All Eyes on the Hill: 8 Issues to Watch Right Now

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Pest management is a highly regulated business. But do you know how the issues being discussed today could affect your business tomorrow? Here are 8 regulatory issues that PMPs need to be aware of — and in some cases act on — now.

November 12, 2018

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PCT magazine talked to industry advocates and policy staff at the National Pest Management Association (NPMA) to learn what top regulatory issues we should understand. No surprise, now is a time when instability and change define the landscape — and that can mean opportunity. Read on for the top eight issues facing the industry today.

1. Now’s the Time: Farm Bill

The Farm Bill is the vehicle for amending FIFRA, the law that governs pesticide use — and in late September, the final version of the bill was in negotiation. NPMA has been advocating for three key reforms to the Farm Bill.

The first calls for pesticide preemption at the state level, which would stop localities (cities, counties) from regulating the sale and use of pesticides. So, NPMA is working with the National Association of State Departments of Agriculture (NASDA) to codify state lead agencies as co-regulators.

Second is fixing a broken consultation process between FIFRA and the Endangered Species Act.

Third is eliminating redundant National Pollutant Discharge Elimination System Permits (NPDES). This is a provision of the Clean Water Act that prohibits the discharge of pollutants into water of the U.S. (WOTUS), unless a special permit is issued by the EPA, a state or tribal government.

We’ll dig into these three specific issues separately. But first, let’s address the significance of the new Farm Bill and why NPMA has been at the forefront of advocating for revisions.

Farm Bill Status: The Farm Bill governs a range of agriculture and food programs, along with regulatory issues. It is renewed about every five years, with the most recent Farm Bill (the Agricultural Act of 2014) expiring in September 2018. At the time of publication of this edition of PCT magazine, the possibility of an extension through the lame duck session in November, or until new Congress is seated in 2019, was up in the air. A Farm Bill Grassroots Campaign gathered 834 messages (and counting) to secure regulatory reform language.

Why Revise the Farm Bill? NPMA and partner organizations developed several reform proposals for inclusion in the 2018 Farm Bill that: 1) streamline pesticide review; 2) reduce regulatory burdens; and 3) clarify the role of EPA’s regulatory partners in the states. It addresses FIFRA, which allows states to regulate the sale and use of federally registered pesticides as long as the regulation does not permit a sale or use prohibited by the act. NPMA states, “Unlike any other point in recent history, this Farm Bill includes proactive language to advance the ability of pest management professionals to defend public health and property from unwanted pests.”

Why Now? Aside from the fact that the Farm Bill is expiring, Mike Bullert, president, Big Time Pest Control, Anderson, Calif., calls the Farm Bill a “once-in-a-generation opportunity to set things right with regard to how pesticides and pesticide regulations are dealt with.”

Bullert says the time to act on this is now. Why?

“The Trump administration is not anti-business — and isn’t over-ridden with emotional attachment to environmental issues,” Bullert says.

“Obviously, we need to protect the environment for future generations, and the Trump administration believes in that, I think,” he continues. “What we are seeing is that this administration does consider the affect of legislation on business and it does consider the benefits our industry provides. That’s a real positive that I didn’t expect to see in federal politics.”

Not to mention, NPMA has committed to lobbying for revisions to the new Farm Bill to preserve the industry’s ability to protect public health. “Now is the perfect time to make things right, and to get those revisions into the Farm Bill that will be long-lasting,” Bullert acknowledges.

>>The bottom line: “We want to make sure the environment is protected, and we also want to be sure we are protecting our society and population,” Bullert says. “There has to be a balance, and I feel like the prior administration did not consider the balance.”

2. Fixing a Broken FIFRA

FIFRA has not been revised in more than 50 years. When EPA registers a pesticide, it goes through an evaluation process that involves measuring the potential human health and environmental risks of the material. These risks are weighed against potential benefits. “It’s a scientific analysis, and a decision is made based on minimal risks and great benefits,” Bullert says.

But currently, provisions state if a risk were related to endangered species — even if miniscule or not proven actually risky — that would outweigh all benefits. “That is where FIFRA needs to be revised,” Bullert says, speaking to the provision of product registration that does not allow the consideration of benefits with concern to endangered species.

“Think about a public health issue, like mosquitoes and West Nile [virus]. To get a new product on the market or to re-register a product, if there was a potential minor impact to an endangered species, the registration could be refused for that reason — even if the benefits are tremendous,” Bullert explains.

>>The bottom line: It’s time to update FIFRA and fix the broken consultation process between FIFRA and the Endangered Species Act of 1973 that is intended to preserve species and natural habitats. Yes, this is vital — but the pesticide consultation process between EPA and U.S. Fish and Wildlife Service is thin on resources and too bureaucratic. Species are not recovering at the expected rate, litigation is thick and we need a modern process that allows for introducing new, safe materials that protect public health.

3. Eliminating NPDES

Also wrapped up in the Farm Bill, NPDES requires permitting for already-approved materials that are applied to, over or near water. Initially, when Congress passed the Clean Water Act (CWA), it intended that NPDES permits would be required for point-source pollutants like municipal sewage or industrial byproduct runoff. But a court ruling overturned the EPA’s argument that pesticides applied according to FIFRA are exempt from the CWA’s NPDES permits.

Basically, NPDES is redundant.

With every EPA registration, the agency conducts a thorough review and consideration of impacts to water quality and aquatic species. So, requiring a separate water permit, NPDES, does not provide additional environmental protection.

If you’ve heard about WOTUS — Waters of the U.S. — this is where the redundant NPDES are causing an issue. As of mid-September, there was pending litigation in 23 states and a new EPA rule due in October, also expected to immediately go into litigation.

>>The bottom line: Additional permitting to apply already-approved pesticides to waterways slows down response time to public health concerns, Bullert says.

4. Pesticide Preemption

“Mosquitoes don’t care about county lines,” points out Andrew Architect, chief of staff, industry relations, NPMA. “They don’t stop in between Montgomery County, Md., and the next county over and say, ‘We’ll just stay in the county you can control us in.’”

This is just one of the challenges presented by pesticide preemption. In the 1990s, a U.S. Supreme Court decision gave power to “localities” to regulate pesticides. The problem is, localities were supposed to mean states — not individual municipal and county governments.

“What Congress intended to do was to enact state pesticide preemption,” Architect explains. “What we are trying to correct in this Farm Bill is to define that a state-led agency is only that agency designated by state statute. And that state does not mean it could be counties and cities, which don’t have the resources to approve and enforce pesticide use. They don’t have the science or the budget.”

But in states without pesticide preemption, this “locality” verbiage is a big problem. “In Maine and Maryland, where pesticide ordinances have been put in place that say counties may ban the use of certain types of pesticides, that means homeowners and pesticide applicators cannot use those pesticides — and so there becomes a patchwork of regulations,” Architect says.

“During a day’s route, you don’t always know if you are in County, A, B or C. How do you pack a truck in the morning with six different types of products all to control mosquitoes because there are six different regulations in the six stops you’ll make that day?” he adds.

Most states do have pesticide preemption in place so state lead agencies can regulate the use of pesticides. But, even in those states that have preemption laws, Architect says, “We have seen attempts by activist groups, which latch on to issues like pollinator health, to roll back state pesticide preemption.”

>>The bottom line: The goal of the revised language for the new Farm Bill is, at the federal level, to give power to the states — and not “localities.” Bullert says, “States have the resources to conduct sound science — but what we are seeing is smaller entities making pesticide decisions for emotional reasons, not scientific reasons.”

5. Attacks on Occupational Licensing

Deregulation is a hot topic, particularly related to states’ policies for occupational licensing. Back in 2015, former President Obama and his administration showed support for occupational licensing reform, with Democrats coming at it from the angle of increasing access to the workforce by eliminating costly licensing requirements. Republicans have approached the same issue from a different slant, of course. “They come at it from an economic freedom standpoint,” says Jake Plevelich, NPMA’s director of public policy. “We shouldn’t have all this regulation. So, there is this confluence of agreement on the issue, but the parties are coming at it from different angles.”

The agreement, and trend, is to slacken occupational licensing requirements, and the heat really started in the hairdressing industry when Rep. Steve Womack (R-Ark.) took a stand against licensing. “He took his thinking and applied it to every single licensed occupation, including pest control,” Plevelich says.

Still, the Arkansas Department of Agriculture must get approval from EPA for its certification of pesticide applicators. “If the state deregulates pesticide applicators, meaning anyone could pretty much become a pest control company without certification, you violate FIFRA because you have to administer an examination and need a license required operate,” Plevelich says.

If the state doesn’t regulate licensing, EPA will. “So, Arkansas pest control applicators would have to travel to their regional EPA office to take licensing exams,” Plevelich says.

There’s a lack of consumer protection. There’s a violation of FIFRA, and a pass-down of licensing oversight to EPA rather than states. (Who would you rather administer your licensing exam?) “There are a litany of problems associated with this,” Plevelich acknowledges, adding that some states are taking an aggressive stance on deregulating occupational licensing. One is Ohio, with SB-255.

Lonnie Alonso owns Columbus Pest Control, located in the state’s capital, and he’s watching the legislation. “There are legislators that believe we have too many regulations, and there is a push from certain industries (not pest control) to lobby against regulations,” Alonso says. The question in Ohio is, will the proposed reduction of regulation by 30 percent be enacted as a 30 percent reduction in each agency, or 30 percent top to bottom, across all agencies?

In Missouri, NPMA submitted comments to the Missouri Department of Agriculture because it wanted to repeal the education and experience requirements for pesticide applicators.

>>The bottom line: Plevelich notes that deregulation and loosening occupational licensing is, indeed, a trend. “Some states’ laws are mild, others are extreme,” he says. NPMA is watching the activity to determine which laws it will make an effort to repeal.

6. Fighting Rodenticide Bans

The group is called Raptors Are the Solution (RATS), and the activist organization is behind rodenticide-ban legislation that is introduced in California every year — and now attempting to ban rodenticides in Massachusetts through a 2020 ballot initiative. (RATS needs to collect 60,000 signatures.) RATS is a parent group that wants to stop rodenticides that contain anticoagulants like brodifacoum, bromadiolone, chlorophacinone, difenacoum, diphacinone and warfarin.

To use rodenticides, certified applicators would need approval from the state Department of Health concluding that there is a public health emergency, after exhausting all other mitigation methods (IPM, sealing containers, trapping, cleaning up spillage, etc.)

>>The bottom line: “They’re not looking at the whole issue and using scientific methods to determine if our use patterns are actually affecting wildlife, so this is where you see some laws being made emotionally,” Bullert says, relating to anti-rodenticide efforts in California, noting that passage of this and other anti-pesticide regulation “is hugely detrimental to public health.”

7. Blasting Bed Bugs

California Assembly’s Fiona Ma refers to Bullert and his team as “her bug people,” he says. That’s after she sponsored legislation that was considered anti-industry — “and we had conversations with her and invited her to speak to our group,” Bullert says. “On the front page of the local paper was an article about the bed bug epidemic, and as she said, ‘We know San Francisco has a huge bed bug issue.’ In that meeting, she said, ‘If we have bed bugs, we need professionals like you dealing with this.’”

Bullert says, “The more we can engage with people who don’t necessarily agree with us, they more they realize that we have a genuine interest in protecting public health, as do they. We are all reaching for the same goal, we just need to educate politicians about how we operate and the safety precautions we take.”

California is one of three states with bed bug legislation; Connecticut and Maine also have legislation, and soon will Colorado, hopes Kevin Lemasters, president, EnviroPest, Loveland, Colo. The effort was initiated when a constituent living in public housing asked for bed bug legislation that outlines how pest problems should be managed. “Having some bed bug legislation would define and set expectations for how to treat and prevent infestations,” Lemasters says. If all goes smoothly, the legislation could be passed as early as spring 2019.

>>The bottom line: In Colorado, with bill sponsors from both sides of the aisle, the bed bug issue could unite politicians around a public health concern the pest control industry can defend against. “This bed bug legislation ties in our industry as the experts,” Lemasters says.

8. Less $$$ for OPP

As part of the 2018 Farm Bill, Congress also included the reauthorization of the Pesticide Registration Improvement Act (PRIA). This allows for pesticide manufacturers to pay fees to the Office of Pesticide Programs through the registration of products. “Without the reauthorization of what has typically been a bi-partisan issue, there is concern that if there is less funding, new products that come to market might get delayed due to decreased staffing,” Bullert says. “Everyone in the industry wants to protect the environment and take care of our customers. And, the trend is that new products coming to market allow us the increased capability to control pests based on the latest science and technology.”

>>The bottom line: If it’s too expensive or time-consuming to go through the pesticide registration process, this could put a damper on innovative products entering the marketplace and limit the tools available to PMPs.

FINAL THOUGHTS. Industry advocates advise PMPs to get to know their politicians — today. Don’t wait until you’ve got an issue on the ballot. Start getting to know your local politicians and developing relationships with representatives so they can turn to you for insight when issues crop up. “We have to be involved in the process, partner with our politicians and work with them,” Alonso says. “We need to get to know each other on good terms so they know what we stand for and what we believe, and all of the positive impacts we have on public health and the environment.”

>>The bottom line: Introduce yourself to state and local politicians, and volunteer to educate them about your standards and how our industry protects public health. Participate in NPMA Legislative Day on Feb. 24-26 at the Capital Hilton in Washington, D.C.

The author is a frequent contributor to PCT.