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By Lisa M. Campbell, Lisa R. Burchi, and Barbara A. Christianson

On October 30, 2020, the U.S. Environmental Protection Agency (EPA) issued a final rule on the Agricultural Worker Protection Standard (WPS) regulation that revises the requirements on the pesticide application exclusion zone (AEZ), defined as an “area surrounding the point(s) of pesticide discharge from the application equipment that must generally be free of all persons during pesticide applications.”  According to EPA, the targeted changes improve the enforceability and workability of the AEZ requirements, decrease regulatory burdens for farmers, and maintain critical worker protections.  EPA also states the revisions made to the AEZ are consistent with the 2018 Pesticide Registration Improvement Extension Act of 2018 (PRIA 4).

The final AEZ requirements will go into effect on December 29, 2020.

EPA initially promulgated the WPS regulation in 1992 under EPA’s Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorities to protect farm workers from pesticide exposures in production agriculture. According to EPA, “WPS is a uniform set of requirements for workers, handlers, and their employers that are generally applicable to all agricultural pesticides and are incorporated onto agricultural pesticide labels by reference. Its requirements complement the product-specific labeling restrictions and are intended to minimize occupational exposures generally.”

In 2015, EPA issued significant revisions to the 1992 WPS.  Of particular significance, 2015 revisions included a new provision requiring agricultural employers to keep workers and all other individuals out of the AEZ during outdoor pesticide applications.  The AEZ was set at 25 feet in all directions for ground pesticide applications when sprayed from a height greater than 12 inches, and 100 feet in all directions for outdoor aerial, air blast, air-propelled, fumigant, smoke, mist, and fog pesticide applications.  This provision was controversial, however, with state regulators expressing concerns with enforcing the complex AEZ requirements and farm owners expressing concerns with applying and complying with pesticide regulations.

EPA states in the final rule that it clarified and simplified the AEZ requirements based in part on input from state pesticide regulatory agencies and agricultural stakeholders after the adoption of the 2015 WPS rule.  Consistent with PRIA 4, EPA is implementing changes related only to the AEZ requirements in the WPS.  These targeted changes include:

  • Modifying the AEZ so it is applicable and enforceable only on an agricultural employer’s property, as proposed.
  • Adding clarifying language indicating that pesticide applications that have been suspended due to individuals entering an AEZ on the establishment may be resumed after those individuals have left the AEZ.
  • Excepting agricultural employers and handlers from the requirement to suspend applications owing to the presence within the AEZ of persons not employed by the establishment who are in an area subject to an easement that prevents the agricultural employer from temporarily excluding those persons from that area.
  • Allowing the owners and their immediate family (as defined in 40 C.F.R. Section 170.305) to shelter in place inside closed buildings, housing, or shelters within the AEZ, and allowing the application performed by handlers to proceed, provided that the owner has instructed the handlers that only the owner’s immediate family are inside the closed shelter and that the application should proceed despite their presence.
  • Simplifying and clarifying criteria and factors for determining AEZ distances of either 100 or 25 feet by basing the AEZ on application method.  EPA has removed the language and criteria pertaining to spray quality and droplet size, as proposed, so that all ground spray applications from a height greater than 12 inches are subject to the same 25-foot AEZ.

EPA states that many of the changes proposed in November 2019 were retained in the final rule.  Changes that were made include the following:

  • The final rule adds clarifications and revisions to the regulatory text regarding providing an immediate family exemption to the AEZ requirements.  The final rule provides that the AEZ exemption for the immediate family members applies only when the farm owner or immediately family members are inside an enclosed building within the AEZ.
  • The final rule also clarifies that owners may permit handlers to continue with applications when the owner’s family is inside an enclosed structure or home, provided that the owner has expressly instructed the handlers that only the owner’s immediate family members are inside the closed shelter and that the application should proceed despite their presence within that structure.

The final rule is available at EPA-HQ-OPP-2017-0543.  Additional information on the revisions to the AEZ requirements is available here.


 

By Susan M. Kirsch and Barbara A. Christianson

On October 24, 2019, the U.S. Environmental Protection Agency (EPA) announced that it is proposing narrow updates to the Worker Protection Standard’s (WPS) provision on the Application Exclusion Zone (AEZ) requirements.  By narrowing updates to the WPS, EPA states that it will “improve the long-term success of the agency’s Application Exclusion Zone requirements” and “would improve enforceability for state regulators and reduce regulatory burdens for farmers.”  EPA believes narrowing updates to the WPS will also continue to protect the health of farm workers and other individuals near agricultural establishments who could be exposed to agricultural pesticide applications.  The proposed updates are consistent with the 2019 Pesticide Registration Improvement Act (PRIA).

EPA Administrator Andrew Wheeler states that EPA’s proposal “would enhance the agency’s Application Exclusion Zone provisions by making them more effective and easier to implement.”  Wheeler states that “our proposal will make targeted updates, maintaining safety requirements to protect the health of those in farm country, while providing greater flexibility for farmers.”

EPA will hold a 90-day public comment period and seeks input on select updates that were publicly suggested to EPA by both state pesticide agencies responsible for enforcing the provision and agricultural stakeholders since the AEZ requirement was adopted in 2015.  The proposed updates are also consistent with the U.S. Department of Agriculture’s comments during a May 2017 meeting of EPA’s Pesticide Program Dialogue Committee.

Specifically, EPA is proposing to:

  • Modify the AEZ so it is applicable and enforceable only on a farm owner’s property, where a farm owner can lawfully exercise control over employees and bystanders who could fall within the AEZ.  As currently written, the off-farm aspect of this provision has proven very difficult for state regulators to enforce.  These proposed changes would enhance both enforcement and implementation of the AEZ for state regulators and farm owners, respectively.  Off-farm bystanders would still be protected from pesticide applications with the existing “do not contact” requirement that prohibits use in a manner that would contact unprotected individuals.
  • Exempt immediate family members of farm owners from all aspects of the AEZ requirement.  This will allow farm owners and their immediate family members to decide whether to stay in their homes or other enclosed structures on their property during certain pesticide applications, rather than compelling them to leave even when they feel safe remaining.
  • Add clarifying language that pesticide applications that are suspended due to individuals entering an AEZ may be resumed after those individuals have left the AEZ.
  • Simplify the criteria for deciding whether pesticide applications are subject to the 25- or 100-foot AEZ.

Publication of the proposed rule in the Federal Register will begin a 90-day comment period.  Comments are due on or before January 30, 2020.

When EPA included the AEZ concept in its 2015 WPS updates, of chief concern for pesticide applicators, farmers, and state departments of agriculture were the compliance and enforcement practicalities of aspects of the AEZ requirements.  For example, in scenarios where the AEZ extends to nearby roads and highways, it is difficult for pesticide applicators to be aware of every vehicle that may pass by that could enter the AEZ during applications.  It is unclear if the revised AEZ requirements adequately address these practical realities.  Agricultural stakeholders and pesticide applicators may wish to submit comments on the proposed revisions.

Additional information on the WPS is available on EPA's website.


 

By Lisa M. Campbell and Susan M. Kirsch

On February 15, 2018, the U.S. Environmental Protection Agency (EPA) added resources to its website regarding the Worker Protection Standard (WPS) and the Application Exclusion Zone (AEZ) requirements of the WPS.  As of January 2, 2018, full compliance is required with all of the AEZ-related requirements in the WPS. The new EPA website resources include:

While many welcome EPA’s guidance on the many thorny issues presented by the WPS and AEZ requirements, some believe that in places, the newly issued guidance raises additional questions and leaves some significant questions unaddressed.  Given the controversy over this rule, this new guidance should be reviewed closely.

More information on the WPS, including EPA’s December 2017 announcement of its intention to revise the AEZ and other WPS provisions, and current implementation deadlines can be found on our blog under key word WPS and key phrase Worker Protection Standard.


 

By Lynn L. Bergeson and Margaret R. Graham

The U.S. Environmental Protection Agency (EPA) recently announced, in two separate notices, that it is initiating a process to revise (1) certain requirements in the Agricultural Worker Protection Standard (WPS) (82 Fed. Reg. 60576 (Dec. 21. 2017)); and (2) to revise the minimum age requirements in the Certification of Pesticide Applicators (C&T) rule.  82 Fed. Reg. 60195 (Dec. 19. 2017).

For the WPS rulemaking, the provisions at issue were identified as part of the public comments received in response to Executive Order (EO) 13777, Enforcing the Regulatory Reform Agenda.  Three provisions in particular were the subject of public comment, and later consideration by the EPA’s Office of Pesticide Programs (OPP) Pesticide Program Dialogue Committee (PPDC) at its November 2, 2017, meeting.  The three provisions are:  minimum age (the 2015 WPS specifies a minimum age of 18 years, with an exemption for owners of agricultural establishments and their immediate family members); designated representative (the 2015 WPS requires employers to provide pesticide application information and safety data sheets to a designated representative of a worker or handler under specified circumstances); and application exclusion zones (AEZ) (the 2015 WPS requires the establishment of AEZs with respect to outdoor production on farms, nurseries, and forests to reduce the number of incidents where workers or others are exposed to pesticides during agricultural pesticide applications). 

EPA also announced that the compliance dates in the revised WPS remain in effect and that EPA has no intent to extend them.  This means that most provisions in the revised WPS went into effect on January 2, 2017, and compliance with two additional requirements will begin on January 2, 2018.  The two requirements include compliance with the display of pesticide safety information, and pesticide handlers must temporarily suspend applications if workers or others enter in the application zone during pesticide applications.  The only requirements in the revised WPS that will not be in effect as of January 2, 2018, are the requirements that the worker and handler pesticide safety training material cover the expanded content at 40 C.F.R. §§ 170.401(c)(3) and 170.501(c)(3).  The 2015 revised WPS provided that compliance with the expanded pesticide safety content in these sections was not required until 180 days after EPA publishes in the Federal Register a notice of availability of certain training materials.  While there are training materials available that meet the expanded content requirement, EPA has not yet published such a Federal Register and apparently does not intend to do so until after the rulemaking announced on December 21 has concluded.

For the C&T rule, EPA expects to “publish a Notice of Proposed Rulemaking to solicit public input on proposed revisions to the rule by the end of FY2018,” and it has no plans to change the implementation dates in the January 4, 2017, final rule.  The C&T notice states that “EPA has determined that further consideration of the rule’s minimum age requirements is warranted through the rulemaking process” after it considered comments received pursuant to EO 13777, revisiting the record, and reviewing the applicable statutory. 

More information on WPS issues is available on our blog under key phrase Worker Protection Standard