On December 22, 2016, The American Farm Bureau Federation and the National Association of State Departments of Agriculture (AFBF/NASDA) petitioned the EPA to delay by 1 year the January 1, 2017, compliance date for the Agency’s revised standards to improve protections for farm workers who apply or otherwise handle or are exposed to pesticides (Worker Protection Standard [WPS], November 2, 2015, FR.)
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The petitioners claim that the final WPS is unlawful because the EPA failed to meet its legal obligation to provide a complete version of the final rule to Congress before promulgating the action. In addition, the AFBF/NASDA assert that the Agency has not provided state lead agencies (SLAs) with the enforcement and educational materials the agencies need to implement the WPS.
The EPA has not formally replied to the petition. However, at least one news outlet reported that it has been informed by an Agency official that the petition will be denied. Should the Agency deny the petition before President-elect Donald Trump’s arrival at the White House, this may be another significant regulatory action that gets a second hard look from the new administration.
Designated representative
According to the EPA, the revised WPS will enhance protections provided to agricultural workers, pesticide handlers, and other persons, including exposed populations, by strengthening requirements for training, notification, pesticide safety and hazard communication information, use of personal protective equipment, and provision of supplies for routine washing and emergency decontamination.
In one part of the their petition, the AFBF/NASDA indicate that EPA’s new provision regarding designated representatives wasnot included in copies of the final rule the Agency provided, as required by law, to House and Senate committees. The requirement compels agricultural employers to provide to any worker/handler’s designated representative with pesticide records that the employer must keep for 2 years. According to the petitioners, this requirement could lead to the release of confidential business information to advocacy groups that may subject the employer to “harassment and public criticism for lawful use of EPA-approved pesticides.
Compliance/training materials
The petitioners also claim that regulated entities as well as SLAs will not be able to comply with the revised WPS without EPA’s compliance guidance. These materials include the WPS Inspection Guidance, Final Checklist, and Interpretative Guidance, which—at this writing—the EPA has not completed. The EPA has completed its How to Comply Manual and Train-the-Trainer guidance, but the petitioners assert in their letter that in the past 60 days, physical delivery of these materials to SLAs was still ongoing.
According to the petitioners, one significant consequence of noncompletion/nondelivery of these materials is that WPS trainers are still being retrained under the revised WPS while SLAs are required to implement and enforce the new requirements. The EPA has responded to this complaint by explaining that SLAs may exercise enforcement discretion. However, the petitioners indicate that this policy is effective only “as long as third parties do not succeed in seeking judicial relief mandating SLAs begin enforcing the provisions codified in the Code of Federal Regulations.”
The WPS petition letter is here.