03/01/2019 - Regulatory Rollback

Certification of Pesticide Applicators Rule

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

Without proper care, exposure to agricultural pesticides can cause major health hazards. Acute health effects include an inability to breathe, loss of reflexes, uncontrollable muscle twitching, unconsciousness, and death. Chronic health effects include non-hodgkins lymphoma, prostate cancer, Parkinson’s disease, lung cancer, chronic bronchitis, and asthma. (Source – Federal Register)

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the EPA has the authority to regulate pesticides for the protection of applicators, consumers, and the environment. Under  7 U.S.C. 136w, the EPA Administrator has the authority to prescribe regulations relating to the “difference in concept and usage between various class of pesticides.”

EPA classifies pesticides as either restricted use pesticides (RUPs) or general use pesticides. RUPs are not available for the general public. Without precautions, RUPs can harm the environment and injure applicators or bystanders.

Current Status

Jan. 4, 2019 PoliticoPro reports that Acting EPA Administrator Andrew Wheeler told Sen. Carper (D-DE) in an undated letter that the EPA would withdraw its proposed rule revision from Office of Management and Budget review and would not continue to pursue changes to the rule.

March 8, 2019 Pres. 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.

History

In order to reduce pesticide-related occupational hazards, the Obama EPA published a final rule , the Certification of Pesticide Applicator’s Rule (CPA Rule), updating pesticide applicator certification programs on January 4, 2017, with an effective date of March 6, 2017. The improved programs are intended to reduce pesticide exposure to both applicators and other agricultural workers. Key rule aspects include (Source – Federal Register):

  • Improving the competency of certified RUP applicators
  • Establishing a minimum age requirement for certified and noncertified applicators using RUPs under the direct supervision of a certified applicator
  • Increasing protection for non-certified applicators through enhanced standards of supervision

Procedurally, the CPA established a three-year schedule which required States to submit implementation plans consistent with the rule by March 4, 2020.

Trump Era

January 20, 2017 In a memorandum titled “Regulatory Freeze Pending Review,” the Assistant to the President and Chief of Staff directs Agency heads to postpone the effective dates of all regulations that had been published in the Federal Register, but had not yet taken effect, by 60 days from January 20.

January 26, 2017 The EPA publishes a final rule entitled “Delay of Effective Date for 30 Final Regulations Published by the Environmental Protection Agency Between October 28, 2016 and January 17, 2017.” This rule delays the effective date of the CPA rule to March 21, 2017.

March 20, 2017 EPA publishes another final rule that further delays the effective date of the CPA rule to May 22, 2017.

May 15, 2017 The EPA proposes a rule delaying the effective date until May 22, 2018. In response to the number of comments, the EPA published a rule that again delayed the effective date to June 5, 2017.

June 2, 2017 The EPA publishes a final rule delaying the effective date of the CPA rule to May 22, 2018.

June 15, 2017 Farm workers’ unions and advocacy groups filed a complaint in the Northern District of CA requesting a declaratory judgement that EPA’s numerous delays violated the Administrative Procedures Act (APA), would vacate the delays of the CPR’s effective date, and declare the rule in effect.

October 4, 2017 The plaintiffs move for summary judgment.

March 12, 2018 Twenty eight Democratic Senators send a letter to EPA Administrator Pruitt expressing concern with the EPA’s plans to re-open the CPA for revisions.

March 21, 2018 The Northern District of CA grants plaintiffs’ motion for summary judgment.  The Court found EPA’s repeated delays violated the APA (by not providing notice and comment). The Court rejected the EPA’s argument that it had “good cause” to delay the rule without going through a rulemaking process, noting the “simple desire to have time to review, and possibly revise or repeal, its predecessor’s regulations falls short” of the “exacting standard” required to use this narrow exception to required administrative procedures. The Court vacated the delay rules and declared the CPA rule retroactively effective as of March 6, 2017.

Jan. 4, 2019 PoliticoPro reports that Acting EPA Administrator Andrew Wheeler told Sen. Carper (D-DE) in an undated letter that the EPA would withdraw its proposed rule revision from Office of Management and Budget review and would not continue to pursue changes to the rule.

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.