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The Environmental Protection Agency will deny a petition by two large agriculture organizations to push back implementation of a new farmworker safety standard, less than two weeks before the regulation is set to take effect.
The American Farm Bureau Federation and the National Association of State Departments of Agriculture on Dec. 21 sent a petition to EPA Administrator Gina McCarthy to delay the Worker Protection Standard (RIN:2070-AJ22) start date by one year, from Jan. 1, 2017 to Jan. 1, 2018.
The delay would give members “adequate time to prepare for compliance with the rule and to avoid the unfair and unredressable harm to farmers and ranchers,” the groups said in a news release.
EPA spokeswoman Cathy Milbourn told Bloomberg BNA in an e-mail that the agency would go ahead with the rule as planned in January 2017.
The Worker Protection Standard was finalized last year, marking the first update of the regulations in more than two decades. The new rule bans children under 18 from applying pesticides and tightens training requirements for working with and around pesticides, with exemptions for a farmer’s family members.
The farm organizations are concerned about a controversial provision that requires farmers to hand over pesticide information to third parties at a worker’s request.
The information-sharing clause allows farmworkers to choose their representatives and does not limit how the representatives use the information provided. Farmers must hand over pesticide use information within 15 working days under the provision.
The provision was not included in the version of the final rule seen by the House and Senate agriculture committees. Agricultural interests fear the clause could allow anti-pesticide activists to gain access to confidential information to use against agricultural businesses.
“The ‘designated representative’ provision exceeds the scope of the WPS rule by depriving farmers of reasonable expectation of privacy for confidential business information. Moreover, it subjects farmers to potential harassment and public criticisms for lawful use of EPA-approved pesticides,” the petition said.
They assert that the EPA broke the law by not sending Congress the final version of the standards. The Federal Insecticide, Fungicide and Rodenticide Act (Pub. L. No. 61-152) requires the EPA to provide the House and Senate agriculture committees “a copy of the final form of regulations” at the same time the final rules are provided to the secretary of agriculture.
Jim Aidala, senior consultant in the Washington D.C. office of Bergeson & Campbell PC who headed EPA’s chemicals office under President Bill Clinton, told Bloomberg BNA in June that employees typically alert Congress when a regulation undergoes last-minute changes, but that notice is an informal courtesy.
The last-minute changes to the worker protection rules spurred a rider on the agency’s fiscal year 2017 spending bill to block the EPA from implementing that clause. Congress did not pass that appropriations bill.
Environmental and farm labor organizations lauded the rule when it was released, calling the updates long overdue.
“There’s absolutely no reason why it should not move forward,” Virginia Ruiz, director of occupational and environmental health with the group Farmworker Justice, told Bloomberg BNA. “We’ve already waited 25 years for this.”
Ruiz said that the designated representative is most helpful when a worker is seeking medical help as the result of pesticide exposure.
“No worker is going to abuse that right to get information,” said Ruiz, adding that many of the reforms are already in place in large agricultural states like California and Washington. Once implemented, it will be harder for the incoming administration to roll back the standard, if it chooses to do so.
The Farm Bureau and NASDA also said the EPA has dragged its feet in issuing enforcement guidance, educational materials, and training resources to state agencies to help implement the rule.
Farmers will need additional time to understand the rule’s Application Exclusion Zone requirements, which sets a boundary around pesticide application equipment where only trained workers can enter, they said in the petition.
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The American Farm Bureau Federation and the National Association of State Departments of Agriculture petition is available at http://src.bna.com/kZl.
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