[Regulatory Issues] Back to School

On June 16, 2008, a unique event took place at Georgia’s Capitol Education Center in downtown Atlanta. The event, which drew more than 300 pest management professionals (PMPs) from Georgia and was archived for replay on the Internet, was a joint training effort that brought together representatives from the University of Georgia (UGA), the Georgia Structural Pest Control Commission (GSPCC), the Georgia Department of Agriculture (GDA), Georgia Pest Control Association (GPCA), Certified Pest Control Operators of Georgia (CPCO) and other members of the pest control industry. The purpose of this symposium was to help PMPs perform pest management operations in schools that are efficacious, safe and in compliance with state requirements.

BACKGROUND. In 2003, the GDA discovered that a PMP was performing pest control operations in schools that were not safe and not in compliance with requirements of the Rules of the Georgia Structural Pest Control Act. This case ultimately was adjudicated and the company and its operator were found guilty by an administrative law judge of violating the Georgia Structural Pest Control Act. The judge recommended the revocation of the company’s license, revocation of the operator’s certification and monetary penalties of $96,000.

This case was appealed to Superior Court in Georgia and the major findings and provisions of the penalties were upheld.

As a result of this case and over concern about the safety of children in schools, the GSPCC instituted some changes to the Rules of the Georgia Structural Pest Control Act to help ensure that pest management operations in schools are performed with the safety of children in mind.

The following is a brief summary of what the regulations require when PMPs apply pesticides in schools:

• Applications must be made in a manner that minimizes exposure of children to pesticides.
• No residual pesticides may be used if children are going to be in the area within the next three hours.
• The three-hour restriction for children not being in the area when applying residual pesticides is applicable to applications involving the exterior of a building.
• Baits, botanical insecticides, IGRs and certain other materials are permitted to be applied when children are not present in the area at the time of application.
• In addition to all other recordkeeping requirements, school pesticide use records must include time in/out including a.m. or p.m.
• PMPs must follow any pest management policy established by the school.
• Pesticide use dilutions must be prepared outside the school building.
• Schools are defined as any public or private school or child daycare center. Adult education facilities, colleges or universities are not included in the definition of a school.

The GSPCC also developed a “phase-in” timetable of several months to allow PMPs to make any necessary changes to their operations in order to comply with these changes.

WHAT HAPPENED NEXT? One of the purposes of a pesticide use record (PUR) is to inform the customer of the “who, what, where, when and why” of an application. If the customer cannot determine what occurred during the application based on the PUR then the record has not met one of its primary goals.

In spring 2007, the GDA started examining the PURs of PMPs that were performing pest management procedures at schools. The findings indicated that these procedures were frequently not being made in compliance with the label of the pesticides being used and with state requirements. These violations were classified as either “minor” recordkeeping type of violations or as “significant” violations.

The recordkeeping violations include items such as:

• No time in/out including a.m/p.m listed on the PUR.
• Generalized statements that do not reflect where a pesticide was actually applied, for example “classroom.” Were all classrooms treated or just a select few?
• Multiple pesticides listed for multiple pests. The PUR written in such a way that it makes it look like a rodent problem was treated with an insecticide and vice versa.
• Failure to follow what the school policy requires. For example, some policies prohibit the use of neurotoxins, which are found in many commonly use insecticides.
• Unrealistic timeframes recorded on PURs. For example, application of 2 gallons of insecticide with a compressed air sprayer in 20 minutes.
• Inability to read what’s on the record due to handwriting or space limitations.

The “significant” violations are limited to three separate violation types:

• Use of a pesticide in violation of the label directions. Some examples include:
• Application of certain pyrethroid insecticides in the food processing areas of a school.
• Use of some “residential only” granules in and around schools.
• Broadcast or general applications of insecticides that are limited to crack and crevice applications.
• Failure to follow post-application requirements such as water in after application.
• Application of pesticides with children in the area. Some examples include:
• Application to exterior of school buildings with children likely to be around the outside of the building within three hours.
• Application to areas that did not have children present at time of application but would before three hours elapsed. A common problem was found in cafeterias that were treated in the morning but less than three hours before children would enter for preschool breakfast or early lunch.
• Modification or falsification of a record after being signed by the customer:
• Numerous cases of modification/falsification of PURs have been found when the GDA compared the school’s copy of the PUR against the PMP’s.

The significant violations represented either the potential for children to be exposed to pesticides or an intentional effort on the part of a PMP to mislead a customer or the GDA.

CONCEPT OF SELF REPORTING. The basic regulatory philosophy of the GDA, as is true for most regulatory programs, is to bring the regulated community into compliance and not to put them out of business.

In 1996 EPA adopted the policy “Incentives for Self Policing: Discovery, Disclosure, Correction and Prevention of Violations.” This policy set up criteria for “…eliminating or substantially reducing the gravity component…” of penalties if a regulated entity performed a self audit, self reported a problem and had a plan for correcting the discovered problem.

The GDA and the GSPCC actively embraced this concept and encouraged PMPs to review their operations involving the treatment of schools and to self report if they discovered any problems. Both state pest control associations, GPCA and CPCO, supported the concept and were involved in getting the word out to the industry to self report.

A self reporting meeting involves a PMP setting up an appointment with the GDA and sitting down with a program manager and reviewing problems that were found during a self audit. The manager reviews the problems and offers suggestions on improving the operation. The PMP must agree to correct the problems that are found and have a plan to prevent the problems from reoccurring. A regulatory warning letter is usually issued as a result of these meetings.

Almost 40 percent of the industry has taken advantage of this concept and has self reported. Self reporting is not just limited to school issues as the GDA has also encouraged PMPs to self report other types of problems that they may find.

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NPMA Working Proactively on School
Pest Management Legislation

FAIRFAX, Va. — An issue the pest management industry continues to track closely is school pest management legislation. For the last five sessions Congress has considered school pest management legislation in the form of the School Environment Protection Act (SEPA).

NPMA Manager of Government Affairs Gene Harrington said that Congress most likely will not act on the current version of SEPA but that the industry is bracing for the issue to be taken up next year.

“Between the economic chaos, health care reform and the wars in Iraq and Afghanistan, Congress has a pretty full plate, but we think there is a very good chance that major legislation will be introduced next year,” Harrington said.

Throughout the years, NPMA has provided its input regarding what it believes is sensible school IPM, and in 2001 NPMA was part of a broad coalition of environmental, public interest and education groups that urged Congress to include the SEPA in the final version of H.R. 1, the Better Education for All Students and Teachers Act (which ultimately did not pass).

The problem facing the industry is that the current SEPA version is onerous and bureaucratic, NPMA believes. “We are anticipating a big debate on this issue, so we have been meeting with members of Congress and their staff in advance of this debate, to encourage them to support a more workable piece of school pest management legislation,” Harrington said.

For example, Harrington said, “a number of states already have adopted school pest management programs that are effective and not overreaching.” — Brad Harbison

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SIGNIFICANT REGULATORY ACTION. Since the spring of 2007, the GDA has made the proper treatment of schools its top regulatory priority. Any PMP that had not self reported and was found to have a significant violation involving the treatment of schools potentially faces severe regulatory action.

From April 2007 — June 2009 the following regulatory actions involving the treatment of schools has taken place in Georgia. All of these have either been settled or agreed to be settled (verbal commitment):

• Over $740,000 in monetary penalties have been imposed including:
• 62 certified operators have surrendered their certifications or had their certifications revoked;
• and nine company licenses have been surrendered or revoked.

It is noteworthy that most of these regulatory actions have been settled without any formal hearing such as occurred in original 2003 case. These actions have been negotiated settlements in lieu of formal action.

Q&A on WHY PROBLEMS OCCURRED. There can be any number of reasons why these problems involving the treatment of schools have and are occurring. However, after reviewing the operations of hundreds of pest management professionals and examining thousands of PURs some trends have become clear. It should be emphasized that these are only trends and are obviously not applicable in all cases.

Q: Why are some PMPs applying pesticides in school areas where children are likely to be present?
A: There is a pattern of failing to follow the regulations. It appears to be a willful disregard of what is required. The PMPs know what they are supposed to do but fail to do it for whatever reason.

Q: Why are some PMPs misusing pesticides in schools?
A: Some PMPs are failing to read the label or are disregarding what is on the label. It appears that some feel it is acceptable to use “whatever is in the tank.” Dr. Dan Suiter of the University of Georgia recently stated that, “I might suggest for folks to become better adept at reading and interpreting labels. It’s dry and boring stuff, but it is critical.”

Q: Why are some PMPs failing to keep accurate pesticide use records involving the treatment of schools and other types of treatments?
A: The industry’s first line supervisors are not providing adequate supervision to their employees. There appears to be a greater concern with getting a job done than ensuring that the job is done right. Further, some PMPs have been resistant to change and are in the mindset of doing things the way they have always done it. Some operators have not updated their procedures and recordkeeping methods in many years.

Q: Why are PMPs falsifying pesticide use records involving the treatment of schools?
A: A number of PMPs do not trust that a regulatory agency would work with the industry in attempting to correct problems. When a problem was discovered they modify/falsify their records to cover up a problem in lieu of self reporting.

Jimmy Allgood of Allgood Pest Solutions and chairman of the GSPCC has repeatedly pointed out that “if these types of violations are occurring in schools, a very sensitive type of account, they are likely occurring in other types of accounts such as restaurants and health care facilities.”

The flip side of that coin is that when pest management in schools is done correctly the industry stands to benefit, said Brian Forschler, associate professor and researcher, University of Georgia. “The issue of IPM in schools is an opportunity for the pest management industry to showcase the value of the profession on a national stage,” he said. “No one can question the value of protecting our children. Companies willing to contract schools and daycare facilities should use those accounts — where the pinnacle of pest management procedures, IPM, is clearly on public display — to demonstrate responsible industry standards of care.”

OUTREACH EFFORTS. Despite the efforts of the GSPCC, the GDA and both state pest control associations ongoing problems involving the treatment of schools continued to occur. The GSPCC, in a further effort to help PMPs provide safe and efficacious treatments to schools, planned a symposium that brought together educators, regulators and the industry. The speakers covered a wide variety of topics and the symposium included a panel/Q&A session with the speakers and all GSPCC members. The meeting was moderated Jimmy Allgood and topics were:

• Problems discovered in the treatment of schools — Jim Harron, GDA and GSPCC Vice-Chair
• IPM in schools — Dr. Brian Forschler, UGA and GSPCC Member
• The label — Dr. Paul Guillebeau, UGA
• Safe use of pesticide in schools — Dr. Dan Suiter, UGA
• Industry perspective on the treatment of schools — Joey Harris and Chuck Carney, Cook’s Pest Control
• Panel discussion with GSPCC members and speakers

The presentations have been archived on GDA’s Web site: http://agr.georgia.gov. To access the presentations click on the “Divisions” link from the home page and then “Plant Industry” and then “Structural Pest”. A link to the presentations is on the “Structural Pest” page.

WHAT’S NEXT? The issue of efficacious, safe and proper pesticide applications in schools is not a transient issue. Instead, it is one that is likely to continue to gain traction. Here are five items that PMPs should consider when contemplating school applications:

1. Reexamine and employ the concept of IPM. The GSPCC recently adopted its own definition of IPM: “Integrated Pest Management (IPM) for Structural Pest Control is a philosophy of pest management outlining a decision-making process aimed at achieving sustainable reductions in pest populations and their potential for growth. Successful IPM programs incorporate judicious application of control methods including, but not limited to, sanitation, habitat modification, exclusion, repellents and pesticides.”

Dr. Suiter recently said that “IPM is really quite simple when you strip away all the ‘jargon.’ It’s simply making logical decisions in light of the situation at hand. However, in order to make logical decisions implies you have information on which to drive your decisions. Where does the information come from? The inspection, of course. Pest management in the absence of inspection is like a rudderless ship. Sometimes you just go in circles.”

2. Understand that the treatment of schools is different from other types of treatments. These treatments frequently require after-hour or weekend treatments. Are you and your employees equipped to do this type of work?

3.Be prepared to tell the customer “no.” Some of the problems discovered by the GDA have been because a PMP let the customer dictate what should be done. An infestation of ants discovered during the day is not a valid reason to ignore labels and regulations.

4.Reexamine the procedures used when treating schools. Check to make sure that all methods, materials and documentation are up to date.

If you are not sure – ASK! If you are not sure of the regulatory requirements in your state, ask before you start. Remember that regulatory agencies are trying to bring PMPs into compliance and are willing to work with them to help them get there. However, they also have a responsibility to ensure that pesticides are used properly. It is much easier to check with them on requirements versus trying to explain what went wrong in a regulatory hearing.
The author is the Director of the Georgia Department of Agriculture’s Structural Pest Control Regulatory Program and Vice-Chair of the Georgia Structural Pest Control Commission.