Changes in the rules of the game for Texas PMPs

New rules start as laws passed by the Legislature under
the Texas Capitol dome.  Laws become enforceable only
after rules are drafted and published for public comment by
the lead agency, like Texas Department of Agriculture.

New rules governing the pest control industry in Texas were published last week and are now in effect.  While none of the changes in the "rules of the game" are major, there may be a few things that affect your business or school district.

The rules governing pesticide use in Texas can be complicated, and are passed down to us through two sets of documents.  First, the Texas Occupations Code (TOC) contains  the official list of laws as passed by the legislature pertaining to different occupations, including structural pest control. If you go to this code online, the chapter having to do with pest control is Chapter 1951. Chapter 1951 lists all the state law as passed over the decades that relate to the business of structural pest control.
 
The second, and probably most relevant set of rules to our industry is the Texas Administrative Code (TAC).  The TAC records how the various state agencies choose to interpret and administer the laws. For example, Section 1951.212 of the TOC directs the Texas Department of Agriculture to establish standards for an IPM program for public school districts.  The TAC Sections 7.201-7.205 spell out what the standards are, including requirements for IPM coordinators, pesticide categories, posting requirements, etc.

But wait a minute. How can non-elected bureaucrats in a state agency write rules outside the legislative process?  The answer is that legislators don't have the time or the expertise to write detailed regulations, so they pass their rule-making authority on to Executive branch agencies like the Department of Agriculture.  Of course the rules have to fairly interpret the law, and they must be published ahead of time in the Texas Register so that all of us can review and comment.

Publication of several new or revised sections of Subchapter H of the TAC (Texas Department of Agriculture) marks the end of this process for pest control rules this year.  On December 18 the Texas Register published the results of public comment and listed the final versions of proposed rules originally published on September 18. With this final version, the rules are now considered to be in effect.

Most of the changes were made simply to clarify wording of the old rules.  There was also some reorganization of section numbering, so that old rule citations may no longer apply.  Here are the essential changes:

• Sec. 7.122 Changes in wording that include giving power to the Department to deny a license to anyone who holds a similar license that has been revoked, suspended, probated or denied within the last five years by another state or by the federal government.
• Sec. 17.127 There are no more fees for providing a continuing education course.
• Sec. 7.141  Rewording of rules pertaining to ID that must be carried at all times by license holders.  Basically, if you have a license you must carry it on your person at all times and show it to any customer or relevant government employee who asks. If it's not legible, then its not a legal ID.  Also, language on vehicle signage has slightly changed to require all marked or unmarked vehicles being used for customer contact or service must have the business license number prominently displayed (magnetic signs are not OK).
• New Sec. 7.150 requires all pesticides be used consistent with the pesticide labeling, and prohibits use of any pesticide missing a complete label when the identity of that pesticide is unknown.
• New Sec. 7.151 prohibits anyone from hurting people or the environment, and making the pesticide owner, the applicator and/or the mixer equally responsible for proper storage and disposal of pesticide containers and contents. It also requires all pesticide containers to be labeled with the name of the pesticide.  And it specifies that hard copies of all pesticides being stored shall be available for inspectors visiting the storage site.
• Sec. 7.152 states that no one may advertise to perform structural pest control services without a license, and that all advertising must include the same business name as is on the license.  This rule was rewritten to ensure that companies not use multiple business names under the same business license, and to clarify that pest control advertising includes online ads such as might appear on sites like Facebook, Craigslist and Angie's List.  
• Sec. 7.193 is a new section number which clarifies who may qualify as a member of the Structural Pest Control Advisory Committee from an institution of higher learning (the position I formerly held, and now is being held by Dr. Robert Puckett).  
• Sections rules for the IPM program for public school districts have been moved to a new Division (7) and renumbered from Sec. 7.150-7.154 to 7.201-7.205.  The biggest changes in this section relate to CEU requirements for IPM Coordinators.  
• Sec. 7.202  School IPM coordinators no longer are specifically required by rule to personally conduct periodic inspections of their school district.  While this remains desirable, taking away this rule frees the coordinator to rely on other trained inspectors to provide inspection reports.
• Sec. 7.204 includes slight wording changes to clarify that outdoor areas treated with a pesticide may be posted at all entry points with a sign in lieu of a lock, fence or barrier tape until the reentry time is over.  This section also allows IPM Coordinators, or their supervised employees, to use non-pesticide containing monitoring devices like sticky traps, to monitor pests without a license.

Perhaps the most significant change heralded by these rules is that expanded CEU requirements for school IPM Coordinators (IPMCs) are now officially in place.  Over four years ago, as a result of Sunset Commission recommendations, the legislature decided that ongoing CEUs would be required for school IPMCs.  Until now, the only CEU requirement was that IPMCs have six hours of department-approved training at the beginning of their appointment.  Under the new rule IPMCs must have six hours of verified, approved training every three years.  While most of these CEU requirements can come from any approved, relevant pesticide CEU class, at least one of the hours must be related to school IPM rules and regulations.  The countdown for existing IPMC's three years will start this January, or for new IPMCs at the date whenever their initial training is completed. Pesticide CEUs obtained in support of a pesticide applicator's license can be double-counted toward the CEU requirements for IPMCs.

After seeing how long it can take the TDA to publish its rules, I don't feel nearly as bad about the stacks on my desk.  

Winter Structural Pest Control Advisory Committee meeting

It was a cold, wet day in Austin this week as the Structural Pest Control Advisory Committee met to discuss the business of pest control regulation in Texas. Much of the meeting was going over rules drafted by the SPCS staff that will impact just about anyone who does structural fumigation, provides termite estimates, or who want to get continuing education units online.

Mike Kelly, staff member for the Structural Pest Control Service (SPCS), presented a rough draft of new document requirements for termite treatment disclosures, or as they are now called: "Subterranean Termite, Drywood Termite and Related Wood Destroying Insect Treatment Disclosure Documents" (The new name may be good for clarity, but sometimes I think government rules eat as much wood--in the form of paper--as termites).  Most of the changes are minor, designed to make the regs easier to read; however one positive significant change is that written estimates using these documents will now have to be made by a licensed technician or Certified Applicator--not an unlicensed sales person or office staffer.

Following up on industry recommendations from last meeting, Kelly also presented proposed changes for Structural Fumigation Requirements.  To anyone who is not a fumigator, fumigation requirements are about as exciting as a wait at the DMV.  But to fumigators, any change in rules can be grounds for fightin'.  Acting on our last meeting's discussion, the biggest changes to the rules included an attempt to clarify the responsibilities of fumigation contractors and subcontractors.

Danielle Dean (right) and Betty Thornton explained the new
CEU course they have developed for pest control office
managers and staff. 

Now if it were up to me, I'm not sure I would let anyone subcontract fumigation jobs. Fumigation is risky and technically complicated, and way too many things can go wrong (communications wise) between the customer and the subcontractor(s) who actually does the work.  But that's not the law, so these new rules attempt to reduce the risk of misunderstanding between fumigator and customer. As you might guess, there will be more paperwork.

One proposed rule change specified that only a registered apprentice, licensed technician or certified applicator (CA) can assist the supervising CA with introducing fumigants, or performing reentry and aeration activities. Also Kelly proposed to clarify wording on the required condition of tarps used in sealing in fumigant gases, and what the official time for a start of fumigation should be based on.  Both Brian Springer, Bevis Pest Control, and Debbie Aguirre, Elite Exterminating, commented passionately on the requirements--Springer noting the stellar human safety record of structural fumigation in Texas in recent years.  If you have anything to do with fumigation in Texas, you'll want to review these new regs carefully when they come out this spring. None of the rules are official until you get a chance to review them, and if you're a fumigator I'm sure you'll have an opinion.

We also discussed online CEU courses as supplements or replacements for face-to-face training. There have been numerous proposals over the years to allow applicators to get training remotely; but concerns about accountability, quality of courses, and security have slowed approval of this option.  The committee heard from AgriLife Communications specialist Holly Jarvis and representatives from online training provider, eStrategy Solutions.  According to Jarvis, there are now multiple ways to make these courses interactive, and accountability can be even better than live courses. Committee members felt that it was time to make electronic courses a routine way for license holders to get the CEUs they need.  In addition to the convenience of getting training on any day you need it, online CEU courses allow the applicator a choice of training topics, including difficult-to-find CEUs, like fumigation.  We recommended eliminating the proposed restriction that online CEUs be allowed only every other year.  Such changes won't mean that CEU workshops with face-to-face training are going away anytime soon, but do they mean you'll have more choices when it comes to getting your CEUs.

The highlight of this month's meeting was a presentation by Betty Thornton, Alvin Pest Control, and Danielle Dean, bwi Companies.  Thornton and Dean met earlier in the year with staff at the SPCS to educate themselves about regulations that might affect office staffers at pest control companies. It turns out that a number of laws and rules limit what advice an unlicensed staffer can say to customers over the phone. An unlicensed person, for example, cannot diagnose a pest problem or offer price quotes to someone over the phone or via email. They took lessons-learned and developed a course for office staff and technicians that includes what you can and can't say over the phone, going paperless in a pest control office, role playing, how to get a new technician registered to take their license exam, how to survive a 14-point inspection, and avoiding the top 10 non-compliance issues.  Both Thorton and Dean were engaging and enthusiastic.  They have given their (approved CEU) course several times and are willing to go on the road for groups that want to sponsor them.

Office staff are a critical, and often neglected, segment of the pest control industry.  I commend the SPCS for their train-the-trainer efforts, and hope that all these efforts result in better trained office staff throughout the state. I think bringing office managers and staff into the training picture could turn out to be one of the single most significant things we can do to improve compliance with our pest control laws in Texas.

Perhaps not many of you make it to the end of these long reports.  But the last thing I want to say is that this meeting was very significant to me in that it marks the end of my appointment to the SPCS committee.  By completing the end of my second term I am required by another one of those dern rules to step down and let someone else get to drive to Austin four times a year.  I anticipate that my replacement will be Dr. Robert Puckett, our newly hired extension urban entomologist in College Station.  I know he is excited about the chance to serve and will do a great job representing Texas A&M AgriLife.  My thanks to all the faithful committee members who have served this committee on their own dime over the years, and to the TDA/SPCS staff who take the time to listen.  It's been a pleasure.

Most common inspection failures

Inspections are never fun, but are mandated for every school
district, non-commercial applicator and commercial business
in Texas.

If you own or work for a pest control business, you know that it's no fun getting inspected. So many things can go wrong!  To make things worse, if you mess up, chances are that you'll see an inspector again soon, much sooner than if you pass with flying colors.

Fortunately, you don't need to have a bad inspection. At last month's Structural Pest Control Advisory Committee meeting, the good folks at TDA provided a list of the most common mistakes being found by regulatory inspectors during routine business and school inspections.  As you'll see, most of these mistakes relate to paperwork and record keeping--stuff that's relatively simple to correct.  So as the end of the year approaches, it might be a good time to use these  non-compliance lists as checklists to see where your team stands. Take the test and see if you pass:

Most Common Mistakes for Commercial Pest Control Businesses in 2014

• Are the name and license of the person(s) applying pesticides or using devices, recorded on use records stored at your business location? (21% failure rate)
• Do your service report forms have a jurisdiction statement? (18% failure rate)
• If you present a termite bid, do your forms include the required definitions for partial, pier and beam, slab construction, spot treatments, baiting systems and barriers?  (16% failure rate)
• Are all your employees getting the necessary continuing education units (CEUs)? (15% failure rate)
• When providing a termite bid are you providing your termite customers with a diagram, blueprint or building plat with a description of the structures to be treated? (8% failure rate)
• When conducting WDI inspections for real estate transactions, does your paperwork record the name and affiliation of the person purchasing the inspection, as well as the owner/seller of the property? (7% failure rate).
• For WDI reports, are you providing all customers with a properly labeled diagram of the structure inspected?  (6% failure rate)
• Do you provide all termite customers with the required termite treatment statement?
• I'm surprised this failure rate isn't higher: Do your service report forms record the purpose for which pesticides or devices were used (e.g., the target pest)?
• Can you document on a verifiable training records (paragraph n) form that your technicians have received the required training?

Most Common IPM Rule Mistakes for School Districts in 2014

• Are you creating and maintaining records showing approval of use of Yellow Category pesticides? (d)(6)(B)(ii)  (30% failure rate)
• Do you maintain written guidelines defining action thresholds (a)(1)(f), at least for your key pest problems?  (24% failure rate)
• Are you maintaining your IPM records for two years (b)(3)(B)(do you even have all your records?)? (16% failure rate)
• Do you have a system for storing and retrieving all records (b)(3)(B) of facility inspection reports, pest-related service reports, pesticide applications and pesticide complaints?  (14% failure rate)
• Do you keep training records for all employees approved for incidental use of pesticides?  (10% failure rate)
• Would you be ready to provide all your IPM program records on the spot to an inspector if they were to request them? (b)(3)(B) (9% failure rate)
• Are you creating and maintaining records showing approval of use of Red Category pesticides?  (d)(6)(C)(ii) (8% failure rate) 
• Have you the IPM Coordinator provided the required training for any employee on the District making incidental use applications of pesticides?  (e.g., electricians carrying wasp spray for when they open electrical panels with a wasp nest inside) (8% failure rate)
• Do you have a plan for educating your employees about their role in an IPM program? (a)(1)(E)  Note, this includes teachers, administrators and staff outside your pest control staff.  (8% failure rate)
• Do you have a pest monitoring program in place? (a)(1)(B) Word to the wise: if you don't have properly-maintained sticky cards in your school kitchens you definitely do not have a monitoring program! (8% failure rate, and I'm surprised this isn't higher)
• If you're a new IPM Coordinator, have you got proof of taking your 6 hour mandatory IPM Coordinator training?  BTW, we can help with that. (8% failure rate)
• When any pesticides are applied outdoors, is your staff in the habit of posting pest control signs  (d)(2) at the time of application until the minimal reentry time?  (8% failure rate)

TDA told more enforcement needed

Structural Pest Control Advisory Committee meets in
conference room with a great view of the State capitol.

The spring meeting of the Structural Pest Control Advisory Committee took place last Thursday at the Austin offices of the Texas Department of Agriculture.  If you've never been to the hub of regulatory activity for pest control in the state, it's a massive square building with a great view, from upstairs, of the "sunset red" granite of the state capitol building.  This quarter's lively meeting focused on enforcement actions--or what some in the industry feel is not enough enforcement action.

The discussion started with a report from Assistant General counsel AJ Wilson and her staff. They reported that the percent of cases referred to the enforcement team that resulted in enforcement action has seen a slight increase.  Last year 54.4% of complaints resulted in some sort of enforcement action, such as a fine.  This was up from 43% and 44% in 2010 and 2011.  Warren Remmey, industry member from  San Antonio, expressed concerns about a need for more investigators, especially for checking up on illegal fumigations. He shared an example of a case from 2013, concerning an unmarked vehicle allegedly carrying fumigation equipment that has still not resulted in any enforcement action.

Later in the meeting, during the public comment period, Debbie Aguirre, of Elite Exterminating in Corpus Christi, expressed concern about what she termed "lax oversight" of illegal operators. "And no place is enforcement more important than fumigations," she said. Harvey West with Coastal Fumigators in Houston, echoed her concerns, expressing his belief that there was benefit to the whole industry and regulators in making examples of people who were blatantly in violation of the law with respect to fumigations. Dale Burnett, former regulator, spoke on behalf of Worldwide Pest Control in San Antonio, noted that administrative penalties during the latter years of the Structural Pest Control Board averaged $100,000 to $200,000 annually. According to a recent Open Records Act request, last year the TDA collected only $20,087 in penalties, though penalties have been increasing, with a more than 230% increase since 2011.

If it seems unusual for industry members to ask a regulatory agency for more fines and enforcement actions, it probably is. But the pest control industry in Texas is not just any industry.  It is sensitive to its reputation, and leading business owners are often split on the need for more, or less, enforcement. Only a few years ago, industry voices were heard in Austin about perceived overly-zealous enforcement, which ultimately led  to the closing of the Structural Pest Control Board and its blending into the Department of Agriculture. Most industry leaders are especially sensitive to the issue of unlicensed operators, however, and few reputable pest control operators seem to begrudge quick and decisive action against businesses that threaten public health and the reputation of the industry. For it's part, the TDA team listened respectfully. Policy dictates that they not comment on ongoing investigations, so there was no opportunity for them to respond to critical comments, only listen.

In other business, Randy Rivera reported on upcoming changes to regulations affecting pesticide applicators holding Agriculture (3A) licenses. Most of the proposed changes will be administrative updates, and designed to harmonize TDA and Structural pest control regulations.  Definitions for Lawn and Ornamental (formerly Plant and Turf), Nursery Plant Production (formerly Greenhouse Plant Production) and Landscape Maintenance (formerly Plant Pest and Weed Control) categories have been added to the rules.  There will also be a new proposed rule requiring TDA decals (not numbers) on vehicles being used by non-commercial applicators, including those who use non-restricted use insecticides.  If you carry a TDA applicator's license, you should expect to see publication of these proposed regulation changes in the Texas Register by mid-May.

The status of continuing education regulations for school IPM coordinators was requested, and the committee was informed that the proposed rules outlining CEU requirements should come out as a package in May with the other proposed (3A) regulation changes.  State law mandates that school IPM coordinators begin obtaining 6 CEUs every three years, but enforcement of the law cannot take place until actual rules are in place.  Janet Hurley, my colleague at Texas AgriLife Extension who works with school IPM programs, also offered a comment on the need to waive the 48 hour posting requirement for insecticide baits and gels. This would take the regulations back to an earlier standard, under the rationale that baits and gels, unlike sprays, pose little or no drift hazard to passersby.

The next meeting will be held July 24 at TDA headquarters in Austin. Anybody with an interest in pest control is welcome to attend.

Catching the new drift on pyrethroids

For years agricultural pesticide applicators have been required to measure and record wind and weather at the time of spray applications. Wind matters in agricultural applications because of the potential for pesticide drift--the movement of pesticides from their intended target to undesirable sites such as other farm fields, homes, schools and natural areas. Weather matters because excessive rainfall can result in poor adhesion of sprays to plant or soil surfaces and pesticide-contaminated runoff--another form of drift.

In structural pest control, drift has always been an issue also, but on a much smaller scale.  For structural pest control indoor applicators, drift can occur in the form of splashback during both spot and crack and crevice liquid insecticide applications indoors. It can also occur with dust applications (I still remember my dismay, as a young and inexperienced applicator, when a compressor fan kicked on, blowing the pyrethrins dust I had just applied to a cockroach-infested motor back in my face). Outdoor applications can "drift" under windy conditions, or when rain washes residues from the application site to streams or lakes.  In fact, pesticide runoff is the reason that EPA has moved recently to change labeling requirements on new pyrethroid insecticide labels.

The new pyrethroid label standards by the US EPA are now out, and should be on every pest control service manager's required reading list. Unfortunately, they are not that easy to find, nor understand. I recently had the opportunity to sit in on the webinar update on these new standards by Jim Fredericks of the National Pest Management Association. NPMA has been working hard to keep up with these new standards and Jim did a nice job summarizing the new use directions you will be seeing shortly on all pyrethroid pesticide labels.

Digital handheld wind meters are relatively inexpensive,
accurate and can have powerful options such as wind
direction, temperature and relative humidity.

Two weather-related issues appear in these new requirements. First, for pre-construction termiticide applications only [see update in the May 1 comment below], the new labels will say,“Do not make on-grade applications when sustained wind speeds are above 10 mph (at application site) at nozzle end height.”  This means that anyone doing pre-construction termiticide treatments will have to have some method of measuring wind speed [as far as I can tell wind speed measurement is not required for general pest spray applications around residences and businesses].  There are at least three ways I know to estimate wind speed accurately:

• Purchase and use a digital wind meter, like the one in the accompanying image.  Today's units range in price from $20 to $200, depending on features. They can include barometric pressure, relative humidity, temperature, altitude, etc.
• Get a old-fashioned Dwyer handheld windmeter for about $25. This tough and dependable unit (doesn't need batteries) works on air pressure to elevate a small plastic ball, providing a simple wind speed measurement.
• Go to an online website that provides windspeed data for your location, such as  http://www.intellicast.com/National/Wind/WINDcast.aspx. The problem is that the wind speed at your local airport may not be the same as at the account where your applications are made.

Second, the new labels will prohibit any pyrethroid spray, granular or dust applications made when it's raining. In areas where rain is frequent, or constant at certain times of year, this may be inconvenient (and who's to say when it's really raining?), but the intent is clear.  When it's raining, insecticides will not adhere well to surfaces and are prone to running off the target site into storm drains or streams.

Finally, anyone doing outdoor applications (especially termite pre-treatments) should consider adding spaces on your business' service forms for weather data, like wind speed and precipitation. If you're an honest applicator who goes by the book, this sort of information can only help you if called upon to defend an application.  An on-site reading taken from a handheld wind unit always trumps NOAA area weather data, and could save your rear in a legal case.  

Certification Year One winds down for school IPM coordinators

One of the big changes to school IPM rules during the last legislative session was to expand education requirements for IPM Coordinators (the individual in each Texas school district responsible for overseeing pest control and ensuring the district complies with state regs).  Beginning last January, every IPMC is responsible to obtain six hours of CEUs every three years (See the Administrative Code Rule 7.150 (b)(2)).

The problem is that after a year of the rule we still don't know precisely what qualifies for continuing education units.  Let's review what we do know:

• Anyone who began duties as an IPM Coordinator for a public school district on or before January 1, 2011 will have until December 31, 2013 to obtain six (6) hours of CEUs.

What we don't know for sure is what exactly qualifies as those appropriate CEUs.  The Structural Pest Control Advisory Committee argued quite strenuously about this topic about a year ago, and some general guidance from that discussion will be used as the basis of whatever rules are drafted in the next few months.  The committee suggestions were: 

• One of the six CEUs must be in laws and regulations specific to IPM Programs in Schools.  The remaining five credits can be obtained by doing one of the following:
• Attending one of the TDA-approved training courses for IPM Coordinators (this would be the same 6-hour course taken within the first six months of appointment)
• Attending any five hours of TDA-approved pesticide CEU training in areas relevant to a school IPM coordinator's duties (e.g., Pest, L&O, Weed control, or General IPM). These CEU classes are pretty commonly available around the state.
• Attend classes not approved by TDA as long as you send information into the agency and get the class approved within 30 days (see Section 7.135(g) of the Administrative Code for details)

The committee wanted the CEU requirement to be as easy to obtain as possible, but I'm not convinced that we didn't make it too easy.  Specifically, I think coordinators need more than one hour of school IPM rules-specific training every three years. Of course training in herbicide selection, or termite identification or  cockroach biology is valuable for someone in charge of a school pest control program; but ultimately a coordinator's job is administrative, and much or most of it has to do with knowing the laws and regulations inside and out. For schools who contract out pest control, the coordinator may be the only person in the district keeping outside applicators square with the law. 

And these laws and regulations are not especially simple to learn. I find myself learning new things every year when I teach the class; so I'm skeptical that one hour every three years is going to do much to keep coordinators at the top of their game.

I know many of you know this. My proof is the number of repeat attenders we see in the introductory school IPM coordinator training classes I teach each year with Janet Hurley. And my sole consolation is that I know many of you will go the extra mile and get those extra school IPM dedicated classes, regardless of whether you have to.  I'm more worried about the folks who haven't had a refresher course in 5-10 years, and don't see a reason to do so.  

The trouble is that the clock is ticking on these CEU requirements.  One year is passed and we still don't absolutely know what criteria will be used to fulfill the six CEU requirement.  So if you're a Texas IPM coordinator, keep alert for the proposed new regulations. If you have an opinion about the CEU requirements, please let them be known at that time.  And if you think I'm crazy to want tougher requirements, that's OK. But let's think these things through and have a good debate.

A primer on the NPDES and its potential impact on pest control

Clean water is in everyone's best interest. 
Guadalupe River State Park.

Last week the Advisory Committee for the Texas Department of Agriculture's Structural Pest Control Service met in Austin. The advisory committee meets quarterly to offer suggestions and feedback to TDA on rules and regulations pertaining to pest control in Texas. Much of the time in last week's meeting was spent learning about the upcoming EPA rules governing pesticide applications around waterways. If you haven't yet heard about this issue, it is a topic of hot debate right now among PMPs around the country.

At stake is whether PMPs will be subject to notification and permitting rules required under the Clean Water Act. To understand the issue, you must first understand something about the Clean Water Act itself and the recent court decisions affecting how the EPA administers the law.

The Clean Water Act
The Clean Water Act (CWA) was passed in 1972 (with significant amendments in 1977 and 1987) as the nation's premier law protecting the quality of water in navigable streams, rivers, lakes and wetlands. In Section 301(a), the Act  prohibits discharging any pollutant unless the discharge is in compliance with permitting provisions of the Act (the CWA specifically exempted agricultural stormwater and irrigation discharges). According to the law, pollutants includes, among other things, “garbage… chemical wastes, biological materials …and industrial, municipal, and agricultural waste discharged into water.” 

One way a person may discharge a pollutant legally is by obtaining a permit under the National Pollutant Discharge Elimination System (NPDES). Under section 402(a) of the law, EPA may issue permits to discharge pollutants if certain conditions are met. Two types of permits are available: individual and general. Permits are generally granted for a set period, no greater than five years. General permits are granted (usually by the state) when multiple facilities/sites/activities will generate pollution. To establish a general permit, the EPA or a state develops and issues the permit in advance. Permits generally cover certain types of activities and set the guidelines for what levels of discharge are covered by the permit. Anyone wishing to make a discharge into a waterway must request coverage under the permit through submission of a Notice of Intent (NOI).

Pesticides and the CWA 
Nearly everyone agrees that the CWA has been a significant factor in improvements seen in the nation's riverways and coastal waters.  However, pesticides have been a burr under the saddle of some environmentalists, as pesticide applications have remained largely unaffected and unregulated by the CWA. During the past 38 years, EPA has never issued a permit to apply a pesticide to a waterway. This is because the agency has considered all such applications come under the authority of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA), an EPA-regulated law that most of us in pest control are very familiar with. Among other things, FIFRA sets use guidelines for the use of every pesticide.  Only label uses that do not pose an unreasonable adverse effect on the environment will be approved by the EPA.  Such decisions are made following a comprehensive and expensive label approval process; hence it has historically been EPA's opinion that FIFRA adequately protected waterways from pesticides.

This position has been challenged in court numerous times over the years, leading EPA in November, 2006 to issue a final rule clarifying the two specific circumstances in which an NPDES permit was not required to apply pesticides to or around water. The rule said a permit was not required for: 1) the application of pesticides directly to water to control pests; and 2) the application of pesticides to control pests that are present over, including near, water where a portion of the pesticides will unavoidably be deposited to the water to target the pests. The rule became effective on January 26, 2007.

All this changed on January 9, 2009. In the case, National Cotton Council of America v. EPA, the Sixth Circuit Court nullified (vacated) EPA’s Pesticides Rule. The Court held that whenever there is a residue that is left in water after a pesticide targets a pest (which is essentially always), that pesticide should be considered a pollutant under the CWA. The court went on to say that the CWA should, in fact, require that any applicator who applies pesticides into a waterway must first be required to obtain an NPDES permit.

The EPA responded to this decision by requesting a two-year stay of the mandate to provide the Agency and NPDES-authorized states time to develop general permits and to provide outreach and education to the regulated community. In June, 2009, the Sixth Circuit Court agreed and granted EPA the two-year stay.  According to this ruling, the final plan must be implemented no later than April 10, 2011.

The National Pesticide Permit Plan
On June 2, 2010, the EPA revealed its plan to address the Sixth Circuit Court ruling. The plan includes a draft of a permit system for point source discharges for the application of pesticides to water. Called the Pesticides General Permit (PGP), the plan EPA revealed this spring will serve as a model for NPDES-authorized states (like Texas) to develop their own PGPs.

Perhaps the most significant part of the EPA national PGP is that it outlines what sort of pesticide applications will be required to get a permit. The plan identifies four types of pesticide applications that will require an NPDES permit:

• applications of pesticides to water for control of aquatic weeds
• applications of pesticides to forest canopies over streams and rivers
• community mosquito control
• aquatic nuisance animal pest control (e.g., piscicides for trash fish, zebra mussel, lamprey, etc.)

In addition to defining these categories, the PGP set annual thresholds, above which applicators will be required to file an NOI.

• Aquatic herbicide (or nuisance animal pesticide) applications in waters exceeding 20 acres of open water or 20 linear miles of shoreline application
• Forestry canopy applications greater than 640 acres
• Mosquito control applications to areas greater than 640 acres

As an example, if you apply mosquito adulticides to less than 640 acres (one square mile) a year, you will be covered by the state's general permit and will not have to file any paperwork.

On the surface, it appears to me that the NPDES permitting system, if similar to the EPA's general permitting plan now, probably will have little impact on the day-to-day operations of most pest control companies.

In Texas the agency that is developing our state's permit is the Texas Commission on Environmental Quality (TCEQ).  According to Jimmy Bush, TCEQ is anxious to involve stakeholders in the process to develop a state permitting plan.  The agency has set up a website about the issue, and, in fact, held its first stakeholder meeting today to discuss concerns.  The Texas Pest Control Association was in attendance and will certainly report the issues discussed.  The TCEQ is under a deadline to submit its final plan by December, 2010.

How will the new regulations affect you?
This is a complex law, and few people seem to understand it in all its complexities.  From what I learned at TDA last week, however, the NPDES permitting system does not seem to be directly targeting the pest control industry.  Nevertheless, there will be changes in the way pesticides are regulated in the state; and, as always, with change comes uncertainty.  Some potential unanswered questions about the permitting process come to mind:

• Will terrestrial applications of pesticides eventually (perhaps through court action) come under the permitting process?  This has not been the intent of rulings to date, and seems unlikely, but some urban pesticides have been showing up in urban stormwater runoff and it's possible that someone could argue in court that such applications should be construed as pollutants under the CWA.
• How will acreages of coverage be calculated for mosquito control?  Will every yard fogged in community mosquito control programs be counted toward the acreage threshold, or will there be criteria for calculating acreage next to waterways?  Currently the EPA PGP states that acreage will include "acreage over water or conveyances with a hydrologic surface connection to waters of the U.S. at the time of pesticide application."  This is still a vague definition, in my opinion.
• How will mosquito mister systems be handled?  
• What kind of additional paperwork, if any, will companies be required to keep?  Right now it appears that everyone will be on the honor system to report whether or not your company exceeds the annual thresholds for water applications.  What responsibilities will companies be required to bear in order to show they have NOT met the thresholds required for an NOI?
• What will the Notice of Intent look like and what requirements will it carry?  This will be of greatest concern to forest managers and mosquito control districts; but it could affect larger companies who annually treat larger communities.
• Will large companies be allowed to consider individual franchises as independent entities, or will the Orkin and Terminix franchises around the state be required to pool their acres treated?  If the latter, then larger companies will run increased risk of having to file an NOI.
• Should the pest control industry be happy that terrestrial pesticide applications seem to be outside the realm of these CWA rules, or should the industry prefer to be included in individual state permits so that the rules can be clearly known and thresholds set at reasonable levels?  

If you want to learn more about the CWA changes regarding pesticides, go to the EPA site for NPDES.  If you have opinions that you want to share with TCEQ, the few months will be critical.  Under the impending court order this is one time government will move quickly.

Advisory Committee gets briefing on TDA issues

Yesterday the Structural Pest Control Service Advisory Committee (SPCSAC) held its summer meeting with Texas Department of Agriculture (TDA) to hear updates and offer input on current activities of the agency that regulates commercial pest control in Texas.

Much of the meeting was devoted to a review of changes resulting from the recently ended legislative session in Austin. Two bills that passed this session will limit the activities that can be regulated by TDA. Falconers with permits, who use raptors to control or scare away pestiferous wildlife, are now clearly exempt from needing a pest control license (H.B. 693, sponsored by Vicki Truitt, House District 98, Keller). A more expansive bill, (S.B. 768, sponsored by Glen Hegar, Senate District 18, Katy) added falconry (repetitive with H.B.693), chimney sweeps, use of live traps, mechanical weed removal, and installation of "non-pesticidal barriers" to the list of people and activities that are exempt from requiring a pest control license.

The most significant legislative event for TDA this year was passage of the Sunset Bill (S.B. 1016). In Texas every state agency is required to go through Sunset Review every 12 years. A Sunset committee exaustively reviews all agencies up for review to ensure that the agencies are still needed, are performing their jobs properly, and that laws and regulations governing the agencies are up-to-date and operating efficiently. The result of this year's sunset review is that TDA has been reauthorized. Also, a number of sections of the Agriculture and Occupations Codes have been revised to make sure that the regulations governing the agricultural and occupational (pest control) parts of TDA's regulatory authority work efficiently together.

Some of the key changes resulting from the 2009 Sunset Bill include:

• An increase in the maximum fines the Agency can impose for violations of the Agriculture or Occupational Codes. Previously the agency could fine violators $2000 per infraction per day for a maximum of $4000. Now the Agency can impose fines of $5000 per infraction per day with no limit to how many days the fines can accumulate.
• Clarifying language that allows the agency to modify license renewal dates for ag and pest control licenses, harmonize testing procedures for both ag and pest control areas, and adjust length of terms for various licenses.
  
• Agency is now required to conduct regular analysis of its records of complaints and pesticide violations for analysis and planning purposes.
• Agency may conduct unannounced inspections during regular business hours (Assistant Commissioner Bush assured the committee that unless there is a good reason, the agency plans to continue its policy of providing notices of inspection ahead of time).
• Clerical employees and manual laborers who are not directly involved in pesticide applications for a pest control business are no longer required to have a pesticide applicator's license.
• The need for pesticide applicators who perform pest control on growing plants, trees, shrubs and grass to obtain a nursery-floral certificate to qualify for agricultural licensing is now eliminated. Such applicators can be licensed through either the agricultural code licensing or the occupational code licensing programs.
• Allows the TDA to appoint a consumer representative to the SPCSAC without the specific recommendation of a consumer's group (TDA could get no recommendations from a Texas consumer's group when approached last year. So this provision will allow them to quickly fill the remaining slot on the SPCSAC).
• Authorized TDA to enter into reciprocal licensing agreements with other states (for CEUs, certain testing requirements, etc.)
• Changed multiple rules that required applicators to for "give" or "provide" or "leave" pest control information sheets with workplaces, schools, apartments and other customers. Now the applicator is required only to "make available" the consumer information sheets to such customers. The significance of this change was discussed at some length, with some of us expressing concern that this change would encourage applicators to neglect informing their customers of the availability of these sheets, and result in fewer consumers knowing about their rights and who to contact in the case of complaints. Assistant Commissioner Jimmy Bush said that it is their hope that there is little change people receiving the information. The intent of the change was to reduce the need to provide repetitive paperwork everytime a service visit is conducted and encourage electronic notifications. The essence of the discussion seemed to be that TDA is going to take a more relaxed attitude towards applicators providing consumer information sheets at every service visit.

In addition to updates from the legislative session, the committee discussed the new plans for CEU requirements for school IPM coordinators (SIPMC). Under the recently updated regulations that went into effect July 7, SIPMCs are required to obtain six hours of department-approved CEUs every three years. General discussion points included the question of whether a certain number of CEUs would have to be on laws and regulations, whether each CEU could be obtained separately, what criteria TDA should use in determining whether a course would qualify for a SIPMC CEU, and how the CEUs would be enforced.

The committee agreed that some of the CEUs should include laws and regulations, most of us thought that at least 2 CEUs should come from this category. The committee seemed to agree that CEUs should be available to be obtained individually, and that obtaining them electronically would be a cost-effective and environmentally sound alternative to face-to-face meetings--especially for small, isolated school districts. Some of us, however, felt that at least some CEUs should be obtained through face-to-face training--something that Jimmy Bush said could be worked into the rules. One suggestion was that the CEU requirements might be vetted through the new SIPMC association that will be organizing in November in San Marcos.

The topic of use of pesticides as part of school curricula was brought up briefly, with Jimmy Bush stating that TDA would have no objections to exemptions to the school IPM rules for pesticides used as part of school lessons or laboratory experiments. Pesticides in such cases would be handled by schools in a manner similar to any other hazardous material in a lab.

Insurance remains a hot topic between the industry and TDA. At issue is whether the current requirements do enough to protect the consumer from errors and omissions that might be made by a licensed applicator. Although some insurance policies include provisions for errors and omissions made by an applicator (e.g., not noticing a termite infestation during a wood-destroying insect (WDI) inspection), many do not. The TPCA objects to making E&O insurance a requirement due to increased costs. Apparently the only other occupation regulated by the state that is required to have E&O insurance is home inspection, a profession that has many similarities to pest control, especially WDI inspectors. Mike Kelly of TDA noted that inspectors have been instructed not to review insurance policies during this time, until the department can determine its position on the kinds of liability insurance it will require for licensed businesses.

Poor or illegal termite pre-treatments is a chronic problem that numerous committees and regulators have struggled with over the years. A subcommittee of the SPCSAC began meeting after this session to start discussions on how to improve regulations of termite pre-treatments without overly burdening honest operators. If you have thoughts on this subject, you should contact me or (even better) one of the members of this subcommittee (Bill Stepan, Greg Orr, or Tommy Kezar).

These meetings are long, but very informative in knowing what is going on in the state with respect to regulations. The meetings are always open to the public. The next meeting will take place October 29 in Austin at TDA headquarters.