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Legal Snag Blocks EPA Push To Reclassify Key Water Disinfectant
EPA efforts to reclassify chlorine gas -- a critical water disinfectant -- as
a restricted-use pesticide have hit a legal roadblock because the agency appears
unable to grant a water industry request to bypass a provision in federal law
requiring applicator certification programs for restricted-use pesticides, EPA
and other sources say.
Wastewater treatment officials have asked EPA to exempt applicators of chlorine
gas from provisions in the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA)
requiring them to gain EPA certification before applying the chemical. The water
officials say EPA certification is unnecessary and costly because they already
have their own certification processes in place.
But EPA officials say, although they agree pesticide certification could be
unnecessary because the drinking water and wastewater groups have sufficient
programs already in place, the agency does not know if it has the legal
authority to grant the exemption.
An EPA official says the agency's Office of General Counsel is studying the
issue. “We hope to evaluate this and come up with other options,” the official
says, “but if it doesn't work we might be back to the drawing board.”
At a meeting earlier this month, groups including the Association of State and
Interstate Water Pollution Control Administrators, the Association of
Metropolitan Sewerage Agencies (AMSA), the Water Environment Federation and the
Association of Boards of Certification met with EPA pesticide officials to
reiterate a request filed several years ago with the agency seeking exemptions
from certification requirements.
Under section 136 (i) of FIFRA, EPA is required to either approve a state plan
for restricted-use pesticide applicator certification or conduct its own
certification program. The statutory language does not address whether EPA can
make exemptions in cases where applicators may already be certified to use
chlorine as a disinfectant, as opposed to a pesticide.
EPA has been considering reclassifying chlorine as a restricted use pesticide
since 1999 because of its high toxicity, an EPA source says. The agency issued a
registration eligibility document (RED) for the chemical in November 2000 to
classify it as restricted use for all users, eliminating an exception from the
requirements for wastewater treatment facilities and residential swimming pools.
The source says the agency would then publish amendments to chlorine's RED in
the Federal Register, take public comments and move forward with finalizing the
RED.
Drinking water and wastewater sources have said they will continue to push EPA
to grant the certification exemption because it is unnecessary for their
chlorine applicators to be certified twice -- once under the program they
already have in place and again under the FIFRA requirement. “To require us to
have these pesticide certifications would be duplicative,” says one publicly
owned treatment works source. “At the moment the ball is still in [EPA's] court
to figure out how to restrict use without duplicating all the training
requirements.”
An AMSA source said the group plans to submit language EPA could use to amend
the RED and grant the certification exemption.