5 Issues On The Industry’s Radar

Features - Regulatory Issues

Don’t look for 2017 to be quiet on the legislative front. Political change may impact business and regulations.

February 23, 2017
Donna DeFranco

As the new administration takes its place in Washington, D.C., the entire nation is watching. No wonder: It’s the first time since 2005 that Republicans control the White House, Senate and House of Representatives. Americans want to know what this new dynamic will mean to them personally and professionally.

Of course, all of us want to know what it will mean to the pest management industry. Our hunch is that it could heighten regulatory activity — whether that means changing, revoking or adding legislation. The Trump Administration’s take on business and environmental issues is quite different from that of the Obama Administration, so it wouldn’t be surprising to see changes start to take place rather quickly.

On the environmental front, for example, President Trump has already shared his intentions of eliminating the 2014 Waters of the United States (WOTUS) rule on the grounds that it is overreaching. On the business front, Republican Senators and House Representatives who have long voiced dissatisfaction with the Affordable Care Act and who now oppose the Fair Labor Standards Act (FLSA) overtime rule are likely to accelerate the repeal or revision of these Obama-era initiatives.

These are three of the issues Andrew Bray, director of public policy at NPMA, believes the pest management industry should watch in 2017. His Top 5 list rounds out this way:

  • Revised Certification Standards for Pesticide Applicators
  • NPDES Permits and the WOTUS Rule
  • Registration Reviews on Pyrethroids, Fumigants and Rodenticides
  • FLSA Overtime Rule
  • Healthcare and Tax Reform

Following are brief summaries of what’s happening in each of these areas.

1. REVISED CERTIFICATION STANDARDS. In December 2016, the U.S. Environmental Protection Agency (EPA) finalized more stringent standards related to the application of restricted use pesticides (RUPs). The revised Certification of Pesticide Applicators rule increases requirements for training, supervision and certification, and establishes a nationwide age mandate for pesticide applicators.

Among the revisions:

  • Certified pesticide applicators and individuals working under their direct supervision must be at least 18 years old.
  • All applicators must renew their certifications at least every five years.
  • Specialized certifications are required for individuals administering fumigation or aerial pesticide applications.
  • Annual safety training and increased oversight for non-certified technicians are required.

Even though RUPs represent less than 5 percent of EPA- registered pesticide products, these regulations are important in that they offer technicians, families, communities and the environment greater protection from pesticide exposure, says EPA. The agency projects that these measures will prevent as many as 1,000 acute illnesses a year.

Responsibility for developing compliant plans falls to the states, tribes, territories and federal agencies that oversee pesticide programs. They have up to three years to develop and submit updated certification plans to EPA for review. “These revisions will definitely cause a little heartburn for some state regulators, but EPA does offer some flexibility in program design,” says Bray. “I would be surprised if more than a few states are required to make significant changes to their certification programs.”

2. NPDES PERMITS AND WOTUS RULE. National Pollutant Discharge and Elimination System (NPDES) permit requirements continue to place a burden on the pest management industry. In spite of the fact that pesticides applied in accordance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) have already undergone thorough review during the EPA registration and reregistration processes, NPDES permits are required under the Clean Water Act any time chemical pesticides are used in, over or near Waters of the United States (WOTUS). NPMA continues to urge Congress to eliminate NPDES permits for lawful pesticide applications.

“The duplicative efforts of securing NPDES permits prior to application provide no additional protection for the environment, because these products have already been approved for use in water after extensive environmental testing,” Bray said. “PMPs are trained and certified to ensure they are applying pesticides according to their EPA-approved labels, which already take into account any impacts to water quality and aquatic species.”

Adding to the NPDES burden is the controversial WOTUS rule introduced by EPA and the U.S. Army Corps of Engineers in 2014, which expands the scope of waters falling under the authority of these two federal agencies. The rule met with widespread resistance from landowners, as well as members of Congress, state attorneys general and governors, who believe that jurisdiction over these waters should remain with the states. The WOTUS rule is currently under review in the courts. It is expected to be quashed by the new administration.

“It will be interesting to see how EPA and federal legislators handle national pollution permits and other matters related to the environment. NPMA will work closely with the new administration, and with new and established EPA officials, to make sure they’re operating within the parameters of FIFRA,” says Bray, noting that several of the officials with whom NPMA had strong ties have recently left the agency. “We continue to be committed to ensuring the safe application of pesticides and look forward to building relationships with incoming staff.”

3. PYRETHROIDS, FUMIGANTS, RODENTICIDES. EPA’s registration review program is designed to ensure that, as the ability to assess risk evolves, and as policies and practices change, all registered pesticides continue to meet the statutory standard of “no unreasonable adverse effects” per FIFRA. The agency reviews each registered pesticide at least every 15 years.

While hundreds of registration review cases for specific pesticides are in process, Bray suggests that the reviews of three broad categories of pesticides — pyrethroids, fumigants and rodenticides — will prove interesting to watch in 2017, adding, “The structural pest management industry has an important role to play during review by emphasizing the value of these products to protect public health.”

The review process is lengthy, and these three chemical classes are in various stages of review. “NPMA has been, and will continue, meeting with EPA officials and submitting comments to urge the agency to refrain from placing any unnecessary onerous restrictions once these reviews have been completed,” says Bray.

4. FLSA OVERTIME RULE. Updates to the Fair Labor Standards Act (FLSA) announced by the U.S. Department of Labor (DOL) in May 2016 and scheduled to take effect on December 1, 2016, would have required employers to pay salaried workers making less than $47,476 a year time-and-a-half for hours exceeding 40 per week. This new rule doubled the salary threshold set in 2004, from $455/week to $913/week.

But as employers were making decisions as to whether to pay the time-and-a-half, limit workers’ hours to 40 per week or raise salaries above the threshold to comply with the new rule, a federal judge in Texas granted a preliminary injunction against it as the court evaluates whether the DOL exceeded its authority by setting the salary threshold too high and providing for automatic adjustments every three years. Employers are in wait-and-see mode, as the new Secretary of Labor will likely be pressed to make the next move.

5. HEALTHCARE AND TAX REFORM. While details about implementation of the new administration’s plans for healthcare and tax reform are not yet clear, we know that President Trump has expressed his intention to have Congress repeal and replace the Affordable Care Act (Obamacare), and reduce taxes across the board for individuals as well as businesses. His published tax plan included lowering the business tax rate from 35 percent to 15 percent, and eliminating the corporate alternative minimum tax.

Today, analysts are evaluating whether this proposed tax reform package, which would be the largest in a generation, would add billions or trillions to the federal deficit, and Congress is split over whether to repeal and replace, or revise and rebrand, Obamacare. How these two issues shake out will be critical to pest management companies, says Bray. PMPs are looking for good employee healthcare options at a reasonable cost, and for tax reform that supports individual businesses and the industry as a whole.

“Pest management professionals are hopeful,” he says. “They see opportunities to fix some of the programs that aren’t working as they were intended to, or to make tweaks that will improve their effectiveness.”

Bray concludes with a reminder that PMPs need to be nimble to adapt to the changes that are likely to come. “We don’t have a track record with this administration because it’s so new, but we’re working to build relationships and help them understand the needs and concerns of pest management professionals across the country,” he says. “As an industry, we can’t afford to sit on the sidelines. We need to step up and make sure our voices are heard.”

The author is a frequent contributor to PCT and can be contacted at ddefranco@gie.net.