Industry Begins Pesticide Protection Compliance Efforts

By Brian Dabbs

Jan. 6 — Agriculture representatives are now wading into efforts to educate local industry on pesticide requirements that stem from the Environment Protection Agency’s new worker protection standard.

Led by the Agricultural Retailers Association and the American Farm Bureau Federation, the representatives are pledging full commitment to meet compliance thresholds despite outlining a litany of complaints on the rulemaking in past comment periods. The EPA and others also are readying to collaborate on reaching out to farmers and growers.

Education Process to Consume 2016

The education process, which will focus on additional documentation, training and other requirements, is likely to consume the 2016 calendar year in preparation for the rule's initial compliance deadline of Jan. 2, 2017, Brian Breaux, associate commodity director at the Louisiana Farm Bureau Federation, told Bloomberg BNA Jan. 5.

“It’s going to take a year for us to educate both small and big farmers to apprise them on the new requirements,” said Breaux. “It’s a big obligation but we’re ready for it.”

The final rule (RIN 2070-AJ22) took effect Jan. 4 following promulgation in November 2015. By Jan. 2, 2017, farmers and growers will have to meet a slate of mandates including boosted documentation requirements, which will force them to keep pesticide records on the books for two years and increase public posting of restricted areas, and measures to test and evaluate personal protective equipment.

By January 2017, farmers and growers also will no longer be able to employ pesticide handlers under the age of 18. New training requirements, a particularly contentious element of the rule that includes updates to training materials, are required roughly a year after.

The EPA didn’t provide comment to Bloomberg BNA on its outreach plans or ability to implement the new worker protection standard with existing resources.

Industry Concerns Remain

Several agriculture representatives said they are unaware of any attempts to litigate the final rule. The industry previously indicated it wouldn't legally challenge the new standard.

The Federal Insecticide, Fungicide, and Rodenticide Act, which paved the way for the worker protection standard, gives a 60-day window for stakeholders to litigate rulemaking. That opportunity ran dry at the beginning of 2016. In a Jan. 5 interview with Bloomberg BNA, Agricultural Retailers Association CEO Daren Coppock said his group is already bogged down with challenges to a slew of EPA rules and other practices, such as a chlorpyrifos proposal, and the agency’s embrace of epidemiology studies.

Despite vows to comply with the new worker protection standard, agricultural leaders are still hitting back at parts of the final rule they deem onerous or open to abuse.

The EPA moved forward with a portion of the rule that requires employers to maintain and avail workers, handlers, their designated representative and certain medical personnel pesticide application data used on the property for the previous two-year period. That mandate doesn’t help ensure workers are safeguarded on agriculture fields, said Paul Schlegel, energy and environment director at the Farm Bureau, told Bloomberg BNA Jan. 4.

“We used to have to keep [material safety data sheets] for, I think, 30 days; now it's two years,” he said. “And if you don't do that you are subject to a fine for a paperwork violation that doesn't protect workers.”

Designated Rep Language 

Agricultural industry representatives said the language on designated representatives in the final rule is particularly troubling. The rule allows designated representatives to access documents and stay abreast of communications between employers and workers.

The rule’s language opens the door for activists to obtain those documents, even though those activists may have no relation to specific workers, said Schlegel.

“Existing law says if a designated representative presents the right information, a farmer is prohibited from denying those pesticide documents. But how is the farmer supposed to know if the worker was even employed on his farm?” Schlegel asked, pointing to confusion from high rates of undocumented workers in the farming industry. “If activists that don’t like pesticides—and they always do whatever they can to challenge them despite the fact that the pesticides are legal and used legally—want to cause a furor or mischief, they can do it.”

Industry is still exploring ways to address that language, Schlegel said.

‘Overblown' Concerns

The director of occupational and environmental health at Farmworker Justice, however, dismissed such concerns as overblown.

“There have been, unfortunately, cases where workers and their representatives try to access records for workers exposed to pesticides to help with their treatment, but state departments of agriculture denied that information to representatives of the workers and delayed very important treatment,” Virginia Ruiz told Bloomberg BNA Jan. 4. “So we need to be able to safeguard access to that important information.”

Ruiz mentioned past incidents in which mothers that handled pesticides and birthed children with severe health defects couldn't access information on their pesticide exposure. The new recordkeeping requirements may also protect employers from improper challenges, she said.

Training Is a Heavy Lift

The training portions of the final rule are the biggest challenges to industry though, said Coppock. Those portions, due to take effect at the outset of 2018, include requirements for annual training and training on the first day of work.

“Training is increased from once every five years to one year and extending coverage, and EPA said it won't have a significant financial impact,” said Coppock. “That's a ludicrous conclusion.”

In the final rule, the EPA said the new standard will not have a significant impact on a substantial number of small businesses. The new regulations will affect less than 0.1 percent of annual sale or revenue on average, the agency said.

To contact the reporter on this story: Brian Dabbs at bdabbs@bna.com

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