2011 Legislative Updates
At the Federal Level
Chief U.S. District Court Judge M. Casey Rodgers has ruled to deny participation by additional defendants in our case against the U.S. Department of Labor (DOL) on the H-2B wage increases. Groups backed by labor unions sought to intervene as defendants in our lawsuit against the DOL, arguing that they have an economic interest in the outcome of the matter. Through our attorneys, we opposed their intervention. They had no legally concrete interest in the matter, and, even if they did, the DOL would adequately represent those interests. The court ruled that their participation would cause undue delay and exercised its discretion to deny the applicants' motion to intervene.
While not wanting to predict a final outcome in our lawsuit, we are certainly pleased and encouraged by this most recent development; it is a positive sign. Because of Congress's recent addition in an appropriations bill, the DOL enactment time for the wage increase was extended to January 1, 2012, which gives the judges more time to make a final ruling.
On November 30, the DOL provided a Federal Register Notice with guidance to those employers who have received from the department either a supplemental or dual prevailing wage determinations based on a previous effective date of the new prevailing wage methodology. The guidance is intended to clarify the wage payment requirements for employers participating in the H-2B Temporary Non-Agricultural program.
EPA WaterSense program and the ICC Green Building Code
PLANET marked a green industry victory when the Environmental Protection Agency (EPA) issued a Notice of Intent to remove the 40 percent turfgrass restriction from the WaterSense program’s landscape specifications. The same requirement was removed from the International Green Construction Code by a 2/3 vote of the International Code Council.
In 2009, the EPA introduced the WaterSense landscape restriction requiring that only 40 percent of a building’s landscape consist of turfgrass, regardless of varying regional climates or whether the site had access to sources of reusable water, such as recycled stormwater. In 2010, the requirement was proposed by the EPA as part of the International Green Construction Code that many local governments use to form their requirements for new commercial buildings and could eventually also be used for new residential buildings. Going forward, the only requirement for the EPA WaterSense labeled landscapes will be adherence to the EPA’s water budget tool.
The EPA’s water budget tool, which is used to determine the regional suitability of landscapes, continues to be an issue. PLANET is working with other industry groups to help in the ongoing development of water use tools and guides like an American National Standard Institute (ANSI) standard for lawn care and landscape professionals. To begin the effort, on November 18, 2011, the ASABE (American Society of Agricultural and Biological Engineers) —requested a Project Initiation Notification System (PINS) Standards Action that would result in a new American National Standard (ANS). It will provide a standardized process for determining the amount of water available and estimating landscape water use by landscape and irrigation professionals, property owners, water agencies, and regulators.
At the State Level
State fertilizer (nutrient) requirements
In 2012, we expect to see movement in Pennsylvania and Virginia and possibly other copycat states toward instituting similar fertilizer restrictions that were passed in 2011 in New York, New Jersey, and Maryland. The main problem is with having mandatory blackout periods when applications cannot be made.
Pesticide restrictions on school grounds and parks will undoubtedly be introduced in some states in 2012 and will continue to be fought against in New Jersey and Connecticut. This is the first step toward introducing the same restrictions on commercial and residential properties next.
The U.S. Environmental Protection Agency (EPA) recently issued its 175-page National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit (PGP) for discharges from the application of pesticides under the Clean Water Act (CWA). It also released a 137-page Final PGP Fact Sheet applicable to the NPDES PGP. It became clear that many pesticide users, including agricultural producers, state and local governments, and public health agencies, are now subject to the new permitting program and to potential citizen suits and the substantial penalties of the CWA. PLANET, with other groups, legitimately questioned the need for this tremendous expansion of the NPDES permit program in view of the additional burden and unwarranted legal jeopardy it now imposes on pesticide users. Congress was asked to act to restore the appropriate scope of the NPDES permitting process through adoption of H.R. 872. That legislation passed the House on a bipartisan basis, and we believe there are more than 60 senators who would vote in favor of its adoption. The problem is getting the Senate leadership to bring this legislation to the floor for a vote. While present impact on us is questionable, that could change at any time.
At the Federal Level
Small Business Environmental Assistance Bill
Over the last few months, U.S. House committees have brought the heads of the Environmental Protection Agency to hearings on the Hill to explain why they are over regulating agriculture and other pesticide users.
H-2B wage methodology rule
In what appears to be its attempt to bring about the demise of the H-2B, the Department of Labor (DOL) continues to regulate this program with changes to the hourly wage and a complete rewriting of the regulations.
The DOL’s Office of Policy Development and Research Employment and Training Administration H-2B wage methodology rule, published January 19, 2011, will impact the economic survival of seasonal landscape companies. The rule imposes a new, untested wage determination methodology that will significantly increase costs for small and seasonal landscape businesses. The significant costs associated with the new rule were documented in comments submitted by PLANET to the DOL. It threatens both H-2B jobs as well as full-time permanent jobs in those companies. In addition to unnecessarily increasing costs and burdens on small and seasonal businesses, the rule was drafted in haste, without supporting data, and without sufficient analysis.
In commenting on the rule, the Chief Counsel for Advocacy of the Small Business Administration noted that the “DOL cannot certify this rule because the rule will have a significant economic impact on a substantial number of small entities. The DOL published an Initial Regulatory Flexibility Analysis (IRFA) in the proposed rule. However, Advocacy believes that the DOL’s IRFA is inadequate.” PLANET is working with the H-2B WorkForce Coalition to determine what the H-2B user industry may be able to do to deter the law before it is implemented on or after January 1, 2012. On March 18, the DOL’s Employment and Training Administration and its Wage and Hour Division announced the publication of a proposed rule that they say seeks to improve the H-2B temporary nonagricultural worker program. It included changes to several aspects of the program to ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and to provide better access for employers with legitimate labor needs. If the wage increases don’t totally kill the program, these revisions will.
NPDES permits for pesticide applications
The Environmental Protection Agency (EPA) was expected to release a final National Pollutant Discharge Elimination System (NPDES) permit for pesticide applications “to, over, or near” water. Pursuant to a court order, the EPA and states were to have these permits in place by April 9, 2011. On March 3, the EPA asked the U.S. Sixth Circuit Court of Appeals to delay the April 9 deadline to October 31, 2011, and on Monday April 4, the court granted the extension. Federal and state water regulators have until October 31 to promulgate the new permitting process stemming from the decision in National Cotton Council v. EPA case. However, the extension “did not fix the underlying problem.” Congressional action is still needed to specify that NPDES permits should not be required for any pesticide applications.
H.R. 872 — The Reducing Regulatory Burdens Act of 2011
On March 31, 2011, HR 872, which was introduced by House Transportation and Infrastructure Water Resources and Environment Subcommittee Chair Gibbs (R-Ohio), House Agriculture Horticulture and Nutrition Subcommittee Chair Schmidt (R-Ohio), and Ranking Member Baca (D-Calif.), was passed out of the House by an overwhelming, bipartisan majority vote, 292–134. Fifty-seven Democrats joined 235 Republicans in voting for this important legislation, which clarifies that NPDES permits are not needed for pesticide applications. This bill still needs to be passed by the Senate and signed into law. Both of those tasks will be much harder to complete. To voice your support of this bill, send a letter to your legislator from PLANET’s Legislative Action Center.
Proposed change to language on pesticide labels
Several issues were discussed at the March 14-16 annual meeting of the Association of American Pesticide Control Officials (AAPCO) in Washington, D.C. For pesticide drift language, new wording for labels is being proposed after the association received 34,000 comments on this topic. The original language reads: “In addition, do not apply this product in a manner that results in spray [or dust] drift that could cause adverse effects to people or any other non-target organisms or sites.” The proposed revised language would read: “In addition, do not apply this product in a manner that results in spray [or dust] drift that harms people or any other non-target organisms or sites.” This will be much better for applicators.
CropLife seeks to enter an Endangered Species lawsuit
CropLife America, Responsible Industry for a Sound Environment (RISE), and other agriculture groups filed a motion to intervene in a case alleging the Environmental Protection Agency (EPA) ignored its duty to protect endangered and threatened species from the impacts of pesticides (Center for Biological Diversity v. EPA, N.D. Cal., CV-11-0293, motion to intervene 3/18/11).
The Center for Biological Diversity and Pesticide Action Network of North America filed the lawsuit January 20 in the U.S. District Court for the Northern District of California, seeking declaratory and injunctive relief for violations of the Endangered Species Act. The plaintiffs said the EPA failed to consult with the U.S. Fish and Wildlife Service and NOAA Fisheries Service on the impacts of pesticides on 214 endangered species. CropLife America says the lawsuit could lead to “vast product restrictions” on U.S. agriculture. Those restrictions also include the green industry.
March 30–31, the EPA and many government agencies and organizations had a conference on tick borne diseases, such as Lyme disease. In a session on outdoor worker exposure, PLANET shared better ways to educate our industry and others on this topic. A PLANET survey of our members indicated a desire for more information for companies and their customers.
At the State Level
State laws on the application of fertilizer
The most significant issue this legislative season is the proliferation of activity on the application of fertilizers. State bills are getting so specific on nitrogen application that they tell applicators what dates they can apply fertilizer, how much per application and per year totals, and how much of the nitrogen must be slow release. They are also requiring training for professional applicators, but not for homeowners.
In New Jersey, for example, fertilizer cannot be applied before March 1 or after December 1. Limits to nitrogen are 0.7 pounds soluble per 1,000 sq. ft., 1 pound per 1,000 sq. ft. per application, and 4.25 pounds per 1,000 sq. ft. annually. The fines for violations are $500 for the first offense and $1,000 for the second and subsequent offenses. New Jersey also has legislation pending that would go as far as banning pesticide applications on school grounds and parks. On February 10, 2011, the Assembly Environment Committee took testimony on the “Safe Playing Fields Act,” Assembly bills A. 1321/A. 3782. There was spirited debate, which included both scientific and emotional arguments. The New Jersey Green Industry Council did a great job of rallying many to oppose the bill.
Maryland has some better provisions in its legislation thanks to the Maryland Association of Green Industries. The green industry in Pennsylvania is working on its legislation, trying to get the best requirements for the lawn and landscape sector. Many bills are also continuing to include reduction or bans on phosphorus under most circumstances.
Save the dates and plan now to attend the following:
- Legislative Day on the Hill, July 25 & 26, in Washington, D.C.
- The new PAC dinner and Golf outing at the GIC in Louisville, Kentucky, October 25 & 26.