03/01/2019 - Regulatory Rollback

Agricultural Worker Protection Standard

by EELP Staff

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it matters

There are 2 million agricultural workers in the United States who mix, load, or apply pesticides. Unfortunately, health professionals diagnose 20,000 pesticide poisonings each year. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) grants EPA the authority to regulate pesticides for the protection of applicators, consumers, and the environment. Under 7 U.S.C. 136w, EPA issued the Agricultural Worker Protection Standard (WPS). Adherence to the WPS results in information transfer, protection from exposure, and mitigation of adverse health effects. Examples of standards include a minimum age for handlers and early-entry workers, requirements around the accessibility of safety data sheets, and requirements around keeping workers out of certain areas during pesticide application.

Both the WPS and the Certification of Pesticide Applicators Rule were considered for potential revisions or rollbacks under the Trump Administration.

Current Status

March 8, 2019 President Trump signs the Pesticide Registration Improvement Extension Act which, among other things, requires implementation of the 2017 Certification of Pesticide Applicator’s Rule and 2015 Worker Protection Standard without changes. The law includes a provision allowing EPA to promulgate revisions to the application exclusion zone requirements in the Worker Protection Standards.

Nov. 1, 2019 EPA publishes a proposed rule to change the application exclusion zone (AEZ) requirements. The proposed changes could expose more workers and bystanders to pesticide drift. During pesticide application, workers and bystanders are excluded from the AEZ to protect them from pesticide exposure – the zone acts as a pesticide buffer zone. Under the current rule, pesticide handlers must stop application if someone enters the AEZ. EPA is proposing to limit this requirement to the boundaries of the field, even if the AEZ would extend further. This change would mean that workers at an adjacent farm or people living nearby could enter the AEZ and be exposed to spray from ongoing pesticide application. Another proposed change would decrease the size of the buffer for certain types of pesticides.

History

Nov. 2, 2015 EPA updates the WPS for the first time in two decades. The agency considered 200,000 comments on the proposed standard. Improvements include mandatory annual trainings, safety data sheets in English and Spanish, and whistleblower protections.

Trump Era

Dec. 21, 2017 EPA publishes a notice of proposed rulemaking to revise the WPS after requesting comments on regulations potentially appropriate for appeal in accordance with EO 13777. EPA determined it would review the requirements for minimum age, designated representative and application exclusion zone (AEZ). While EPA did not extend compliance dates for the WPS it noted that worker and handler pesticide safety training can continue using materials not yet updated to comply with the 2015 rule because EPA had not yet published updated training materials in the Federal Register and did not intend to do so. EPA said requiring training material developers to update their training would result in unnecessary costs because the agency anticipates changing the training requirements again.

March 12, 2018. Twenty-eight senators write to Administrator Pruitt expressing their concerns with the proposed revisions to “life-saving requirements” provided by the WPS.

March 31, 2018 Over 125 organizations including Farmworker Justice write to Administrator Pruitt urging him to maintain and enforce the existing WPS protections.

April 17, 2018 Farmworker Justice and Earthjustice file a FOIA suit to force EPA to reveal its communications with industry groups related to the WPS revisions.

May 30, 2018 Earthjustice and Farmworker Justice sue EPA for declining to make updated training material available. The complaint alleges that EPA is unlawfully refusing to issue a notice in the Federal Register announcing the availability of updated training material despite acknowledging their existence. The complaint further alleges EPA is acting to prevent new training material from becoming mandatory because 180 days after an availability announcement, per the WPS, the new training material becomes mandatory training material. Separately, the states of New York, California, and Maryland sue on the same cause of action.

June 22, 2018 EPA issues a notice in the Federal Register of the availability of training materials as required by the 2015 WPS revisions.

July 9, 2018 The states of New York, California, and Maryland dismiss their action against EPA for failing to publish new training material in light of the June 22, 2018 notice. Earthjustice and Farmworker Justice also dismiss their action.

Jan. 4, 2019 PoliticoPro reports that Acting EPA Administrator Andrew Wheeler told Sen. Carper (D-DE) in an undated letter that EPA would withdraw its proposed rule revision from Office of Management and Budget review. Wheeler further notes that it may yet consider proposing revisions to the AEZ provision in the WPS rule but will not make changes to the designated representative and minimum age provisions.

March 8, 2019 President Trump signs the Pesticide Registration Improvement Extension Act which, among other things, requires implementation of the 2017 Certification of Pesticide Applicator’s Rule and 2015 Worker Protection Standard without changes. The law includes a provision allowing EPA to promulgate revisions to the application exclusion zone requirements in the Worker Protection Standards.

Nov. 1, 2019 EPA publishes a proposed rule to change the application exclusion zone (AEZ) requirements. The proposed changes could expose more workers and bystanders to pesticide drift. During pesticide application, workers and bystanders are excluded from the AEZ to protect them from pesticide exposure – the zone acts as a pesticide buffer zone. Under the current rule, pesticide handlers must stop application if someone enters the AEZ. EPA is proposing to limit this requirement to the boundaries of the field, even if the AEZ would extend further. This change would mean that workers at an adjacent farm or people living nearby could enter the AEZ and be exposed to spray from ongoing pesticide application. Another proposed change would decrease the size of the buffer for certain types of pesticides.