Farmworker Rule Sets Minimum Age of 18 for Pesticide Use

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By David Schultz

Sept. 28 — Farmworkers under the age of 18 will no longer be allowed to handle or apply pesticides under an Environmental Protection Agency rule that makes significant changes to regulations governing worker safety in the agriculture industry.

The EPA Sept. 28 released the final version of a rule that updates its worker protection standards for the first time since they were established in 1992. With this, it reaches the end of a nearly two-year rulemaking process (RIN 2070-AJ22).

The final version of the farmworker rule was changed in several ways from a draft version that the EPA published in March 2014. The most significant of these is the changing of the rule's age limit from 16 to 18.

EPA Administrator Gina McCarthy said the agency raised the limit to 18 in the final version in response to some of the almost 2,400 public comments it received, which pointed out recent scientific studies showing that teenagers' brains are still developing and are vulnerable to toxic chemical exposure.

In addition to setting the age limit, the rule also:

• changes the frequency of mandatory pesticide training from once every five years to annually and requires this training to include information about reducing “take home” pesticide exposure;

• gives farmworkers whistle-blower protections that are comparable to those that apply in most other industries;

• requires employers to maintain records of the pesticide they use for at least two years; and

• boosts the requirements for testing and monitoring of personal protective equipment.

 

During a teleconference with reporters, McCarthy said all of these measures in the final rule should help reduce the at least 3,000 pesticide exposure incidents in the agriculture industry that cost a total of more than $15 million per year to treating.

“These numbers tell us the existing rule is just not working the way that it should,” McCarthy said.

Winner: Farmworkers?

For the most part, farmworker advocates praised the EPA's actions.

“Today’s announcement is a dream come true,” Arturo Rodriguez, president of the United Farm Workers union, said. “Most of same rules that have protected other Americans are finally going to protect farmworkers.”

Rep. Raúl Grijalva (D-Ariz.) had sent numerous letters to federal agencies throughout the rulemaking process advocating for the updated farmworker standard, the most recent of which came on Sept. 25.

“For the first time in more than two decades, EPA is taking steps today to ensure millions of farmworkers and their families won’t face unknown health hazards simply for showing up for work each day, and that is something worth celebrating,” Grijalva said in an e-mail to Bloomberg BNA.

In addition to establishing a minimum age, Virginia Ruiz, director of occupational and environmental health for the group Farmworker Justice, praised the rule's worker communication requirements.

“It’s an opportunity for farmworkers to learn more about not only what some of the hazards are but some of the protections they’re entitled to receive on the job,” Ruiz told Bloomberg BNA.

However, some within the farmworker community said they wished the EPA had gone further.

Dr. Ed Zuroweste, the chief medical officer with the Migrants Clinicians Network, said that, for the workers who handle the most highly toxic pesticides, the EPA should have required employers to conduct real-time medical monitoring through periodic blood tests.

Most of the provisions in the rule “are reactive, catching incidents after they occur,” Zuroweste said. “This counteracts very basic tenets of public health.”

Loser: Agriculture Industry 

However, the agriculture industry was unhappy with the final version of the rule.

Several industry groups had urged the EPA to withdraw it after the publication of the draft version last year. They said the EPA had significantly underestimated the costs the rule would impose on them relative to the hard-to-quantify benefits it would have on farmworker health.

The rule “was not necessary based on objective safety data,” Daren Coppock, CEO of the Agricultural Retailers Association, said in a statement. “Instead, the EPA assumed problems existed, invented a solution, and speculated the solution will have positive effects.”

McCarthy, however, disagreed, saying that the costs to the industry will be negligible while farmworkers will see real health benefits.

The Department of Agriculture also sought to relax some of the new requirements in the EPA's rule, ultimately to no avail.

Internal e-mails released by the EPA last year in response to an open records request showed that the agency initially wanted to set the age limit in its draft rule at 18 but was asked by the USDA to lower it to 16. This final rule now essentially restores the age limit that the agency had initially intended to set.

One aspect of the rule that favors the agriculture industry is an exemption that allows members of a farm owner's immediate family to avoid almost all of the rule's provisions. The rule also expands the agency's definition of an immediate family to include grandchildren, nephews, nieces and even first cousins.

What's Next?

The EPA said it would publish the full text of the final version of its rule sometime within the next 60 days.

The new regulations will not go into effect until 14 months after this to allow farmers time to adjust to their new responsibilities and to allow the EPA and states time to develop updated training materials.

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

A pre-publication version of the new worker protection standard is available at http://www2.epa.gov/sites/production/files/2015-09/documents/agricultural_worker_protection_standard_revisions.pdf.