UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFICE OF PREVENTION, PESTICIDES, AND TOXIC SUBSTANCES [stamped Sep 30 1994] Mr. Richard W. Kirchhoff Executive Vice President and CEO National Association of State Departments of Agriculture 1156-15th Street Washington, D.C. 20005 Dear Mr. Kirchhoff: On September 27, you attended a meeting on the Worker Protection Standard (WPS) with Jim Aidala, my Associate Assistant Administrator, and other members of my staff. I appreciate your work in resolving concerns about WPS provisions and implementation. As promised in that meeting, I am providing information on the process that we could follow to address "low contact" activities under the WPS. I want to reiterate that the Agency is committed to working with you and the other parties interested in an exception to WPS prohibitions on worker entry to a pesticide-treated area during a restricted entry interval. A great deal of effort will be needed, both from you and from the Agency, to define and establish such an exception. The Agency is committed to providing the needed resources for this undertaking. As you know, in anticipation of the need to adapt WPS requirements in the agricultural community, the WPS includes a process to request exceptions to early entry limitations. The process allows the Agency to work quickly when we have the information needed to support our decision. As you know, the process and the information needs are described in the WPS (40 CFR 170.112(e)). I propose that we meet early next week to (1) list the activities that could be the subject of a low contact exception, (2) set out a plan and a schedule for compiling information needed to support an exception, and (3) establish a schedule for the Agency to prepare and propose an exception. The list of activities will include a range of tasks and circumstances where the amount of worker contact to pesticides depends on variables such as height and density of the crops, the nature of the activity, the surface that contains the residues, and whether residues are dry or wet. So that we can begin work quickly on some, if not all, of the activities, I propose that we list separately those activities that are most assuredly low contact situations. For these activities, you may be able to supply the needed information quickly and then we would expect to proceed with a proposed exception in a matter of weeks. For activities where we are not confident that exposure will be low, more supporting information would be required. Assuming we receive the needed information by the end of the month, we will work to propose the exception by mid or late November. For the first set of activities that are most assuredly low contact situations, we expect to meet a January 1 completion date. A January 1 completion date also is possible for any exception covering those activities that require more supporting information. You requested that EPA consider California's definition of low contact activity when we prepare a low contact exception for the WPS. I understand that a formal exception request is being prepared using the California approach. When we reviewed the California regulations, we found that, rather than defining low contact activities, they refer to and prohibit activities that would involve substantial and prolonged contact. The prohibited activities include hand harvesting, pruning, weeding, and any other activities that involve similar body contact with treated plants. The California regulations illustrate an approach to early entry and the Agency is contacting the State to request the information used to establish this approach. The Agency will be seeking public comment on a proposed exception for low contact irrigation activities. This exception was requested by producers in Hawaii and California. Based on the information received, the Agency expects to have any final exceptions in place by January 1. The Agency has worked with other organizations to define early entry exceptions that will not compromise worker safety. We are committed to working with you to propose an exception for other low contact activities. We will help you in defining the information needed and will expedite the review and proposal process in every way possible. We realize that you are seeking to have the process completed by January 1 and we will work with you and others toward that date. We can assure you that there will be no unnecessary delays and we will keep all parties informed of our progress. At the same time, we are sure you share our concern that worker safety is not compromised and understand that our evaluation must be a careful one. Exceptions must be clearly stated so that they can be easily understood by producers who must apply exceptions to their individual situations as well as by your member agencies responsible for implementing the WPS. This letter focuses on the topic of low contact exceptions to early entry restrictions which is one of the nine topics in your July 8 petition the Agency. The Agency will complete the formal response to your petition by October 22. However, I would like to briefly address each of the other eight topics in this letter. Your petition included proposals to revise WPS training requirements and the requirements for crop advisors. As you know, the Agency is addressing these issues through the rulemaking process and soon will propose changes to these WPS provisions for public comment. We will work to conclude the rule making process as soon as possible after January 1. The WPS will be fully implemented on January 1 with provisions for crop advisors that are likely to be more stringent than those that will be proposed. After proposing the revisions, the Agency intends to issue guidance to States that will describe the potential revisions and recommend enforcement discretion until the crop advisor provisions are formally revised in early 1995. We also will continue our communication efforts with crop advisor organizations to ensure that they are informed of revisions to the rule. Your petition also raises two issues about liability. One item concerns the responsibility for use of required protective equipment. The other item concerns absentee landlords and asks about their responsibilities under the WPS. The second item also raises the issue of the agricultural employers' WPS responsibilities to contract laborers. I am preparing a letter that will be completed next week to state clearly the Agency's interpretation of employer responsibilities under the WPS. We should then use this letter to initiate focused discussions about these issues and any possible resolution. I will set up an early October meeting on these issues. I believe that at least one of the issues concerning absentee landlord responsibilities has already been addressed by the Agency in guidance to explain when they are responsible for providing WPS protections to employees. On the issue concerning employer responsibility for protective equipment use, I am proposing to set up a meeting within the next two weeks that will include Occupational Safety and Health Administration (OSHA) staff and other interested parties to review the WPS requirements and to compare them to OSHA requirements in similar situations. Our goal is to identify areas where the WPS requirements could parallel employer responsibilities under OSHA health regulations. During the meeting we will be having with you early in October, we will discuss your concerns about employer responsibility when they employ workers through labor contractors. In this area, we intend to issue guidance to employers about their responsibilities, including language that they may include in their labor contracts to help them ensure that the contractors provide the WPS protections to workers. We also will initiate an outreach program to ensure that labor contractors are informed about WPS responsibilities. We intend to complete this effort by the end of the year. Your petition includes a proposal to establish restricted entry intervals based on actual exposure. The Agency will be issuing a Pesticide Registration Notice (PRN) to pesticide companies allowing them to change their labels to reduce the restricted entry interval for many products in toxicity categories 3 and 4 from 12 hours to 4 hours. The PRN will be published in the Federal Register for public comment in late October or early November and the final PRN published before January 1. This change corresponds to many of the changes proposed in your matrix for the Tox 3 and 4 products. It does not address the portions for your proposal for the more toxic products in toxicity categories 1 and 2. I propose that NASDA revise its matrix after we issue the PRN for the Tox 3 and 4 products. We could then address this portion of your petition separately, publishing it and requesting public comment. It is likely that you will be petitioning for changes that will require a rule revision (a change to the 4 hour no entry period after application) and changes that could be accomplished through a PRN to pesticide registrants (changes to REIs). After we receive your revised petition, we will work together to establish the schedule for requesting public comment and then for the additional required steps. The duration of decontamination supplies for workers also is included in your petition. The Agency supports the thirty-day requirement based on supporting data that are included in the WPS public record. I understand that you will resubmit this portion of your petition and I propose that we first meet to review our supporting data and discuss your July 8 request. We will publish your resubmitted petition on this topic for public comment. Your final issue concerning bilingual requirements includes a misunderstanding about the training requirements. The WPS requires that training be conducted in the language the worker understands. The EPA produced its training materials in English and in Spanish because of the large Spanish-speaking worker population. Training is not required in Spanish, except for workers who speak only Spanish. The WPS field warning sign is printed in both English and Spanish and the WPS requires use of this sign. The State of Hawaii has proposed use of a field warning sign that substitutes the language spoken by most Hawaiian workers for the Spanish. I believe that the Hawaii request is more than reasonable and have asked our EPA Region 9 staff to resolve it as soon as possible. I will report back to you on this issue next week. Please let me know immediately if you have any further comments or suggestions. I look forward to working with you and will be contacting you to set up a time for a meeting next week. Sincerely, [signed: James V. Aidala for] Lynn R. Goldman, M.D. Assistant Administrator