Those new EPA Worker Protection Standard rules that require annual pesticide-handling training for farmworkers and retraining of all who provide the training are scheduled to take effect on Monday (Jan. 2).
But the future of the rules – which mark the first update of the WPS since 1992 – could depend on how legal maneuvering between the Obama administration and the new Trump regime plays out in the coming months.
The American Farm Bureau Federation and the National Association of State Departments of Agriculture have both petitioned EPA Administrator Gina McCarthy to delay the Jan. 2 start date. The petition filed a few days before Christmas claims EPA violated federal law and also has failed to deliver all the information needed to implement the new rule.
“We ask EPA to delay the effective date to give NASDA members adequate time to prepare for compliance with the rule and to avoid the unfair and unredressable harm to farmers and ranchers,” the groups said.
But Obama officials have shown little willingness to be agreeable in advance of what they see as a wholesale attempt by the new Trump administration and the Republican-dominated Congress to dismantle the Obama legacy.
Failure to deliver copy
The petition from AFBF and NASDA said EPA did not meet the law’s requirements when it failed to provide congressional agriculture committees a final copy of the regulations along with the copy sent to the agriculture secretary. The EPA has acknowledged that omission in responses to questions from Congress.
“EPA’s failure to meet its statutory obligations deprived Congress of its lawful expectation of examining the regulation before its promulgation,” the petition said.
The groups also say the rule’s “designated representative” provision exceeds the scope of the WPS rule by depriving farmers of reasonable expectation of privacy for confidential business information.
In doing so, the rule subjects farmers to potential harassment and public criticisms for lawful use of EPA-approved pesticides, the petition said.
The petition also said EPA staff has failed to finalize and deliver to state lead agencies the enforcement guidance, educational material and training resources needed to effectively implement the rule’s new provisions and assist farmers and ranchers with compliance efforts.
Not enough time?
“At this time, even if all of the compliance and enforcement materials were completed and distributed to all the appropriate state enforcement agencies, there is simply not enough time for the (state lead agencies) and the regulated community to successfully implement the provisions scheduled to take effect on Jan. 1, 2017,” the petition said.
“In short, EPA has failed to develop and deliver the necessary resources for states to train the regulated community on the new requirements, and the agency has failed to comply with its own WPS Implementation Timeline.”
EPA released the final language on the new WPS on Sept. 28. The new rules take effect 60 days after publication in the Federal Register, and agricultural employers will have 13 months to comply with most of the new requirements.
Currently, farmers are required to provide Worker Protection Standard training to workers who handle pesticides every five years. The new rule mandates annual training and says all training personnel on a farm must be retrained.
One of the key revisions in the WPS includes instructions to reduce the potential for workers to take pesticide residues home with them.
And, for the first time, non-family-member workers under the age of 18 are prohibited from handling pesticides. The new WPS will also expand mandatory posting of no-entry signs for some pesticides.
Major changes to regulation:
- Annual mandatory training to inform farmworkers on the required protections. This increases he likelihood that protections will be followed. Currently, training is only once every 5 years.
- Expanded training includes instructions to reduce take-home exposure from pesticides on work clothing and other safety topics.
- First-time ever minimum age requirement: Children under 18 are prohibited from handling pesticides.
- Expanded mandatory posting of no-entry signs for the most hazardous pesticides. The signs prohibit entry into pesticide-treated fields until residues decline to a safe level.
- New no-entry application-exclusion zones up to 100 feet surrounding pesticide application equipment will protect workers and others from exposure to pesticide overspray.
- Requirement to provide more than one way for farmworkers and their representatives to gain access to pesticide application information and safety data sheets – centrally-posted, or by requesting records.
- Mandatory record-keeping to improve states’ ability to follow up on pesticide violations and enforce compliance. Records of application-specific pesticide information, as well as farmworker training, must be kept for two years.
- Anti-retaliation provisions are comparable to Department of Labor’s.
- Changes in personal protective equipment will be consistent with the DOL’s Occupational Safety & Health Administration standards for ensuring respirators are effective, including fit test, medical evaluation and training.
- Specific amounts of water to be used for routine washing, emergency eye flushing and other decontamination, including eye wash systems for handlers at pesticide mixing/loading sites.
- Continue the exemption for farm owners and their immediate family with an expanded definition of immediate family.
For more information on the final rule, visit http://bit.ly/2hRY2j1.