DRAFT

October 23, 1996 

Mr. Dan Barolo
Office of Pesticide Programs
US EPA Mailcode 7501 C
401 M Street
Washington DC 20460

 RE: Pesticides and Ground Water State Management Plan Regulation
Proposed Rule (OPP-36190) 

Dear Mr. Barlo:

On Behalf of the Agricultural Advisory Board to the Pennsylvania Department of Environmental Protection (DEP), I am writing to you about our concerns over Proposed Rule OPP-36190.

The Agricultural advisory Board to DEP is a legislatively mandated board composed of framers, agricultural business, state legislators, and State and Federal regulatory agencies. Its major responsibility is to evaluate and provide recommendations to DEP on all rules and regulations which affect the agricultural industry in Pennsylvania.

The Pesticides and Groundwater strategy recognizes that, for some pesticides with high leaching potential, labeled uses may be inappropriate in some highly vulnerable situations. To address those situations, the strategy describes a tiered process by which EPA will evaluate the risk produced by the normal use of a product, and then if appropriate, apply increasingly stringent measures: (A) additional national label requirements; (B) restricted use requirements; (C) state management plans (SMPs) ; or (D) national cancellation. If steps (A) and (B) do not protect groundwater from unreasonable risk of contamination under normal product use, then a state management plan for the chemical is the only alternative to cancellation. legal sale and use would be confined to states with a SMP approved by EPA. SMPs would control the use of specific pesticides of concern in all areas, including urban and rural areas, golf courses, rights-of-way and federal lands. 

To implement the strategy, EPA initially proposed a rule on the criteria for restricting pesticides due to groundwater concerns (proposed May 13, 1991), but did not finalize the rule. Instead, in June, 1996 EPA proposed a rule which requires five herbicides (alachlor, atrazine, cyanazine, simazine, and metalochlor) to have SMPs as a condition for continued registration. Public comments on this proposed regulation were due no later than October 24, 1996., but that comment period has been extended thirty days.

States should have 33 months after the regulation becomes final to develop and receive EPA approval for their SMPs. In proposing the rule, EPA has interpreted FIFRA to give the agency authority to make use of SMPs a condition of the initial registration, continued registration, or legal availability of selected pesticides. The five specific pesticides identified for regulation under SMPs were selected after a subjective evaluation of available monitoring date, Leaching potential and product use patters.

The Agricultural Advisory Board met on october 23, 1996 and noted the following problems with the proposed rules.

Growers have had little awareness of the proposed rule. Even with the 30 day extension, the comment period should be extended by at least 60 additional days. Few growers understand its impact. With harvest underway, growers are hard pressed for time, and will be unable to properly respond. An extension would provide growers enough time to complete the harvest and provide an informed response to the proposed SMP rule 

Once this rule is approved, a pesticide that is classified in the rulemaking may only be used in accordance with an EPA approved SMP. Without a approved plan, pesticide products would be prohibited from sale within the Commonwealth. All uses are subject to the SMP requirements in spite of existing systems for certification and restricted use.

The SMP proposal is an unfunded federal mandate on the states. If adequate state level funding is not available via fees or enforcement, monitoring, etc. who will foot the bill? If the plan is rejected because it can’t be funded, a possibility with EPA estimates as high as $500,000 per active ingredient per state, farmers would lose the use of these key management tools. The data shows no such need.

The proposed rule does not provide the state sufficient flexibility to tailor plans to meet its actual water quality risks. The Commonwealth should be free to select the active ingredients for which management plans are necessary, based on previous monitoring, vulnerability assessments, etc. In Pennsylvania, the relationship of farmers to the Pennsylvania Department of Agriculture and the Department of Environmental protection is good. These agencies know best where problems exist, both real and potential. The existing system of best management practices is working. We urge you to give them a chance!

The rule targets all uses of five active ingredients which are not appropriate for every state. Minor uses may be inordinately impacted in spite of use in nonvulnerable areas or in areas with low acreage. EPA has provided no justification for including all cases. Nor has an adequate economic impact assessment on minor uses been done.

The proposal provides no evidence of ground water quality impact on a national scale to justify such an extensive and expansive national program, particularly when it duplicates ongoing state level programs. The data actually shows no need for such a costly federal program.

Finally, we are concerned that the rule lacks a providing for states to opt out where certain chemicals have little or no use, or environmental impact. Flexibility in plan approach must be left with the states. 

Sincerely,

Robert Junk
Chairman