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February 2009New kinds of state legislation issues we are seeing: Green Roofs In New York, Bill No. A01803, introduced January 12, 2009, would amend the environmental conservation law, in relation to pre-installation, review, and certification of green roof materials; and the tax law to establish a green roof installation credit. Reclaimed Water IL HB 235 lists requirements for reclaimed water for use in landscape irrigation. Reclaimed water is water collected from a combination of harvested storm (raw) water, domestic potable water, and condensed water from air-conditioning systems. Cranes We are tracking any state crane legislation that may affect tree or landscape companies. Some states are establishing Crane Operators License and Safety Acts that include defining terms; requiring a license to operate certain cranes; providing exceptions; providing qualifications for license; providing qualifications for trainee license; providing for application of license; providing for testing; providing for renewal of license, and other provisions. Last year Maryland, Connecticut, Pennsylvania, and New York were examples of states with legislation proposed. Sustainable Sites Initiative™ PLANET has submitted comments on a Sustainable Sites Initiative™ report that is the product of more than two years of work by a diverse group of experts in soils, hydrology, vegetation, materials, and human health and well-being. The Sustainable Sites Initiative is an interdisciplinary effort by the American Society of Landscape Architects, the Lady Bird Johnson Wildflower Center, and the U.S. Botanical Garden to create voluntary national guidelines and performance benchmarks for sustainable land design, construction, and maintenance practices. The U.S. Green Building Council (USGBC), a stakeholder in the initiative, anticipates incorporating the report’s guidelines and performance benchmarks into future iterations of the LEED® (Leadership in Energy and Environmental Design) Green Guide Rating System™. Animal Pesticide Poisoning Reporting Veterinarians are being asked to report pesticide poisoning incidents on a new Web site, designed to help them track pet-related pesticide poisoning incidents. The incident reporting site is part of the American Veterinary Medical Association (AVMA) Web site. It was developed by the National Pesticide Information Center (NPIC) with input from the U.S. Environmental Protection Agency’s (EPA’s) Pesticide Program, AVMA’s Clinical Practitioners Advisory Committee, and the Council on Biologic and Therapeutic Agents “to capture the optimal amount of relevant information using a form that is quick for busy practitioners to fill out.” The data is to be evaluated by the EPA. Unfortunately, many reports may get listed with no reference to the real cause, as is the case with many incident reports filed with poison control centers. Unless proper investigation and laboratory testing is done, many pesticide poisoning symptoms are the same as for other illnesses (such as the flu) and are counted as being caused by pesticide when they may not be. WaterSense Program A group of turfgrass scientists will meet with the EPA to advise the agency about the real-world science of evapotranspiration (ET) rates for landscape and ornamental plants in an effort to help the EPA understand the diversity of plant needs around the country. The ET rate, a calculation of how much water is needed for optimum plant health, is based on the site’s environmental and climatic factors, such as temperature, amount of sunlight, humidity, and wind. We hope the result brings more science and common sense to the EPA’s proposed landscape guidelines in the WaterSense program. EPA Insights A former EPA Assistant Administrator for the Office of Prevention, Pesticides, and Toxic Substances during the Clinton administration predicted there would be a renewed emphasis by the incoming administration on reducing pesticide exposure in schools and on scrutinizing uses of cosmetic pesticides — those used for lawns and decorative plants — and pesticides used in public places. Others within the EPA think a pesticide drift draft notice by the agency could happen early in 2009. It would include guidance to applicants and registrants concerning revising pesticide labeling statements intended to protect people, nontarget organisms, and sites from potential adverse effects that may be caused by pesticide drift from applications on nearby agricultural fields, but could also include other pesticide labels used by the green industry. 2,4-D The National Resources Defense Council (NRDC) is requesting that the EPA revoke all tolerances (maximum legal residue limits) and cancel all registrations for the pesticide 2,4-D. The petitioner, NRDC, claims that the EPA cannot make a finding that there is a reasonable certainty of no harm from dietary residues of 2,4-D and, therefore, that the agency must revoke all tolerances established under section 408 of the Federal Food, Drug and Cosmetic Act, as amended by the Food Quality Protection Act. We suggest you send your comments about the value of 2,4-D to you company’s pest control program to the EPA at the site listed below. Direct your comments to docket ID number EPA-HQ-OPP-2008-0877 on or before February 23, 2009. The EPA’s policy is that all comments received will be included in the docket without change and may be made available online at http://www.regulations.gov. MSMA MSMA herbicide used mostly in southern states will only be available for use as a residential weed control in 2009 and 2010. On December 31, 2010, all uses of the product on residential turf will be discontinued; however, some remaining uses for products with MSMA will have label uses that will continue until 2013 or as otherwise indicated. As great as the need is for this product, the industry is stuck with the registrants having to live with the EPA’s January 16, 2009, agreement. My suggestion is buy this year only what you need for 2009 and 2010 any no more. Next year you will not find product with the label uses need to use on residential turf which includes commercial properties. Read the full document. H-2B On January 7, 2009, the Department of Homeland Security (DHS) announced that the 33,000 cap for the second half of fiscal year 2009 was reached, meaning that many in the landscape industry may not get the H-2B workers they need without immediate congressional action. On February 5, 2009, Sen. Mikulski (D-Md.) and Sen. Specter (R-Pa.) introduced Save Our Small and Seasonal Business Act of 2009 (S. 388), renewing the H-2B returning worker exemption. PLANET is working on the Hill to garner support for the bill and for a companion bill in the House. Unfortunately, the state of the economy and rising unemployment make this task challenging. While we know that even in times of high unemployment most Americans do not want to work in landscaping, lawmakers worry about the perception that foreign workers are taking American jobs. Please call and send letters to your members of Congress through the PLANET Web site and check the site for updates. Read the Press Release for more information. OSHA PLANET continues to work with the Tree Care Industry (TCIA) as OSHA gathers data on how best to inspect those green industry companies that do tree work. OSHA has finally realized that trying to group the green industry with the tree logging industry is not a good fit and can potentially be unsafe for green industry workers. PLANET also continues to work with company members to train and alert employees on how to avoid injury on the job. The number of employees being injured in the green industry is too high, and PLANET partners with OSHA to help lower that number and improve the industry’s safety record. Paid Sick Leave In 2008, Milwaukee became the third city in the United States, following San Francisco and Washington, D.C., to pass a law mandating that employers provide paid sick leave to employees. Washington, D.C.’s law was passed in March 2008 and has been in effect since November 13, 2008. San Francisco’s law has been in effect since February 2007. These recent municipal paid sick leave laws show a trend at both the state and municipal level towards heightened obligations on the part of employers to provide paid time off (PTO) to employees, whether in the form of sick leave or paid family leave. Currently, California, New Jersey, Maine, and Maryland have laws requiring that employers provide paid family leave or requiring that employers who otherwise provide PTO make such leave available for use under specified circumstances. The state of Washington passed a similar paid family leave law but has delayed implementation because of budget constraints. Several other states have introduced paid sick leave laws, but none have passed. While there currently is no federal legislation mandating paid sick leave, such legislation has been introduced by Sen. Ted Kennedy, and the prospects for passing such laws have increased in light of the recent election results. President Obama already has signaled his support for worker-friendly legislation, particularly in the area of sick leave. Form I-9 The U.S. Citizenship and Immigration Services (USCIS) recently issued a new Form I-9 and List of Acceptable Documents that are mandatory as of April 3, 2009. Go to http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf for a copy of the new Form I-9. Please be sure to familiarize yourself with the current List of Acceptable Documents, which differs from the previous one: no expired documents will be acceptable, some Employment Authorization Cards will no longer be acceptable, and U.S. Passport Cards will be added to List A. May 2009EPA Happenings EPA’s Endangered Species Act The Environmental Protection Agency (EPA) has finally listed its first county-specific Endangered Species Protection Bulletin, containing information about the limitations that apply to the use of a particular pesticide product. Before applying the product, users will be required to go to the EPA Web site, or call (800) 447-3813 to learn about the product application limitations. Bulletins are the implementation tool of the EPA’s Endangered Species Protection Program (ESPP) and provide information to pesticide users about the enforceable use limitations necessary to protect listed species and their designated critical habitat from potential harm from a pesticide. The ESPP is designed to address the EPA’s responsibilities under the Endangered Species Act (ESA), without placing an unnecessary burden on the pesticide user. The first Endangered Species Protection Bulletin provides the use limitations for a pesticide that is applied to cranberries in Wisconsin. PLANET will be watching for bulletins that might affect the lawn and landscape industry. EPA’s New WaterSense Specifications The new draft of the WaterSense New Home Specifications is now available. The 40 percent landscapable area and 4:1 slope restrictions for turf are still included in the specifications. In addition, WaterSense will be conducting a public comment meeting in June 2009. Please check the WaterSense Web site for additional information as it becomes available. For a snapshot of the next steps to finalize the specification for single-family new homes and launch the upcoming WaterSense New Homes program, see the timeline below:
Clean Air Act On May 1, 2009, the Outdoor Power Equipment Institute (OPEI), which represents the manufacturers of lawn, garden, and forestry equipment as well as small engines, had an Amici Curiae brief filed on its behalf. OPEI’s brief was filed in the U.S. Court of Appeals for the D.C. Circuit in order to protect manufacturers and commercial landscapers that depend on lawn and garden products. The brief supports the American Road & Transportation Builders Association (ARTBA) in its suit against the Environmental Protection Agency (EPA) for the agency’s failure to enact “clear, consistent, and comprehensive federal pre-emption regulations.” States and localities continue to impose illegal emission standards, use bans, and restrictions that adversely impact the construction and commercial landscaping industries, as well as the manufacturers and dealers that supply these industries. It is unfair, inefficient, and irresponsible for the EPA to delegate and defer its responsibilities and effectively require small engine manufacturers or the construction and landscaping industries to enforce the Clean Air Act through litigation, rather than through the EPA fulfilling its statutory obligations. The ARTBA litigation is supported by the Outdoor Power Equipment Institute and the Construction Industry Air Quality Coalition, which includes four southern California trade associations: the Associated General Contractors, the Building Industry Association of Southern California, the Engineering Contractors Association, and the Southern California Contractors Association. The EPA is joined in contesting the litigation by the National Resources Defense Council, the California Air Resources Board, the South Coast Air Quality Management District, and the American Association of Railroads. They are expected to submit their own legal briefs later this year. Legislation U.S. House Bill 2222, the Green Communities Act Rep. Allyson Schwartz (D-Pa.) has asked the green industry to support H.R. 2222, the Green Communities Act. Below is an excerpt from the letter of support from 47 green industry associations: We the undersigned, representing the vertically integrated U.S. green industry, are pleased to endorse your bill, H.R. 2222, the “Green Communities Act.” This bill will secure a significant investment in our country’s green infrastructure by recognizing an often overlooked aspect of the managed landscape. In addition to the environmental benefits derived through the ecosystem services provided, landscape trees and plants have substantial sociological and monetary value that positively affects commercial real estate, retail areas, municipal parks, and public spaces. Specifically, the U.S. green industry is most supportive of the “Community Greening Initiatives” provisions contained in H.R. 2222 that will fund:
DOJ Investigates Complaints Against Virginia and Maryland H-2B Employers Some Virginia and Maryland employers who filed H-2B 2008 and/or 2009 labor certification applications have received letters from the U.S. Department of Justice Office of Special Counsel (OSC) in the past two weeks, notifying them that the Mid-Atlantic Regional Organizing Committee (MAROC) has filed a complaint against the employer. The complaint alleges that the company declined employment to a U.S. worker in favor of H-2B workers. The letters identify, by name, a Hispanic person who allegedly applied for a job at some point in October or November 2008 and was turned down by the employer. The letters outline a long list of documentary evidence the employer is requested to turn over to the OSC within a short period of time so that the OSC can investigate the complaint. A sample of the letter that was sent to these H-2B employers can be found online in the PLANET H-2B toolkit. If you receive a letter, or have already received such a letter, please let us know. You will want to employ competent, legal counsel immediately; preferably one experienced with civil rights and OSC issues says PLANET General Counsel Richard Lehr, who specializes in labor law. August 2009 At the Federal Level H-2B Update PLANET and its lobbying firm DC Legislative and Regulatory Service continue to advocate for Congress to pass the H-2B returning worker exemption, but opponents of the program continue to press for fundamental changes to the program that would make it extremely costly and burdensome for employers to get the seasonal H-2B workers they need. California Democrats Zoe Lofgren (D-Calif.), chair of the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law; and George Miller (D-Calif.), chair of the House Education and Labor Committee, may soon introduce H-2B legislation that would make it much more costly and difficult to use the H-2B program, but would not raise the 66,000 congressionally mandated worker cap or exempt returning workers from the cap. This bill will likely increase the wage rates and benefits paid to H-2B workers and involve labor unions in the labor certification process. It would also include restrictions on foreign labor contractors. PLANET submitted comments on the last version of the bill, giving figures for what the cost would be to an average landscape business user. Health Care Congress has picked up the pace of its work on an overhaul of the $2.5 trillion health care industry as it tries to pass legislation in each chamber before the August congressional recess. The Senate committee acted on its version of the health care overhaul, and Democrats in the House of Representatives are moving forward with their approach, which is projected to cost about $1 trillion over a decade. The Senate Health Committee has approved its version of the bill with no Republican votes. The bill sets up a government-run insurance system to compete with private insurers, requires many employers to provide insurance for their workers or face penalties, and requires individuals to buy their own insurance, with government subsidy if necessary. Three committees in the House began working on the bill, with each committee tackling the issues that are under its jurisdiction. Clean Water Act Regulation Several pending federal actions under the Clean Water Act would severely limit the ability of private landowners to maintain their property through the judicious use of Environmental Protection Agency (EPA)-approved pesticide products. In response to numerous activist lawsuits alleging that pesticide applications require National Pollutant Discharge Elimination System (NPDES) permits, EPA issued its aquatic pesticides rule in November 2006. That rule stated that NDPES permits were not needed for applications to or over U.S. waters when the pesticide was applied in compliance with the EPA-approved Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In January 2009, the 6th Circuit Court struck down the final rule in National Cotton Council v. EPA and declared that while a pesticide itself is not a “pollutant,” its residue or excess is. Under the Clean Water Act, pollutants are considered point sources, subject to NPDES permits. The court last month granted EPA’s request for a two-year stay to allow the agency time to implement the decision. PLANET is concerned that activist groups will attempt to pressure the EPA to require NPDES permits for terrestrial applications of pesticides to farms, golf courses, home lawns, and other residential areas. This concern could be even further exacerbated if Congress expands the reach of the Clean Water Act to traditionally nonfederal waters. The Clean Water Restoration Act (S. 787) would amend the Clean Water Act by replacing in the federal law the words navigable waters with waters of the United States. The removal of the word navigable would open the door for unprecedented intrusion of the federal government on private property, enabling the federal government to consider virtually any body of water — including many golf course water hazards, farm ponds, roadside ditches, irrigation canals, desert washes, streets and gutters, and even to a puddle of rainwater — as water of the United States and thus subject to federal regulation by the EPA and U.S. Army Corps of Engineers. Furthermore, it opens up all these wet areas to potential citizen action lawsuits, which are allowed under the Clean Water Act. WaterSense The EPA’s WaterSense program has caused the turfgrass community a great deal of concern. Through advocacy by PLANET with a coalition led by the National Turfgrass Federation, more than 1,200 letters or faxes were sent from PLANET’s Legislative Action Center by some 400 industry members in 43 states. Many written comments were submitted to the EPA, but indications are that only through congressional intervention can we get the EPA to look at the scientific evidence, and, until it has better data, scrap the turfgrass limitation and apply its landscape standards regionally. Also last month, Rep. Rush Holt (D-N.J.), along with a bipartisan group of representatives, introduced the Water Advanced Technologies for Efficient Resource Use Act. One main point of the W.A.T.E.R. Act, as it has been named, is it authorizes the EPA’s WaterSense program for federal funding. In the Senate, Sens. Ben Cardin (D-Md.), Barbara Boxer (D-Calif.), James Inhofe (R-Okla.), and Mike Crapo (R-Ind.) introduced the Water Infrastructure Financing Act, which among other provisions, includes the authorization of the WaterSense program for federal funding. The bill passed the Senate Committee on the Environment and Public Works last month and is expected to be voted on by the full Senate this summer. At the State Level Florida Senate Bill 494 passes with the governor’s signature Statistics indicate about 18 percent of lawns in Florida are cared for by private businesses — pest control or lawn care and landscape management firms. For now, SB 494 will have its greatest impact on land and landscape firms because it requires them to obtain licensure for fertilizer application by January 1, 2014. Firms may obtain training and certification at their local Extension Office or from those certified to do the training. This amounts to a one-day class that reviews best management practices designed to protect surface and ground water. Individuals must score 70 percent on an exam to receive certification, which must be renewed every two years. While the licensure and training are good statewide, firms should be aware of specific requirements in ordinances that may have been enacted by local counties and cities prior to January 1, 2009. This law prevents additional ordinances, unless the cities or counties meet the Department of Environmental Protection model ordinances, which will be provided by January 15, 2010. Ohio Ohio and School IPM Ohio now also has its own definition of the practice of integrated pest management (IPM) and the regulation of IPM pesticide use under the Ohio Department of Agriculture in any school that desires to practice IPM. Congratulations to the industry group that help the department craft the regulation. New York Assembly Bill 7937 passes Assembly Bill 7937 passed on June 18, 2009, and essentially states that no school or day care shall apply pesticide to any playgrounds, turf, athletic, or playing fields, or surrounding grounds, except that an emergency application of a pesticide may be made as determined by the county health department, the commissioner of health, the commissioner of environmental conservation, or, in the case of a public school, the school board. There was some hope that this bill would not pass in a Republican majority-led Senate. However, that hope was short-lived when the Senate went back to Democratic control. The bill is not expected to be voted on until next year. November 2009Quarterly Report H-2B On August 21, 2009, the Department of Labor’s Employment Standards Administration sent a memorandum to regional administrators and district directors stating that under the Fair Labors Standards Act (FSLA) H-2B employers will now be responsible for paying H-2B workers’ visa and transportation fees in cases where shifting these costs to employees would bring their wages below the FLSA minimum wage in the first paycheck of employment. In a single document, PLANET and other organizations have asked the administration for clarification on certain aspects of the memorandum. U.S. Reps Zoe Lofgren (D-Calif.) and George Miller (D-Calif.) are still committed to introducing an H-2B reform bill that would make using the H-2B program much more costly and burdensome, without providing any meaningful cap relief. PLANET and other organizations have been commenting on drafts of this bill, while making it clear we could not support it. Unfortunately, significant congressional action on H-2B is not expected outside the context of the comprehensive immigration reform debate. Clean Water Act Several pending federal actions under the Clean Water Act (CWA) could severely limit lawn care and landscape companies that are trying to maintain the properties of their customers through the judicious use of Environmental Protection Agency (EPA)-approved pesticide products. The EPA has until April 9, 2011, to implement National Pollutant Discharge Elimination System (NPDES) permits for applications of pesticides to, over, or near U.S. waters. During the court proceedings, the EPA stated that it does not intend to require NPDES permits for terrestrial pesticide applications and that its regulatory efforts will focus on applications to, over, or near water mainly for mosquito and aquatic weed control. However, numerous activist groups have threatened to sue the EPA if the permits it develops are too narrow or too general. Activist groups are expected to try to compel the EPA to require these permits for terrestrial applications of pesticides to farms, golf courses, home lawns, and other residential areas. Once NPDES permits are in place, we can expect activist groups to sue the EPA because of the permits’ limited scope. We can also expect an increase in activist lawsuits against various terrestrial pesticide applicators for failure to obtain NPDES permits under the CWA. Chesapeake Bay Protection and Restoration Executive Order The administration’s action plan for the Chesapeake Bay will provide a mechanism for greater federal control over fertilizer and pesticide applications. This Chesapeake Bay effort will also likely set a precedent for similar action in the Great Lakes and other water bodies. On May 12, 2009, President Obama issued the Chesapeake Bay Protection and Restoration Executive Order which states, “The pollutants that are largely responsible for pollution of the Chesapeake Bay are nutrients, in the form of nitrogen and phosphorus, and sediment.” The order:
WaterSense The Environmental Protection Agency (EPA) released a revised draft specification on May 8, 2009, that proposes to establish water efficiency criteria for new homes under the WaterSense program. The draft specification includes an outdoor water-efficiency criterion with two landscape design options. The first option states that turfgrass shall not exceed 40 percent of the landscapable area, while the second option states that the landscape design shall be developed using the water budget tool. Both the 40 percent turf limitation and a water budget in the revised draft specification may lead to water-inefficient landscapes, rather than improve the water efficiency of new home landscapes. The consequences of the outdoor water-efficiency criterion in the WaterSense for New Homes Specification may be more far-reaching than anticipated by the EPA. Specifically, while the specifications outlined above are voluntary under this program, municipalities have already adopted them before they are even final, and the EPA is now proposing the guidelines include commercial properties and golf courses. Concurrently, Senate Majority Leader Harry Reid (D-Nev.) and Water Subcommittee Chair Ben Cardin (D-Md.) have introduced S. 1712, the Water Efficiency, Conservation & Adaptation Act of 2009, authorizing the EPA’s WaterSense program. The bill provides $87.5 million over four years for the EPA to improve and expand its WaterSense program. The introduction of the bill suggests the Senate may seek to authorize the program in an upcoming conference committee with the House, even if the Senate does not take up comprehensive climate legislation. It also encourages xeriscaping and other landscape conversions that replace irrigated turf. PLANET, along with other national associations and groups, made comment on the first draft and continues to work with the EPA for a scientific-based program, while still asking members of Congress to prevent the draft from being approved as it is presently written. The EPA is trying to push it through before the first of the year, even though it admits to the lack of science and data availability. Toxic Substances Control Act (TSCA) Reform Environmental activist groups, such as the Environmental Working Group, and the administration are committed to passing TSCA reform legislation akin to the proposed “Kids Safe Chemicals Act” (KSCA). This is an environmental issue that’s ripe for congressional action in 2010. Environment and Public Works Committee Chair Sen. Barbara Boxer (D-Calif.) and Sen. Frank Lautenberg (D-N.J.) are preparing to introduce legislation shortly. The goal of KSCA is to create a regulatory structure similar to the Food Quality Protection Act for industrial chemicals. The proposal presumes industrial chemicals are guilty of producing a toxic body burden unless proven otherwise. While this type of legislation is intended to address non-pesticidal substances, it could possibly create an additional regulatory scheme for these substances in pesticide formulations such as adjuncts and surfactants, fertilizer combination products, or fertilizers by themselves. It is also a possible vehicle for some amendments to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) related to biomonitoring or other new restrictions on pesticide use. Employee Free Choice Act The Employee Free Choice Act (HR 1409, S 560) is a top priority of labor unions. The bill could come up for a vote in the Senate in November or December 2009. Employers remain concerned that with the defection of Sen. Arlen Specter (Pa.) to the Democratic Party earlier this year, the legislation could garner the 60 votes needed to pass the Senate. The administration has already expressed support for the measure, and there is overwhelming support to pass the legislation in the House, so the Senate remains the key battleground. The two leading champions of the measure in the Senate are Sens. Sherrod Brown (D-Ohio) and Tom Harkin (D-Iowa). The House has passed the legislation in previous congresses and the legislation currently has 227 cosponsors, more votes than needed to pass a bill in the House. Go online to the Legislative Action Center on the PLANET Web site, LandcareNetwork.org, for more information. PLANET plans to join the Coalition for a Democratic Work Place to help track and fight this issue. |
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