EPA will extend the deadline to meet requirements of its new farmworker protection standard until guidance and training materials are ready to help state agencies implement the changes.
Wendy Cleland-Hamnett, acting assistant administrator for EPA’s Office of Chemical Safety and Pollution Prevention, announced the extension in a May 11 letter to the National Association of State Departments of Agriculture.
“After careful evaluation, the EPA believes it appropriate to grant your request to extend the implementation of all revised provisions to the Agricultural Worker Protection Standard (WPS) until the necessary guidance and training have been completed which would allow state lead pesticide agencies to successfully implement the rule changes,” Cleland-Hamnett said.
Cleland-Hamnett did not specify a new deadline for compliance, but NASDA and other farm groups have repeatedly asked for an extension until at least Jan. 2, 2018. Shortly before Donald Trump took office as president, the Obama administration denied an extension request from NASDA and the American Farm Bureau Federation.
Cleland-Hamnett said in her letter that EPA would “soon begin the regulatory process to formally extend the compliance date for all revised provisions of the WPS.”
Published in November 2015, most of the rule’s provisions were scheduled to go into effect Jan. 2, 2017, with the rest slated to become effective a year later.
“Protecting the health and safety of agricultural workers is a fundamental priority for NASDA members,” said NASDA CEO Barbara Glenn. However, she said that although states “have been working diligently with EPA to implement the agency’s 2015 rule, the lack of needed education and training materials and other significant challenges with the rule have made the original implementation timeline unrealistic.”
NASDA, numerous state agencies and AFBF said they are concerned that EPA has not clarified its requirements regarding Application Exclusion Zones (AEZ’s) and “designated representatives,” persons who would be authorized to receive information on behalf of farmworkers about chemicals used at farm operations.
The final rule would prohibit applications within 100 feet of workers for “aerial, air blast, fumigant, smoke, mist and fog applications” as well as applications that use very fine or fine droplet sizes. The AEZ would be 25 feet when the pesticide is sprayed using droplet sizes of medium or larger and from more than 12 inches above the plant medium, according to an EPA fact sheet.
But some stage agencies have said that the AEZ provisions should not apply when worker housing is within the exclusion zone.
In August, the Association of American Pesticide Control Officials told Jack Housenger, then the chief of the EPA’s Office of Pesticide Programs, that a number of states with strict standards for farmworker housing believe it makes more sense to allow workers to “shelter in place” instead of being forced to leave the AEZ and then returning soon after the application.
Oregon’s Occupational Safety and Health Administration, for example, is working on an alternative that would allow “occupants of protected spaces – including fully-enclosed housing – to remain indoors as protection from the potential hazard of spray drift.” The state is planning to propose regulations in June.
Environmental and farmworker safety groups opposed any extension, arguing that states have had ample time to comply.
In a letter to the agency May 11, groups including Farmworker Justice and Pesticide Action Network North America said that “EPA has gone to extraordinary lengths to ensure that growers are ready to implement the WPS within this timeframe and states are prepared to enforce it. Indeed, states with some of the largest agricultural production centers such as California, North Carolina and Florida are implementing the provisions of the WPS that went into effect earlier this year, demonstrating that EPA’s revisions can be implemented without meaningful loss in agricultural activity or revenue.”
In addition, they said that “farmworkers have one of the highest rates of chemically related illnesses of any occupational group, yet they are among the least protected people from occupational chemical exposures.”
NASDA and AFBF also have criticized the “designated representative” provision, claiming it would deprive farmers of a reasonable expectation of privacy for confidential business information. In December, the groups said the rule “subjects farmers to potential harassment and public criticisms for lawful use of EPA-approved pesticides.”
The WPS extension comes as EPA also is considering extending until May 2018 the effective date of a rule establishing new requirements for those who apply restricted-use pesticides. The rule was originally scheduled to go into effect in March but has been extended until June 5 while the agency considers comments on its May 15 extension proposal.
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