EPA Declines Farmers'Quid Pro Quo on Pesticide Worker Rule

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By David Schultz

Oct. 4 — The agriculture industry is looking to strike a bargain with the Environmental Protection Agency to resolve a dispute over new pesticide safety regulations for farmworkers, but EPA officials to date have rebuffed its proposals.

The dispute centers on a provision that requires farmers to turn over information on the pesticides they have used at the request of a third party representing one of their farm workers. It is a part of the EPA’s broader overhaul of its farmworker safety regulations, which the agency completed late last year and will enforce starting Jan. 1, 2017.

The agriculture industry has opposed this third-party measure for years and is backing legislation attached to a House spending bill that would prevent the EPA from implementing it.

On Aug. 31, several trade groups met privately with EPA pesticide regulators to discuss the matter. Two trade group representatives who attended the meeting told Bloomberg BNA that they offered the agency a quid pro quo: the industry would agree to drop its support for the legislation if the EPA delays for a year implementing the third-party provision.

Paul Schlegel, director of environment and energy policy with the American Farm Bureau Federation, attended the meeting. He said he told the EPA regulators that “if you’d be willing to do this, I’ll give you a commitment that we can sit down and do something that accomplishes what you want to do and is still protective of farmworkers.”

EPA Reaction

EPA staffers Rick Keigwin, Kevin Keaney and Nancy Fitz from the pesticides office attended the meeting, according to the two industry representatives. In addition to the Farm Bureau, the National Cotton Council, USA Rice and United Fresh were among the groups that sent representatives.

Both industry sources who spoke to Bloomberg BNA said the three EPA staffers did not appear eager to embrace the proposal. “I did not come away with a feeling they’d actively consider it,” Schlegel told Bloomberg BNA.

Indeed, EPA spokesman Nick Conger later told Bloomberg BNA in an e-mail that the agency “is committed to working with our state co-regulators and the regulated community to ensure that the Jan. 1, 2017, implementation deadline ... is met and that workers are provided with the protections they deserve.”

Farmers’ Fears

The industry’s opposition to the third-party provision is based on the fear that it is too broadly written and, as a result, could force farmers to turn over information to people with ill intent.

The provision does not restrict who can be a third party or what that third party can do with the data he or she obtains. Some agriculture industry groups worry this gives anti-pesticide activists an opening to use the provision to publicly shame individual farmers.

“If there are impediments to workers getting [pesticide information], we’re perfectly open to addressing that,” Schlegel said. But the third-party provision “doesn’t enhance or protect or is even concerned with worker safety.”

Farmworker Regulation Timeline

*March 19, 2014—EPA issues a draft version of new pesticide safety regulations for farmworkers that contains a version of the third party provision strongly opposed by the agriculture industry.

*Mid 2015—EPA sends a revised version of the regulation to Capitol Hill for a standard 30-day review prior to finalization. This version does not contain the third party provision.

*Nov. 2, 2015—EPA formally issues its final farmworker regulations, with the third party provision reinserted.

*May 24, 2016—The House Appropriations Committee introduces legislation that would fund the EPA for the 2017 fiscal year. It includes a rider prohibiting the EPA from enforcing the third party provision.

*Aug. 31, 2016—Agriculture industry representatives meet with EPA pesticide regulators and offer to drop their support for the rider in exchange for delaying implementation of the third party clause by a year.

Virginia Ruiz, director of occupational and environmental health with the group Farmworker Justice, sees it differently. She said farmworkers who are incapacitated after being exposed to pesticides should be able to find out quickly which chemicals they were exposed to.

“We’ve seen cases where it’s literally a matter of life or death to obtain information about the hazardous chemicals they were exposed to on the job” in cases of hospitalization, Ruiz told Bloomberg BNA. “The concerns by industry are vastly overblown. This is about a worker’s right to health information.”

Ruiz added that her group would not support delaying implementation of the third-party clause.

Spending Bill Rider

The legislation that would block the third-party provision would not affect the rest of the agency’s farmworker safety regulations. It is attached as a rider to the House’s EPA appropriations bill for the 2017 fiscal year ( H.R. 5538), which passed on the House earlier this summer on a 231–196 vote.

The Senate version of the appropriations bill ( S. 3068), which was passed out of committee but has not yet come up for a vote on the floor, does not contain the rider.

Another factor driving support for the rider in the House, aside from agriculture industry concerns, is anger over the way the EPA rolled out its farmworker regulations.

The EPA is required by law to send all pesticide-related regulations to congressional agriculture committees at least 30 days before finalizing them. In this instance, the agency sent a version of the farmworker regulation that did not contain the third-party provision to Capitol Hill, later adding it back in at the 11th hour.

Ashley Phelps, a spokeswoman with Rep. Rodney Davis (R-Ill.), the prime backer of the rider in the House, said in an e-mail to Bloomberg BNA that Davis would prefer a delay that “allows the EPA to actually follow the law and provide Congress with an opportunity to conduct a review.”

Conger said earlier this summer that the agency did not intentionally omit the provision from the version that it sent to lawmakers and that this did not violate congressional review requirements.

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

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