to this
workshop a healthy confidence in this partnership, and an
enthusiasm for finding innovative ways to take it one step
further.
11
-------
I
This strategy makes sense. Over time, particularly with this
Administration's commitment to partnerships, pollution
prevention, increased flexibility, and ecosystem protection, it
makes even more sense today than when we began. It brings
to bear the best abilities of the Federal and State levels of
government. It promotes flexibility, and gets away from "one-
size-fits-aU" national dictates. It involves active participation
from industry, the farm community, and the public. It protects
farmers, farm families, and consumers alike. And, at the heart
of the issue, it protects the underground resource that provides
drinking water for millions of people, recharges our rivers and
streams, and is a critical component to healthy ecosystems
across the country. Let's continue to work together to make
this innovative approach a reality.
Again, I congratulate you — and thank you — for your
commitment to this process and look forward to continuing our
work together in the future.
12
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NATIONAL WORKSHOP - August 26 & 27,1996
E PA's OFFICE
OF WATER
ADDRESS
I used to catt my
program the un-
mandate. Bitt
with passage pf
the act, it
became a
mandate and
funded all at
once.
DR. BARBARA ELKUS,
Deputy Director, EPA
Office of Ground Water
and Drinking Water
Contaminant
Occurrence Data
Base
Dr. Barbara Elkus:
I
Dr. Elkus' remarks focused on opportunity for linkages
between the water and pesticide programs in relation to SMPs.
She said that there has been a long history of cooperation
between EPA's Office of Water and Office of Pesticide
Programs. This cooperation began with the development of
EPA's ground water protection strategy, progressed with the
pesticides and ground water strategy, and continued with
development of the SMP guidance and the CSGWPP guidance.
The major focus of the CSGWPP is to bring together all
players in the State that focus on ground water. That almost
always includes the State agriculture departments, as well as
the environmental agencies. In many cases, it includes public
health agencies, and land-management agencies. This hi
essence is what SMPs are about — everyone coming together to
determine how to protect the resource and still allow
production of crops.
One of the top priorities for SMPs, CSGWPP, the Well Head
Protection Program, and the new Source Water Protection
Program is protecting ground water used for drinking water.
Dr. Elkus said that she used to think of her program as the
"un-funded, un-mandate" but with passage of the SDWA it
became a mandate and funded all at once. The Office of
Water now has authority and money.
The new SDWA provisions contain a number of things that
will help State Lead Agencies for pesticides develop SMPs.
One provision requires that EPA develop a contaminant
occurrence data base over the next three years. The SDWA of
10 years ago required EPA to regulate 25 chemicals every
three years. Many argued that EPA should be looking at
13
-------
Notification
Requirements
Source Water
Protection
Provisions
chemicals of concern and potential health effects, rather than
just selecting chemicals. The occurrence data base will help us
do that. This data base may find pesticides in ground water and
assist pesticide State Lead Agencies responsible for SMPs
target areas of concern.
Another provision that may be of assistance is stronger
notification requirements where there is a violation of a
Maximum Contaminant Level (MCL.) This provision will
make information more understandable and will require that an
annual "consumer confidence" report be provided to water
users by the water provider. This report will say what's in the
water, whether it's at a level that exceeds an MCL, and what it
means if these contaminants are in the water in trace amounts.
These reports could potentially provide information to pesticide
State and Tribal Lead Agencies on where contamination might
be found.
The final major provision Dr. Elkus described is the new
source water protection provisions and related monitoring
relief. The source water protection program is an expansion of
the well-head protection program and focuses on three
activities: 1) delineating the area around the well that is the
source of water, 2) assessing and developing an inventory of
potential sources of contamination in that area, and 3)
developing management plans for the area.
Dr. Elkus said that there is no provision that forces action in
the statute, just requirements for delineation and assessment.
The statute provides for financial assistance ("many millions of
dollars") to water agencies through the state revolving fund to
conduct these activities. The delineated areas and assessments
are the same underpinnings needed to accomplish SMPs.
14
-------
NATIONAL WORKSHOP - August 26 & 27,1996
Closing Remarks
Also, there are provisions that if a State does undertake a
source water protection program, there is some relief from
monitoring. If you can show that a particular chemical or
pesticide is not used in the source water protection area or that
it is adequately managed, there is relief from certain
monitoring requirements. This may be an opportunity for
pesticide State and Tribal Lead Agencies to work with water
offices to mutual benefit.
Dr. Elkus also said :that her Office is developing a latitude/
longitude data base of drinking water supplies and that this data
base may benefit SMP development as well. Her office has the
location or address for the treatment facilities, but does not
have good information regarding the precise locations of wells
or surface water sources. Once developed, this data base
would be available for use by pesticide State and Tribal Lead
Agencies.
In closing, Dr. Elkus said that EPA's Office of Water intends
to continue to work closely with the Office of Pesticide
Programs in the continuing development of both CSGWPP
guidance and the SMP program. One indicator of the strength
of this continuing relationship is that the new SDWA
provisions recognize the SMP process as linked to source water
protection plans. :
15
-------
Questions From
The Floor
M
I
Q - (State Ground Water Agency) - What is the status of
CSGWPP at this point?
A - The CSGWPP is stronger in some States than in others.
The most attention is paid to it in States that have an interest in
the Superfund relief that can be afforded if a CSGWPP is in
place. It now has reference in the statute and authorization for
funding (note — authorization does not mean it will receive
funding, only that it may receive funding). This gives it the
force of reality and boosts its heart beat and blood pressure
somewhat, just like SMPs are much more real now because
Congress said they exist. EPA has always believed CSGWPPs
to be important because it's the right thing to do. In many
states it has happened even without Congressional recognition.
The power of CSGWPPs is that they bring all the players
together to allow them to identify duplication of effort, gaps in
effort and knowledge and to share information and combine
data bases.
The biggest complaint EPA's Office of Water has received
regarding the CSGWPP is that the package required to be
submitted is not useful to the State. EPA is now working with
a group of State representatives to streamline the CSGWPP
process and the physical package so that it is of value to the
State in showing them how they focus their combined
resources.
Q - (Regulated Industry) - The SDWA and source water
protection provisions, where localities can petition the State,
seem to introduce a "wild card" for pesticide State Lead
Agencies. Most drinking water programs are in the State
environmental or health agencies. If petitions go to them, who
will ultimately be leading the pesticide management effort as it
relates to water?
16
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NATIONAL WORKSHOP - August 26 & 27,1996
A - How the agricultural agency plays in this will vary from
State to State. This is another reason why the CSGWPP is
important in bringing agencies together. Under the petition
program, if you find contamination at a level high enough to
petition, you have already failed. This is why we prefer to
focus on the delineation and assessment aspects, the prevention
aspects. Given what we know about the costs of cleaning up a
water source, focusing on delineation and assessment is like the
ounce of prevention that, in this case, is probably worth a ton
of cure.
Q - (Regulated Industry) - Do you then envision the pesticide
State Lead Agency working through some agreement with
sister agencies to deal with surface water, perhaps outside the
SMP process? ;
A -1 would hope it'is in conjunction with the SMP process.
We have done about all we can do in our own little boxes, and
we did a lot, but if we are going to move water quality
forward into the next century we need to be looking much
more holistically. We need to build links between programs.
This has taken a lot of effort within EPA, and at least we are
all in the same agency. In the States, the programs are in
different agencies — the agriculture agency, environmental
agency, health department, etc; however, we all need to
expend the energy to build these links.
Q - (Regulated Industry) - In your remarks you continue to
discuss contamination. Is there a basic definition hi the SDWA
of "contamination" or "contaminant"?
A - I'm not sure they use the word "contaminant." "Drinkable
water" is that which meets the federal MCL and the Agency-
wide actionable level is the MCL. There is no definition
specifically of "contaminant."
17
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Q - (Pesticide State Lead Agency) - If EPA decides an SMP is
required for a particular pesticide, will that pesticide
automatically go on the list of compounds for which
monitoring is required in drinking water?
A - No, but it's a good bet that it might. If the Office of
Pesticide Programs identifies a pesticide that requires an SMP,
that should trigger the Drinking Water Program to seriously
consider the chemical. However, there are limitations in the
statute on the list of chemicals, so we would need to look at it
in relation to other things across the country for which we need
monitoring.
18
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NATIONAL WORKSHOP - August 26 & 27,1996
PANEL ON
PROPOSED
REGULATION
Tools
Jim Roelofs:
i
Mr. Roelofs began his presentation by emphasizing the core
provision of the proposed rule: 33 months after publication of
the final rule, Atrazine, Cyanazine, Simazine, Metolachlor and
Alachlor can only be used in States or on Tribal Lands where a
management plan has been approved. The rest of the
provisions in the proposal either refer to SMP components or,
for the most part, to the SMP guidance document. This is why
the rule itself is short and tends to be fairly general.
In the preamble, EPA lays out its rationale for how it chose
these specific chemicals and explains its risk/benefit
determinations and how this fits into its legal authorities. The
preamble also is an opportunity for EPA to pose questions and
possible alternative ways to frame the core rule.
Mr. Roelofs noted that his remarks would focus on three areas:
1) tools available to EPA, 2) several issues raised by AAPCO
and NASD A late in; the drafting process of the proposal, and
3) three major items on which the proposal requests
comments.
As background, Mr;. Roelofs explained how the SMP approach
fits into the array of tools available to EPA. The least
restrictive tool that EPA has to deal with ground water
concerns is label advisories. These are simply warnings that
some evidence exists that the chemical may leach to ground
water. Users are put on notice that use may pose this risk, and
that they should use the product with extra care. These
statements are not enforceable and have been used on only
about a dozen chemicals.
19
-------
SMPs are
premised on the
finding that
without them*
these pesticides
may
adverse effects,
not a finding
that they
currentl cause
adverse effects
across the
nation.
JIM ROELOFS,
Ground Water Section
Chief, EPA Office of
Pesticide Programs
The next most restrictive tool is risk mitigation measures on
the pesticide label. This includes any change in use directions,
precautions, or limitations intended to address ground water
concerns. When we use this tool, the specific mitigation
measures are generally negotiated with the registrant during the
registration process for new chemicals or during the
reregistration process for existing pesticide registrations. The
mitigation measures on the pesticide's label are enforceable and
we have used a variety of these measures in the past to address
ground water concerns specifically. Measures in an SMP
could be similar to these: In some cases measures could be
voluntary Best Management Practices (BMPs) rather than
regulatory measures. These BMPs could then be delivered
through interaction between the State and the user community,
rather than through interaction between EPA and the pesticide
registrant.
Another approach is to classify use of a product as restricted.
This is a formal regulatory step that classifies the pesticide as a
"Restricted Use Pesticide" in the conventional sense. That is,
the product can only be used by or under the direct supervision
of a Certified Applicator. This classification also provides for
competency determinations, generally includes formal training
of the applicators, and provides for record-keeping of pesticide
use.
The SMP concept was developed to fill a gap that existed
between Restricted Use classification and cancellation.
Technically, it is an elaboration of the Restricted Use
classification, but instead of limiting use to Certified
Applicators, it specifies that the pesticide can be used only hi
accordance with an approved SMP. We recognize that this
tool is stringent and that it involves a tremendous undertaking
on the part of the State Lead Agencies and others who
cooperate with them. Therefore, we are not likely to use
20
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NATIONAL WORKSHOP - August 26 & 27,1996
Issues in the
Drafting Process
I
it very often and when we do, it is to address a problem we
believe is widespread and is not likely to be adequately
addressed by certification and training alone.
SMPs are premised on the finding that without them, these
pesticides may cause unreasonable adverse effects, not a
finding that they currently cause unreasonable adverse effects
across the nation.
Finally, cancellation is the most stringent possibility. EPA has
never canceled a chemical solely on the risks from ground
water contamination. If a chemical has significant toxicity and
is causing concern on such a widespread scale, it would likely
have other routes of exposure as well, such as worker or
dietary exposure. EPA has canceled chemicals in the past for
which ground water contamination concerns were one of
several concerns.
Late in the process of drafting the proposed rule,
representatives of AAPCO (the Association of American
Pesticide Control Officials) and NASDA (the National
Association of State Departments of Agriculture) requested
clarification on several issues prior to proposal of the SMP
rule. As a result of that request, EPA met with them in the
summer of 1995 to discuss seven issues:
1. Vulnerability Assessment and Monitoring - Given the
complexity and cost of these two SMP components, the States
requested clarification of EPA's expectations of completeness
and adequacy on the day the rule becomes effective. While a
State may design an ambitious program, it may not be able to
have that program up and running on the first day.
Specifically, the States requested that EPA articulate its
position on this issue.
21
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At the 1995 meeting, and formalized in minutes from the
meeting, EPA agreed that under certain circumstances it would
be acceptable to "phase in" assessment and monitoring
programs. A rationale would need to be provided and a
credible commitment to move these two components forward
would have to be in evidence.
2. Evaluation of SMPs - The States requested clarification
of EPA's expectations on initial evaluations demonstrating that
SMP measures were effective. They noted that it may take a
significant amount of time for actions on the surface to result in
a positive effect on the ground water. There was concern
expressed that EPA intended to withdraw approval of an SMP
if, at submission of the first evaluation two years from
implementation, there was no appreciable difference in the
quality of the ground water.
EPA agreed that there are a variety of measures and indicators
that could be used to demonstrate that the SMP is effective and
recognized that direct measured results may take longer to
demonstrate.
3. Variation Among States or Level of Effort - The
States noted that the level of effort needed hi chemical-specific
SMPs might vary from State to State, or even within a State,
for different chemicals. Every chemical may not need to be
addressed to the same degree in every location. The States
requested that EPA clarify its position on whether this variation
was acceptable.
EPA agreed that plans will vary. In cases where relatively
little risk or use occurs, for example, the SMP associated with
the chemical can be minimal. Variation such as this among
plans is acceptable to EPA.
22
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NATIONAL WORKSHOP - August 26 & 27,1996
4. Good Laboratory Practices - The EPA has Good
Laboratory Practices (GLP) regulations that apply to studies
performed in support of registration. The States indicated that
they did not believe; these regulations were appropriate for the
kind of field monitoring/surveying associated with SMPs.
They also noted that GLPs can make the SMPs extremely
expensive and, in some cases, impossible to carry out.
EPA concurred with the States' position. The proposed rule
now indicates that GLPs do not generally apply to the
monitoring and surveying foreseen to support SMPs.
5. Time to Develop SMPs - At the time of the meeting
with AAPCO and NASD A, the time frames in the draft
proposed rule were 12 months for development and submission
of an SMP and nine months for the EPA Regional Office to
review and approve, the SMP. States put forth arguments that
supported a longer time frame for development and
submission.
As a result of the rationale that the States provided, the
proposed rule now provides 24 months for development and
submission and maintains the nine-month time frame for EPA
Regional Office review and approval.
6. Restricted Use Classification - In the summer of 1995,
the draft proposed rule did not include "traditional" Restricted
Use classification for the five chemicals proposed for SMPs.
The States believed1 that without "traditional" Restricted Use
classification, there would be confusion on the part of the
users. They also stated that they would lose several critical
tools, such as the ability to identify users of these chemicals,
training opportunities for users, and record keeping.
23
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II
I
EPA agreed that "traditional" Restricted Use was appropriate
and that it was our intention to so classify the five subject
chemicals. However, our original plan for a Restricted Use
rule has changed somewhat, which has resulted in some
confusion.
We still intend to issue a final Restricted Use rule this year.
This rule will define criteria that relate to the potential for
ground water contamination. The criteria will identify
candidates for Restricted Use due to ground water concerns.
The rule would not automatically classify specific pesticides.
The five SMP chemicals meet the criteria -- so do about 17
other chemicals. Because of questions within EPA regarding
how the criteria will be applied, we have been delayed in
issuing the final rule. Our questions relate to the 17 chemicals,
not the five in the proposed SMP Rule.
Over the next few months, we will attempt to resolve our
questions. It is highly unlikely we would take all the chemicals
that met the criteria and classify them for Restricted Use at the
same tune. EPA will need to develop a much more systematic,
deliberate system to apply and use the criteria to make
decisions. For example, there may be situations where a
chemical meets the criteria but we still believe that the ground
water concerns can be resolved through mitigation measures on
the label.
In spite of the delay in issuing the Restricted Use Criteria Rule,
EPA has determined that we do not have to do a separate rule-
making to classify the five SMP chemicals, but instead, can
classify them through the now-proposed SMP rule. However,
to do that, we need to receive comment and build a record that
supports us doing so.
24
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NATIONAL WORKSHOP - August 26 & 27,1996
7. Pesticide Metabolites - For some of the proposed SMP
chemicals, a significant portion of the substances being
detected hi ground water is metabolites rather than the parent
compound. It was unclear whether EPA expected SMPs to
address metabolites. The States requested that EPA identify
specific metabolites of concern. The States pointed out that
identifying these and requiring that they be considered in the
SMP programs later would be disruptive.
EPA agreed with the States' position. The proposed rule does
not require SMPs to monitor for metabolites or to otherwise
include them in the SMP. EPA agreed that the potential for
disruption could be serious and indicated the Agency would
make every effort ito determine, through its reregistration
processes, whether it believes specific metabolites should be
addressed through SMPs. If a decision is made that
metabolites do need to be addressed, EPA still hopes to be able
to do this in a time frame that would not result in significant
disruption to the SMP process.
Mr. Roelofs stated that the preamble to the proposed SMP rule
asks for comment on dozens of issues. In some cases, the
questions being asked are an attempt to obtain information. In
other cases, they address alternative ways of framing the rule
itself, and thus will influence policy choices. The point of
asking these questions is that if you want to adopt substantive
changes to a proposed rule, you have to ensure that the public
has had an adequate opportunity to comment on the change. If
there has not been adequate opportunity to comment on a
substantive change, EPA must re-propose the rule before it can
adopt the change. Asking questions and posing alternatives in
the preamble to a rale provides the flexibility to adopt changes
if supported by the public comments.
:•:
25
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Tliree Key Issues
for Comment
Mr. Roelofs encouraged comment on all the areas on which we
requested input and those on which we did not specifically
request input. He focused his remarks on three areas of the
preamble that he considers to be key:
Whether the five chemicals subject to the proposed rule
should be classified as "traditional" Restricted Use - He
pointed out that EPA is inclined to so classify these five
chemicals, but in order to do so EPA needs to build a record of
support. Therefore, the proposal requests comments on several
specific questions:
*• Why should these chemicals be classified (or not) as
"traditional" Restricted Use?
*• What are the down sides, if any?
»• If the pesticides are classified as Restricted Use, should
this apply to all products? Should homeowner-use
products or other categories be excluded from
Restricted Use classification?
>• What would be the effects on SMPs of classifying (or
not), these pesticides as "traditional" Restricted Use.
Whether EPA should define triggers for action -
Mr. Roelofs said the proposed rule does not currently define
triggers at which action must be taken by a State, nor does it
define what actions should be taken. However, the preamble
requests comment on whether EPA should establish triggers or
levels of the five pesticides in ground water that would trigger
action on the part of all States and Tribes who develop
management plans. For example, should the rule include
requirements that SMPs include a commitment to act at 10% of
the MCL, commit to do more at 50%, and to do the maximum
at 100%?
26
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NATIONAL WORKSHOP - August 26 & 27,1996
There are both pros and cons to such an approach. Perhaps the
most significant con is the loss of some flexibility built into the
SMP process. However, there also are benefits to be gained in
terms of national consistency and clear expectations. Such an
approach might result hi simplification of the decision-making
process for States, Tribes when developing SMPs and Regional
Offices when reviewing pesticide-specific SMPs.
Whether there should be a default label process - This
process is a significant policy alternative in the preamble with a
specific request for comment. This option was included in the
Federal Register for consideration based upon input from the
regulated industry. This constituent suggested that the
proposed program sets up a process whereby a registrant will
lose the chemical in a specific State if that State chooses not to
pursue an SMP. Industry also asked whether they should have
the opportunity to continue use of the pesticide in such States if
industry can do so in a way that satisfies EPA's concerns about
potential ground water contamination.
The proposal outlines many specific questions for comment
about this concept to provide EPA with input on two basic
questions: Should such an alternative be made available, and if
so, what kinds of provisions would be adequate?
Mr. Roelofs also pointed out that a potential model to review
in formulating comment in this area is the agreement that EPA
negotiated with the registrants of Acetochlor. This chemical
was conditionally registered under an agreement that amounts
to a detailed contract between EPA and the registrant. This
agreement addressed label provisions for the chemical,
contained registrant commitments to monitor, and provides that
certain detection events lead to consequences up to and
including cancellation.
27
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We must be
careful not to
give up on the
'good enough'
in the search for
perfection.
DENISE KEEHNER,
Acting Director, EPA
Environmental Fate and
Effects Division"
" Ms. Keehner began her
remarks by announcing that Dr.
Joseph Merenda would begin as
the Director of EFED within the
next several weeks.
During development of the SMP process, the EPA had no
experience with conditional registration agreements such as that
entered into with Acetochlor. Now that EPA and the States
have experience with such an agreement, we can jointly assess
its utility within the context of the SMP program.
Denise Keehner:
Ms. Keehner said the monitoring component of SMPs and
indicated that this is a critical component of any kind of ground
water protection strategy. Without monitoring data of known
quality, you cannot:
> tell whether there is a problem,
>• define the nature, magnitude or scope of the problem,
+ determine what might work to solve the problem, or
* evaluate whether your measures did work to solve the
problem.
EPA realizes that monitoring is an inexact science. In fact, the
more you understand the science and the state of the science of
ground water monitoring and analysis, the more you
understand there is a lot more to learn. EPA also recognizes
that ground water monitoring is expensive. As an example, the
registrants of Acetochlor estimated at between $10 million and
$30 million, the costs of implementing the monitoring agreed
to as part of the conditional registration of Acetochlor.
Ms. Keehner said it is difficult to define up front, precisely
what constitutes an adequate monitoring program. In part, this
is due to the fact that the questions needing answers vary based
on a number of factors.
28
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NATIONAL WORKSHOP - August 26 & 27,1996
Four Types of
Monitoring
A mutual challenge was proposed to put in place carefully
designed monitoring programs to answer specific state or local
questions at a known level of confidence. Ms. Keehner noted
that we need to consider and balance the costs of increasing our
certainty with the ramifications of making the wrong decision
based on the monitoring results. She urged common sense
during development of monitoring plans and cautioned that
together, we must be careful not to give up on the "good
enough" in the search for perfection.
In its evaluation of the adequacy of a monitoring program,
EPA must realize that these programs can serve a variety of
purposes and will be designed differently, depending on the
questions you are trying to answer. As an example, four types
of monitoring were highlighted: baseline, problem
identification, response, and evaluation.
In baseline monitoring, one might use existing data and wells
with a small number of new monitoring wells. When you
move up the chart to problem identification, you may use
information from baseline monitoring, plus knowledge of
pesticide use and hydrogeological characteristics to do more
focused monitoring of particular areas to determine whether
you have a problem. Response monitoring, which would be
more focused yet, needs to be designed to characterize and
determine the source of contamination. Finally, evaluation
monitoring would tend to be a long-term, consistent program
since it may take several years, or even a decade, to determine
the effect a specific set of actions had on ground water quality.
Referring to the proposed rule, Ms. Keehner said EPA does
not intend to dictate the details of monitoring programs to
support SMPs, and EPA continues to encourage the use of
other monitoring data such as that collected by the USGS,
particularly for baseline monitoring.
29
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Closing Remarks
EPA believes it
is providing
adequate
opportunity for
notice and
comneWandis
providing ample
procedural
protection which
'.es the
legal
requirements
and is fair.
STEVEN SILVERMAN,
EPA Office of General
Counsel
Also referring to the proposed rule, it was pointed out that
comment has been requested on the extent to which EPA
should undertake a data call-in (FIFRA [Federal Insecticide,
Fungicide and Rodenticide Act] section 3(c)(2)(B)) for ground
water monitoring data to support SMP program needs.
In closing, Ms. Keehner said that given resource constraints,
States will need to set priorities when undertaking monitoring.
For example, a State may need to focus monitoring first on
areas of greatest ground water value or on areas where
unchecked contamination may produce the most significant
potential exposures.
Mr. Silverman:
Mr. Silverman directed his comments to the basis for the
proposed SMP rule and adequacy of opportunity for notice and
comment. On the first point, he stated that there is clear
authority for the proposal in FIFRA section 3(d)(l)(C). This
section allows EPA to classify a pesticide for Restricted Use
upon finding that without additional regulatory restrictions, use
of the pesticide may cause unreasonable adverse effects on the
environment. The act further provides that the Agency can
adopt additional regulatory restrictions by rule.
Mr. Silverman said EPA has set out its record for comment,
which lays out the basis for the finding of unreasonable adverse
effects for the five chemicals subject to the rule. Also, the
costs and benefits are included in the proposal and in
background documents on which we are soliciting comment.
30
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NATIONAL WORKSHOP - August 26 & 27,1996
On the second point, EPA believes it is providing adequate
opportunity for notice and comment and is providing ample
procedural protection which satisfies the legal requirements and
is fair. There are two "bites at the apple;" that is, two
opportunities to comment on EPA findings of potential
unreasonable adverse effects:
> comment on the SMP proposed rule, and
+ comment on pesticide specific SMPs.
First, Mr. Silverman said EPA has put forward, hi general
terms, the record by which it believes Other Regulatory
Restrictions are needed to prevent unreasonable adverse effects
stemming from pesticides in ground water. Comment may be
made on the adequacy of this record to justify the imposition of
Other Regulatory Restrictions.
Second, there is opportunity to comment on whether a specific
SMP adequately addresses the possibility of unreasonable
adverse effects. In this regard, comment could address
adequacy or could address whether the specific SMP is too
restrictive. Mr. Silverman pointed out that the opportunity to
address this comes when the State or Tribe puts forward a
specific plan. He further noted that the preamble to the
proposed regulation says SMPs must provide the opportunity
for adequate comment on the specifics of the plan, whether the
plan is adequate to deal with potential unreasonable adverse
effects, and whether the costs and benefits are adequately
addressed. EPA's final determination on a pesticide-specific
SMP will consider the State's or Tribe's record, comments
received, and how the state addressed those comments, along
with our own record related to this proposal.
31
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Questions from
the Floor
I
Q - (Regulated Industry) - You spoke of the tools that EPA has
and the Ground Water Strategy says that you start at the bottom
of the tier and implement that, evaluate whether it works and
then move to the next tier if necessary, implement that, and
evaluate whether that works. You don't seem to be doing this
evaluation. These tiers haven't been applied to the five
chemicals and EPA has concluded that tier four, SMPs, is the
way to go.
A - First, I don't believe EPA has said that it will walk
through each tier and try them, evaluate them and then move
on. Instead, we have said that we will look at whether any of
the tiers are likely to be adequate to address the concern. We
have gone through that process and determined that the
provisions of "traditional" Restricted Use -- record keeping
and training — would not be adequate to manage the potential
risks, which is why we've moved to the next tier -- SMPs.
Q - (State Lead Agency) - If the label says to follow the SMP
and that is what is enforceable, then if we put voluntary actions
into the SMP, they would appear to become mandatory and
would have to be enforced. Is this the case?
A - No. If a plan says a particular measure is voluntary, the
terms of the plan control. You can't enforce these measures as
requirements. The issue for EPA in approving or disapproving
the plan is whether voluntary measures that are not enforceable
will adequately protect against potential unreasonable adverse
effects. If the plan denominates something as voluntary, it
doesn't become enforceable.
32
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NATIONAL WORKSHOP - August 26 & 27,1996
Q - (State Lead Agency) - Has EPA made a determination of
what the label will look like, specifically focusing on the use
directions, rates of application, setbacks, etc.? Various States
will have voluntary approaches, while others may have
regulatory rate reductions, etc.
A - The basic approach is that the label will say the user has to
comply with the provisions in the SMP. We don't see any
other way to do this and still preserve flexibility. We have
proposed that use has to be in accordance with the SMP. The
proposed rule mentions that the registrant will have to make
this elementary change in the label within an appropriate time
(reference page 33266 of the proposed regulation).
Q - (State Lead Agency) - If a State has done significant
baseline monitoring of high-use areas for a compound and
hasn't found detections, and the State decides not to invest the
resources in doing a plan, would EPA be comfortable
canceling use in that State?
A - If you have a minimal situation, why would you want to do
that rather than put in a few paragraphs to account for that
situation?
Q - (follow up) - A few paragraphs would do it? Reality is
that it will take far more than a few paragraphs or a few pages
and you will have to spend minimally, tens of thousands of
dollars for something that the State has been monitoring for
years and has not found a problem.
A - One issue is that you may have all these data that show
there is no problem, but the Agency would need to see that and
make a determination. Then you get into the "minimal plan"
concept. You need to remember that there are opportunities to
submit plans that are not "full-blown" plans if you can show
there is no use, no problem, the water is not particularly
vulnerable, etc. But a plan of some sort needs to be submitted.
33
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Another issue is that EPA would likely still want to see some
commitment to continued monitoring if use patterns changed,
etc., and at least a basic plan for what actions would be taken if
subsequent monitoring finds the pesticide in the ground water.
Q - (State Lead Agency) - Is EPA prepared to approve a plan
that simply says follow the label directions?
A - There are still basic things that need to be hi the plan
because of the nature of the pesticide and the frequency of
detections on a national basis. But if there is a minimal
problem, the plan could be minimal and in the area of
mitigation measures, that theoretically could consist of
folio whig the label directions.
Q - (State Lead Agency) - I'm pleased to see the default label
being mentioned. There may be a tune when a State chooses
not to invest the resources in an SMP because there are so few
users hi the State. This would provide a way for users hi the
State to continue using it. I'd be interested hi hearing from
registrants their views. Also I'd like to know what's going on
with Cyanazine and why are we writing a plan for it?
A - Regarding Cyanazine, we're leaving it in the proposal
because we're not 100% sure what's going on with Cyanazine.
Q - (Regulated Industry) - Registrants are supposed to submit
labels within 12 months of the final rule and these labels are
supposed to be on the product hi 33 months. Does that mean
we label new product or do we have to go out and locate all old
product and re-label it? There were issues involving the
Endangered Species Protection Program (ESPP) where labeling
in the field referenced Bulletins which were not available. As
a result, the labels had no meaning.
34
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NATIONAL WORKSHOP - August 26 & 27,1996
A - We need to make sure that when the 33-month date arrives,
users aren't faced with labels that don't tell them what to do. I
hope we learned from the ESPP situation. One approach is to
require a label statement that says "after date certain, this
product must be used only in accordance with an approved
SMP." This way, users won't be out searching for a plan that
is not yet in existence.
Q - (Regulated Industry) - One way to measure success or
failure of this workshop is to answer the question, Can a
mandatory plan be voluntary? I think the answer is yes. The
State has to develop a plan and it is subject to approval, but the
specific provisions in the plan that the user is subject to can be
voluntary, I believe. Second, minor crops, minor crops,
minor crops. In response to the previous statement regarding
the default option, the State needs to realize that the mentality
that the State would use in determining whether to devote
resources to an SMP, is likely to be similar to the industry's
rationale for determining whether to support the use of a
chemical in a particular State.
Also, there appears to be inconsistency between the way
Dr. Elkus indicated triggers are used in the SDWA and the
way EPA is using triggers in the SMP process. Under the
SDWA, utilities can petition out of monitoring if detections
were reliably and consistently below the MCL. SMPs go the
other way in that monitoring puts you into a more stringent
plan. Could you clarify this?
A - There are not specific triggers in this rale, although we are
requesting comment on this issue. What we have proposed is a
standard-less approach. Should a State come forward saying
they need a certain level of response based on historic data, the
plan could have minimal controls. It would depend on the
record developed.
35
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!
Q - (State Lead Agency) - The implementation in the proposal
is 33 months (24 months for submission and nine months for
review and approval), but nowhere is there tune for education
or to put information together for the users based on the
approved plan. Will the States be allowed to phase in the plan
by using education as the only component for the first 24 or 12
months?
A - In developing a plan over the course of two years,
educating the users should be a component of that. I'm not
clear on why this is an issue.
Q (follow-up) - You are assuming that the plan remains the
same from early draft until final. You can't put educational
materials together until you know that the plan is approved, or
else you'd be providing information that jupon final plan
approval, may be incorrect. It's important that the information
we provide is the right information.
A - I certainly can't argue mat information and education has
to be accurate, but a very long phase-in would probably be a
real problem for EPA to accept.
Q - (Regulated Industry) - Is it EPA's intention that registrants
would amend their labels for newly manufactured materials or
is it your intention that we would need to find existing
inventory at the 33-month point, and re-label that as well?
A - It is our intent that at the 33-month point, the labels hi the
field have the correct information on them and that users are
not finding old labels out there.
36
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NATIONAL WORKSHOP - August 26 & 27,1996
Q - (State Lead Agency) - The proposal, as well as the
guidance document, indicates that States should make a
commitment to obtain the resources necessary to fully
implement the SMP. If I put hi my plan that the State is
committed to generating the resources, I'd be a liar. Not only
are increased taxes and fees, etc. politically incorrect in my
State, they are politically impossible. What does EPA really
expect for a resource commitment? What I'm hoping will be
acceptable is a plan with a minimal resource commitment that
can be evaluated at the end of two years to determine whether
additional resources are needed to carry it out.
A - The key principle in reviewing these plans will be to
determine that the plan is a coherent whole. Your plan may be
a modest one that requires modest resources. However, if you
propose a very elaborate, expensive plan and then do not have
the resources to carry it out, that would likely not be
acceptable unless it included a phase-in plan for the future.
Some Of the regions on the panels tomorrow may be better able
to address this since they will be reviewing the plan.
Q - (State Water Agency) - You said in your remarks that the
State has to submit evidence that comments have been taken
and that the State has conducted a risk/benefit analysis. A lot
of the information that EPA has that may be necessary for a
State to perform a risk/benefit analysis is not available to the
States. This information would be helpful in showing that our
plans are not overly restrictive. How can we address this?
37
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A - The record for this proceeding (the proposed SMP rule)
should be available. There is only limited Confidential
Business Information that would not be available through our
docket. States have to respond to public comment. Those
comments could indicate that the cost of the restrictions in the
plan outweigh the benefits. If you receive comments that speak
to that, you need to address them. Our record justifies that the
SMP program is necessary, but does not address the specific
limitations that each State might impose through their SMP.
That's what you have to address if you receive comments on
what you're doing through your SMP.
Q - (State Water Agency) - What is the background for
including the requirement in the proposal that plans need to
have the State Attorney General sign-off?
A - This was probably transported from other programs and
included as a routine part of the submittal. The basic idea is to
get some assurance that the legal mechanisms exist to carry out
what you are proposing to do.
Q - (State Lead Agency) - What role is EPA Headquarters
going to play in assisting the Regional Offices to be uniform in
their review and approval processes? And do you anticipate
there will ultimately be an appeal process to Headquarters if
the State is unhappy with the result of the Regional Office
review?
38
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NATIONAL WORKSHOP - August 26 & 27,1996
PANEL OF
STATE LEAD
AGENCIES
A - What we have been doing is trying to provide a forum for
ensuring some degree of consistency among the Regions. We
sponsor a process whereby the Regions and several States meet
monthly via teleconference to address issues raised by the
Regions or by the States through then: Regional Office. Some
issues are raised hi an effort on the part of the Region to reach
consensus and some are raised only so the Region can hear
other viewpoints prior to making a decision. Our intention,
unless we find we need some other process, it to continue to
support this. In terms of our involvement in the review of
plans, it is not our intent to review plans unless the Region
requests, for some specific reason, that we do so. We are
reviewing one SMP right now. The Regional Office has
completed a review and has asked that we provide them with
our assessment so they can determine whether we are all on the
same "wavelength" hi terms of what is or is not acceptable.
We had not anticipated any involvement beyond this.
We have not discussed an appeal process such as you mention.
The authority for approval will be delegated to the Regional
Administrator and the formal appeal process would then be to
the Administrator of EPA. This afternoon we can discuss
whether there is a need or desire for something beyond this and
we'd also welcome formal comment on this issue.
Dr. Henry Wade:
Dr. Wade began his presentation by stating that North
Carolina's generic SMP received concurrence in early 1996.
As it is laid out, it provides the State significant flexibility hi
the areas of assessment, monitoring, outreach and other
components. There are no minimum numbers of wells
required and no specific time frames for adoption of
39
-------
If EPA doesn't
decide whether
we should look
for metabolites,
the States can
make the
decision
themselves that
yes, we are
going to look for
them.
DR. HENRY WADE,
Pesticide Environmental
Program Manager, North
Carolina Dept. of
Agriculture
regulations to limit use in areas where there are detections.
Instead, the State has the flexibility to determine these two
factors itself.
The North Carolina plan has three detection levels at which
actions will be taken. These levels are based on a percent of a
ground water quality standard which has been adopted by the
State's Environmental Management Commission. There are
currently standards for 80 chemicals, 20 of which are
pesticides.
The first detection level at which action is taken is detections
less than or equal to 50% of the ground water quality standard.
At this level of detection, voluntary BMPs are encouraged.
Detections of between 50% and 100% of the ground water
quality standard will result in regulatory approaches. This can
include limitations on frequency of use, reductions of use rates,
irrigation restrictions, etc.
At levels of greater than 100% of the ground water quality
standard, use prohibitions would be implemented.
The North Carolina Department of Agriculture and the
Environmental Health and Natural Resources Departments
have been involved in a statewide ground water monitoring
program since 1991. Funding for not only assessment and
monitoring, but for positions hi the Department and supplies,
conies from the support provided by the State General
Assembly. The Department receives approximately $700,000
per year and the Department of Environmental Health and
Natural Resources receives over $300,000 per year to address
pesticides and ground water issues.
Registrant input and assistance is a major component in North
Carolina's SMP. The plan indicates a variety of activities
40
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NATIONAL WORKSHOP - August 26 & 27,1996
Identifying
Susceptible Areas
that the State may require of the registrant. For example,
registrants may be required to submit proposed risk reduction
measures that could be included in the pesticide-specific SMP
for their pesticides. They also may be requested to provide
geographic usage data for their compound, assist in developing
educational information, provide assessments of the likelihood
of their pesticide impacting ground water, provide methods for
analyzing their compounds and metabolites, and provide
analytical reference standards.
Dr. Wade mentioned two ways to identify susceptible areas and
assess ground water quality. The first method is through the
use of DRASTIC. While the EPA Pesticide Survey used this
model with uncertain success, they used it on a county level.
North Carolina has used DRASTIC on a sub-county level to
produce useful maps to target areas within the county for
locating monitoring wells.
Another useful tool is Soil Leaching Potential Indices.
Developed by Rich McLaughlin and Jerry Weber from NC
State University, this approach relies on calculations of
pesticide leaching potential and soil characteristics to derive an
index number.
In these calculations, the leaching potential is based on the
materials used, the fraction hitting the soil, the soil adsorption
coefficient and persistence of the compound. The soil
characteristics used are texture, pH, and organic matter
content.
In evaluating soil potential, each of the three factors is
weighted. Organic matter content is the most important factor
influencing potential movement through the soil. The second is
texture and the third acidity. Organic matter is measured to lh
foot and the other two are measured down to 3 feet.
41
-------
Metabolites
Once you perform all the calculations, you add the factors and
get a soil leaching potential value. From this number you
calculate the index. The index will be a number between zero
~ if you have a soil that is about like steel ~ and 100 -- if you
have a very coarse, sandy soil that the pesticide would go
through like a bullet.
Dr. Wade said the Soil Leaching Potential model is a very
beneficial tool, particularly if resources are limited and you
need to quickly find out where susceptible areas are.
"Evaluating Pesticide Movement in North Carolina," by Ward
and Weber, in Soil Science of North Carolina proceedings; vol.
37, pages 23-35, 1994, contains complete equations for
calculating soil leaching potentials and pesticide leaching
potentials. In all cases, Dr. Wade cautioned, what you've got
is only as good as the data that's put into it.
North Carolina's statewide ground water study employs 97
monitoring wells. In this study, now completed, they found a
few pesticides in about 17 locations. Most detections were in
soils with high to very high leaching potential. One chlorinated
hydrocarbon pesticide was found in areas where soils had
moderate leaching potential. Dinoseb and Simazine were
found in areas with low soil leaching potential. However, in
the field where simazine was found, other soil samples showed
high leaching potential, demonstrating the mosaic of soil
leaching potentials.
One very important issue discussed by Dr. Wade involves
metabolites. He said if they are of toxicological concern, they
need to be addressed. In North Carolina, some metabolites
have been analyzed by State toxicologists and then added to the
parent compound to derive a health-based guidance
42
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NATIONAL WORKSHOP - August 26 & 27,1996
Closing Remarks
number for the combined compounds. Individually, they may
not exceed the State standards, but when combined, they may.
EPA needs to decide now if we are going to address
metabolites. It would be a significant waste of time and money
to take samples now, analyze them only for the parent and then
find out later that we need to analyze for metabolites. If EPA
doesn't decide whether we should look for metabolites, the
States can make the decision themselves that yes, we are going
to look for metabolites.
Dr. Wade closed his presentation by stressing the importance
of classifying the five SMP chemicals for "traditional"
Restricted Use. He also urged that any statements regarding
the need to use a product in accordance with an SMP be on
the front panel of the label where the user is most inclined
to see it.
Paul Goslin:
Mr. Goslin focused his remarks on California's experiences in
SMP development. He noted that none of the State programs
are growing, so it is more important now than ever to focus
dollars in a way that results in action at the field level, rather
than resulting in development of plans and documents that will
wind up sitting on a shelf. Plans don't protect the ground
water, actions do.
Since 1986 or 1987, many States had put the five SMP
compounds on a State Restricted Use list. Mr. Goslin said one
major reason for this is that Certification programs do work
and provide a means of targeted education. This process needs
to be solidly supported and we need to maintain our foundation
programs such as Certification and Training.
43
-------
We need to
focus dollars in
away that
results in action
at the field
level.,. plans
don't protect
ground water,
actions do.
PAUL H. GOSLIN,
Asst. Director for
Enforcement,
Environmental
Monitoring and Data
Management Division,
CA Dept. of Pesticide
Regulation
In California, targeted ground water protection goes back 10
years. At about that time, a comprehensive statute was enacted
that prescribes how California operates. Among other things,
it mandates monitoring and identifies compounds for which to
monitor. The five SMP compounds are on that list.
The statute also requires an annual report on ground water
monitoring results. The State collects over 6,000 samples per
year and invests over $2 million in its ground water program.
The State also invests over $1 million in its surface water
program, which is a growing area of focus in California.
California is a strange State in that it is broken into
subdivisions — and it has to be, given its size and diversity.
Each State environmental program is broken into local control
areas. There is a County Agricultural Commissioner in each
County who is responsible for, among other things, field based
use reporting programs, Restricted Materials permitting and
use reporting. The State Water Board also has Regional Water
Boards that are fairly autonomous, but also carry out the State
programs at the local level.
This structure results hi a unique dynamic in ground water
protection efforts. There is not only interagency interaction,
but also subdivisional interaction to consider.
Ten years ago, when the ground water protection program was
begun, it brought agencies together to coordinate and set up
joint processes on what would occur, the State's response, etc.
In 1991, the State established a foundation for interaction with
the State Water Board and in 1996, California broadened that
foundation by developing a comprehensive agency management
agreement which includes Counties and Regional Water
Boards. All have signed off on this agreement. While it
doesn't necessarily fit exactly into the SMP structure, it works
for California and builds on the strengths of each department.
44
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NATIONAL WORKSHOP - August 26 & 27,1996
Actions Taken
When Detections
are Found
In addition to directing monitoring and identifying compounds
for which to monitor, California's statute also requires that
action be taken when detections are found. The first level of
response is training, and then restriction, and then prohibition
hi the use area. California is changing its regulations to
broaden this out to County-wide control of the pesticide.
These are changes being made outside the scope of the SMP
process, based on the State's own history with its own
program.
In the history of California's program, they have performed
what would probably be considered "baseline" monitoring
according to the SMP process. Mr. Goslin noted that many
thousands of samples have been taken and the results show
limited problems.
Mr. Goslin stated that Alachlor and Metolachlor have been
found maybe one time. They detected triazines, but not from
the over 250 crops grown hi California. Instead, the use
patterns resulting in issues with the triazines were rights-of-
way and industrial uses, with some minor detections hi citrus.
As a result of the monitoring effort, triazine use on rights-of-
way was prohibited almost eight years ago. One advantage hi
California, Mr. Goslin noted, is that because of their system of
Restricted Materials permitting and use reporting, California
has been able to target monitoring to areas of high use and
vulnerability.
SMPs do not reflect what the real State priorities are. The five
SMP chemicals are national priorities and no one would
dispute that, but upon California's own monitoring and
evaluation, they find other compounds of more concern. For
example, Bentazon was being found hi ground water and the
State determined that the major contributor was use on rice.
45
-------
California's
Concerns with its
Generic SMP
I
That use was prohibited under the State's own ground water
program. Simazine and Atrazine have been prohibited on
rights-of-way. California is currently focusing on some issues
in grapes and citrus and is working with the growers to identify
BMPs that can keep the pesticides from reaching ground water.
Mr. Goslin said California is going to use field dissipation
studies as part of their ground water protection efforts. The
State does not want to use "Superfund-style" monitoring wells,
which are expensive and result in data with limitations.
Through field dissipation studies, California believes it will be
able to make sure the chemical is not moving through the soil
profile. If it's not, you don't need to look at the ground water
to see whether it has made it that far.
California began drafting its generic SMP in 1991 and has just
received comments on its third draft. Of the 12 SMP
components described hi the guidance, none has been
determined to be complete or adequate. The EPA Regional
Office reviewing the generic SMP has taken a lot of heat,
Mr. Goslin said, but the issue is really how the program is
designed. He said the 12 components are designed to tie up
resources of the State and Region in asking questions to which
everyone should already know the answers. These resources
would be better spent working in partnership with each other.
If we can't simply explain what our enforcement authorities
are, what our resource base is, who we are and how we
operate after almost 20 years of work with each other through
Cooperative Agreements, something is wrong. He also said
that requiring the "planning" aspects of these programs to be
detailed in writing is leading Regions and States to a point of
conflict.
Other State/EPA programs have similar issues. For example,
Attorney General sign-off is one issue that the RCRA
(Resource Conservation and Recovery Act) programs are
dealing with now.
46
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NATIONAL WORKSHOP - August 26 & 27,1996
Closing Remarks
The California program spends nearly $1 million a year to
have an Attorney General sign a letter saying the State is doing
what it is supposed to do. Mr. Goslin said it is frightening that
the SMP program might go down some of the same paths that
other programs are now trying to fix.
Mr. Goslin questioned the value added by all the
documentation and sign-offs and said that California would
prefer to see the dialogue focused on major policy issues such
as adequacy of monitoring, what's being found and what
actions are being taken to address the situation.
In closing, Mr. Goslin said the EPA Regional Office has taken
a narrow, strict view of the SMP guidance and that they have
taken criticism for that. But the rule is such that if anyone
were in their position and trying to push the envelope, they
would have the flexibility to say "that's not good enough," or
"you can do this better," because the rule sets up that dynamic.
Mr. Goslin said that instead of spending time trying to iron out
the wrinkles in the program, we should step back and design a
program that will last into the future. We shouldn't be wasting
dollars better spent protecting ground water. We should be
spending staff time doing monitoring or putting restrictions in
place where needed or doing education programs, rather than
using the resources we have to argue over language in a
document that's going to sit in a file cabinet.
Tammy Gould:
Ms. Gould began by saying "I must say, I get along great with
my Regional Office. I think they're wonderful."
Maine submitted its generic SMP in July of 1994. In October
of 1994 they received a letter from the EPA Regional Office
47
-------
By going
through
process,
increased #n$
maybe someone
thought to me
the chemical a
little more
carefully*
TAMMY GOULD,
Pesticide Planner, Maine
Board of Pesticide
Control
stating that it had passed its completeness review. In June of
1995, concurrence was received. Ms. Gould noted that while
awaiting word from EPA that pesticide-specific SMPs were
required and for what chemicals, a State concern was identified
for the pesticide Hexazinone. Hexazinone is an herbicide used
to control weeds in blueberries in Maine. It is a relative of the
triazines and is persistent.
Blueberries hi Maine are grown on sandy soil, if there's soil at
all. For the most part they grow on the Maine coast. Since
the introduction of Hexazinone, Maine blueberry growers have
tripled then: output in the last 10 years. It is a significant
product to the blueberry industry and there are no chemical
alternatives. According to Ms. Gould, the issue with
Hexazinone was characterized through monitoring conducted hi
1994 when they sampled 20 drinking water wells and found
Hexazinone hi 15. In follow-up monitoring, 48 wells were
sampled and Hexazinone was detected in 37. Because the
sampling was statistically valid, you could conclude from it
that if you lived within 1/4-mile down gradient of a blueberry
field, you had a three out of four chance of finding Hexazinone
hi your water. The Cooperative Extension Service also had
been doing research on Hexazinone and had been finding the
chemical in ground water since 1989.
Hexazinone detections were all under 30 ppb, well below the
Health Advisory Level of 200 ppb. There is no MCL
established for Hexazinone, so Maine used the HAL as its
reference point.
Based on the monitoring information, the Maine Pesticide
Board was presented with a citizen-initiated petition to ban the
use of hexazinone in Maine. After a lengthy regulatory
process, the petition failed. However, the Board decided to
apply the provisions of its generic SMP to the issue.
48
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NATIONAL WORKSHOP - August 26 & 27,1996
Developing a
Pesticide-Specific
SMP
A Plan for
Hexazinone
Maine's generic SMP requires the formation of a Pesticide
SMP Advisory Committee and describes a process by which
pesticide-specific SMPs will be written. The Advisory
Committee's duty is to respond to a mandate from either EPA
or the Maine Pesticide Board to develop pesticide-specific
recommendations, including prevention, response and
monitoring, and present these recommendations to the Board hi
the form of a proposed pesticide-specific SMP.
The Board directed that the Committee be formed and it began
meeting in January 1995. The Committee consists of "core
members" and "pesticide-specific members". The core
members have specific technical backgrounds in agronomy,
soil science and hydrogeology. The pesticide-specific members
would include the chemical industry, citizens affected by the
issue, etc. The core members provide consistency, while the
pesticide-specific members provide specific knowledge of the
chemical and its use.
Ms. Gould noted that for the Hexazinone Advisory Committee,
the agronomist (who was also a water quality specialist) was
chosen from the Cooperative Extension in Maine. Both the
soil scientist and the hydrogeologist were from the private
sector and donated their time to this issue. Also on the
committee were a Maine Department of Agriculture
representative, a blueberry crop specialist from Maine's
university system, the town Selectman from Franklin,* a school
superintendent, a member of the public (the person who filed
the petition to ban Hexazinone), two blueberry growers, and
DuPont.
The town of Franklin found Hexazinone in their water supply well. They
determined that rather than filtering the water, they would drill another well. Upon doing so,
they also found Hexazinone in that well. In exploring surface water alternatives, they
determined that, too, contained Hexazinone.
49
-------
Lessons Learned
Ms. Gould said the charge to the group was simple: develop a
plan to prevent further contamination. All options were to be
considered, both regulatory and voluntary. With this charge in
hand, the group met six times and presented final
recommendations to the Board in August 1995.
The plan relies heavily on voluntary use of BMPs developed
and published by the Maine Cooperative Extension Service and
the Maine Department of Agriculture. This was acceptable
because the State was not finding Hexazinone at levels
approaching the HAL. Additionally, DuPont changed its label
to limit rates and to require a 50-foot well-head setback. The
State also initiated two regulatory requirements: prohibiting
application with air blast equipment and requiring licensing of
applicators. Ms. Gould said they did not classify Hexazinone
as a State Restricted Use chemical because they do not
currently have Restricted Use criteria in place for ground
water. However, the special regulation that was promulgated
accomplishes basically the same end.
The final rule for licensing requirements and a summary of
comments the State received through its Administrative
Procedures Act comment period are included with, and are part
of, the pesticide-specific SMP.
Ms. Gould said they learned several lessons from the
experience of moving from a generic to a pesticide-specific
SMP. First, when you have members of the public and
industry at the same table, there will be friction. Ms. Gould
said that they worked very diligently to bring everyone to
middle ground, but that it is not always possible. Second, if a
group is weighted on the side of any one interest, the other
interests will feel they are not being heard with equal
seriousness.
50
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NATIONAL WORKSHOP - August 26 & 27,1996
Closing Remarks
In spite of the difficulties, Ms. Gould said she could not have
asked for a more knowledgeable group of people to sit down
and answer the question, "What do we do?" Each member of
the committee was provided with EPA's Appendix B (the
technical document on monitoring) and none of them needed to
use it. The best knowledge comes from the people who use the
chemical, manufacture it, etc.
In reviewing the tune necessary to move from a generic to a
pesticide-specific SMP, the Maine experience required six to
nine months for the Advisory Committee to develop
recommendations and another six to nine months for the
Board's review and adoption; overall, it took between 12 and
18 months. Based on this experience, Ms. Gould believes the
24-months tune frame in EPA's proposed SMP Rule will be
adequate for Maine.
Ms. Gould said this first test of their generic plan has pointed
out that it does not adequately address widespread, low-level
contamination and noted that Hexazinone would not have been
handled had the issue not been raised through the citizen
petition process. Also, Maine is going to review its generic
SMP to determine whether changes need to be made to better
balance participation on the pesticide SMP Advisory
Committee.
In closing, Ms. Gould said Maine instituted no new taxes or
fees to support this effort. However, even with limited
resources, they found a method to move forward. A real side
benefit noted by Ms. Gould was that by going through the
process, public awareness was increased. Because of this,
maybe someone thought to be a little more careful in using
Hexazinone.
51
-------
If you get 10
people in a
room discussing
it, you'll come
up with 15
different
opinions on how
to do it and by
the timey&u*re
done* nobody
will like any of
the 15.
JOHN fflNES,
Supervisor of the
Monitoring and
Assessment Unit,
Minnesota Dept. of
Agriculture
John Hines:
Mr. Hines began by disagreeing with the previous speaker. He
said he believes all the programs the States are required to
implement are growing. The issue is that there is a
concomitant decrease in resources to operate them.
Minnesota began looking at the issue of pesticides in ground
water in 1986. Through monitoring programs, they found 14
pesticides in different types of wells throughout the State.
Subsequent to that, the legislature developed the Minnesota
Pesticide Control Law. Among other things, this law provides
authority and a mandate to the Minnesota Department of
Agriculture to develop "Pesticide Management Plans". This
mandate was given to the Department about the same time that
the Coolfont meetings were taking place and EPA was
beginning to develop the SMP approach. Therefore, the
Department developed its State-mandated plan to parallel
EPA's developing program. The plan and monitoring within
the State focus on urban and rural areas and uses.
In 1989, Minnesota began developing the State-mandated plan.
Around the same time, the legislature put into place the
Ground Water Protection Act. This act gives additional,
detailed direction to the Department of Agriculture relative to
their plan.
The process of developing the plan took seven years and the
final document was completed this past April. It took this
long, noted Mr. Hines, because the Department hadn't done
anything like this before. One of the most difficult aspects of
developing the plan was public participation, which the law
requires. Rather than developing information up front and then
involving the public, the State opened the process from
52
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NATIONAL WORKSHOP - August 26 & 27,1996
the start. Gaining consensus among 30 to 40 people is a huge
challenge. Mr. Hines noted that this process was a lot like
how he views monitoring — if you get 10 people in a room
discussing it, you'll come up with 15 different opinions on how
to do it and by the time you're done, nobody will like any of
the 15.
The Department has access to monitoring information from as
far back as 1987. The State is using this information to
determine chemicals that have been found hi either surface or
ground water. Surface water is included in the State's
legislation on its own merits. Minnesota has a quarter-million
miles of rivers, 15,000 lakes and five distinct continental
drainage basins. Water is considered one of the primary
reasons for the high quality of life hi Minnesota, and as a
result, the state law also implements a non-degradation
standard.
Because of the non-degradation standard, Minnesota has no
standards against which to set triggers. If a pesticide is found
in the water at the limits of detection, the Department has to
decide what to do about it. Mr. Hines said, however, that they
are not allowing the data to make the decisions for them. A
committee representing industry, universities, farmers, the
State government and environmental groups has been
established to set priorities for the State. The members of the
committee review the data, review the protocol for collecting
the data, perform quality assurance/quality control (QA/QC)
and determine which chemicals to take action on due to a
concern for water quality.
Once the chemicals are identified, the State-mandated plan calls
for voluntary BMPs or alternative use practices. More
specific, targeted monitoring is then performed hi association
with these changed practices. To do this, the State sets up
"Pesticide Management Areas." Within those areas, BMP
53
-------
Questions from
the Floor
Promotion Areas are established. These are smaller areas and
serve very much like a demonstration project. It is in these
BMP Promotion Areas where the State then can measure the
impact of the plan. If the voluntary measures are not successful
(i.e., levels are not decreasing or are increasing, frequency of
detections is increasing or not decreasing), the plan moves into
mandatory measures.
The State's priority setting committee has made tentative
decisions on which chemicals are of concern in ground water
and they are beginning discussions about surface water
concerns. While not at liberty to disclose which chemicals will
be the focus of the State's plans, Mr. Hines noted five
chemicals most frequently found in ground water: Alachlor,
Atrazine, Cyanazine, Metolachlor and Metribuzin. He also
noted an equal number of chemicals found most often in
surface water: Alachlor, Atrazine, Cyanazine, Metolachlor and
Acetochlor.
In conclusion, Mr. Hines said they will submit their plan to the
EPA Regional Office this September. He noted that the State
and the EPA Regional Office have been engaged in open
dialogue throughout the plan's development. One area that
Mr. Hines believes will need to be discussed further with the
Regional Office is how their plan, without trigger levels, will
fit into the guidance EPA has issued that calls for the State to
set such levels.
Q - (State Lead Agency) - (The participant asked all State Lead
Agencies and then all State Lead Agencies with approved
SMPs to raise their hand.) It's impressive that 50% of the
panel has approved plans. The panel doesn't seem to represent
the percentage of States that have approved plans. I think this
is an indicator that the proposed 33-month time frame in the
proposed rule may not be enough.
54
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NATIONAL WORKSHOP - August 26 & 27,1996
A - (EPA moderator) - We didn't try to weight the panel, but
tried to get differing views in order to promote discussion.
Apparently that worked.
Q - (State Lead Agency to North Carolina) - The leaching
index system has a scale of zero to 100. Do you use those fine
intervals? That is, is an index of 7 significantly more
important than one of 2?
A - The State is concerned when the leaching index is 60 or
greater.
Q - (State Lead Agency to Maine) - Given the extent of the
problem with Hexazinone in Maine, do you believe the two
regulatory measures (certified applicators and prohibition on
air blast equipment) are adequate to address the problem?
A - Our seven-member board sets public policy. We present
them with the best information we can and they make the
decisions. We hope it works. If it doesn't, the committee will
be back together to review the situation and recommend
alternative actions.
We won't know for four years whether the plan is having a
positive effect. Hexazinone is used every other year (non-
bearing years) and we'd like to go through two use seasons.
Q - (State Lead Agency) - Can all the panel members talk
about what wells they use in then- monitoring programs?
A - (from North Carolina) - We use monitoring wells and have
a network across the State of about 100 wells. They are
stainless steel and are drilled to shallow ground water. We
look at shallow ground water because that's where the
pesticides will show up first.
55
-------
A - (from California) - We use a variety of irrigation and
private drinking water wells. We will get public drinking
water supply wells data because we are the repository for all
ground water monitoring data in the State. We obtain well
logs when available. We do not have dedicated monitoring
wells.
A - (from Minnesota) - We use monitoring wells. There are
about 1200 wells throughout the State that we can access.
They were installed by a variety of different organizations.
We are currently monitoring over 450 of these in the sand
plains area. In the bedrock areas, we use domestic drinking
water wells. At $10,000 per well to install a single well, mis
is a little more money than we have available. We've tried
using irrigations wells but they are difficult and don't represent
the water we're trying to sample. These are too deep to
provide an early warning system.
Q - (Regulated Industry) - Some of the primary uses causing
problems and chemicals of concern to the panelists are not the
five chemicals identified in the proposed SMP rale. What is
number 6 on EPA's list and what is the criteria for selecting
them, when what we saw in the presentation was that these
may not be the right five?
A - (EPA moderator) - We are looking at concern on a national
scale. Hexazinone was a big concern in Maine, but it would
not have come up on our radar screen. In terms of the next
ones, I don't know, We started with the As maybe we'll move
to the Bs. Seriously, if you want to get a sense, there are
about 20 chemicals that meet the draft Restricted Use criteria
and I'd look at those. However, we have no plans at the
present time to identify additional chemicals, except the
possibility of Aldicarb, which is currently in Special Review.
56
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NATIONAL WORKSHOP - August 26 & 27,1996
Q - (State Lead Agency to North Carolina) - Do you have any
special sources of general revenue money?
A - The State Legislature provides the funding. The State does
have annual assessment fees in the amount of $25 or $50 per
product per year. These funds are earmarked as an
environmental trust rand. The trust fund monies are then used
for a variety of activities including recycling programs, drift
reduction, epidemiological studies, etc.
Q - (State Lead Agency to Maine) - What was the impetus
behind the initiative to ban Hexazinone, and would you be in
the position you are now in if the citizen petition had not
occurred?
A - The individual who brought the petition was an organic
blueberry grower. That person got our monitoring data, which
is public information, and filed the petition. In the State of
Maine anyone can bring forward 150 signatures and force a
board or commission with rule-making powers to address the
petition. Had the person not brought the petition forward, we
likely would not have done a plan to address Hexazinone. Our
generic SMP calls for action at 10% of the MCL. The levels
of hexazinone that were found were well below 10% of the
HAL.
Q - (University) - How are BMPs selected? How do you know
they work? Do they present even a quasi-enforcement burden?
A - (from North Carolina) - North Carolina would look to the
registrants to identify BMPs to reduce ground water
contamination. We also would want data to demonstrate that
these would be likely to work.
57
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A - (from California) - It's really not voluntary, because the
notion is you come to us with ways to fix it or we're going to
regulate you. We try to get industry to understand the
technical aspects it will take to mitigate the problem. Trying to
determine whether people are using it probably does take some
compliance oversight.
A - (from Maine) - The BMPs are designed and researched by
the Maine Cooperative Extension. They are voluntary in
nature in that when we do use inspections, we don't inspect to
see whether BMPs are being followed. We'd like to do some
kind of survey to see how BMPs are being worked into the
agricultural community. We can't just ask, "Are you using
BMPs?" because the answer will be yes.
A - (from Minnesota) - The university and Extension make
recommendations for specific crop/chemical combinations. At
some point these could become mandatory if the situation
becomes worse. Right now, they are voluntary in the sense
that the user can select which practices best fit their operations.
We also will track implementation of BMPs with surveys in
our BMP promotion areas.
Q - (State Environment Department) - What liability do the
panel members see associated with detections in private
drinking water wells?
A - (from Maine) - We ask permission to sample and if the
well owner says no, we go away. When information is
requested about our monitoring, we provide the information
based on county and town. If someone wants more specific
information about location of the well, they will need to file
under the Freedom of Information Act. We have not had any
requests under FOIA, so it hasn't been tested whether we will
58
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NATIONAL WORKSHOP - August 26 & 27,1996
be forced to release information. The first time I release
information will be the last tune someone will let me sample.
A - (from Minnesota) - We operate in a similar manner for the
few domestic wells we sample. That's one of the reasons,
though, that we use monitoring wells.
A - (from California) - It's about the same in California.
Q - (from CA panelist to last questioner) - Does your State
have liability for the grower if you get a detection?
A - (from State Environment Department) - There are
responsibilities in terms of cleanup if the detection is above the
standard. There are also property laws that come into play
when any real estate transaction is made. We are looking at
the feasibility of installing wells on non-private lands because
this is a big issue for us. People are not inclined to cooperate
with private drinking water wells.
A - (from State Lead Agency from the floor) We've conducted
limited monitoring and we would go to the well owner and ask
permission. As with the other States, if the owner said no,
we'd leave. In one case, we had detections over the MCL and
felt a moral responsibility to notify the well owner. We
contacted the registrants of the chemical as well and they
worked together to install a new well for the person. I don't
know how deep the pockets of the registrants are if we get a
national program going, but that one individual is now a
convert to our program.
A - (from North Carolina) - North Carolina also had a situation
where the registrants, after taking and analyzing their own
sample, agreed to assist in installing new wells for owners of
wells contaminated with their product. We also tried a pilot
survey to look at immunoassay tests. A list of 80
59
-------
PANEL OF
REGULATED
INDUSTRY
fanners was identified for us in areas where there were certain
soil types and we sent letters to each asking them to participate
at no cost to them. Fourteen agreed. We don't agree to any
level of confidentiality in North Carolina. Because the
program is funded with State money, it is all public
information. As more detections occur, it will be more
difficult to get volunteers.
Margaret Cherney:
Ms. Cherney expressed appreciation on the part of industry for
having them present then- views to the group.
Since 1991, ACPA (American Crop Protection Association)
has continually supported the concept of SMPs as a means of
regulating risks in ground water. This is still the case. ACPA
believes that the use of sound science and risk characterization
in determining which products may generally cause
unreasonable adverse effects in ground water, with the use of
local knowledge and experience provided through the pesticide
State Lead Agencies, promotes the most efficient use of
resources hi protecting ground water.
Given that several factors influence whether a pesticide will
reach ground water, and given varying toxicity of pesticides, it
is prudent to implement a tiered program. Ms. Cherney said
ACPA has defined a four-tier approach over the past several
years. The tiers from less to more stringent are:
» ground water advisory labels or labels negotiated with
the registrant,
> voluntary measures hi cooperation with pesticide State
Lead Agencies,
>• Federal Restricted Use classification, and
>• mandatory SMPs.
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NATIONAL WORKSHOP - August 26 & 27,1996
ACPA would
like to see
specific science-
based criteria
d&ftnedfor
requiring the
level of ike
current
proposed
regulation —
that isfr
mandatory State
Management
Plans,
MARGARET A.
CHERNEY, Director of
Environmental and
Regulatory Affairs,
Rhone-Poulenc AG
Company
Ms. Cherney said several actions have already taken place that
are consistent with this approach. Several States are managing
the presence of pesticide hi ground water, along with the
registrants, through voluntary SMPs or BMPs. Those
registrants involved in these efforts believe it has been an
effective approach and recommend that it continue on a
voluntary basis.
Second, EPA proposed rules in 1991 that lay out criteria for
classify ing pesticides for Federal Restricted Use. ACPA
supports the process of setting science-based criteria for
products that would be regulated hi this way and urges EPA to
finalize that proposed rule prior to establishing mandatory
SMPs. Ms. Cherney said it is necessary to have these criteria
defined so further criteria can be developed to decide when
mandatory SMPs are necessary.
In reference to tier four of this approach, ACPA agreed with a
comment made by Dr. Lynn Goldman hi a letter to the late
Representative Bill Emerson: "SMPs are a remedy that should
only be invoked for the most serious and widespread threats to
ground water." As with the Restricted Use criteria, ACPA
would like to see specific science-based criteria defined for
requiring the level of the currently proposed, mandatory SMPs.
In closing, Ms. Cherney said ACPA is interested in seeing
each of the four tiers hi their approach formally recognized,
defined and implemented as part of managing pesticide risks hi
ground water. This would result hi a more systematic
approach to regulation of pesticides in ground water, using all
available resources hi achieving the overall objective of
ensuring effective and efficient protection. The industry,
Ms. Cherney said, stands ready to work with EPA and the
pesticide State Lead Agencies toward this objective.
61
-------
A voluntary
approach would
a^oicj. the legal
issues ACPA
believes are
serious flaws
•with the current
proposal
VINCENT
ALBENTOSA, Division
Counsel for the
Agriculture Group, CffiA
Crop Protection
Vincent Albentosa:
Mr. Albentosa began by stating he was going to comment on
some legal considerations underlying the proposed SMP rule
and whether they are consistent with FIFRA. In the view of
the industry, they are not.
One issue is whether EPA can use a rule to establish Restricted
Use status when it involves a change in classification from
General Use. Mr. Albentosa said the answer is no. Section
3(d)(2) of FIFRA says EPA has to follow specific procedures
which involve holding hearings and allowing registrants their
procedural rights under FIFRA section 6(b). Most of the
specific chemicals in the proposed rule have not been classified
as Restricted Use and therefore, the proceeding is inappropriate
for these chemicals.
Another issue was that even if this were an appropriate
proceeding, industry still does not have "two bites at the apple"
in terms of judicial review. First, EPA said industry has an
opportunity to comment on this proceeding, but the restrictions
contained in the proceeding have no content ~ that is, it just
says SMPs are required, but does not say what the specific
restrictions will be. Mr. Albentosa said he doesn't see how
anyone can do a risk/benefit or cost/benefit analysis under
these conditions or determine that these restrictions need to
appear on a Federal label. The prospect of a pesticide being
canceled in a State shows there can be severe consequences
without having demonstrated that there is any kind of
unreasonable adverse effect. Mr. Albentosa said "this is not
consistent with FIFRA," and the first step should be to set out
criteria without applying them to any specific pesticides.
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NATIONAL WORKSHOP - August 26 & 27,1996
Second, FIFRA provides that a determination of necessary
restrictions to protect the public interest, and not unduly
restrict the ability of growers to use the product, must be a
Federal proceeding and there has to be a Federal hearing.
Under those conditions, EPA could use the statutory authority
it claims it has. However, Mr. Albentosa said, this is not a
Federal proceeding and there is no evidence that there would
be a right to judicial review as provided under FIFRA.
In closing, Mr. Albentosa said that while ACPA believes these
are several of the reasons why the current proposal is
inconsistent with FIFRA, that doesn't mean that they don't
support SMPs and in particular, voluntary SMPs. A voluntary
approach would avoid the legal issues ACPA believes are a
serious flaw with the current proposal.
Charles Rock:
Mr. Rock said that he was going to provide ideas that he had
come to learn over the years working on ground water issues
since 1983. He said that unlike common rumor, Wisconsin
was not the first State to pass ground water legislation and that
he believed Florida beat them by maybe about two weeks. Mr.
Rock noted that the Florida legislation was based on the
education and management theme that industry supported and
that this was occurring at a time when EPA had not yet begun
its pesticide and ground water program. California and
Arizona were next to enact legislation hi the mid-1980s. They
took a different tack and based then: programs on the theory
that you could predict the likelihood that a pesticide would
appear in ground water based on its physio-chemical
properties. Mr. Rock said the physio-chemical approach
63
-------
Once a problem
is identified and
opportunities
are created to
solve the
problem,
agriculture has
the knowledge,
skills and
abilities, and the
mil, to respond
to resolve the
issue.
CHARLES G. ROCK,
Director of State
Government Affairs and
Environmental Policies,
CIBA Crop Protection
State Innovations
can be used for resource targeting and planning, but is
probably not really something on which to build a management
plan.
There are now over 20 States that have adopted legislation
related to water quality and in those, Mr. Rock said, he sees a
common theme. This theme is a two-tiered approach where
first, voluntary measures are applied, and then if they are not
acceptable, a mandatory approach begins. Another
commonality is "management areas." The underlying theme to
this approach is that a State will fit a solution to a given
problem. If the problem is in a small area, the solution is
applied there; individuals in other areas of the State are not
impacted.
Mr. Rock cited Montana's ground water bill as a national
model, noting that the Council of State Governments adopted
this as a model bill for all the States. You can see parts of it in
many other States' legislation. He also said that within about
four months of the model bill being identified, Minnesota
passed legislation that has basically the same intent.
The point of this history, Mr. Rock said, is to show that a
number of States have adopted water quality legislation with
some combination of voluntary and mandatory approaches.
The common theme throughout all of them is reliance on
outreach and education. A study conducted by the University
of Wisconsin shows that education leads to behavioral changes
that can go beyond what any wholly regulatory approach might
accomplish.
Next, Mr. Rock described what he considered to be an
innovation in ground water and pesticides management. He
cautioned that he doesn't necessarily support these, nor are
they necessarily ACPA positions — simply observations that
may help States develop more efficient programs and perhaps
less bureaucratic ones.
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NATIONAL WORKSHOP - August 26 & 27,1996
The five chemicals proposed for SMPs have one major thing in
common — they are all used on corn. Additionally, they are
soil applied, generally at the same application rates, and
usually at the same time of year. Mr. Rock said he believes
the State of New York took a very innovative step hi
recognizing these similarities. New York is developing a Corn
Herbicide SMP, or a Crop Specific SMP. The program
includes the five proposed chemicals and is voluntary in nature.
What this approach did for the growers, dealers and sales
representatives was to ensure that everyone had the same
information and they were all on the "same page." Growers
could attend training sponsored by CIBA or Monsanto or a
variety of others, and learn the same information. They did
not have to attend multiple training sessions. This, Mr. Rock
noted, is a move toward efficiency.
Although not related to ground water concerns, Mr. Rock
highlighted a similar approach to an issue in Mississippi. The
cotton-growing community in Mississippi was not pleased with
the numbers of training sessions they were required to attend to
learn about using a variety of cotton insecticides. As a result
of grower outcry, the State developed a cotton insecticide
management plan approach. Mr. Rock said this program
resulted hi measurable, positive environmental results.
Mr. Rock said that one area where flexibility might be
considered is in identifying active ingredients subject to the
proposed rule. He noted that what is a problem in one State
may not be in another, and believes significant flexibility to
address issues of concern could be added by not identifying
specific chemicals in the proposed rule.
65
-------
Industry's Role
The message from Mr. Rock is that States have been hi the
pesticide business for a long tune — since well before EPA was
created ~ but the proposed rule itself makes them appear as
infants in this issue and that is not the case. He said EPA's
strategy and guidance have stimulated tremendous interest hi
the States and that the 20 States who have legislation probably
have it, hi part, due to EPA's efforts. However, there now
needs to be recognition by EPA that States have moved out hi
front.
Mr. Rock also believes it is important for industry to have
opportunities to be players. He said that most growers do not
go to the Cooperative Extension Service to obtain information
about pesticides and ground water, but instead, consult then-
dealers and sales representatives. He urged States to include a
role for the registrants and said that "if nobody steps up to the
plate to help with the plan, maybe that's a product you want to
consider dropping from your repertoire." If registrants get the
opportunity to participate, the chances of them being able to
bring hi commodity groups or crop groups hi question is
generally enhanced. Mr. Rock asked whether this was not
what the program is all about — getting growers and applicators
to add a water quality component to their overall farm
management plan.
Next, Mr. Rock discussed industry support for water quality
programs. He said that industry has been receptive and
responsive to the "favor" EPA has done by creating a water
quality role for FIFRA that leads back to the State Lead
Agencies. The SMP program has been built on the States'
record even if EPA doesn't fully recognize that record. But,
he said, if you want to get something done with respect to
agriculture and you work with the Agriculture
66
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NATIONAL WORKSHOP - August 26 & 27,1996
Departments, grower groups and education providers, things
are going to happen — positive things. Mr. Rock said that he
would put agriculture's record up against any other industry in
the United States. Once a problem is identified and
opportunities are created to solve the problem, agriculture has
die knowledge, skills and ability, and the will, to respond to
resolve the issue.
Mr. Rock pointed out that industry has cooperated hi sharing
data and noted that his company (CIBA Crop Protection) has
monitoring programs hi over 20 states. These biased projects
were done to determine how the chemicals might move under
worst-case situations. Industry's goal has been a consistent
one: to protect the beneficial uses of surface and ground
water.
Mr. Rock urged monitoring hi lieu of modeling. If modeling is
used that is not valid and there are attempts to regulate based
on that modeling, the regulators need to prepare to defend
themselves. However, industry is constantly looking for valid
models to help offset the considerable costs (around $1 million
to $2 million) for leaching studies, and that if there are valid
models, you should use them as far as you can take them.
Industry has tried to help build capacity hi the States through
these and other programs. Mr. Rock said all of the field and
lab projects done by CIBA Crop Protection have been
conducted using GLPs. The GLP issue may not be as big as
some believe, but there are training costs and paperwork
burden to consider.
67
-------
Closing Remarks
Questions from
the Floor
In closing, Mr. Rock questioned whether water quality has
improved. His answer was yes. He urged that if anyone
wanted to see positive results, they should look to, among
other things, Iowa's sink holes and agricultural drainage wells
rules, Kansas' Delaware and Blue River Basin programs,
Wisconsin's ground water protection program, and Maryland's
Chesapeake Bay program. These are measurable water quality
improvements, built on a foundation of education, outreach and
involvement of all the interested parties.
Mr. Rock urged EPA and the States to recognize that we are
all in this together, that we share the same goals, and that we
must continue to provide opportunities for registrants to step
forward to steward their own products.
Q - (Extension Service comment) - A recent survey shows that
farmers actually use Extension more than dealers. Water
quality issues in my State go through the Extension Service
because that's where it gets done. Also, regarding modeling,
we wouldn't propose to use modeling to regulate. However, if
you just use monitoring hi your programs you wind up with a
lot of holes throughout the state; you don't know what's going
on. Some sort of model, which may be as simple as a soils
map, needs to be used to extend the data from monitoring to
apply it across the state.
Q - (EPA Office of General Counsel comment) - Thanks to
Vince Albentosa for his candid remarks. We didn't discuss the
issue much, but you mentioned judicial review. Judicial
review of the Regions' determination to approve, disapprove or
withdraw a plan is available. Also, there is review of our
determination in this proceeding that an SMP is required.
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NATIONAL WORKSHOP - August 26 & 27,1996
PANEL OF
OTHER
FEDERAL
AGENCIES
Maybe there's a misunderstanding, but we see two chances at
judicial review. The Regional decision review would be based
on a record comprised of the record for this proceeding, plus
any of the record developed by the State that the Region uses in
making its determination.
Dr. John Impson:
Mr. Impson began his remarks with several points about
implementation of the SMP program:
> there needs to be uniformity hi education and
implementation,
> how and when education is presented is important, and
> there are three keys to successful implementation of any
program: education, education, and education.
Dr. Impson acknowledged that the days of Extension being the
only education providers ended almost 20 years ago. While he
identified no problems with the expanded base of educators, he
did stress that the key is to make sure that those affected get the
same information.
Dr. Impson said Extension still is the only body with official
connections to a variety of individuals and institutions. They
are connected to the land grant colleges which have data bases,
research and the educational component. At the Federal level,
the Health and Environmental Pesticide Safety Education
Program (or HELPS) has ties to the Field Operations Division
hi EPA's Office of Pesticide Programs through the Certification
and Training Program. Two programs in HELPS are
connected: the Pesticide Applicator Training Program and the
general education program. Further, Dr. Impson pointed
69
-------
It is important
that
implementation
efforts for the
State
Management
Plan program
take advantage
of the resources
of the Land
Grant
Institutions,
DR. JOHN W. IMPSON,
National Program Leader
for Health, Environmental
and Pesticide Safety
Education, Cooperative
State Research, Education
and Extension Service,
USDA
out that Extension is connected to the land grant institutions at
the State level. Those institutions in turn are, through the
Certification and Training Program, connected to the State
Lead Agencies.
Dr. Impson announced that as of this past year, there are
Pesticide Coordinators at 57 land grant universities responsible
for Pesticide Applicator Training (PAT). There is one in each of
the 50 states, Puerto Rico and the District of Columbia.
It is important, according to Dr. Impson, that implementation
efforts for the SMP program take advantage of the resources of
the land grant institutions. Not only are there Pesticide
Coordinators, but also Water Quality Coordinators and
Integrated Pest Management (IPM) Coordinators. Not only does
this cadre of educators reach Private and Commercial
Applicators through the PAT program, they also reach urban
pesticide users, the general public, pesticide dealers and
consultants.
Dr. Impson demonstrated the impact that PAT and education
programs can have on implementation of a field program.
Through initial certification and recertification programs across
the country, PAT reaches approximately 500,000 individuals.
The education program reaches over 4 million per year through
face-to-face interaction, brochures, the media, etc.
Voluntary programs and BMPs can be effective. Years ago, the
way to reach growers was through their pocketbooks. Now,
growers are just as interested in environmental issues, and in
particular water quality issues; therefore, there is another avenue
through which to reach them.
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NATIONAL WORKSHOP - August 26 & 27,1996
You should keep
in mind that the
operator *$
behavior and
attitudes are
integralfactors
when looking at
how pesticides
behave in the
environment.
DR. JERRY L.
HATFIELD, Director,
Agricultural Research
Service, National Soil
Tilth Laboratory, USDA
In closing, Dr. Impson cited three areas for attention in
implementing the SMP program: First, existing pesticide
labels are complicated and cluttered. He urged that
consideration be given to this fact when requiring any label
changes necessary for program implementation. Second,
Dr. Impson noted the importance of educating not only
pesticide users, but also the general public to gain acceptance
of programs. Last, education can have the greatest impact if it
is delivered well before implementation of the program.
Dr. Jerry L. Hatfield:
Dr. Hatfield said the Agricultural Research Service (ARS) is
one of the smaller branches of the USDA and attempts to
answer questions such as:
> How do pesticides behave in the environment?
* How well are models being predictive?
> How do pesticides interact with soil, and other media?
Dr. Hatfield noted one area where where ARS efforts might be
of great benefit to State Lead Agencies in implementing SMPs:
ARS' examination of the effectiveness of BMPs. He noted that
there are four factors that influence effectiveness: soil, climate,
landscape, and the operator.
Dr. Hatfield said many things we talk about are operator-
dependent, such as no-till and conservation tillage practices. He
urged everyone to keep in mind that the operators' behavior and
attitudes are integral factors when looking at how pesticides
behave in the environment.
71
-------
Another program within ARS that may be of value in SMP
implementation is the Management System Evaluation Areas
program (MSEA). The program is in 10 locations in five States
in the Corn Belt. It was designed for that area because of the use
of pesticides and fertilizer on corn. The program, in part, is
looking at what happens to certain pesticides in varying
combinations of soil, geology and climate. The pesticides that
have been monitored under this program for the past six years
include Atrazine, Alachlor, Metribuzin, Metolachlor and
Cyanazine.
MSEA is a cooperative effort between the USD A, USGS, EPA
and State agencies. More than 150 researchers are associated
with it. The results of the project have answered such questions
as, "What is the impact of banding, ridge till, and no till and
post-emergence applications?" This research is helping to
refine existing BMPs and, beyond that, is resulting in the
development of such things as bio-economic weed models --
what is the effect of filter strips and how do they really work?
The program also is exploring how BMPs relate to new methods
of precision application and farming.
In closing, Dr. Hatfield pointed out that there is a large resource
base available, not only from education such as Dr. Impson
noted, but from the research side of USD A, as well.
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NATIONAL WORKSHOP - August 26 & 27,1996
The
Federal/State
Cooperative
each State. This
office i$ a ready
source of
information.
DR. WILLIAM G.
WILDER, National
Synthesis Coordinator,
National Water-Quality
Assessment Program,
USGS
Dr. William G. Wilber:
USGS has no regulatory responsibility, Dr. Wilber said.
Instead, they try to provide information to resource managers
and the public so they can make better-informed decisions.
Dr. Wilber cited two specific areas where USGS can assist
states in the SMP program. First, the Federal/State
Cooperative Program may be of value to State Lead Agencies
in that it places a USGS office in each State. This office is a
ready source of information from USGS, and State Lead
Agencies are invited to go there not only to obtain specific
information, but to talk with the geologists and hydrologists.
The second area where USGS may assist States is through the
National Water Quality Assessment Program (NAWQA). This
program was begun hi 1986 at the direction of Congress after it
attempted to obtain information from USGS about the status of
the Nation's water quality. At the time, USGS didn't have
adequate information to respond and Congress directed them to
develop a program to learn the answers.
The program began with a five-year pilot and is now ongoing.
The four broad goals of the program are to:
*• provide information on water quality conditions,
> provide information on changes in water quality
conditions over time,
> determine why water quality is changing, and
> explain the impacts of these changes or lack of
changes.
73
-------
There are two phases to NAWQA projects: The first phase is
study and investigation organized around major hydrological
systems. The second phase is synthesis. It is in this second
phase that USGS attempts to draw national conclusions about
water quality, based on information from the first phase.
NAWQA began with the intention of looking at 60 study units
that would comprise 60% to 70% of water use and population
and 50% of land area. Part of a study area in every state in the
country. Because resources didn't permit beginning all 60
study areas at one time, they were initially divided into three
groups of 20 study areas each. In actuality, Dr. Wilber noted,
there are not sufficient resources to accomplish the 60 studies
in three groups. The study area work schedule is:
1991 - began 20 study areas
1994 - began 15 study areas
1997 - will begin 17 study areas.
Dr. Wilber is hopeful that work on the remaining eight study
areas can begin after the turn of the century.
Each study is on a 10-year cycle and begins with the formation
of a liaison committee. This committee, is comprised of
representatives from USGS, State and local governments, and
the public. Then: charge is to avoid duplication of effort by
detennining what we already know and what questions should
be addressed for each of the study areas. Among other things,
this group tries to answer questions such as "What do we know
about pesticides in the atmosphere and hi ground water? What
do we know about monitoring results, the use of predictive
models, temporal distribution?" This effort takes between one
and two years.
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NATIONAL WORKSHOP - August 26 & 27,1996
After the liaison committee's work, the study enters the "high-
intensity phase," which lasts for about three years. In this
phase, investigations are carried out through field studies in
both surface and ground water. Physical hydrology, chemistry
and biology are studied.
Next, the study moves into a low-intensity phase. This phase
also lasts about three years and is intended to track water
quality and changes in water quality over time.
Dr. Wilber said the national synthesis phase could be
conducted either area-by-area or topic-by-topic. A Federal
Advisory Committee, established to help develop the program,
was asked to set priorities for the most important study topics
if the topic-by-topic approach were chosen. The top three
priorities were pesticides, nutrients and sediments. As a result
of that priority-setting effort, pesticides and nutrients are being
studied first.
In closing, Dr. Wilber said there are many ways to access
information on the studies and their results. He urged State
Lead Agencies to visit the USGS offices within each State.
He also said the program has an address on the World Wide
Web and E-mail, and each study investigation has a home page
that can be visited. Dr. Wilber said he and his colleagues are
available to provide information and they would like feedback
on the utility of the information.
75
-------
Questions from
the Floor
Q - (State Lead Agency comment) - If you haven't worked
with the NAWQA program, I would urge you to do so and
capitalize on their expertise and information. Also, after they
are done with men: studies, they are willing to turn over their
wells to you and you wind up with free monitoring wells of a
quality that we could never afford.
Q - (Regulated Industry to USGS) - USGS seems to be the
most aggressive in trying to get methods to go from ppb to ppt
hi detecting chemicals hi water. The public has difficulty just
understanding whether they can drink their water. Given that,
can you explain your reason for trying to go lower and lower
with detection limits?
A - It certainly is not to scare anyone. It really is to address
the third objective I mentioned; that is, what are the major
factors controlling the occurrence and distribution of these
compounds. If you constantly are dealing with non-detects,
you can't get at that understanding.
76
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NATIONAL WORKSHOP - August 26 & 27,1996
PANEL OF
TRIBAL LEAD
AGENCIES
In an attempt to
address elevated
nitrate levels in
ground water,
the Tribe
established and
implemented
Best
Management
Practices for all
agricultural
activity on the
Reservation,
KAREN SMALL,
Agricultural Resource
Management Assistant,
Shoshone Bannock Tribes
Karen Small:
Ms. Small began by providing some background information
about the Shoshone Bannock Tribes. An 1868 treaty provided
the Tribal government with total jurisdiction throughout the
124-square-mile (more than 543,000 acres) Reservation in
southeast Idaho. About 3,700 Tribal members and another
3,700 non-members live on Reservation lands. A significant
amount of farming, both irrigated and dry-land, takes place on
the Reservation.
The Shoshone Bannock Tribes were the first to adopt and
implement then* own pesticides and farm chemicals code. This
code, and pesticide applicator certification plan, were adopted
in 1989 to ensure that the Tribes had the capacity to regulate
and monitor all agricultural use of pesticides and fertilizers
within the Reservation boundaries. In addition to a
certification plan, the Tribes also adopted a separate plan to
address chemigation.
Ms. Small said monitoring the water resources within the
Reservation pointed to a problem with elevated nitrate levels in
ground water. This included detections hi both shallow and
deep domestic wells. In an attempt to address this problem,
the Tribe put a program in place in 1995 to establish and
implement BMPs for all agricultural activity on the
Reservation.
The programs carried out by the Shoshone Bannock Tribes are
no longer funded by EPA. The resources provided through
cooperative agreements with EPA were not sufficient for the
Tribe to carry out its goals. Therefore, the Tribe implemented
77
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I
i
a self-revenue program to enhance its resource base: an
Agricultural Environmental Compliance Fee applies to all
farming activities within the boundaries of the Reservation.
This program has allowed the Tribe's pesticide program to
become self-supporting and has allowed the Tribes to continue
toward its primary goal: to protect the health, welfare and
safety of all persons residing within the Reservation.
In closing, Ms. Small said environmental quality is a major
Tribal concern. Continued regulation and monitoring of
farming activities within the Reservation boundaries are high
priorities due to the extensive agricultural activities that take
place on the Reservation.
Irving Provost:
Mr. Provost provided background information about the Oglala
Sioux. He said they live in the southwest corner of South
Dakota on the second-largest Reservation in the United States.
About 16,000 members are counted on the Tribal rolls, but the
actual number is probably higher. The count comes from the
formal U.S. census and may undercount because some Tribal
members hesitate to interact with Federal officials who enter
the Reservation.
The Oglala Sioux entered into a cooperative agreement with
EPA in 1980 to enforce FIFRA. They also established an
EPA-approved certification plan. In addition to these core
programs, the Tribe is developing a plan to address ground
water concerns.
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NATIONAL WORKSHOP - August 26 & 27,1996
The Oglala
Sioux have
workedwifh
four entities to
address the
components of
their pfan; the
Tribal
government, the
Bureau of
Iwftan Affairs,,
the Stone
agencies in the
area, and
Federal
agencies suck as
EPA md USDA.
IRVING PROVOST,
Director, Pesticide
Enforcement, Oglala
Sioux Tribe
The effort to develop their ground water plan began hi late
1991 to early 1992. The Tribe initially ran into difficulty
because much information was not available and data were
incomplete. However, working with other agencies, the Tribe
has managed to obtain much of the needed information to
proceed. Mr. Provost said the Tribe kept in close contact with
EPA Region 8 and have been submitting components to the
Regional Office for preliminary review. They anticipate
submitting then: complete draft for review by the end of
September.
Mr. Provost said the Reservation is located on recharge waters,
the soil is loamy and agricultural activity exists. In sampling
on the Reservation, with the assistance of the Extension
Service, two areas were identified where detections of
pesticides in ground water occurred. In an area called
"Cooney's Table," detections were above the MCL. As a
result of these analyses, the Tribal Council directed that work
begin in the Cooney's Table area to address the issue.
Mr. Provost said that before he left the workshop, he hoped to
be able to speak with industry representatives to get input from
them on how he might proceed in that area.
There are two components of the ground water plan that are
very work-intensive, according to Mr. Provost: vulnerability
assessment and monitoring. The Oglala Sioux have worked
with and are continuing to work with four other entities to
address these and other components of their plan: The Tribal
government, the Bureau of Indian Affairs, the State agencies hi
the area, and the Federal government.
In closing, Mr. Provost expressed the Tribe's goals of
protecting health, safety, and the environment and welcomed
any ideas, suggestions or help that could assist them in
carrying out their ground water protection program.
79
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There are over
530 Tribes, The
Tribes have
jurisdiction on
over 4% of the
land ma$s in the
country and
receive about ¥2
of 1% of all
SPA finding
available for
fieldprogram
use.
GREG PHILLIPS, Vice
Chairman, Tribal
Council, Omaha Tribe
Greg Phillips:
Mr. Phillips provided an overview of the Omaha Tribe and
some basic information about Tribes across the nation.
In 1856, the Omaha Tribe signed a treaty that ceded
Reservation land, but kept jurisdiction within the exterior
boundaries of the Reservation. The Tribe's overall goal is to
protect the health, welfare and safety of all people who live
within the boundaries of the 187,000-acre Reservation, which
covers parts of both Nebraska and Iowa. Its population of
about 6,000 is split almost evenly between Tribal members and
non-members. About 3,000 more Tribal members live off the
Reservation.
In 1993, the Omaha Tribe entered into a cooperative agreement
with EPA, under FIFRA section 23(a), to manage pesticide use
and carry out certification programs on the Reservation. The
objective of the certification plan is to protect the water and
land and to ensure the health and safety of all people on the
Reservation.
The process of developing the certification plan has been an
open one. The Tribe began by gathering State pesticide laws
from neighboring States and Tribal codes from across the
nation to determine whether there were aspects that would
apply to the Omaha Tribe's Reservation. To ensure that
whatever plan was developed would not impose requirements
on the community without then: knowledge and involvement,
committees of approximately 10 people were established. The
committees consisted of both members and non-members and
represented pesticide applicators, farmers, and dealers
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NATIONAL WORKSHOP - August 26 & 27,1996
Questions from
the Floor
working within the reservation. These committees reviewed
the existing plans and codes and recommended provisions for
adoption on the Reservation mat would meet the needs of the
community while continuing to protect the Reservation
environment. After that, public meetings were conducted to
help those living on the reservation understand the new
provisions. The certification plan is now in the last stages of
receiving EPA approval.
On a national scale, Mr. Phillips said there are over 550
Tribes, including Native Alaskan Villages. The Tribes have
jurisdiction on over 4% of the land mass in the country and
receive about 0.5% of all EPA funding available for field
program use. Mr. Phillips also said that in 1994, President
Clinton signed a document describing the relationship that
Tribes and the Federal government would pursue in treating
Tribes as States. This document established a government-to-
government relationship.
In closing, Mr. Phillips said there are currently about 130
Tribes with some environmental programs whether that be in
the area of pesticides, air, water, etc. Twenty-six Tribes have
cooperative agreements with EPA to implement FIFRA
programs on the Reservations and about eight Tribes have
EPA-approved certification plans.
Q - (State Lead Agency) - Could Ms. Small explain further the
environmental compliance fees imposed on the Shoshone
Bannock reservation?
A - The fees were begun to put the Tribe in control of
monitoring and regulating all environmental issues on the
reservation including, but not limited to, enforcement,
81
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I
l!
certification, water and soil testing. Fees are assessed to
anyone carrying out agricultural activity on the Reservation and
are assessed differently based on the type of farming. Irrigated
land is assessed at $2.50/acre and dry land is assessed at
$0.75/acre. In addition, all people have to be certified by the
State and then by the Tribe to perform any kind of farming
activity on the Reservation.
Q - (State Lead Agency) - As a representative from a State
writing a ground water plan, how would EPA recommend I get
in touch with the Tribal governments in the area, or has EPA
already done that?
A - (EPA) - We have not done a good job in consistently
communicating with Tribal governments. A priority for the
Office of Pesticide Programs over the next year is to determine
how to better do that. Perhaps Greg Phillips has some
thoughts on how the States can reach Tribal governments.
A - (Greg Phillips) - One method would be to work through
the Regional Tribal liaison. There is a liaison in each EPA
Regional Office. You can find out from them whether the
Tribe has some sort of agreement with EPA or find out who to
contact at the Tribe's environmental office.
A - (EPA) - Irv Provost also just mentioned that there is an
office at EPA now that focuses on Tribal issues -- the
American Indian Environmental Office ~ led by Tom Wall as
the acting Director. You can reach them through me. Also,
EPA will send out to the States the listing of Regional Office
Tribal liaison officers so you will know who you can contact in
the Region.
Q - (unidentified speaker) - Do you involve USDA and the
Natural Resource Conservation Service (NRCS) in
development and implementation of your programs?
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NATIONAL WORKSHOP - August 26 & 27,1996
A - (Irv Provost) - A Department of Agriculture person works
within our Natural Resources Office. They have been very
helpful hi providing information on soils and other things for
our ground water program development. Also, the Extension
Service has cooperated with us in water sampling efforts on the
Reservation. We are constantly working with other Federal
agencies and also with State agencies on our programs.
A - (Karen Small) - The Shoshone Bannock Tribe also has
worked closely with NRCS and the Extension Service. They
are located on the reservation. We also work with the
Intertribal Agriculture Council. They recently hired a Tribal
member to tarry out workshops focusing on USDA and the
Council's activities so that people better understand the work
of these organizations.
83
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FUNDING AND
FLEXIBILITY
Most of us don't
have all the
answers to most
things that have
been around for
a long period of
tttne. SMPsare
something new,
You don't have
to have aU the
answers to all
the questions in
order to get
from one spot to
another spot*
DANIEL M. BAROLO,
Director, EPA Office of
Pesticide Programs
Daniel M. Barolo:
Mr. Barolo welcomed the group to Washington, D.C. and said
he appreciated the opportunity to speak to the workshop
participants. The objective of the workshop, he said, was to
stimulate discussion, either now or later.
Mr. Barolo said he realizes the efforts that have gone into the
gestation process of the SMP approach, stating that as he
understands it, many have been working on this for 25 to 30
years. It's like birthing a lot of things in the pesticide program
in that it may have been fun at first, but after a while it begins
to get to a point where you don't think you'll ever see
anything. Plus, like most things in life, when you get to those
late stages, you begin to have second thoughts, and you begin
to engender the kind of push-back and feedback that makes you
ask yourself why were you about this in the first instance.
Mr. Barolo said he would like to suggest a few things about
why we may have started on this course and why, for many of
us, we still believe it's the appropriate way to go.
There are myriad challenges ahead, not the least of which is
giving this proposal an honest opportunity for formal, public
comment. Mr. Barolo focused his remarks on several areas:
> how are we all going to fund this, in time;
> the issue of State flexibility, what we think about it, and
what the States' opportunities and obligations are in that
area;
> principles and pressures; and
»• mutual commitment to meaningful agricultural
management in the U.S., for which EPA believes we all
have an important responsibility.
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NATIONAL WORKSHOP - August 26 & 27,1996
Funding Options
In the area of funding, Mr. Barolo said there is not enough to
make this program happen as meaningfully and efficiently as
we would like. There hasn't been enough in the past, even
though OPP has provided, at this stage, over $30 million as
seed money to the States and to the Regions to get this program
off the ground. The future funding is even more uncertain and
there is likely to be even less. In combination with the effort
to balance the budget and other national efforts, it is very
unlikely that there are going to be significant resources.
Mr. Barolo said this is all compounded by a new statute that
affects the Office of Pesticide Programs. It came EPA's way
with 32 seconds of debate in the Senate and with significant
additional work and responsibilities for all of us, with not an
additional dollar to implement those new responsibilities. So to
say that funding is a major issue is a minor statement (or the
other way around).
Because of these resource considerations, we need to
collectively seek other sources of funding. Mr. Barolo
suggested that there are other sources around, both public and
private, and encouraged the Regional Offices and those in the
States and Tribal governments to try to take advantage of
resources in other offices within EPA. For example, the
Office of Water, the Office of Research and Development, the
Office of Solid and Hazardous Waste, and so on may wish to
contribute to this effort. Mr. Barolo also encouraged
participants at the workshop to work with their counterparts hi
the water program, solid and hazardous waste arena, etc., and
seek ways to cooperate in funding this program at the State
level that will benefit all parties hi the long term. Finally, on
the public-sector side, participants were encouraged to take
maximum advantage of funding that may be available from
other Federal agencies.
On the private-sector side, Mr. Barolo said U.S. sales of
pesticides last year were on the order of $8 billion. While not
85
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Flexibility
all profit, there may be some money available through private
financing. This could assist hi a more complete and more
accurate assessment of what kinds of issues there may or may
not be related to ground water.
Mr. Barolo urged creativity in the ways and means of
exploring resources to implement mutual responsibilities in
ground water protection for now and for the future.
In discussing flexibility, Mr. Barolo focused on principles:
* The number-one principle is that the attempt to create
SMPs across the country is an effort to try to establish
some general, national standards and give the States and
Tribes flexibility and an opportunity to approach
reaching those standards with what makes sense at a
State and Tribal level. As a fundamental principle, this
is at the foundation of what the SMP initiative is all
about.
*• Most of us don't have all the answers to most things that
have been around for a long period of time. SMPs are
something new. They are evolving. You don't have to
have all the answers to all the questions hi order to get
from one spot hi the free world to another spot.
*• The third principle is partnership. Mr. Barolo said he
worked at the State level for a long time. They talked
forever about partnerships with local government and
the Federal government, and they flowered them with
all kinds of new terms and terminologies, and they're
still talking about partnerships. But this is an
opportunity to affect some meaningful relations, for
want of a better word, between State governments and
the Federal government involved in passing judgment on
pesticide regulation in the U.S. Mr. Barolo suggested
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NATIONAL WORKSHOP - August 26 & 27,1996
Evolving
Pressures
that there aren't very many other areas of the pesticide
program where we can have these opportunities and we
ought to build on this principle of partnership or else
we'll be further behind in the long term.
The principle of a commitment to the SMP as a
direction of first choice. A long tune ago, as the
direction of first choice, we collectively bought into the
concept of allowing State and Tribal managers to
approach ground water protection and pesticide
regulatory management at the State and Tribal level
through management plans. And we need to be really
comfortable before we fall back to a third or fourth
choice in this process.
There are evolving pressures when you get down to this end of
every game. This is a process wherein we're getting down to
the final points about whether or not we should proceed with a
proposed regulation, and the best circumstances in which to
proceed. Evolving pressures include the new law. And there
are competing pressures there.
On one hand, there are no new resources, and there are huge
new responsibilities. This includes looking at aggregate and
cumulative effects on the dietary or tolerance side. In order to
do this, EPA needs to better understand and clarify both
surface and ground water concentrations and contamination
across the U.S. EPA has an obligation to make a public
attestation of public health safety on all future tolerances
starting on Aug. 3 of this year. Having an understanding of
what the ground water contamination, or lack thereof, is in
each State is a critical ingredient for EPA to be making
regulatory management decisions that best advantage local and
State communities. Absent that, EPA falls back to default
criteria which will necessarily be very conservative.
87
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Some Choices
Another pressure is that there are some individuals around
town — lobbyists, registrants, State representatives, and others
-- who believe that any effort to move regulatory management
out of the hands of a central bureaucracy, wherein there's an
opportunity to focus lobby ing efforts and pressure, is the
beginning of the end of the free world. Therefore, some are
engaged in pressures to suggest that moving anything out into
the State and local government arena, with this kind of
flexibility, can bring with it practical problems. Mr. Barolo
said he could argue both sides of this, but wanted to make sure
everyone hi the audience was aware that much of the pressure
may be an effort to limit the arenas in which people have to
focus lobbying efforts. It is easier to focus nationally than on
50 States plus Tribes and communities.
Lastly, Mr. Barolo noted that the devil of most things is in the
details. We are finally getting to the point of proposing a
regulation with words associated with it, and interpretations
associated with the words, wherein everybody now has a
chance to look very, very carefully and ask, "What is the
meaning of these three particular words in this particular
sentence?" And that always causes a certain amount of
consternation and back pressure.
Mr. Barolo suggested that the situation is relatively simple.
We have a choice between national standards via national
regulatory action, potentially influenced by national pressures;
or we have the opportunity to advance some of the principles
mentioned earlier, including State flexibility in the process.
There are two ways to look at flexibility relative to this
program. First, there are some States who believe that they
invented ground water and ground water management.
Mr. Barolo said he was hi New York for a tune and they
believed that they knew exactly what ground water
88
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NATIONAL WORKSHOP - August 26 & 27,1996
management was all about long before EPA was created. They
believed they were at the front end of evolving science and
public health protection in that area. It doesn't matter whether
they were or not. They thought they were. And so, whatever
the national standards were, the State took great pride in trying
to do a little bit better than that. There are some States who
believe they are in this position. SMPs give you the flexibility
to continue to manage your resource in that way.
On the other hand, there are some States who have a greater
interest in ensuring that the legitimate, meaningful, agricultural
production in a State takes the kind of precedence that it
should. And, in some areas, ground water may not have the
same appeal, or same kind of ranking, or priority. These
states may want an opportunity to influence regulatory
management of pesticides to ensure that kind of agriculture
priority is preserved in a State. The SMP process provides, in
our view, an opportunity to head in that direction as well.
Mr. Barolo said when you come right down to it, there is one
question to ask: Do we want national standards or State
flexibility? We can discuss the tune it's taken to get to here,
ask questions, see whether all the "Ts" are crossed and "Is"
dotted. Everyone of us can challenge someone else's writing
and the details or lack thereof. Mr. Barolo said the choices of
approaching this program one way or another should be
influenced by your belief in the principles discussed earlier: .
State, Federal, local partnerships; national goals and State
flexibilities; and not needing all the answers to move forward,
but trusting each other to try to get from here to there.
89
-------
Closing Remarks
Questions from
the Floor
In closing, Mr. Barolo said EPA will go either way with this
program. If somehow in the process of program development,
the SMP program falls off the track it is on, EPA will have to
fall back to national standards. Then everyone will have to
deal with the opportunities and consequences and complications
of that. If we don't fall off track, then we make a commitment
to try to work with everybody affected to make it the most
meaningful program possible.
Q - (State Lead Agency) - You mentioned a very operative
word in your presentation and I guess I'll be the devil's
advocate: Why should we trust you?
A - That's a fair question. I think you need to look at the
changes we've promoted over the last several years and ask
yourself if we're headed in a better direction. We have
changed programs to make more decisions, more quickly with
less resources. We have changed managers within the Office
to provide them an opportunity to bring new ideas on ways of
doing business to new areas. We have established user liaisons
in our Environmental Stewardship Program. We have
established an advisory committee to get all the players at the
same table at the same time to provide us advice on evolving
public policy and science issues. We have made efforts to
communicate and cooperate with our Regional Offices and the
State Lead Agencies.
Others can judge better than I whether these have resulted in
changes hi actions and commitment and decisions. If you think
the answer is "no" you can vote with your feet, so to speak. If
you think the answer is "yes," that the direction we are moving
in makes sense, you can vote by trying to establish better trust
and communication in the future.
90
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NATIONAL WORKSHOP - August 26 & 27,1996
GROUP A
REPORT OUT
DOUGLAS E.
HUDSON, Environmental
Program Specialist, West
Virginia Department of
Agriculture
I don't believe there are many choices. We are either
comfortable with the national labels, growing ever more
complex, and established on necessarily conservative principles
in order to provide adequate protection to the most vulnerable
areas of the country or, some form of re-invention and
flexibility is the way to approach the future. I guess the latter
is the choice I want to believe in.
Q - (State Environmental Agency) - Labels are increasingly
complex and I'm not sure whether this program is solving that
problem. Whatever we wind up doing, the plan needs to be
simple so that users can understand it.
A - I can agree wholeheartedly with that.
Q - (State Lead Agency comment) -1 agree that they have to be
simple. We just finished a water quality plan that is useless to
the grower. Now we have to develop another document that
they can use. In situations like this, you could wind up with a
label that refers to a plan that, in turn, refers to another
document. Growers are not likely to put this kind of effort into
fhiding out what they have to do. Simplicity is the key.
Doug Hudson, Rapporteur:
Mr. Hudson said use of the target compounds in West
Virginia, when compared to then- use in most States, would be
considered minor use; when compared to their use in some
States, West Virginia's use would be considered no use.
Mr. Hudson said this comparison results hi a few concerns
about the proposed regulation from his perspective.
Group A discussed 16 issues. For purposes of the report-out,
the Group voted them into four major areas: monitoring,
flexibility, funding and registration.
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Monitoring
Mr. Hudson said monitoring includes metabolites, QA/QC and
scientific support. He also said there are two types of
monitoring: discovery and definition. Discovery finds out
what substances are present and definition determines the
extent of the residues.
To be comprehensive, monitoring must include not only
ground water sampling, but also behavioral changes. These
programs must look at changes in use practices, application
rates, etc.
One major issue under this topic was whether EPA would defer
to the State's assessment of vulnerability. When a State is
justifying minimal program limitations based on the
vulnerability assessment, how extensive will the justification
have to be? Mr. Hudson said that in vulnerability assessment,
you may need to weigh two aspects differently from one
another, depending on your particular situation: first, the use
or actual threat that may be posed by the particular chemical
and second, the physical attributes of the use area, or the
geology.
The Group also discussed that monitoring must be balanced
with prevention actions.
The Group expressed concerns regarding QA/QC requirements
in the proposed regulation:
•> Will EPA accept the QA/QC plans that State
laboratories have in place and that go through routine
review by EPA?
>• Will the requirement for specific QA/QC in the
proposed rule preclude States from using information
gathered through sampling efforts, by the Extension
Service, USGS and others?
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NATIONAL WORKSHOP - August 26 & 27,1996
Funding
The Group urged EPA to set minimum detection levels and to
decide whether analytes will be included.
Questions about funding included whether SDWA funds might
be available for these programs. Also, clarification of the
financial burden that will be borne by registrants, particularly
under the default option, was requested.
The Group discussed a variety of approaches to funding,
including obtaining funding through Memoranda of
Understanding or Agreement with other agencies, sub-grants,
and cost-sharing. It was noted that during the panel discussion
on this topic, States were urged to talk to other agencies within
the State. Mr. Hudson noted his belief that probably over 99%
of the States were doing this and urged EPA to do the same at
the Federal level. He said once funding gets to the State level,
many agencies believe they are constrained in how they can use
those funds. The Group believes that EPA can help in this
area by undertaking a concurrent effort at the Federal level to
provide clear guidance and mechanisms for States to share
funding among State agencies.
Finally, the Group said they can't be expected to perform past
the resources they are given and urged EPA to make a funding
commitment concurrent with issuance of the rule or prior to the
need to implement the requirements of the rule.
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Flexibility
Mr. Hudson noted that many have been complaining about
flexibility, although it is what the States want. The Group
suggested that requests for examples and clarification of die
definition of flexibility oppose the whole concept of flexibility.
As an example of the clarifications being requested, the Group
asks how EPA will resolve potential conflicts between the SMP
approach and State regulations that might occur in the
following situation: A state has a standard which says there is
not a compliance issue if residues do not exceed the MCL.
However, under SMPs with fractionalized triggers up to the
MCL, regulatory action might be taken even in the absence of
non-compliance. While the result may not be loss of the
chemical, there would be changes in the way the product could
be used.
Some of the States in the Group would request flexibility to
address State priority compounds in lieu of the five compounds
subject to the proposed regulation. How much will a State be
required to do with the five compounds if there are higher
priorities and the problems resulting from the five are limited?
Further, does the program provide flexibility to address surface
water concerns that are higher priority than ground water
concerns? Some States do not delineate between surface and
ground water, and the Group asked whether EPA intended in
the future, to include surface water under the SMP approach.
Finally, me Group said that simply because there is not a
problem in a State, does not mean that the State doesn't have a
use for the product. Concern was expressed that there be a
mechanism to retain the product in these situations, without
having to devote scarce resources to developing a detailed plan.
94
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NATIONAL WORKSHOP - August 26 & 27,1996
Registration
Issues
Noting that EPA has said flexibility will be on a case-by-case
basis, Mr. Hudson said this was either a very carefully non-
committal statement or the epitome of flexibility. The Group,
being familiar with the complexities of Federal Government
and the pressures that politics can bear, believe States have
doubts about whether they can trust EPA's use of this
approach.
Citing one State that has no problem with one of the target
chemicals, the Group again raised the issue of why the States
need to prepare SMPs for compounds with which they have no
ground water concerns. States requested that EPA include a
process for variances and asked how this could be reconciled
with the new proposal to have a national default process ~ that
is, a national process that would be more rigorous than
previous labels but would stop short of cancellation. They also
said they did not yet have enough information about the default
process mentioned hi the proposed regulation, nor about where
responsibilities would be under such a process — with the
registrants or the States.
Another general area of concern that Mr. Hudson expressed on
behalf of the Group, was the content of the label itself, possible
ambiguities, and the strength of the label in terms of
enforcement. For example, if SMPs are referenced on the
label and the SMP uses BMPs, will BMPs, in effect, become
regulatory?
95
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GROUP B
REPORT OUT
MITCH YERGERT,
Agriculture Specialist,
Division of Plant
Industry, Colorado
Department of
Agriculture
Flexibility and
Survival of the
Rule
Mr. Hudson said the Group discussed Restricted Use
classification and was not convinced that the traditional
certification and recertification training would not accomplish
the desired result in ground water quality. He cited an
example hi West Virginia, where surface water across the State
had unacceptable residue levels of Tordon 10K resulting from
misuse. Mr. Hudson said water quality was successfully
improved after two years of targeted recertification training
focusing on use of this compound.
Mitch Yergert, Rapporteur:
Mr. Yergert said Group B had an excellent cross-section of
State, EPA, other Federal agencies, and registrants hi the room
and noted that this cross-section enhanced the discussions.
Group B discussed six issues in some depth: flexibility,
survival of the rule, the default option, national trigger levels,
non-rule pesticides, and how to measure success.
The Group also briefly discussed potential ways to improve the
process of resolving issues and communicating.
Mr. Yergert combined the first two issues for purposes of the
Group B report, saying that the group believes survival of the
rule is predicated on flexibility. He said the Group B
participants were generally in favor of the SMP concept and
how it was envisioned, but that adjustments in flexibility,
recognition of the existing efforts at the State level, and other
minor modifications to the rule would be necessary for the
96
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NATIONAL WORKSHOP *• August 26 & 27,1996
program to be acceptable. The Group discussed whether a rule
was even necessary at all. Most believed that yes, something
more than a "handshake" would be needed to implement the
program. Mr. Yergert said the Group had concerns regarding
communication and trust that were similar to those of Group A.
For the most part, Group B believed that lack of large numbers
of concurred-upon generic SMPs was not an indictment of the
rule or the process. Instead, many States have been working
toward putting pieces in place, rather than on committing the
process to paper for Regional review. Some States are not able
to give the process high priority until a rule is issued by EPA.
One thing that could alleviate many issues related to flexibility,
consistency and trust would be some sort of "appeal process"
for the States outside of the individual Region. This would
provide an opportunity and assurance that a State's case could
be heard again if a situation arose in which the State and
Region could not agree on any particular aspect of the SMP.
While other processes may exist, two potential processes were
identified: appeal to EPA Headquarters or to a council of
Regions.
Supplemental to this was a discussion of "minimal plans."
States expressed a desire for a more firm commitment from
EPA that these types of plans would be acceptable. Mr.
Yergert reported the Group's desire for EPA to determine how
much "proof that a problem did not exist would be necessary
before EPA would accept a "minimal plan."
Group B discussed both surface water and non-rule chemicals.
Questions arose regarding the flexibility permitted States to
target these rather than the five SMP compounds in ground
water. While EPA said the five would likely need to be
addressed, if the situation in the State was non-problematic,
acceptance of a "mrnimal plan" would free up resources to
focus on the high-priority chemicals or on surface water issues.
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Default Process
National Triggers
Non-Rule
Pesticides
Measuring Success
The Group also discussed whether the program could be better
served if specific chemicals were omitted from the rule. The
sense of some in the Group was that this approach would wind
up being rather "hollow."
The Group viewed the "default" issue as so new, there may not
be enough information available to comment on this topic.
There was speculation that even if very strict, this option might
be acceptable to some States in lieu of using limited resources
to develop an SMP. The Group noted that if a State chose to
forgo development of an SMP because they wanted the
chemical canceled in the State, the default option would be a
hindrance. However, if a State did not develop an SMP
because they lacked sufficient resources, the default option
would provide an opportunity to retain use in the State.
The Groups were not asked to reach consensus on issues,
Group B basically did reach consensus on this issue, but Group
B did reach consensus on national-level triggers. No one in
Group B believed that national-level triggers should be set
below the reference point. Instead, this should be left to the
States.
To be able to address non-rule pesticides that are a priority for
a State, the States need assurances and guidance about
"minimal plans."
Mr. Yergert reported that the Group believes showing success
through actual water-quality parameters will take a long time —
probably longer than the first two-year evaluation. The Group
suggested that ground water quality should be used to measure
long-term success, but for the short term, other parameters
need to be considered. These could include applicator
behavior changes and adoption rate of BMPs.
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NATIONAL WORKSHOP - August 26 & 27,1996
Issues Resolution
Process
Improvement
GROUP C
REPORT OUT
MARK SWARTZ,
Ground Water Program
Manager, Pesticide and
Plant Pest Management
Division, Michigan
Department of
Agriculture
Group B believed that improvements in communication
between EPA and the States will help to resolve issues and will
be needed to address the volume and complexity of SMP
business in the future as we move toward implementation. The
Group noted existing mechanisms such as monthly Regional
conference calls, work with the SFIREG (State-FIFRA Issues
Research and Evaluation Group) Water Quality Committee and
courses such as the Pesticide Regulatory Education Programs.
In addition to these, Mr. Yergert noted several other
suggestions:
> occasional workshops such as this one;
> video conferencing to enable more people to "attend"
meetings;
> issuance of interpretive guidance (similar to what
occurred with the Worker Protection Standards); and
> making interpretations, issue papers, etc. more widely
available through posting to EPA's Home Page.
Mark Swartz, Rapporteur:
Group C discussed more than 50 issues. Seven were discussed
in the most detail: default option, minimal plans, review and
approval process, metabolites, label issues, Tribal
considerations, and time frames for implementation of the rule.
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Default Process
Minimal Plans
Review and
Approval Process
Metabolites
Group C believed that, to some degree, the default option goes
in the opposite direction from where the program was intended
to go. The Group also did not believe they had sufficient
information regarding this option and raised areas for
clarification such as: what components are included, whether
Acetochlor is really a good model, where the burdens are
placed in such an option, and how trigger levels will work in
the context of the default option. Trigger levels may result in
circumstances within a State where the SMP requires actions
on the part of pesticide users at 20% of the MCL, but the
national trigger is 50% of the MCL. Users will surely ask why
the State is making them do more.
The Group requested clarification on what it would take to
have a minimal plan accepted in two regards. First, what level
of performance would be necessary if you showed there was
not a problem with a specific chemical in your state? That is,
would a State be permitted to simply make the "no problem"
argument and move on, or would they still be required to
develop each of the 12 SMP components? Second, what would
it take to show you didn't have a problem? How high are the
hoops you have to go through to retain uses even if that use is
small?
The Group felt there were discrepancies among the EPA
Regions in their application of the guidance to review of SMPs.
The Group believes some are interpreting the guidance
documents in a very literal sense, while others are comparing
the intent of the guidance with the expected outcome of the
SMP. On behalf of the Group, Mr. Swartz asked that a
mechanism or process be developed to ensure consistency in
interpretation.
Whether SMPs are to include metabolites of concern needs to
be addressed fairly quickly. The Group was concerned that
they have this information soon, to be able to factor it into both
resource and monitoring considerations.
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NATIONAL WORKSHOP - August 26 & 27,1996
Labels
Tribal
Considerations
Timetable Issues
The Group felt strongly that we need to avoid some of the
issues of complexity, timing, etc. that arose during
implementation of the Worker Protection Standards. An
overriding theme during the discussion of labels was the need
to keep them simple and usable.
Tribal members in Group C cited territorial and jurisdictional
issues as those that might inhibit their ability to fulfill the SMP
requirements. Also, Tribal authorities may not have access to
certain funding because they do not yet have adequate
enforcement programs in place; even so, they would be held to
the same standards for ground water management plans. Given
the strong interest of the Tribal authorities present, Mr. Swartz
noted the need to resolve many of the Tribal considerations in
developing an agricultural management base. He also noted
the vast differences among Tribes in terms of having
cooperative agreements, an environmental presence, etc., and
said that as a group, the Tribes are probably even more diverse
than the States.
The first timetable issue addresses the proposed default option.
States would want tune to consider the default option prior to
committing to develop an SMP. In doing this, they may be
able to concur in the default for some chemicals and direct
limited resources to higher-priority ground water or surface
water issues.
Second, States hi Group C said Attorney General review tune
is likely to be six months or more. This would add
considerably to the tune needed intrastate to gam approval of a
plan to forward to EPA. Given this, the 24-month
development time frame in the proposed rule might not be
adequate.
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Issues Resolution
Process
Improvements
Third, Group C concluded that in a number of States,
legislation or regulations might be needed to implement their
plans. In many States, this process may take between six and
24 months. In the latter case, the State would need to have
their rule ready to move forward on the day the SMP rule is
final.
Phase-in of SMPs was viewed as essential. There may be
situations where the only piece lacking is approval of a rule.
In cases such as this, either an extension or an interim approval
should be permitted. It would be a shame to have the program
98 % completed and have use of a needed chemical stop
because the State was awaiting final signature of a State rule.
However, the Group believes that in spite of these potential
situations, a firm "drop dead" date is necessary to motivate
those rule-making groups.
ts.
Group C made general recommendations that the monthly
conference calls with the Regional offices continue, and that
these and other efforts to resolve issues should focus on one
issue at a time through resolution prior to moving on. The
Group also indicated a desire to hold more workshops such as
this to focus on particular issues that need attention.
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NATIONAL WORKSHOP - August 26 & 27,1996
PLENARY
WRAP-UP
SESSION
During the final, general discussion, Ms. Arty Williams
acknowledged the effort that was put forth in the breakout
groups and asked the participants to now consider the following
questions:
> Which issues are not so tied to the rule-making process
that we might begin to address them now, rather than
through formal comment?
> What processes might work best for addressing those
issues?
After some discussion, there were several issues participants
believed might be addressed now, but noted that most of the
issues seemed to be directly related to the proposed rule. The
issues they believed might be addressed outside the rule-
making process were:
*•- What constitutes an acceptable SMP in situations where
the five SMP chemicals are not a concern for the State?
> What level of "proof would a State need to submit to
EPA to receive acknowledgment that there was no
problem with the SMP chemicals in the State?
*• What is an acceptable vulnerability assessment? Will
EPA defer to the States?
>• What is a State's ability or authority to address
activities on Federally owned land?
A variety of approaches for beginning to address these issues
were considered, but none was a clear choice among the group.
Among those suggested were:
> conduct a pilot hi one or more states with their SMPs to
determine whether a plan with minimal requirements is
feasible;
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* hold a one- to two-day workshop to address,
particularly, issues surrounding vulnerability
assessments;
> establish Regional round-table meetings to improve
communication and discuss issues at the Regional level
with the States; and
*• discuss the issues one at a time via conference calls,
although some participants believed this would result in
a process that takes too long to resolve issues.
Ms. Williams suggested that participants give further thought
to the issue of process outside the workshop. In turn, the
Regional Operations Branch staff would review the issues
raised and identify national-level issues that can be addressed
outside the rule-making process. Ms. Williams committed to
provide this information to all workshop participants, along
with a copy of the proceedings of the workshop. At that time,
participants would be asked to identify issues they wished to
help resolve and to identify any further approaches to resolving
them.
Ms. Williams closed the workshop by expressing her
appreciation for all those who attended. She indicated her
continuing belief that by working together, they can take the
next step in the program in a way that will ensure protection of
the ground water resource and will provide the States and
Tribes with the flexibility necessary to do that in a manner best
suited to local needs and conditions.
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