LEGISLATIVE UPDATE

Will the pest control regulatory climate change with a new president, a new Congress and a new EPA administrator? Only the future will tell.

A new president. A new administration. A new Congress. A new EPA administrator. What does it all mean for the pest control industry? No one knows. But one thing is for certain: never in at a time in its history has the pest control industry been more regulated by local, state or federal laws. Coupled with the nation’s most tumultuous election ever, the regulatory and political environment is like none other we’ve seen in the past. As a result, more laws, regulations and standards that affect the pest control industry have been approved at record pace. What’s a pest management professional to do?

The following is a regulatory update for the pest control industry. Be aware, however, that this list is only partial list. More regulations are undoubtedly on the way.

The U.S. Environmental Protection Agency (EPA) is in its final stages of organophosphate (OP) reassessment per 1996’s Food Quality Protection Act (FQPA). Passed unanimously by Congress in 1996, FQPA is an immensely complicated law. It affects farmers, food processors, chemical manufacturers, structural pest control operators, turf and ornamental professionals and other professional applicators of pesticides. FQPA uses new criteria to define an acceptable level of total pesticide exposure. This amount accounts for the combined exposure of pesticides in the environment, food and water, and is called the "risk cup." New methods of calculating exposure and safety factors fill up the cup quickly. Exposures that cause the cup to overflow must be eliminated.

As has been widely reported, pest control uses of the popular OPs chlorpyrifos and diazinon are in the process of being phased out by manufacturers, who came to agreements with EPA in 2000 because residential uses of those products exceeded acceptable exposure levels.

PCOs also lost uses of propetamphos, malathion and Reldanl (used for stored product pests) in 2000. The two remaining OPs to be reevaluated are acephate (Orthene) and dichlorvos (or DDVP). Both are in the early stages of reassessment. "EPA is virtually done with the OPs," said Bob Rosenberg, director of government affairs, National Pest Management Association (NPMA). "DDVP 6 months away from a solution."

"The startling part is that we’ve lost many residential uses of diazinon and chlorpyrifos but those losses are not because of the result of an aggregate risk assessment," he said. "(EPA has) never figured out how to aggregate residential risk with dietary exposure. When those uses were lost, even standing alone without being aggregated with water or dietary uses, their risks were unacceptable."

Even more frightening for the pest control industry, Rosenberg says, is that while decisions for the chemicals that have gone through the process appear to be final, they’re not. EPA has yet to issue a final a closure document, known as a reregistration eligibility document (RED, for any OPs. Until a cumulative risk assessment is done, EPA can’t issue a RED and a product can’t be eligible for reregistration. As a result, a certain amount of uncertainty continues to plague the registration process.

The next group of insecticides to go under EPA’s scrutiny is pyrethroids, which are scheduled to be through the process by the summer of 2002. But there’s good news for pyrethroid manufacturers. While EPA was making decisions and recommendations about the OPs, pyrethroid manufacturers were learning from the process and generating data for their own products. "The more data that is available the better and it takes time to generate that data," Rosenberg said. "If pyrethroids, had been evaluated the same as OPs, they would have fared poorly. But there is data and science now available" for these other products, which is good for the pest control industry.

All pesticides have to be reevaluated by 2006, according to FQPA.

In August 1999, the Natural Resources Defense Council (NRDC) sued EPA alleging that the Agency wasn’t meeting deadlines regarding FQPA. NRDC said that EPA was reevaluating pesticides too slow and the group asked the courts to force EPA to move through the process faster.

On Jan. 19, the day before President George W. Bush was sworn in (and EPA Administrator Carol Browner’s last full day at EPA), it was announced that EPA had negotiated a deal with NRDC, admitting, in essence, that the Agency had done a poor job of implementing FQPA. As part of the agreement, the Agency agreed to do a better (and quicker) job of evaluating pesticides. What that now means is that both EPA and its new Administrator, Christie Whitman, are now responsible for doing a better and faster job of implementing FQPA.

Although the agreement was signed by Browner's EPA, the new administration is responsible for implementing the agreement.

Christine Todd Whitman was elected the 50^th governor of New Jersey in 1993 and became the first woman in the state’s history to win its highest elective office. Prior to becoming governor, she headed the New Jersey Board of Public Utilities and the Somerset County Board of Freeholders.

As governor, Whitman proposed the state’s first source of funding for land preservation, a 10-year plan to save 1 million acres of open space and farmland. Born in 1946, in New York City, she grew up in Hunterdon County, N.J., and earned a bachelor’s degree in government from Wheaton College in Massachusetts in 1968.

But what impact will Whitman's appointment likely have on the pest control industry? "The industry is sort of guardedly optimistic about her. Based on her record in New Jersey, she has a record of working with industries. Clearly, she’s a moderate on some issues," Rosenberg said. "In New Jersey she has a strong environmental record with beach protection, interstate pollution, etc. She’s not clearly in one camp or the other, but that’s what we’d expect from her. We want her to bring a balanced view to the job and give the industry fair hearing and base policy decisions on data and reliable science."

Although actions speak louder than words, Whitman did touch on subjects particularly of interest to the pest management industry during her Senate confirmation hearings in January, including stakeholder cooperation, local/state legislation and sound science.

Here’s part of what she said during the hearings: "The President-elect has articulated a set of clear principles that I will work to implement at the EPA, should I be confirmed. I would like to highlight several of them today. First, we will launch a new era of cooperation among all stakeholders in environmental protection. Only by including all Americans can we meet the challenges we face. There is much government can do, but government cannot do it alone. Second, we will maintain a strong federal role, but we will provide flexibility to the states and to local communities. They need that flexibility to craft solutions that meet their unique situations. We will also respect state and local authority and rely on their expertise…Next, we will use strong science. Scientific analysis should drive policy. Neither policy nor politics should drive scientific results."

Last session, the U.S. Senate had 55 republicans and 45 democrats and several additions by Sen. Barbara Boxer (D-Calif.) and Robert Torricelli (D-N.J.) to introduced bills to raised concerns among some in the industry. Boxer's additions, in particular, amended appropriations bills for various federal government agencies and would have prevented certain pesticide applications on military bases, national parks and in the U.S. Capitol.

In addition, Boxer tried to attach to legislation providing funding for the Department of the Interior banning certain applications in National Parks. In October 1999, Torricelli introduced legislation that called for adoption of national IPM standards for schools.

Beginning with the 107^th Congress, there appears to be more of the same for the pest management industry. These two senators had plenty of support when the senate was split 55/45. Now, there’s an even split between republicans and democrats in the Senate and the playing field has changed.

Some may wonder how an IPM in schools law passed may affect them if they don’t provide pest control services in schools. When you look at the big picture, however, it becomes clearer. Regulation may begin with schools, but then soon after day care centers, health care facilities and commercial locations may be affected. As a result, such a bill may have profound long-term consequences on the industry.

In addition, there are four new women U.S. Senators this session (Maria Cantwell, D-Wash.; Jean Carnahan, D-Mo.; Hillary Rodham Clinton, D-N.Y.; and Debbie Stabenow, D-Mich.). In the past, pesticides and schools have ranked high on the radar screen for many women legislators. As a result, the Senate is likely to be even more anti-pesticide in the years ahead if these female senators grow in power and prominence.

Although most pest management professionals are pleased that George W. Bush is in the White House, the industry should be cautious at what policies he may implement. Yes, it’s likely that his administration will be more favorable to industry than Al Gore would have been, but Republicans oftentimes work hard to prove they’re not soft on the environment and pass laws like the Clean Air Act Amendments (made into law under President George Bush in 1990). Also keep in mind that Richard Nixon created EPA and OSHA, Rosenberg added. Lesson learned: a republican as president does not necessarily translate into a pro-pest control White House.

There is a trend in school districts across the United States towards implementing notification requirements on pesticide use, IPM regulations and a variety of requirements that only licensed pest management professionals can apply pesticides. Here’s a list of several states and the latest regarding their laws and regulations.

California: A bill passed requiring students and teachers to be notified any time pesticides are used on school campuses. Signs must be posted at the treatment site 24 hours prior and 72 hours after an application.

Alaska: The Alaska Department of Environmental Conservation (DEC) submitted a proposal that would require public and private schools to notify parents and staff 48 hours prior to any pesticide application. A public comment period prompted revisions to be made to the proposal, the most positive being the requirement that a licensed PCO apply pesticides in schools.

Wyoming: A bill was passed in the State House requiring pest management professionals to notify schools 72 hours prior to pesticide applications. The bill does not include sanitizers, anti-microbials and certain insect and rodent baits, nor does the bill does not outline a specific time period for schools to notify parents and staff.

New York: The Neighbor Notification Law requires schools to notify parents and staff before pesticides are applied on the premises and to provide a 48-hour warning to properties within 150 feet of any spray site.

Indiana: Warrick County (among many other local school boards) reviewed a policy drafted by school officials that requires pesticides be applied by licensed PCOs when children are not on school campuses, and that parents are notified of any pesticide use. The policy will be voted on in late February.

Washington: A bill recently introduced at the request of the Department of Agriculture and supported by industry would require that pesticide applicators meet minimum requirements and be trained or certified. In addition, interested parents would be notified about applications.

Rhode Island: The state is considering a bill modeled after one in Connecticut that requires people to be certified prior to applying pesticides in schools, unless an emergency occurs. In addition, the bill requires that parents who are interested be alerted when pesticides are used on the premises.

Hawaii: The state is considering a bill that would require posting 48 hours prior to using pesticides at public school properties or playgrounds.

Effective Jan. 16, 2001, the Ergonomics Program Standard, a standard to limit work-related musculoskeletal disorders (MSDs), from the Occupational Safety & Health Administration, went into effect.

"It’s basically a rule to prevent repetitive stress on joints and muscles to protect workers from that source of stress," said Gene Harrington, manager of government affairs, NPMA. "The Agency wants to make sure the workplace protects people from repetitive movements and motions that might later impair their joints or muscular ability."

According to the U.S. Department of Labor, MSDs result when there is a mismatch between the physical capacity of workers and the physical demands of their jobs. Each year 1.8 million workers in the United States report work-related MSDs, such as carpal tunnel syndrome, tendonitis and back injuries. About 600,000 MSDs are serious enough to result in workers having to take time of work to recover.

The Department of Labor says there are many benefits of OSHA’s Ergonomics Program Standard, including that 4.6 million MSDs will be prevented in the first 10 years. But the cost, which to some say far outweighs the benefits, include that employers will pay $4.5 billion annually, which translates into the cost of fixing each individual work station averages $250 per year.

"There are numerous big and small business groups that are lobbying against these rules and I’m sure NPMA will try to enlist the new administration to scale back the rule significantly because the cost estimates are astronomical. There’s probably not a business you could think of that would not affected by these rules."

For more information visit www.osha-slc.gov/ergonomics-standard.

The authors are editor and Internet editor of PCT magazine, respectively. They can be reached via e-mail at jdorsch@pctonline.com and apaskiet@pctonline.com.

USA Today Critical of EPA, Whitman

Age: 54. Born Sept. 26, 1946, in New York City. Education: B.A. Wheaton College, 1968. Experience: Governor of New Jersey, 1994-2000, president, New Jersey Board of Public Utilities, 1988-1990; freeholder, Somerset County, N.J. 1983-1987.

Editor’s note: The 2000 presidential election was of serious concern to a number of industry professionals due to its potential impact on EPA, which took strong action against organophosphate pesticides last year. Many pest management professionals voiced concern leading up to the election about the pro-environmental stance favored by Al Gore and his running mate, Sen. Joe Lieberman (D-Conn.). The Bush/Cheney victory was considered generally favorable for the pest control industry, but Bush’s choice of New Jersey Governor Christie Whitman to run the EPA drew criticism from many. USA Today criticized Whitman and the EPA in an editorial on Jan. 17, and she was confirmed as head of EPA on Jan. 30, 2001. That editorial is reprinted below:

From President-elect Bush’ perspective, tapping New Jersey Gov. Christie Whitman to head the Environmental Protection Agency (EPA) make perfect sense. As a popular, moderate two-term governor of the nation’s ninth-largest state, she has an armload of managerial credentials and has grappled with thorny environmental problems.

Those skills will no doubt help her navigate the thicket of issues and political pressures that will confront the agency during the next four years. They also mean that compared to Bush’s more controversial pick, including Gale Norton and John Ashcroft, Whitman’s not likely to get a tough grilling at her confirmation hearing today.

But where Whitman is weakest is where the EPA is most desperately in need of reform. Namely, its poor handling of science.

During the past eight years, the quality of science at the EPA has reached something of state of crisis. Rules have been pushed despite opposition from EPA scientists, to the harm of the environment. Scientific evidence undermining existing policies has been ignored. EPA scientists who disagreed with agency policy were targeted for retribution.

This is not a new concern at EPA. At the end of the last Bush administration in 1992, the EPA released a scathing internal report on the sorry state of science within the agency. Among its findings, science too often didn’t drive environmental policy, leaving "EPA initiatives on shaky scientific ground" and undermining agency credibility.

By largely ignoring those warnings, the Clinton-era EPA suffered a series of troubling blunders. Among them:

• The EPA championed the fuel additive MTBE for its air pollution-fighting abilities, only to later call for its ban because it contaminated water supplies. EPA scientists had been sounding that warning for years.

• The EPA issued rules in 1993 promoting the use of treated sewage sludge as a crop fertilizer, downplaying warnings from agency scientists about possible health risks. Then last March, the EPA’s inspector general concluded that the agency couldn’t assure the public that its sludge policy was "protective of human health."
• During the past seven years, the EPA has seen more of its rules struck down in court than other federal regulatory agencies.

If further progress is to be made on the environment, the EPA will have to become an institution trusted for sound, credible science on environmental risks, one that can be trusted to come up with credible solutions.

But even if Whitman chooses to focus on that task, she faces a steep learning curve. When asked recently about the science behind global warming, for example, she confused that issue with the hole in the Earth’s ozone layer.

Unless Whitman can fill in that troubling knowledge gap quickly, the EPA will have little chance under the new Bush administration of fixing the serious problems identified by the last one.