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November 2008Many of the issues mentioned below can change daily. If you need more up-to-date information, contact PLANET Director of Government Affairs Tom Delaney. Do not ignore what is going on in states in which you do not operate. States share their information, and the issue may be brought to your state. Federal Contractors Required to Use E-Verify System Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ E-Verify system starting January 15, 2009, to verify their employees’ eligibility to legally work in the United States. The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. Federal contracts awarded and solicitations issued after January 15, 2009, will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts of more than $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States. The new rule is available for viewing on the Federal Register Web site. U.S. House of Representatives The first bill in the House, H.R. 1, could be the Employee Free Choice Act (EFCA), which is a proposed amendment to the federal labor law that governs employer-union relations at employers other than airlines and railroads. EFCA would replace the secret ballot elections method, currently used by employees when deciding whether to have union representation, with a “card check” procedure that would result in certification of a union if a majority of employees in an appropriate work group simply sign union cards. This would make it much easier for a union to become the collective bargaining representative of a group of employees at a company. In addition, EFCA would significantly change the process for negotiating a first contract. Changes would include mandatory government-run arbitration to establish the terms and conditions of employment in the initial contract if the parties cannot reach agreement during direct and mediated negotiations. You may remember that last year, PLANET had you send letters to stop this bill from passing in the Senate after it had been passed in the House. The Department of Homeland Security No-Match Rule Update The court’s preliminary injunction is still in effect. Last week the Department of Homeland Security filed its final rule, which does not change the injunction. The government stated it is planning to simultaneously file a motion to cancel the preliminary injunction and a motion for summary judgment on the merits of the case within the next two weeks. The industries filing the original suit will then need to respond and reply to both motions. It is possible that this response will not be filed until November 21, 2008. Now, with the elections over, there could be some change in policy with a new administration. The National Turfgrass Federation The National Turfgrass Federation, of which PLANET is a member, recently met in Washington, D.C., to push for more congressionally allocated dollars for turfgrass research. The Federation also met with the U.S. Department of Agriculture, National Agricultural Statistics Service (NASS) to investigate undertaking a possible national turfgrass survey. Turfgrass was mentioned as a specialty agricultural commodity in the recently passed farm bill, which gives the industry more recognition. The green industry associations that make up the Federation were encouraged in their future plans to help move along the Federation’s national turfgrass research initiative. To learn more about the group and how to help, visit turfresearch.org. States Illinois — Green Roofs and Roofers In the recent months, the United Union of Roofers, Water Roofers, and Allied Workers Local No. 11 have launched a campaign to establish roofers as the primary installers of green roof systems. With some success, they have put together a multifaceted campaign that includes marketing, specialized education, and filing of jurisdictional grievances. These grievances may have a significant impact on green roof installation and maintenance within the state of Illinois by landscape contractors. The roofers’ union apparently feels that any construction that occurs on a roof falls within the domain of a roofer. This position is misguided, considering that heating, ventilation, and air conditioning contractors and other tradesmen do construction on roofs all the time and are not roofers. Furthermore, landscape contractors have the experience and expertise to ensure the long-term viability of a green roof since they have expert knowledge of plant installation, selection, and maintenance. For more information about this development in Illinois, e-mail Scott Grams, executive director, ILCA; he provided this information. This campaign, if successful, could become a problem in other states. Oregon — National Pesticide Information Center The National Pesticide Information Center (NPIC) at Oregon Sate University has launched a new Spanish version of its Web site. Last year, NPIC made services available over the phone in more than 170 languages and disseminated NPIC brochures and fliers in Spanish. Now that its Spanish Web site is operational, the organization’s next goal is to translate original NPIC publications (fact sheets and common pesticide questions) into Spanish. This is important because 41 percent of the 680,000 landscape services workers identified in 2006 were Hispanic or Latino in comparison with 16 percent of the total U.S. workforce, and that number has increased as the landscape industry has grown. Wisconsin — Wisconsin Green Industry Federation It looks like the Wisconsin Chapter of the American Society of Landscape Architects that is pushing the Landscape Architect Practice Law has reached an agreement on comprise language with the Wisconsin Green Industry Federation (WGIF) so the law can be introduced in 2009 without WGIF opposition. There are only a few states where this issue still needs to be resolved. EPA WaterSense Program The Environmental Protection Agency (EPA) still will not commit to reissuing the WaterSense guidelines on the landscaping sections and says it is still reviewing the comments. The green industry continues to insist the guidelines need to be reissued with the industry’s direct participation, and green industry national associations need to inform those who are in a position to help the EPA make the proper decision. I expect they will wait at least until 2009 to resolve the issue. Storm water EPA asked the National Research Council to review its storm water program. The report finds that the program will require significant changes if it is to improve the quality of the nation’s waters. This report calls for an entirely new permitting structure that would put the authority and accountability for storm water discharges at the municipal watershed level. A number of additional actions, such as conserving natural areas, reducing hard surface cover (e.g., roads and parking lots), and retrofitting urban areas with features that hold and treat storm water, are recommended. Look for more local involvement in water quality and quantity. We need to educate the EPA about the ability of turfgrass to help stop runoff. Web-Distributed Labeling The main thrust behind this concept is to simplify complex labels (especially those with a variety of directions on how to use them, some 80 pages long). A number of issues related to this concept still need to be addressed, including:
Implementation of Web-distributed labeling may be several years away, but I’m concerned that the requirement to check the Web for updates could be problematic. However, the Endangered Species Act requirement to check for updates on a Web site may be a good test case when it becomes a requirement. August 2008Many of the issues mentioned below can change daily. If you need more up-to-date information, contact PLANET Director of Government Affairs Tom Delaney. Do not ignore what is going on in states in which you do not operate. States share their information, and the issue may be brought to your state. EPA — Water The Environmental Protection Agency’s (EPA’s) Water Division recently submitted for public comment voluntary guidelines for assigning a WaterSense label (somewhat like the Energy Star label used on computers and appliances for new houses). The guidelines have a section on the landscaping. There are major problems with this section, such as a limit of 40 percent turf in the landscape area and inadequate assumptions about mulch, irrigation, and slopes. PLANET is working with the Irrigation Association, and has also worked with OPEI and several green industry associations, on a response to these sections of the guidelines. In addition, PLANET assembled a group to help fund a contractor, who helped organize and present to the EPA the error of its ways at an August 14, 2008, meeting in Washington, D.C. This should make an impact and, we hope, will result in a major change to the landscape section. Best Management Practices (BMPs) in Florida The Florida Department of Environmental Protection has received extensive comments of concern from the green industry on an update to Florida’s BMP manual, Best Management Practices for Protection of Water Resources in Florida. PLANET recently participated in a six-hour session hosted at the University of Florida that was broadcast to several locations in the state so local governments could weigh in. PLANET worked on the original manual and even contributed a document to use as a model. Some local governments would like to change sections to match their onerous ordinances, like blackout periods for fertilization. They also want to make changes in the BMPs on how the training of industry personnel takes place. In addition, they are trying to use a new term not yet approved by the Association of American Plant Food Control Officials (AAPFCO). The term, Enhanced Efficiency Fertilizers, is used to describe fertilizer products with characteristics that minimize the potential of nutrient losses to the environment. Look for the use of this new term, especially if more agencies begin to use it. The question remains as to who will verify if a product performs as the definition states. Thanks to Erica Santella of TruGreen LandCare and Barry Troutman of ValleyCrest for dedicating an enormous amount of time on these issues. Fertilizer Preemption Tennessee and Louisiana were added to the list of states with fertilizer preemption, which gives a legal avenue to stop local governments from passing onerous fertilizer ordinances that will directly affect your business. What it will not do, however, is stop states from enacting laws or regulations on fertilizer use. In Pennsylvania, some sewer treatment facilities, in their efforts to protect the Chesapeake Bay, are trying to reduce their costs in the treatment of nitrogen and phosphors by asking a key member of the state legislature to make stringent changes to the use of fertilizers by the industry and homeowners. The proposal contains many other areas of addressing pollution prevention that will have greater impacts on the Chesapeake Bay. Nevertheless, the more visible the target, the more likely it will be addressed, no matter how small its impact. Maryland, Virginia, and Delaware have used other tactics to date. Pennsylvania state industry members are coordinating their opposition efforts. OSHA On June 25, 2008, the Department of Labor issued a Compliance Directive that essentially wiped out commercial arboriculture as a distinct industry. The directive issued by the Occupational Safety and Health Administration (OSHA) specifies that any tree care operation that removes the stem of a tree longer than six feet is henceforth classified as a logging operation, subject to all rules and restrictions in the standard written for logging operations. The directive ignores OSHA’s own data with respect to safe practices for tree care workers and constitutes illegal rulemaking that puts an entire industry at risk of injuries and fatalities. Historically, OSHA’s guidance and enforcement for the tree care industry has been based on a patchwork of regulations and standards written for other industries. Applying these standards to tree care operations greatly increases the risk of fatality or injury to tree workers and creates unnecessary confusion about safety among workers, OSHA enforcement officers, and small businesses. Indications were that it would also affect tree care operations by landscape contractors. PLANET members, along with members from the Tree Care Industry Association (TCIA), helped lobby for a new standard at the 2007 Legislative Day on the Hill. TCIA has been working on this issue for a long time. PLANET recently agreed to help fight the issue, including helping to file a law suit if necessary. The latest development is a new directive that rescinded the June 25 compliance directive. The new directive is presently being reviewed. MSMA Pesticide PLANET continues to work with a research task force that is having productive discussions with EPA’s Office of Pesticide Programs about the continuation of the registration of organic arsenical herbicides, especially MSMA. We are confident that MSMA will be available at least for the next several years, and our expectation is that this will be the case for considerably longer. There is NO discussion of a phase out or cancellation of MSMA; however, next year we may see some label changes with regards to the number of applications and spot versus broadcast applications. PLANET will continue to actively work on the issue and keep you updated. Salt Looks like those who do snow plowing and salting of pavements are in for additional costs and requirements of prepayments with no guarantee of timely delivery. It appears Morton Salt is in the driver’s seat because the Department of Transportation is the bigger market and demands more attention. If you are in that business, do your homework and work together as much as possible to address your concerns to suppliers. H-2B Proposed Rule Changes United States Citizenship and Immigration Services (USCIS) has proposed rule changes to existing H-2B regulations designed to streamline that important program. Since its inception in 1986, the H-2B program has proven popular among businesses in nonagricultural industries, such as landscaping, hospitality, and construction. Little about the program has changed to accommodate employers’ needs or improve worker protections. According to USCIS, “In order to better serve those participating in the program, we are proposing measures to remove unnecessary limitations, prevent fraud and abuse, and protect workers.” PLANET will be working with others to make appropriate comments. 08/27/08 go to top | return to Legislative Updates May 2008H-2B Program and Immigration There are both positive and negative aspects associated with the slow pace at which the U.S. Congress and some state legislatures operate. The slow process has created the negative effect of H-2B legislation not being passed as quickly as the industry would like. In addition, the U.S. House of Representatives has started to conduct hearings on several topics related to the H-2B program and other areas of immigration policy, including employee verification. The reality of an H-2B long-term fix seems to becoming more and more unrealistic. Allegations of program abuse by labor unions and other groups as well as the Congressional Hispanic Caucus’ concerns about passing immigration reform “piecemeal” have clouded the congressional debate over the program. Unfortunately, these concerns could potentially result in some changes to the program in exchange for an extension of the returning worker exemption. On May 15, the Senate Appropriations Committee voted 23 to 6 for a three-year extension of the H-2B returning worker provision, but it will face hurdles during the Senate floor debate and in conference. This, however, is a positive first step. PLANET is continuing to lobby for an immediate and straightforward extension of the H-2B returning worker exemption without any new program requirements. The upside of Congress’ slow pace is that legislation that could negatively affect the industry, such as changes to the Clean Water Act and the definition of wetlands, has not been passed. Health Care There are two newly introduced health care bills in the Senate. Sens. Richard Durbin (D-Ill.), Blanche Lincoln (D-Ariz.), Olympia Snowe (R-Maine), and Norm Coleman (R-Minn.) introduced the “Small Business Health Options Program” (SHOP) bill S.2795. Sens. Michael Enzi (R-Wyo.) and Ben Nelson (D-Nebr.) introduced the “Small Business Health Plans Act of 2008” (S. 2818) that addresses the idea of offering health care plans to pooled groups of individuals to make the plans more affordable. Several groups, such as the U.S. Chamber of Commerce, the National Federation of Independent Businesses, the American Society of Association Executives, and the International Franchise Association have differences of opinion as to what type of plan is best for their members or which one may have the best chance of getting support in Congress. The health care plan issue will be addressed at Legislative Day on the Hill. States Many state green industry associations had challenges this year but, on the whole, some of the things we expected to surface did not and the amount of bad legislation passed nationwide was not extensive. This being the end of the two-year cycle of federal and most state legislatures, all bills that did not get resolved will have to be reintroduced in 2009. We owe a great deal of thanks to those state green industry associations that are active in their state capitols with well organized lobbyists, volunteer members, and professional association executives. For example, in Maryland the industry had a scare with a proposed tax on landscape services, which was stopped. Tennessee had a revised bill to exempt those using glyphosate from needing a pesticide license, which was sidelined. Florida had an industry bill that tried to limit local governments from passing fertilizer ordinances, which did not move. Ontario, Canada, will be banning the application of cosmetic pesticides province wide. Minnesota introduced a bill requiring licensed applicators to send in pesticide records. That bill then quickly turned into a pesticide pre-notification bill, which hopefully will be killed in the Senate. New Hampshire had a bill introduced that restricted the placement of fertilizer within 250 feet of the reference line of any property. The bill died in the House of Representatives. New Jersey once again introduced the Pesticide Use Reduction Recognition Act. Additional bills in New Jersey include a certified tree expert bill that is supported by the industry, and a landscape lighting bill that allows green industry companies with an electrician license to install low voltage lighting. Illinois introduced a bill, which is still pending, to create the “Phosphorous Turf Fertilizer Use Restriction Act.” Georgia had an industry bill passed to prevent local government from enforcing more stringent watering restrictions then the state restrictions. Iowa had a bill introduced relating to pesticide application within schools and on school grounds, athletic fields, and playgrounds. New York was just New York with many reoccurring bad bills. A stunning 1,955 bills were introduced in the states with the word immigration in them. Click here to see what state immigration laws are in affect and those that are pending. EPA The Environmental Protection Agency (EPA) is finally defending its pesticide registration program publically. On at least two occasions, Debbie Edwards, chief of EPA’s Registration Division, has responded with great comments to attacks on the process of how EPA registers pesticides. If anyone would like a copy, please contact me. Legislative Day on the Hill Legislative Day on the Hill, July 20-22, 2008, in Washington, D.C., is a must-attend event for all PLANET members so that the face of our industry is visible on Capitol Hill and in front of each participant’s senators and representative. All green industry members are invited to attend. Partner with your peers for your Hill appointments to make an even bigger impact. Register today. 05/16/08 go to top | return to Legislative Updates February 2008EPA Moving Forward With Recycling of Containers, Plans to Propose Rule in Fall A proposed rule that would require the recycling of plastic pesticide containers is set to be published in the fall of 2008 by the Environmental Protection Agency (EPA). After debating for years whether to issue a proposed rule, the agency has decided to proceed. The rule has the support of both industry and environmental groups, has been under development for two years, and has been featured in EPA's regulatory agenda since spring 2006. Chemical Storage Reporting A new Homeland Security anti-terrorism rule, providing the federal government with the authority to secure chemical facilities and other entities to protect against the threat of terrorism, was adopted in 2007. Facilities that exceed Screening Threshold Quantities (STQ) on a range of chemicals had until January 22, 2008, (or within 60 calendar days of coming into possession of any such chemical at the corresponding quantity) to complete an online, Top-Screen questionnaire available through the Department of Homeland Security (DHS) Web site. It is expected that most lawn and landscape facilities will not be affected by the new rule, but we urge all facilities to review the list of chemicals in Appendix A to see whether any chemicals in the STQ are exceeded. Urea, which initially was on the list, was removed. PLANET was one of several groups that made comments explaining why urea should not be included in Appendix A. To learn more about the DHS Chemical Facility Anti-Terrorism Standards, click here. H-2B Case in the Courts In a case closely-watched by the landscaping industry, a federal judge in Philadelphia entered a ruling that may significantly increase the cost of using foreign workers under the seasonal worker program (the H-2B visa program). The case was brought against PLANET member, BRICKMAN, by foreign workers under the Fair Labor Standards Act, which requires employers to pay minimum wages. As seasonal workers, the plaintiffs paid recruiting fees, visa costs, passport costs, and their transportation costs from the place where they were hired (in Mexico and Guatemala) to the location of the work (in Pennsylvania). In the lawsuit, they argued that these expenses should have been paid by the employer and were, in effect, a deduction from their first paycheck — reducing their pay below minimum wage. PLANET filed a “friend of the court” brief in support of BRICKMAN explaining that the immigration laws already have a complex scheme for allocating these costs and urging that the minimum wage law should not disrupt this scheme. The court gave detailed consideration to PLANET’s argument, but ultimately ruled in favor of the foreign workers. The judge decided that the transportation costs, visa costs, and recruiting fees were for the employer’s benefit and, therefore, could not reduce the workers' first paycheck below minimum wage. The court, however, concluded that passport costs did not fall into this same category and could be excluded from the minimum wage calculation. BRICKMAN has indicated that they will appeal the judge’s ruling. If the judge’s ruling stands, employers using seasonal workers under the H-2B program would need to pay these costs directly (or reimburse the employee as part of the first pay check). An employer could later recoup the costs from paychecks over time — if the employer has an agreement with the employee to do so, and the hourly pay stays above minimum wage and the prevailing rate required under the H-2B program for each pay period. MSMA Herbicide It looks like there will be a reprieve on MSMA herbicide, so it should be available for a while for use in your weed control programs. Thank you to those PLANET members that sent letters to Congress through our PLANET Legislative Action Center, urging the EPA to look at the science made available by the manufacturers. As a result, the EPA is taking more time to weigh all the arguments that have been presented. We will keep you advised of the progress. Canada — Cosmetic Pesticides It is only a matter of time before the use of pesticides for cosmetic purposes will be banned throughout the province of Ontario. The Canadian government proposes to have the legislation in place by the spring of 2008 with a phased-in implementation of possibly three years. More than 130 local governments have already taken action, and many already have total bans in place. In the province of Quebec, the products have even been taken off the selves. To many groups, including the lawn care user industry, doing so has made more sense because they do not have to compete with businesses that can still buy and apply it when no one is watching. PLANET has a Board-approved position on this subject in the legislative area of PLANET’s Web site called, “Pesticide Use on Lawns & Landscapes and the Precautionary Principal.” Council for Agricultural Science and Technology (CAST) A new publication titled Water Quality and Quantity Issues for Turfgrasses in Urban Landscapes will be available from the Council for Agricultural Science and Technology (CAST). This 300-page, hardbound book is the product of a CAST-sponsored workshop on water and turfgrass issues. It contains 16 presentations by noted specialists, and it was edited by Dr. Mike Kenna and Dr. James Beard. It is suggested that this science-based book should be bought by groups and made readily accessible to national, state, and city policy makers and placed in legislative and city libraries. Water Action Guide and Other Resources Available With increased attention to our water supplies, we want to remind you of a Web site set up a few years ago by PLANET and three other green industry associations to help industry professionals form coalitions in your communities. The result was the Water Action Guide, a Web site, and a downloadable document with information you need to effectively influence decisions or restrictions that will affect water use in your community — and your business. Visit wateractionguide.com. 02/06/08 go to top | return to Legislative Updates |
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