------------------------------------------------------------ Department of Food and Agriculture Office of Pesticide Consultation and Analysis 1220 N street, P.O. Box 942871 Sacramento, CA 94271-0001 September 26, 1994 TO: Interested Parties SUBJECT: Federal Worker Protection Standards Update We prepared this update for a recent briefing and thought it might be of interest to you. Sincerely, Valerie Brown Chief (916) 654-1765 ------------------------------------------------------------ FEDERAL WORKER PROTECTION STANDARDS UPDATE September 23, 1994 In March of 1994, a petition was filed with the United States Environmental Protection Agency (EPA) by several California grower organizations, asking for an exception to restricted entry requirements for irrigators. While there has been no official response from the EPA, the petition should be published in the Federal Register for comment by mid-October. Further, the EPA has publicly assured a resolution to the problem of irrigator reentry by January 1. In July, the National Association of State Departments of Agriculture (NASDA) also filed a petition that expands on the prior early-entry request by addressing all low and no contact activities instead of being specific to irrigators. It proposes that EPA give more exceptions on a case-by-case basis and asks for more science-based decisions regarding personal protection equipment (PPE) and restricted entry intervals. The EPA has acknowledged receipt of this petition but no date of publishing has been set. The California Department of Pesticide Regulation (CDPR) is preparing to implement regulation changes that will incorporate the requirements of the rule into the California Code of Regulations. Further, CDPR has requested a number of "equivalencies" to substitute existing California regulations for certain federal standards. The following are summaries of the NASDA petition and the equivalencies request. NASDA's Proposals Timing of Agricultural Worker Training The current grace period for worker training is 15 days and is due to change to five days in October 1997. Proposal To require training within five days of first entry into treated areas effective January 1, 1995. Reasoning Fifteen days is too long to allow workers entry into treated areas without training. Many workers may work less than fifteen days for a number of growers and may not receiving training. Five days would allow growers time to determine who needs training, and to set training. Less than five days would not allow adequate time to ascertain the training requirement, and set training. Reduced Protection Requirements for Low Contact Work The Pesticide Compliance Dates Extension Act allows early entry, until January 1, 1995, for "irrigation workers who only contact treated surfaces with their feet, lower legs, hands and arms. Employers may provide coveralls, chemical resistant gloves, and chemical resistant footwear instead of label required PPE [and for] other workers if (1) no hand labor activity takes place, (2) no entry is allowed within four hours after application takes place, (3) no entry is allowed until inhalation exposure level listed on product label is reached, and (4) the worker is provided the PPE listed on the label in clean and working order." Proposal To extend reduced PPE requirements to all low-contact activities in addition to irrigation work. Reasoning Other critical activities resulting in low-contact with treated surfaces should benefit from the reduced PPE requirements. Proposal To include a definition for low contact activities in the standards. Reasoning The PPE requirements spelled out in legislation (coveralls, chemical-resistant gloves and footwear) should provide adequate protection for workers falling under this definition. Proposal To allow longer periods of time for short term activities during the restricted entry interval than the current one hour in twenty- four hours. Reasoning Certain tasks require more than one hour to accomplish. Some farms do not have the large number of employees necessary to accomplish tasks that take more than an hour. The added pressure of conducting tasks in one hour may lead to increased physical problems for employees, i.e., injuries, heat stress, and exhaustion. Establish Restricted Reentry Intervals Based on Actual Exposure Currently the standard imposes early entry PPE requirements and restricts reentry to only one hour in a twenty-four period. Proposal To establish a phased reentry interval and PPE requirements based on actual exposure potential. This would allow longer periods of entry to perform job tasks during the restricted entry interval. Reasoning Less toxic pesticides would require less restrictive PPE requirements and reentry restrictions. Since the toxicity of pesticides diminishes after application, more flexibility should be allowed in PPE and reentry requirements. Crop Advisors Currently the Pesticide Compliance Dates Extension Act provides that, until January 1, 1995, crop advisors are not considered agricultural workers or pesticide handlers and are not covered by the requirements of the worker protection standards. Proposal To include in the Standard a permanent distinction between a crop advisor and agricultural worker or pesticide handlers. A crop advisor would not be considered a hand laborer. Reasoning To acknowledge the role of crop advisors while preventing employers from claiming workers are performing crop advisor duties in order to circumvent training requirements. Crop advisors not engaging in hand labor activities would not need to be trained by growers or comply with restricted entry and PPE requirements. Proposal To exclude certain knowledgeable well-trained individuals from the requirements of the rule. These individuals include government agency employees, pesticide company representatives, and university researchers. Reasoning Growers have no direct employment contact with these individuals, making it difficult or impossible to provide the information required in the rule. Their level of knowledge should suffice in lieu of training by the grower. Duration of Decontamination Facility Requirement Currently, decontamination facilities are required for thirty days after an application is made or after a restricted entry interval. Proposal To eliminate the requirement of the decontamination facility beyond the restricted entry interval. Reasoning Requiring the facility for thirty days is unnecessary because by this time the dusts have settled or the spray has dried resulting in the elimination of hazards associated with the application. If a health-based analysis allows reentry, decontamination facilities should not be needed. Employee Responsibility Regarding Personal Protection Equipment Currently the standard imposes employer responsibility to provide PPE that is clean and in good operating order, and to ensure the PPE is used correctly. There is concern that employers will be held liable for actions of informed employees who chose not to wear the PPE. Proposal To request the EPA formally confirm that employers are not held liable for the actions of their informed and trained employees who chose to not follow the rule regarding PPE. Reasoning Employers cannot control the actions of their employees when they are not present at the job site on a continuous basis. Exceptions from Worker Protection Standards Currently EPA is allowed to grant exceptions to entry restrictions in appropriate circumstances. Proposal To broaden EPA's authority to grant exceptions to other aspects of the rule where appropriate on a case-by-case basis. Reasoning Greater flexibility is needed to address the needs of different commodities. Bilingual Requirements Currently posting and training is required in Spanish and English languages. Proposal To eliminate the requirement to provide posting and training in Spanish in areas where Spanish speaking workers are a rarity. Reasoning In some parts of the country where Spanish speaking workers are a rarity, translators are difficult to locate. Employer/Owner Liability Currently regulations impose most responsibilities on the agricultural employer, which is defined as the owner. It may be interpreted as including absentee owners. Proposal For EPA to clarify in regulations that absentee owners not be responsible for the requirements of the rule. Also that EPA relieve owners of agricultural establishments of responsibilities to workers employed by another entity while working on the establishment. ------------------------------------------------------- CDPR Equivalency Requests Employee\Worker Notification The rule requires that workers be notified of applications and of the location of the treated areas, and that the information required to be given workers be displayed at a central location. CDPR is asking equivalency for their amended Section 6618 which will require employers to notify those workers that are likely to come within one-quarter of a mile of the treated field and that the notification be adequate for the initial 24-hour notice, instead of having to display the information at a central location before the application. Greenhouse Ventilation The rule prohibits entry into a treated greenhouse until the air concentration level is measured to be less than the standard on the label. If no standard is on the label, the rule lists six methods of ventilating the greenhouse. CDPR is asking equivalency to provide more flexibility. It lists the same six methods as the rule but also allows any combination of the methods as long as the total of 100% ventilation is achieved. Safety Information for Field Worker CDPR is asking that the safety information required by the rule be provided at the field via their Pesticide Safety Information Series (PSIS) A-9, instead of a central location. The current PSIS A-9 would be revised to include all the safety information required under the rule. Field Signs CDPR is asking to be allowed to retain the Skull and Crossbones design for field posting signs instead of the rule-required Upheld Hand and Stern Face. Treated Field Definition CDPR is asking to continue using the current California definition of a treated field. In California, a field is treated until the end of the growing season. The rule defines a field as treated for thirty days. Application Information CDPR is asking that the use report be allowed to convey application information to workers regarding treated areas. The use report does not have a place for identifying the active ingredient, which is required by the rule. Regarding the use of training cards, while CDPR intends to honor and recognize the worker training cards from other states, it will not recognize handler training cards from other states. Those handlers who come to California from other states will have to be trained here and receive verification here on a yearly basis.