[Regulatory Report] Industry takes action to stop costly regulation

WASHINGTON — With a deadline looming for the enactment of a costly pesticide permit requirement, pest management professionals from around the country descended on our nation’s capitol for the National Pest Management Association’s Legislative Day on March 15, to encourage their congressional representatives to consider the pest control industry’s position on H.R. 872, the Reducing Regulatory Burdens Act of 2011.

H.R. 872 would amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Water Pollution Control Act to clarify Congressional intent regarding the regulation of the use of pesticides in or near navigable waters. 

The bill was introduced in response to a January 2009 Federal Appeals Court ruling that requires costly and burdensome Clean Water Act National Pollutant Discharge and Elimination System (NPDES) permits for millions of pesticide applications. This ruling was scheduled to go into effect April 9, and it would impact many pest management professionals, especially those performing mosquito and aquatic weed treatments. Also of concern is the effect this ruling has on states, which may adopt permit requirements that go beyond EPA recommendations, according to NPMA Senior Vice President Bob Rosenberg. Maine, for example, indicated it will require anyone applying pesticide near water to have a permit. This could result in a huge paperwork burden and even entail water quality monitoring, Rosenberg said. “Unless Congress does something to stop it, PCOs are going to have to get these costly, time-consuming, unnecessary permits, and it’s going to be a serious disincentive to accepting a lot of work,” he said. “There are very few remedies available other than to go to Congress and get them to overturn this nonsense.”
 

UPDATE.
On March 31, the House passed H.R. 872 by a vote of 292-130, and at press time the bill had moved to the U.S. Senate. Legislative Day visits may have played a role in H.R. 872 making it out of the House, according to Rosenberg and NPMA Manager of Government Affairs Gene Harrington. On March 16 — just one day after Legislative Day — H.R. 872 cleared an important hurdle when the House Transportation and Infrastructure Committee voted 46-8 in support of the bill.
 

OVERLAPPING STATUTES.
The pest control industry has long maintained that pesticide applications are already highly regulated under FIFRA. Passed within days of each other in 1972, NPMA and others contend that the Clean Water Act (CWA) and FIFRA have distinctly separate purposes and Congress never intended for the two statutes to overlap. CWA grants U.S. EPA authority to restore and maintain the integrity of our nation’s waterways. Under CWA, EPA closely regulates discharges from large industrial operations and wastewater facilities through the NPDES permit program. Meanwhile, FIFRA helped establish a comprehensive regulatory system under which EPA regulates the sale and use of pesticides through registrations and labeling.

The primary federal pesticide statute, FIFRA requires EPA to carefully evaluate pesticides during the registration and re-registration review processes for their impact on water quality and aquatic species. Because a pesticide would not be registered or otherwise permitted for use if the review indicated that the pesticide posed an unreasonable risk to water quality and aquatic species, pest management professionals and other pesticide applicators have never been required to obtain an NPDES permit prior to applying pesticides directly to near or above bodies of water. In other words, the 2009 Federal Appeals Court ruling (National Cotton Council v. EPA, 6th Cir.) essentially requires pesticide users to obtain a duplicative permit.

“The federal court decision really overturned 30 years of policy — and something that had been codified under the Bush Administration — that kept us from being affected by the requirements for permits under the Clean Water Act,” said Mike Katz, president of Western Exterminator, Anaheim, Calif., and a long-time member of  NPMA’s Government Affairs Committee.

A MESSY SITUATION.
The 2009 Federal court ruling imposed an April 9 deadline on EPA and the states to start the permit process. However, in late March EPA was granted an extension of Oct. 31 because it still has endangered species consultation that has to be done before the permits can be developed. Meanwhile, the pest control industry nervously monitors this issue.

“Right now the impact is one of concern for an uncertain future,” said Katz. “I think it’s a very nervous situation for everybody because we don’t really understand when and where we are going to need the permits. We don’t know if we are going to be able to get them, but we know that if this thing goes forward we are going to be open to whistleblower consumer lawsuits for alleged violations. It’s a very messy situation.”
 

The author is Internet editor and managing editor of PCT magazine and can be contacted via e-mail at bharbison@giemedia.com.