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Developing a National Strategy

With mounting evidence of groundwater contamination by legally sanctioned pesticide use, EPA in the mid 80's began to consider options for a coordinated national response.

The federal Clean Water Act, though it contains broad provisions regarding non-point pollution, does not specifically address groundwater. The same is the case for FIFRA, the federal pesticide law, but FIFRA is the statute that drives much of the efforts of EPA's Office of Pesticide Programs. Thus, the Agency looked for a policy that would fit within that law's framework -- a framework that calls for preventing "unreasonable adverse effects" and that relies heavily on pesticide labels developed at the federal level.

The deliberations on the federal role were slow and, at times, contentious.1  Water users who were concerned with pesticide detections were pressing for quick action and national leadership. Environmentalists echoed that call and wanted policies that would protect as much of the natural resource as possible. Many opposed a "classification" of groundwater that would limit protection to the water used today.  They wanted regulatory action that would aim to keep pesticides out of groundwater even before it reached anyone's tap or flowed into a fragile river ecosystem.  They were wary of standard-setting that might inadvertently sanction contamination up to a certain point.

At the same time chemical manufacturers argued that pesticides in groundwater become a pollution problem only when they exceed drinking water standards at the point of intake or the tap.  Pesticide manufacturers emphasized the need for local response and argued that EPA should allow varying local circumstances to dictate appropriate actions. They pressed for classification of groundwater that would allow pesticide residues in some areas and promoted an agenda that relied on state rather than federal intervention.

In the farming community, some were wary of losing their chemical tools; others were concerned with the quality of their own water and the safety of their families.

As often happens in environmental policy, no grand consensus emerged from the many meetings and hearings.  Rather EPA chose its own path adopting various elements discussed over the years.  In 1988 EPA proposed its Agricultural Chemicals in Ground-Water Strategy.  Following wide distribution of the proposal and an extended comment period, the Strategy -- largely unchanged -- was finalized in late 1991 under the title Pesticides and Ground-Water Strategy.

The Key Concepts

Out of what was sometimes a bitter debate came a plan built around a few fundamental concepts. 

Broadly speaking, the Strategy embraces the concept of pollution prevention and adopts a sound, if somewhat tentative, approach, seeking to address groundwater contamination before the fact.  "Delaying action until ground-water contamination occurs at significant levels and with a frequency sufficient to cause immediate concern," says EPA, "is costly, and ultimately counterproductive."  ²  Thus, the Strategy "emphasizes prevention and resource protection over remedial treatment." ³   

The Agency chose to use water quality standards, but in a new way. The Strategy encourages preventive action before health-based or resource-based levels are exceeded. Indeed, it labels the exceedance of these standards a "failure to protect the resource."  The clear implication from the Strategy is that any such failures would be met with increasingly stringent pesticide restrictions -- including possible prohibition of use in certain areas.  

In this regard, the Strategy borrows from the State of Wisconsin's Preventive Action Levels or PALs, calling for the establishment of "trigger levels" set below the standard. Detections of pesticides at these levels are supposed to compel mitigation action. The higher the trigger level that is exceeded, says the Strategy, the more restrictive should be the actions to decrease or eliminate loadings of the pesticide to groundwater.

Another notion that underlies the Strategy is that the nature and the importance of groundwater varies from place to place.  On this point, EPA rejected the idea that some groundwaters should be automatically "written off" and allowed to degrade, but conceded that it would be difficult to protect all groundwater from all levels of contamination.   The implication in the Strategy, then, is that it is more or less important to protect groundwater depending upon the vulnerability of the resource and the ultimate use of the resource in a given area. The principle uses of groundwater to be afforded protection priority, according to the Strategy, are drinking water supply and ecosystem protection where groundwater discharges to surface water.

From these concepts comes the proposed solution set within the FIFRA context. 

Reliance on Pesticide Management Plans

Under FIFRA, if EPA finds that "widespread and commonly recognized" application practices associated with a pesticide will cause "unreasonable adverse effects," the Agency may classify the pesticide in question for "restricted use."

Though the common practice has been to deal with troublesome pesticides simply by requiring that they be used solely by "certified applicators," the law does leave the door open for alternative or additional restrictions, providing for other unspecified restrictions "as the Administrator may provide by regulation." 

EPA's guidance for the development of the pesticide plans addresses both the generic plans and the chemical-specific plans that are to follow.  The Agency lists a number of specific components that should be found in any plan.

• An articulation of the state's or tribe's  protection philosophy and goals  for protecting groundwater.  Here the state or tribe must describe what distinctions it will make, if any, in extending protections to groundwaters.  The regulatory authorities may "classify" different groundwaters differently, but the plan must seek to at least protect waters that serve as drinking water sources or can be expected to do so in the future; 
  
  

• Clarification of the  roles and responsibilities  that various agencies will perform under the plan.  In other words, the state or tribe must decide which agencies will have jurisdiction over which parts of the plan.  In the case of disagreements between agencies with different primary missions -- for example, agriculture versus environmental departments -- these jurisdictional delineations can be very important.  The plan should also specifically identify the individual who will serve as the point of contact with EPA, and it should describe how local governments will be involved in the management plans; 
  
  

• A sound basis for  assessing the vulnerability of groundwater resources. In this area, EPA stresses the need for an ongoing program that provides basic information on the occurrence, movement and quality of groundwater along with data on the quantity of pesticides used and information on the fate and transport of those pesticides through the environment.  EPA encourages regulators to use available data from other programs but cautions against reliance on broad generalizations.  In particular, the Agency cites the need for data that offers a finer-than-county-level resolution. 
  
  If, in its goals, a state or tribe chooses not to offer "priority protection" to all groundwater, then it must explain how it will delineate distinct areas of groundwater for different levels of protection. It must also discuss how vulnerability assessments, monitoring data and, if applicable, groundwater differentiation or classification will be used to set priorities for protection activities. This section should also discuss how the effectiveness of the program will be evaluated; 
  
  

• A  monitoring program  to detect pesticides in groundwater, including an explanation of the scope, objectives and design of the program as well as information on sampling, analysis, and quality control methods to be used.  The term monitoring is used in its broadest sense, encompassing far more than sampling of wells.  EPA describes monitoring activities as "...a continuum of activities ranging from defining background conditions, to defining the existence and extent of contamination, to defining the success of prevention and response measures and programs..."; ³
  
  

• Identification of  preventive actions  that will be used to protect groundwater.  In this area, EPA encourages adoption of "best management practices," the use of "integrated pest management," sustainable agriculture and other crop or pest management approaches that reduce the risk of groundwater contamination.  The state or tribe may vary the preventive management approaches based on groundwater vulnerability, water use and value or other social and economic factors.  They should also explain what, when and where different approaches will be used and how these efforts and the response program below will be coordinated with other water quality programs, such as coastal zone management, wellhead protection and comprehensive state ground water protection programs (see next section); 
  
  

• A description that links specific  responses  to the detection of pesticides at various levels -- in simple terms, a description of what will happen if and when pesticides are found in groundwater.  This plan component is closely linked to the discussion of preventive actions and differs primarily in timing and degree.
  
  EPA encourages the use of preventive actions absent findings of pesticides in groundwater and expects to see such a component in each plan.  The Agency insists, however, on a plan of action that discusses the types of responses -- ranging from user education to pesticide bans -- that will go into effect if pesticides are detected at "trigger" levels chosen by the regulators and also articulated in the plan.  
  
  The plan should describe the steps that will be taken and note who will be responsible for implementation.  While the emphasis remains on prevention of additional contamination at this point, the plan may also specify how regulators will deal with violations of water quality standards in public and private wells, including notification of water users;
  
  

• Explanation of  enforcement mechanisms.  Since many aspects of implementation may require enforcement authorities, the plan should explain what agency holds each required authority.  This discussion may be cross-referenced with the explanation of legal authorities mentioned below; 
  
  

• A description of the methods of fostering  public awareness  and opportunities for  public participation.  Each state or tribe must demonstrate to EPA's satisfaction that the public is involved in the process of the plan development and will be informed of "significant SMP implementation activities." ³    The plan should describe any relevant legal authorities in this area or otherwise explain what procedures the state will use to ensure public involvement.  This section should explain the level of pesticide detection that the state considers sufficient to trigger public notification, explain how well owners will be informed of pesticide detections, and describe how the public will be made aware of important regulatory developments; 
  
  

• A statement of how  information  regarding the plan and its implementation will be  disseminated to pesticide users.  Under this heading, the state or tribe should explain how pesticide users will be informed and/or educated about program goals and requirements, including how they will receive program updates necessitated by changing circumstances; 
  
  

• An approach for  record-keeping and reporting.  This section dealing with documentation of the pesticide management plan and its implementation provides a basis for assessing the effectiveness of the plan overall and in particular the value of prevention and response measures.  EPA is seeking reporting on what it terms "management measures," such as the number of enforcement actions or the number of wells tested, and "environmental indicators," such as monitoring results or volume of pesticides used, which offer a direct or indirect measure of environmental quality.  For chemical-specific plans (discussed below), the reporting component includes a commitment to produce biennial reports on program implementation.  Those must include, among other things, a description of projected resources available for plan implementation; 
  
  

• Sufficient  legal authority  to carry out the plan.  In this section of the plan, there should be a description of the general legal authorities and specific laws and regulations that the state or tribe will rely upon to carry out the plan.  For example, the plan should specify its legal authorities for conducting monitoring, closing public wells, collecting pesticide use data or any other actions called for in the plan.  If gaps in authority are identified, actions to remedy those deficiencies should be described and a timeline for completion included; and 
  
  

• Demonstration of sufficient  resources. In this section of the plan, the state or tribe must indicate the categories of personnel and technical expertise that will be required to carry out the plan.  The plan should indicate whether access to such individuals is available and provide an estimate of costs, including costs to implement preventive measures, assess groundwater vulnerability, conduct monitoring, take enforcement actions or otherwise implement the plan.  If the plan indicates that current funding levels are not sufficient for implementation, it should also indicate what additional resources will be sought and, in the event that funds are not available, what activities will remain undone.

At the level of the generic plan, EPA may or may not "concur" with the plan, offering ideas and suggestions for improvements. If the Agency does not concur with a generic plan, there are no sanctions and EPA will continue to work with the state or tribe to refine the plan.  At this writing, all 50 states and 6 tribes have submitted draft generic plans to EPA.

EPA committed in the Strategy to determine those chemicals that are of sufficient national concern to require federal action. For each selected pesticide, EPA will require the development of  a management plan to protect groundwater from contamination by that specific chemical. Plans must be submitted to EPA for review and approval -- which is likely to take place at the appropriate regional office of EPA. Within any state or tribal lands without an approved plan, the federal registration for use of the pesticide will be withdrawn.

Likewise each plan must specify "trigger levels" that will compel mitigation efforts and offer an opportunity to prevent exceedance of standards, but EPA is not dictating precisely where those triggers should be set or what specific actions should be linked with those.

1.  The nutshell summary of the long debate is based on the author's recollection.  Velma Smith represented Friends of the Earth in numerous meetings and hearings related to pesticides in groundwater.

2.  US EPA, "Pesticides and Ground Water State Management Plan Regulation:  Proposed Rule, Federal Register, June 26, 1996, vol 61, no 124 available online at <http://www.epa.gov/docs/fedrgstr/EPA-PEST/1996/June/Day-26/pr-768DIR/>.

3.  US EPA, Office of Prevention, Pesticides, and Toxic Substances, Guidance for Pesticides and Ground Water State Management Plans, EPA 735-B-93-005a, December 1993.

4. US EPA , Pesticides and Ground-Water Strategy, 1991.

5.  These plans are also referred to by EPA as State Management Plans or SMPs.  Note that EPA includes tribal governments within the definition of state in this context.

6. Pease, William S., et al, Pesticide Contamination of Groundwater in California, 1995.

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