11th Hour Change to EPA Farm Rule Angers Capitol Hill

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By David Schultz

June 16 — House lawmakers added a rider to the Environmental Protection Agency's annual funding bill that would block the agency from enacting a specific clause in its recently finalized farmworker protection rule.

If the rider becomes law, the agency would be unable to fully implement its farmworker rule, the first major revision in almost 25 years to EPA regulations on farmworker exposure to pesticides.

Lawmakers added the rider after the EPA made a last-minute change to the rule, reviving a controversial clause after congressional reviewers thought had been deleted, according to multiple Republican sources from the House Agriculture Committee.

“EPA ignored a long standing legal obligation … to provide Congress with an opportunity to conduct a review of final regulations prior to publication,” Rep. Rodney Davis (R-Ill.), chair of the Agriculture subcommittee that oversees EPA's pesticides office, told Bloomberg BNA. “I am not aware of any other example in previous administrations where this has occurred.”

The EPA said it didn't intentionally mislead Congress. But Davis told Bloomberg BNA in an e-mail that the EPA's political leadership hid the final farmworker rule from Congress in “apparent disregard for the law.”

Third-Party Representation

The clause at issue requires farmers to turn over information about the pesticides they use at a worker's request, or at the request of a third party representing a worker.

A 2014 draft version of the Worker Protection Standard, or WPS, rule included the third-party clause, but the agriculture industry vehemently opposed it, arguing that it was written far too broadly.

The clause places no limits on who farmworkers can designate as their representatives or what those representatives could do with the information farmers must provide. It also requires farmers to turn over their pesticide use information within 15 days.

The agriculture industry feared that anti-pesticide activists could abuse the third-party clause by seeking to represent farmworkers themselves. The activists could then sue farmers who exceeded the 15-day deadline or use the pesticide data to publicly shame the farmers, according to comments industry groups sent to the EPA.

‘Mischief' Cited

“This is a ripe candidate for mischief,” Paul Schlegel, director of energy and environment policy at the American Farm Bureau Federation, said. “It puts farmers in an unfortunate legal situation.”

Schlegel told Bloomberg BNA that the agriculture industry has no problem allowing farmworkers themselves to request pesticide data from their employers, but opening it up to any third party departs “significantly from the purposes of the rule.”

Not so, according to Virginia Ruiz, director of occupational and environmental health with the group Farmworker Justice.

When a farmworker is injured by exposure to pesticides, that worker's medical treatment may depend on quickly obtaining information about what chemicals were involved, Ruiz told Bloomberg BNA. In that scenario, a worker may be too injured to obtain the information and may need to appoint a third party.

“Opponents' arguments against it are inaccurate or totally overblown,” she said. “Workers aren’t going to use this lightly.”

EPA Reversal

The EPA is legally required to submit all of its pesticide regulations to the House and Senate Agriculture Committees for a 30-day review before they become final.

When the agency submitted the final version of the WPS rule (RIN:2070-AJ22) to Congress in 2015, the third-party clause had been removed from the rule.

However, EPA spokesman Nick Conger said that after the final rule was sent to Congress, the agency revisited the comments it had received from the public on its draft rule.

In doing so, agency officials realized that the arguments opposing the third-party clause provided very little new information, “which convinced EPA that it was correct in its initial opinion” to include the clause in the final rule, Conger told Bloomberg BNA in an e-mail.

At the time, a coalition of environmental, labor and Hispanic advocacy groups were fighting to keep the clause in the final rule, according to Ruiz. United Farm Workers, the National Hispanic Leadership Agenda, Earthjustice and many other groups actively lobbied the Obama administration on this issue last summer, Ruiz said.

Said Not Intentional

Conger said the clause in the version sent to Capitol Hill “was not intentionally left out and EPA did not violate [congressional review] requirements.”

But House Agriculture staffers told Bloomberg BNA that they didn't learn the clause had been reinserted into the WPS rule until after the EPA released it publicly.

The committee staffers also said they sent written questions to the agency in February about the reinsertion but still haven't received a response.

Davis said this conflict might have been avoided had the EPA implemented a provision he attached to the 2014 farm bill (Pub. L. 113–79) requiring the agency to set up an agricultural advisory committee.

“Maybe they would have a better understanding of the industry they are intending to regulate and perhaps chosen a different path,” he said.

Rider Targets Third-Party Clause

Meanwhile, the legislation that would fund the EPA for the coming fiscal year contains a rider specifically targeting the third-party clause. It was approved June 15 by the House Appropriations Committee on a 31–18 vote.

The rider attached to this bill would prevent the EPA from spending any of its funding on implementing, or even enforcing, the third-party clause.

The Senate version of the EPA funding bill, which was approved by its own appropriations committee June 16, does not include the rider.

Changing Rule at Last Minute

Jim Aidala, a former senior EPA official who led the agency's chemical regulatory office under the Clinton administration, said it is not unusual for an agency to change a regulation at the last minute, especially when there is interest from leadership at the Cabinet level or higher, which Aidala believes was the case in this situation.

But, when this does happen, EPA employees typically make an informal courtesy call to congressional staffers informing them of the change, Aidala said.

The EPA “might have benefited by giving a heads up to the Hill,” Aidala, now a senior consultant at the law firm Bergeson & Campbell, told Bloomberg BNA. “It’s one thing to say, ‘Sorry, this was above my badge level, things got changed.' That happens.”

Ultimately, Aidala said, an erosion of trust on Capitol Hill is never a good thing for a federal agency, since Congress ultimately controls the agency's purse strings.

“At the end of the day, the larger issue is the credibility of senior EPA officials on the Hill,” he said.

To contact the reporter on this story: David Schultz in Washington at dschultz@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com