By James V. Aidala and Barbara A. Christianson

On March 13, 2023, the U.S. Environmental Protection Agency (EPA) issued a proposed rule that would update the pesticide Application Exclusion Zone (AEZ) requirements under the 2015 Agricultural Worker Protection Standard (WPS). 88 Fed. Reg. 15346. The proposed rule is available at EPA-HQ-OPP-2022-0133, and comments on the proposed rule are due on or before May 12, 2023.

Application Exclusion Zone

According to EPA’s press release, the WPS regulations offer protections to over two million agricultural workers and pesticide handlers who work at over 600,000 agricultural establishments. In 2015, EPA made significant changes to the standard to decrease pesticide exposure among farmworkers and their family members.

Among the changes, the revised standard includes a new provision requiring agricultural employers to keep workers and all other individuals out of the AEZ area during outdoor pesticide applications. The AEZ is the area surrounding an ongoing pesticide application that people must not enter to avoid exposure. EPA states that an AEZ moves with the equipment during applications to protect farmworkers and bystanders that could be contacted by pesticides.

In 2020, EPA published a rule specific to the AEZ requirements, limiting the applicability of the protections to the agricultural employer’s property and shrinking the AEZ size from 100 feet to 25 feet for some ground-based spray applications. Prior to the effective date of the 2020 AEZ Rule, petitions were filed in the U.S. District Court for the Southern District of New York (SDNY) and in the U.S. Second Circuit Court of Appeals challenging the 2020 Rule. The SDNY issued an order granting the petitioners’ request for a temporary restraining order. As a result, the 2020 AEZ Rule has not gone into effect, and the AEZ provisions in the 2015 WPS remain in effect.

EPA states that it determined the provisions in the 2020 AEZ Rule weakened protections for farmworkers and nearby communities from pesticide exposure and should be rescinded to protect the health of farmworkers, their families, and nearby communities.

Proposed Changes and Flexibilities

EPA is proposing to reinstate several provisions from the 2015 WPS, including:

• Applying the AEZ to:
  • Beyond an establishment’s boundaries; and
  • When individuals are within easements (such as easement for utility workers to access telephone lines).
• Establishing AEZ distances for ground-based spray applications of:
  • 25 feet for medium or larger sprays when sprayed from a height greater than 12 inches from the soil surface or planting medium; and
  • 100 feet for fine sprays.

Additionally, EPA is proposing to retain two provisions in the 2020 AEZ Rule that it believes are consistent with the intent of the 2015 WPS AEZ requirements and, according to EPA, are supported by information available that provides more clarity and flexibility for farming families. EPA proposes to retain:

• A clarification that suspended pesticide applications can resume after people leave the AEZ; and
• An “immediate family exemption” that allows only farm owners and the farm owners’ immediate family to remain inside enclosed structures or homes while pesticide applications are made, providing family members flexibility to decide whether to stay on-site during pesticide applications, rather than compelling them to leave even when they feel safe remaining in their own homes. 

Commentary

The 2015 WPS rule made significant changes and enhancements to the original 1992 WPS program and represented years of review and consideration of significant changes to the earlier rules. For the most part, by the end of that rule-gestation process, most changes were not considered controversial even as various stakeholders criticized or were dissatisfied by the final rule. Nonetheless, as the Trump Administration arrived in 2017, it considered revisions to the 2015 WPS rule in three areas: the minimum age of workers, the ability for a worker to designate a third-party representative to have the right to review application records if there was an inquiry related to a possible pesticide-related injury, and the AEZ provisions.  During this time that the Trump Administration considered and proposed changes, reauthorization of the pesticide industry fee law, the Pesticide Registration Improvement Act (PRIA), was moving through Congress. Proposed to be part of the 2018 Farm Bill, the PRIA reauthorization legislation was held up by Senator Udall (D-NM) over concerns about what he considered changes that would unacceptably weaken the 2015 WPS program.

This part of the saga came to an end when Senator Carper (D-DE), as Chair of the Senate Environment Committee, exchanged letters with the Trump Administration that promised no changes to the WPS requirements except for consideration of the AEZ provisions in exchange for allowing certain EPA appointee nominations to be considered for a confirmation vote.  This is worth noting since it was an explicit exchange of correspondence and not a more typical “informal” agreement between Administrations and Senators regarding confirmation votes. Eventually, the Trump Administration proposed and eventually issued only revisions to the AEZ requirements to, according to statements at the time, clarify and simplify the 2015 rule provisions.  It is those revisions that are now being changed in this 2023 rule.

In the end, these 2023 revisions mostly revert the AEZ requirements back to the 2015 regulation requirements. They do include some additional elements of the 2020 changes to respond to stakeholder concern elements of the provisions to clarify more precisely how to protect bystanders.  As a result, these regulations continue to implement two of the declared priorities of the Biden Administration: (1) increased emphasis on environmental justice concerns; and (2) to review and likely reverse decisions made by the Trump Administration considered to be not sufficiently protective and/or not sufficiently justified by the underlying factual basis relied upon by the previous Administration.

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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.

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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.

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