2010 Quarterly Legislative Updates
At the Federal Level
Small Business Environmental Assistance Bill
On January 26, 2010, Congressman Kurt Schrader (D-Oreg.) introduced the Small Business Environmental Stewardship Assistance Act, H.R. 4509, to promote the planting of trees in communities throughout the nation. In addition, H.R. 4509 recognizes the role of small businesses in creating jobs, promoting energy efficiency, providing environmental benefits, and making retail and commercial areas more appealing by reauthorizing the Small Business Administration’s (SBA’s) National Small Business Tree Planting Program.
Sen. Schrader's bill creates a five-year program, administered through the SBA, authorizing $50 million annually for each of fiscal years 2011–2015. The funding provides grants to state forestry agencies to enable communities to receive funds to hire private nurseries and arborists for tree-planting projects that help to beautify retail storefronts and rental housing and parks, turn “Main Streets” into “Green Streets,” and jump-start many municipal tree canopy initiatives.
Comprehensive Immigration Reform (CIR) and H-2B
PLANET continues to lobby Congress to ensure that the H-2B cap problem is addressed in Comprehensive Immigration Reform (CIR) and that onerous provisions are not added to the bill. We are also coordinating with the Essential Worker Immigration Coalition, American Nursery & Landscape Association, and other groups about the broader CIR measure, including provisions on work site enforcement and a year-round temporary worker program.
To date, congressional leaders continue to state that Congress will focus on Comprehensive Immigration Reform in early 2010. Sens. Charles E. Schumer (D-N.Y.) and Lindsey Graham (R-S.C.) are currently drafting a Senate immigration bill. Discussions among House lawmakers are also ongoing. In preparation for this year’s expected debate, three separate pieces of legislation were introduced at the end of 2009 that would make it much more difficult for employers to use the H-2B program: S. 2910, introduced by Sen. Bernard Sanders (Ind-Vt.); H.R. 4381, introduced by the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law Chair Zoe Lofgren (D-Calif.) and House Education and Labor Chair George Miller (D-Calif.), focus solely on the H-2B program; and the much broader "Comprehensive Immigration Reform for America's Security and Prosperity" (CIR-ASAP), introduced by Rep. Luis Gutierrez (D-Ill.) and several other members of the Congressional Hispanic Caucus.
All three bills would substantially increase the cost and burden of using the H-2B program, without providing any meaningful relief from the program’s mandated 66,000 cap. None of these bills is expected to pass as currently written. The purpose of each is to outline its sponsor’s priorities for this year’s immigration debate. In addition to these troubling bills, our key congressional allies, such as Sen. Barbara Mikulski (D-Md.), and Reps. Bart Stupak (D-Mich.), Bill Delahunt (D-Mass.), and Frank Kratovil (D-Md.) continue to push for meaningful H-2B cap relief and for preserving the integrity of the H-2B program.
S. 2910, H.R. 4381, and H.R. 4321 would require employers to pay significantly higher wages to their H-2B workers and, consequently, to their American workers who hold similar jobs. The bills would also require employers to certify that they have not laid off any American workers and would involve labor unions in the recruitment process. It would also increase fines and penalties and give H-2B workers access to the Legal Services Corporation. These changes would essentially undermine the H-2B program and make it difficult for landscape contractors to access the workers they need each spring.
PLANET continues to actively advocate for H-2B cap relief and against proposals that would fundamentally change the program and make it more expensive and burdensome on landscape contractors and other seasonal businesses.
Scott Brown (R) recently became the new senator of Massachusetts after winning the seat of the late Sen. Edward Kennedy in a special election. Brown’s win has several implications for health care reform, a cause that Sen. Kennedy had championed.
Brown's win gives Republicans 41 seats in the Senate, just enough votes to block health care reform. Brown campaigned against the health care overhaul, arguing that it would raise taxes and damage the economy even further. As a result, Democrats will need 60 votes to block a Republican filibuster. The 59–41 ratio also means that in order to pass health care reform, the Senate version of the bill will need to be heavily modified and will vary from the House version of the bill.
Employee Free Choice Act
After health care, the Employee Free Choice Act (EFCA) is next on the list of priorities for unions. This is because they see they may have a limited opportunity to pass EFCA, as it is expected that more Democrats will lose their seats come the November elections.
EFCA would amend the National Labor Relations Act (NLRA), which is the federal law that governs labor relations for private employers. The concern lies within the mandatory arbitration provision of EFCA that would allow a government-appointed arbitrator to set contracts terms, including wages and benefits, between the employer and the union if the parties have not come to agreement within 120 days. The penalty provisions would increase penalties against employers, but not unions, for violations of the law during an organizing campaign.
There has been a threat that the binding arbitration provision of EFCA could be added to a bill that will pass, as a result, binding interest arbitration still remains the main provision of concern.
The Environmental Protection Agency (EPA) released a federal register notice about the continued use of MSMA that confused many users of this herbicide. The first indication from the EPA and manufacturers was that after December 31, 2010, the product could not be used on lawns. However, in the notice, it said that existing stock of MSMA could be used on lawns until it was used up. This is the case and is what will be enforced. Unfortunately, the following paragraph in the federal register notice that talked about other MSMA uses gave an expiration date after which the product could not be used. Many users confused this language with the paragraph on home lawns. The fact is, there will not be much product around to be used after December 31, 2010, but it can be used until your stock is depleted.
At the State Level
The New York State Department of Environmental Conservation (NYSDEC) is creating a new organic lawn and landscape program called “Be Green” with input from the green industry, including from PLANET. The program will require special training by approved trainers for individuals who work for companies that want to offer the service to consumers. It will be interesting to see how many companies will want the ability to provide the service and will use the state’s logo for the program. Currently, there appears not to be sufficient funds for the state to promote the program and, thereby, create demand for it. The NYSDEC hopes to have the program ready for this season, but much work is needed and final decisions still have to be made.
Fertilizer legislation is still the main subject of discussion in the legislative bodies of several states: Virginia, Iowa, Maryland, and Washington State have the most activity. In Virginia and Iowa, the focus is on addressing fertilizer application to pavements and imperious surfaces. Unfortunately, there needs to be better stewardship by those applying the fertilizer to ensure the product is only applied to the lawn and landscape.
Pesticide Legislation — A cosmetic pesticide legislative hearing on House Bill 1456 took place in the New Hampshire legislature on February 11, 2010. This bill was a study bill, but those present and participating were very concerned it could lead to another bill being introduced and that bill possibly passing. This could be the first domino state, so everyone should be concerned. We will be tracking it, and plans to oppose its passage will be discussed. In Albany, New York, on February 8, the first of several pesticide roundtable meetings were held with all factions in attendance. The New York State Senate wants to pass two pesticide bills this year, and those bills will definitely have an affect on the lawn care and landscape industry.
In the News
Lawns continue to be under attack in the press with the publication of many negative news articles. The industry needs to make sure it is telling the story about the benefits of lawns, and helping to sort out fact from fiction. Unfortunately, much of what’s being said is not based on scientific fact, and when there are dueling scientists, it is questionable what the public will believe.
At the Federal Level
The EPA Cites Stormwater Runoff and Nutrient Loading as Leading Agency Regulatory Priorities
The Environmental Protection Agency (EPA) is working on drafting a proposal to reduce stormwater runoff from new developments and redevelopments. The EPA says stormwater is a large source of U.S. water pollution, and it has been considering low-impact controls, such as green infrastructure approaches that include rain gardens and green roofs, and how they can be reflected in technology-based standards. The EPA also has been addressing municipal stormwater programs in urban areas.
Another area of focus for the agency is how to address pollution by nutrients. Examples of this problem can be found in Maryland’s Chesapeake Bay and in Florida. The EPA is using a multistate approach to setting and reducing total maximum daily loads of pollutants in the Chesapeake Bay and hopes this approach can serve as a model for the rest of the country. PLANET will continue to monitor the situation for possible effects to our industry.
Clean Water Act
Rep. James Oberstar (D-Minn.) introduced legislation on April 21, 2010, “to amend the Federal Water Pollution Control Act to reaffirm the jurisdiction of the United States over waters of the United States” (H.R. 5088). H.R. 5088 does not simply codify the existing regulatory definition of "waters of the United States" It expands the current definition to include "international waters" (not just the "territorial seas") and "adjacent waters" (not just adjacent wetlands), and removes language of limitation in the current regulatory definition. By removing the word “navigable” from the statute, H.R. 5088 confuses the meaning of key terms, such as "tributary" and "adjacent." Therefore, many small amounts of water that even may be temporary could be regulated.
At the State Level
HB 1358 water efficiency for new homes was amended to include the Green Industries of Colorado (GreenCO) water protection Best Management Practices as the standard for landscape installation in new building construction where the homebuilder is financing the purchase. Thanks to the Associated Landscape Contractors of Colorado for keeping this from being a bad WaterSense bill.
On the last day of the 2010 Florida Regular Legislative Session, the fertilizer regulation and Interim Study on changes to Florida Statue 482 language that was contained in SB 382 and HB 1445 failed to pass because of objections from the National Rifle Association on a late amendment on gun regulation, which was also contained in the two large, comprehensive agriculture and consumer services bills. During a critical point in the Senate debate, members of the Florida Pest Management Association and PLANET responded to an e-mail call to action, and using their legislative action centers, contacted 91 percent of senators urging them to support science-based fertilizer regulation — a great response that changed the debate and affected the vote on industry issues.
The ultimate failure of these bills was not related to fertilizer regulation or future changes to Chapter 482, but was because of unrelated matters contained in the omnibus legislation. There is a “status quo” on statewide fertilizer regulation, which currently allows local governments to pass their own ordinances. The battle now shifts from Tallahassee to county and city commissions, and every Florida member will be needed to help pass the Model Ordinance instead of ones that are unenforceable, scientifically unsubstantiated, and could harm plants and pest management businesses. The Florida Sierra Club has been active in promoting local fertilizer regulation and grassroots activity against industry legislation to prohibit it, and they took credit for the defeat of these bills.
HB 6099 amends the Illinois Fertilizer Act of 1961. It prohibits any applicator for hire from applying fertilizer material containing phosphorus to any parcel of turfgrass, except as demonstrated to be necessary by a soil test conducted no more than 36 months before the intended application by a laboratory already identified and approved by the Department of Agriculture, unless the fertilizer material is a 0 percent phosphate fertilizer or a person is establishing turfgrass in the first growing season. The bill also restricts the application of fertilizer material on impervious surfaces, near bodies of water, and when the ground is frozen. The most important fact is it limits home rule powers so the industry does not have to deal with local ordinances. It also defines applicator for hire, buffer, frozen ground, impervious surface, saturated ground, soil test and soil test lab, spreader, turfgrass, and 0 percent phosphate fertilizer. It becomes effective July 1, 2010.
The New Hampshire Legislature has begun to “study the use of pesticides and their alternatives in residential neighborhoods, school properties, playgrounds, and other places children congregate.” It has scheduled three meetings — June 1, 15, and 22 — and at the June 1 meeting, industry members, led by RISE, helped get important information to legislators and it appeared to be well received. On June 8, the Farm Bureau and the New Hampshire Horticultural Industries Council held a horticultural tour for legislators to several facilities that care for grounds to see their pest control practices. The June 15 meeting will include “medical doctors talking about the health effects of pesticides; dealing with the environmental dangers to children.” The result of these meetings could lead to new legislation that could result in strong requirements for pesticide use on residential and or school grounds.
A committee looking at how to reduce pollution from lawn fertilizers will be issuing recommendations to the state Department of Environmental Protection. The Department of Environmental Protection's "Healthy Lawns, Healthy Water" initiative brought together environmental workers and fertilizer companies to discuss how their products might be reformulated to reduce excessive nitrogen and phosphorus washing into tributary streams. At the same time, the New Jersey Green Industry Council is reaching out and providing technical information and education about proper fertilization practices in New Jersey to all three fertilizer bill sponsors (A. 2211 Burzichelli, S. 1411 Smith, A. 2290 McKeon) to educate them and help secure reasonable fertilizer legislation.
On May 18th, Gov. David Paterson signed a bill banning the use of pesticides on school grounds, including athletic fields and day care playgrounds. Schools will have one year to stop applying pesticides, but they still will be able to use chemical treatments if a pest infestation breaks out. More than 18,000 people signed petitions in favor of the bill, which previously had died nine times in the Legislature. Advocates cited scientific studies that show exposure to pesticides can increase children's risk for cancer, exacerbate asthma, and trigger seizures. Schools will see an increase in cost during the first two years of switching from chemical to non-chemical treatments, but their annual cost should fall between 7 and 25 percent after the third year, according to a study by Grassroots Environmental Education, a nonprofit public health advocacy group in Nassau County.
Now that the legislation is law, the next step calls for the Department of Environmental Conservation and State Education Department to issue a guidance document explaining to schools what the law entails and how they can carry it out. There may be an opportunity to have some input as these departments craft the guidance. PLANET teamed up with several associations to get industry members to contact legislators, using PLANET's Legislative Action Center, to vote against the legislation. The legislative leadership wanted this bill, and, as it was reelection time, it was almost impossible to get it killed. We all regret the outcome of this bill, but many worked as hard as they could to stop it, and this can be used to generate more activity on the next bill, because there will be a next bill.
At the Federal Level
Chesapeake Bay TMDLs may have the biggest impact in history on lawn care applications
Total Maximum Daily Load or TMDL represents the maximum amount of a pollutant, including lawn fertilizer, that a body of water may receive and still meet its water quality standards with a margin of safety. The Chesapeake Bay's TMDL will be closely coordinated with implementation plans and actions, backed by a series of two-year commitments and strong accountability provisions to assure progress. It will be the largest and most complex monitoring of TMDL ever, involving interstate waters and the effects on water quality from the cumulative impact of more than 17 million people, 88,000 farms, 483 significant treatment plants, thousands of smaller facilities, and many other sources in the 64,000-square-mile watershed. The TMDL will allocate loadings of nutrients (nitrogen and phosphorus) and sediment to all jurisdictions in the Bay's watershed, including New York, Pennsylvania, West Virginia, Delaware, Maryland, Virginia, and the District of Columbia.
The International Green Construction Code (IGCC)
By now, most in the green industry have heard of the LEED program and the Sustainable Site Initiative which include lawn and landscape standards that are voluntary. But, have you heard of the International Green Construction Code being written by the International Code Council, Inc.? The council crafts model codes that are adopted by counties and cities and that become mandatory for buildings and now for landscapes. It now has a draft code for turfgrass, 402.3.5.7, that states:
A maximum of 40 percent of the vegetated area of the building site shall be planted with turfgrass. Calculations of the percentage shall not include vegetated roof areas, areas not external to the building, or areas not on the ground plane of the building.
How would you like to see that code enforced in your local service area?
It looks like Congress may address Comprehensive Immigration Reform in 2011
We must be united on the principles that comprehensive immigration reform should include:
- Effective enforcement on the border and in the workplace.
- A practical answer for the 12 million unauthorized immigrants already in the country.
- More visas for foreign workers, including visas for seasonal workers, arriving in the future visas for enough legal workers to keep U.S. businesses open and growing.
Rather than artificial quotas, we need a mechanism for setting foreign work visas, including seasonal work visas that are truly responsive to employer demand, when American workers cannot be found. Without an adequate pipeline for future workers, the United States will not be able to make immigration enforcement stick.
H-2B regulations are pending from the U.S. Department of Labor, and we expect changes that may make the program more costly and harder to use. We plan to seek the help of the Small Business Administration, Office of Advocacy Labor & Immigration section to help comment on the economic impact to small businesses. The results of the U.S. Chamber of Commerce and Immigration Works H-2B economic survey that our industry participated in will be released in October.
At the State Level
A new school pesticide law is now in effect in Connecticut. The Department of Environmental Protection has all the requirements on its Web site. The law applies only to lawn care pesticide use outdoors and doesn't prevent schools from using pesticides to control a specific health threat, such as mosquitoes with West Nile virus or poison ivy growing on school grounds.
N.J. Fertilizer Preemption Bills
Two bills (S. 1411/A. 2290) that recently passed out of both the Senate and Assembly Environment Committees (August 12) include several negative elements. These bills, which propose to reduce the fall fertilization window by two to four weeks, will create problems industry-wide, including for golf courses, and create nitrogen limits that will require reformulation of all fertilizer products. In addition, there are excessive fines of $5,000 for violation of the law. This legislation, if passed, will be the most stringent, precedent-setting fertilizer law in the nation! We encourage all New Jersey companies and employees to express their concern about these bills. For more information, click here.
The state of New York passed its fertilizer bill in July. The provision on lawn fertilizers prohibits applying the product between December 1 and April 1 or near surface water starting January 1, 2012. It contains exceptions for new lawns or when a test shows an existing lawn has too little phosphorus. In the past, many areas in New York had been passing their own ordinances on fertilizers, but now, there is one state law to follow. While the industry doesn't like it, things could have been worse. For more information, go online to http://www.dec.ny.gov/chemical/67239.html.