1156 15th Street, NW, Suite 1020, Washington, DC 20005 202/296-9680 Coalition for Sensible Farmworker Protection December 19, 1994 The Honorable Thad Cochran United States Senate 326 Russell Senate Office Building Washington, DC 20510 Dear Senator Cochran: As you are aware, the National Association of State Departments of Agriculture (NASDA) and eighteen other organizations, comprising the Coalition for Sensible Farmworker Protection, submitted a petition to the Environmental Protection Agency (EPA) on July 8, 1994 calling for a rulemaking to correct the serious flaws with the Worker Protection Standard (WPS) for Agricultural Pesticides. You will recall that earlier this year Congress delayed enforcement of the WPS due to the lack of educational materials available to farmers and regulators and because of the practical problems associated with the regulation. As provided by that legislation, January 1, 1995 is the new date upon which the regulation will be enforceable. Due to concerns raised by NASDA and others in September, EPA, NASDA and House and Senate Agriculture Committee staff reviewed EPA's inaction on the NASDA et. al. petition and negotiated a strategy to act on the nine points prior to January 1, 1995. The agreements were contained in a September 30 letter from Assistant Administrator Lynn Goldman setting forth a process to address the issues. Unfortunately we must inform you that EPA has once again failed to address any of the issues and has missed every deadline established in the negotiations and set forth by the Agency in a follow-up meeting. Because of the serious nature of these issues which remain unresolved and because EPA has failed to even publish proposals in the _Federal Register_ for public comment as agreed to in the September 30, the below listed agricultural organizations are forced to once again ask Congress to further delay implementation of this regulation. As drafted, the WPS regulation cannot feasibly be implemented by farmers, cannot effectively be regulated by state regulators (not to mention the fact that the regulation represents a huge unfunded federal mandate), and it will not adequately protect farmworkers. Specifically, we are asking that Congress delay the enforcement of the regulation until the Agency addresses the nine points in the NASDA et. al. petition and Congress then approves the start-up of the WPS. Below is a chart showing the inactivity of EPA regarding each issue since September 30, 1994. --------------------------------------------------------- ISSUE DEADLINE FOR ACTION EPA ACTION COMMENTS ON INACTION Restricted Entry Intervals (REIs) EPA to publish draft of proposal to reduce REIs from 12 hours to 4 hours for many toxicity 3 and 4 products in late October or early November. To be final by January 1. EPA has not published proposal. During meetings between EPA and the industry, EPA has never discussed the issue other than to say the proposal will be forthcoming. After EPA published the change, NASDA was to review the reentry matrix presented in the July 8 petition and resubmit the matrix for public comment. Since EPA has failed to publish the proposal, NASDA has been unable to resubmit the matrix. Training Requirements EPA to propose changes to training requirements by November 30. EPA published a notice on November 16 that the proposal has been sent to USDA for comments. No proposal has been published. During meetings between EPA and the industry, EPA has never discussed the issue other than to say the proposal will be forthcoming. Irrigation and Other Low Contact Activity EPA to propose exception for irrigation activities by November 30. Change to be final by January 1. EPA to propose low contact activity exception for public comment by November 30. For activities with a definite low exposure level, the change to be final by January 1. A broader definition for low contact exception possibly finalized by January 1. EPA has not published a proposal on irrigation activities. EPA has not published any proposal regarding low contact activities. NASDA and EPA have met on a number of occasions to discuss low contact activities. NASDA provided a list of activities to be considered by EPA as scheduled by October 14. NASDA was to respond to additional questions by the Agency by October 30. To date, EPA has not forwarded additional questions to NASDA. Consideration of low contact handler activities was postponed by EPA until worker issues are addressed. EPA delayed one meeting on low contact so that the Director of the Office of Pesticide Policy Dan Barolo could be involved in the meeting. However, Mr. Barolo has never attended any meetings. NASDA and EPA agreed to develop a guidance document explaining that no contact activities are exempt and what qualifies as no contact. NASDA has reviewed the draft, but no guidance has been released. NASDA also provided EPA a draft of a low contact definition on September 30. EPA has continued to refuse to even discuss that draft definition during meetings. Crop Advisor Exception EPA to propose crop advisor exception by November 30. EPA has not published any crop advisor proposal for comment. During meetings between EPA and the industry, EPA has never discussed the issue other than to say the proposal will be forthcoming. Liability Issues EPA to discuss liability issues with NASDA. The issues are with regard to owner/absentee landlord liability and PPE responsibility. Meetings have occurred though no actions have been forthcoming. With regard to PPE liability, EPA agreed to hold a joint meeting between EPA, OSHA and NASDA to review the consistency between OSHA liability and WPS liability regarding PPE. Despite the fact that EPA agreed to have NASDA at the meeting with OSHA, the EPA-OSHA meeting was held without notifying NASDA and then OSHA did not attend meeting when NASDA was present. EPA agreed at the EPA- NASDA meeting to publish guidance explaining and concurring with the OSHA field guidance. EPA subsequently changed that decision and no further discussions have occurred. With regard to owner/absentee landlord liability, the Agency and the industry do not agree on a solution to the problem. EPA has indicated it will not propose anything to change the regulations. Industry is preparing additional information for the Agency which will be submitted within the week. Decontamination Facility Requirement EPA to meet with NASDA to review decontamination requirement. The meeting occurred and the parties continue to disagree. As per the September 30 letter, NASDA is drafting a proposal for public comment. Bilingual Requirement EPA agreed to address the bilingual requirements -specifically the sign requirement for Hawaii. Meetings have occurred to discuss sign requirements. EPA continues to refuse to allow the state of Hawaii, and other states with similar needs, to require a sign to be posted in the language common to the workers. Exception Provision Moving exception provision from reentry section to general provisions. EPA rejected the request in the NASDA et. al. petition. In flat rejecting the proposal with no dialogue, EPA said NASDA could bring back additional information but have not been willing to discuss what information is required. Forest Community's Concerns EPA respond by letter to forestry community concerns by October 14. Final letter not sent. Draft letter sent on November 9. Meeting of All Parties Concerned EPA agreed to hold a meeting of the agriculture industry and worker groups to discuss changes and progress of WPS the week of November 14. No meeting held. When asked about holding the meeting, EPA responded that they were not ready to hold meeting. ---------------------[end of table]--------------------- Paul Craig Roberts of the Institute for Political Economy recently said in _Business Week_, "Government is felt to be out of control because so much law is now made by activist executive branch officials and judges who are unaccountable to the people. If the GOP intends to address the electorate's real concerns and build a lasting majority constituency, it must reassert the people's right to rule themselves through their elected representatives." In explaining the consequences of other federal regulations created by federal bureaucrats rather than by Congress, Roberts used the example of the wetlands regulation and said that "many Americans have suffered regulatory confiscation of their property, and some are being prosecuted and imprisoned, on the basis of wetlands regulations that have no statutory basis. These regulations have been created by bureaucrats out of thin air." Like the wetlands regulations, the WPS has been created out of thin air, with no statutory basis, and on a faulty study without an adequate risk/benefit analysis. The difference is, even after Congress spoke last March and indicated there was significant problems with the regulation, the Agency still disregarded the position of lawmakers and continued to move forward without regard to Congressional thinking. Quick and decisive action by Congress to delay the enforcement of the WPS will show the American public that Congress means what it says regarding regulatory relief. Action is necessary within the first two weeks of Congress since state regulators will be required by the regulation to enforce the program starting January 1, 1995. As we have stated all along, we support the concepts embodied in the WPS. American agriculture wants to protect farmworkers and those who handle pesticides from unreasonable risks of pesticide exposure. This is a legitimate concern of everyone involved in agricultural production. But this policy must be implemented in a way that is reasonable to all. That means regulations that can be easily interpreted by regulators and the regulated community, that are not excessively costly and that don't unnecessarily hinder a business' ability to operate and prosper. Unfortunately, the WPS regulations fail these standards on all counts. It is vital to the industry that Congress once again delay the enforcement of the standard, this time allowing the program to start only after Congress has determined that enforcement is appropriate. Sincerely, Agricultural Retailers Association American Corn Growers Association Florida Citrus Mutual Florida Citrus Packers Florida Fruit & Vegetable Association Fruit Growers League of Jackson County, Inc. Grower-Shipper Vegetable Association Hawaiian Sugar Planters' Association Hood River Grower-Shipper Association Idaho Onion Growers' Association International Apple Institute Michigan Asparagus Advisory Board Midwest Food Processors Association National Agricultural Aviation Association National Alliance of Independent Crop Consultants National Association of State Departments of Agriculture National Association of State Foresters National Association of Wheat Growers National Corn Growers Association National Cotton Council National Council of Agricultural Employers National Grange New England Apple Council Nisei Farmers League North Carolina Growers Association, Inc. Northwest Horticultural Council Nyssa-Nampa Beet Growers Association Society of American Florists Sugar Cane Growers Co-op of Florida Texas Cotton Ginners' Association Texas Cotton Producers, Inc. Treasure Coast Harvesting Association Turfgrass Producers International United Fresh Fruit and Vegetable Association Ventura County Agricultural Association Virginia Horticultural Society Wasco County Fruit League Washington Growers League Washington State Horticultural Association Note: Letter also sent to Representatives Roberts and Boehner