July 8, 1994 HAND DELIVERED The Honorable Carol M. Browner Administrator U.S. Environmental Protection Agency 401 M Street, S.W. Washington, DC 20460 RE: Petition For Worker Protection Standard Rulemaking Dear Administrator Browner: Pursuant to Section 553(e) of the Administrative Procedure Act, 5 U.S.C. S 553(e), the National Association of State Departments of Agriculture (NASDA) submits this petition for rulemaking to request a revision to the worker protection standard, 40 C.F.R. Part 170. NASDA is the national nonprofit association representing the commissioners, secretaries, and directors of agriculture in the 50 states and four territories. As the chief agricultural officials in each state, NASDA's members work closely with agricultural employers and workers across the country to implement the worker protection standard. In addition, cooperative agreements with the U.S. Environmental Protection Agency (EPA) designate the state departments of agriculture to serve as the lead state pesticide regulatory agency for the enforcement of the worker protection standard in most states. NASDA is thus uniquely qualified to provide insight into the worker protection regulations. NASDA also recently collected extensive information from its members, worker representatives, and agricultural producers concerning problems associated with the application of the worker protection standard and, based on that information, has developed a number of regulatory proposals to address these problems. If implemented, these proposals will improve the worker protection standard by controlling and reducing worker safety risks in a cost effective manner. The specific issues that NASDA believes should be addressed in the requested rulemaking are outlined below. NASDA is joined in this petition by the American Corn Growers Association, the Agricultural Retailers Association, the American Sod Producers, the California Grape and Tree Fruit League, DeBruyn Company, the Hawaiian Sugar Planters' Association, Moore & Dorsey, Inc., the National Agricultural Aviation Association, the National Alliance of Independent Crop Consultants, the National Association of Wheat Growers, the National Corn Growers Association, the National Cotton Council, the National Council of Agricultural Employers, the National Farmers Union, the National Grange, the North Carolina SweetPotato Commission, Inc., the Texas Cotton Ginners' Association, and the Washington Growers League. A. Timing of Agricultural Worker Training The current standard provides that pesticide safety training must be provided to workers within fifteen days of their entry into pesticide-covered areas until October 20, 1997. See 40 C.F.R. S 170.130(a)(3). After October 20, 1997, training must be provided within five days. Id. In addition, the standard requires that retraining occur every five years. Id. S 170.130(a)(1). NASDA requests that EPA reduce the fifteen-day "grace period" to five days in advance of the current schedule, preferably on January 1, 1995. NASDA believes that the fifteen-day grace period included in the current regulations is unnecessarily lengthy. With adequate preparation, employers should be able to provide the required training within a five-day period. For example, the preparation materials EPA has recently developed enable employers to provide necessary training faster than was previously possible. Moreover, the longer period should be shortened for safety-related reasons. Fifteen days is too long to permit untrained workers near treated areas. In addition, agricultural workers who work for many employers for short periods of time potentially may avoid receiving training entirely. NASDA strongly supports the five-day grace period for worker training. This shorter period ensures that workers will receive important training within their first week on the job. The five-day period provides sufficient time for workers to establish themselves in a work location and for employers to ascertain which workers need training and to arrange training sessions. The five-day period also allows employers to provide training without sacrificing productivity during crucial phases of the growing season. In addition, it helps maintain a farm's overall efficiency by permitting employers to train employees starting work at different times or on different days in the same session. NASDA notes that a zero-day grace period would not provide agriculture employers with the needed degree of flexibility. The elimination of the grace period would have the practical effect of forcing many employers to offer daily training sessions. This would be particularly burdensome for small farmers who may need to hire a professional trainer and for employers with non-English-speaking workers who may need to obtain a translator. In addition, it is important to note that the grace periods and the five-year retraining requirement contained in the current worker protection standard were established following extensive negotiations among stakeholders. Reduction of the grace period below five days would constitute a breach of that compromise. Accordingly, NASDA would oppose attempts to eliminate the grace period entirely. In order to be certain that agricultural workers are adequately trained and protected without sacrificing productivity, NASDA therefore recommends that training take place within five days of initial exposure, with retraining required every five years. In addition, NASDA believes that training requirements for agricultural workers and pesticide handlers should be consistent, and since many states require handler recertification every five years, it is practical and logical to continue the five-year training cycle presently contained in the federal regulations. B. Reduced Protection Requirements for Low Contact Work One provision of the recently enacted Pesticide Compliance Dates Extension Act, Pub. L. No. 103-231, established a reduced personal protective equipment (PPE) requirement for irrigation workers whose only contact with treated surfaces is with their feet, lower legs, hands and arms. As described in more detail below, NASDA supports this action and requests that EPA extend the requirement to all low-contact situations. The Pesticide Compliance Dates Extension Act includes a section permitting workers to enter a treated area during the restricted entry period specified on the pesticide product's label until January 1, 1995, if the agricultural employer ensures that (1) no hand labor activity is performed, (2) no entry is allowed within four hours following the pesticide's application, (3) no entry is allowed until the inhalation exposure level listed on the product's label is reached, and (4) the worker is provided the personal protective equipment listed on the label in clean and working order. Id. S 2(a). This section also contains a specific provision regarding protective equipment for irrigation workers. Agricultural employers need only provide coveralls, chemical resistant gloves and chemical resistant footwear for irrigation work when the worker's only contact with treated surfaces is to his feet, lower legs, hands and arms. Id. S 2(b). NASDA supports this revision to the regulatory scheme, and recommends several related revisions. First, NASDA recommends that the worker protection standard be revised to apply the reduced PPE requirement to all low-contact situations in addition to the narrow irrigation work scenario outlined in the legislation. / For example, the use of agricultural workers to prop up tree limbs or light smudge pots to protect against frost requires very little contact with treated areas, making a lesser degree of PPE appropriate. Similarly, such tasks as activating fans, adjusting greenhouse vents and repairing certain equipment are likely to result in extremely limited contact with pesticide-treated surfaces, and thus should be permitted with reduced PPE. NASDA believes that these low-contact tasks should receive the same regulatory treatment as irrigation work. NASDA requests that the worker protection regulations be revised to incorporate a definition of "low contact" based on an employee's limited exposure to treated areas. Under these low contact circumstances, the use of limited PPE outlined in the recent legislation -- coveralls, chemical-resistant gloves and footwear -- is adequate to protect the safety of workers performing low contact tasks such as those described above. Second, NASDA suggests that, for low contact work in general, the regulations incorporate a somewhat longer period for short-term activity during the restricted entry period than the one hour in twenty-four contained in the current standard. The one-hour limitation makes it exceedingly difficult for agricultural workers to accomplish certain tasks. For example, for large irrigation operations, one hour is not sufficient time to load and relocate irrigation pipes. The increased time pressure the one-hour limit causes can create physical problems for the worker, such as heat stress and exhaustion, and can lead to improper or inadequate performance of their jobs, including potential safety hazards. The limitation is also burdensome to small operators who cannot afford a large labor force. In addition, the one-hour limit often does not allow adequate time for the evaluation and correction of problems. The analysis and table contained in Section C of this petition provide proposed alternative time periods. NASDA firmly believes that these suggested revisions with regard to low-contact work are fully consistent with a risk-based approach to protecting workers, as is incorporated into the worker protection standard. C. Establish Restricted Reentry Intervals Based on Actual Exposure The current worker protection standard imposes early entry PPE requirements and restricts reentry to one hour over a twenty-four hour period for the full duration of the restricted entry interval. 40 C.F.R. S 170.112(c). NASDA believes that this requirement is overbroad and unnecessarily inflexible in that it does not consider actual exposure levels during the reentry interval. NASDA requests that EPA establish reentry intervals based on actual exposure potential. In particular, NASDA requests EPA consideration of the following proposal that would impose a phased approach to reentry and PPE, based on the toxicity level of the pesticide that has been applied. NASDA understands that, from a practical standpoint, degradation or dilution of toxic products is not a discrete occurrence at the moment of expiration of the restricted entry interval, but rather occurs gradually with residue levels steadily decreasing from the time of application. NASDA's proposed approach recognizes the fact that the level of risk of exposure decreases with time after application, and therefore allows a reduced level of PPE and eliminates the one-hour reentry limit during periods of lower risk. NASDA's approach also recognizes, as do the current regulations, that when workers' activities involve no contact with treated areas, full entry is permissible; in addition, NASDA's proposal also incorporates the reduced PPE approach for low contact work, as outlined in the preceding section of this petition. Finally, NASDA's proposal recognizes that certain pesticides are more toxic than others. Toxic pesticides present greater dangers to workers than less toxic pesticides. The proposed approach takes these factors into account. It would prohibit entry for a shorter period following application for less toxic pesticides, and would impose reduced PPE requirements for those pesticides. In addition, NASDA's proposal would provide for a two-phase restricted entry interval, allowing lesser PPE and work time limits for the later post-application phase. The proposed approach is summarized in the following table: *********************************************** *** NOTE: The table in the original petition defies precise conversion into ASCII format for this archive. Below is information from the table. Column headings are: Pesticide Toxicity Category Prohibited Entry Total Restricted Entry Interval Restricted Entry Interval/Phase 1 Restricted Entry Interval/Phase 2 Restricted Entry/No Contact Restricted Entry/Low Contact There is one row in the table for each pesticide toxicity category: IV 2 hours; 12 hours; ; Reduced PPE (long sleeves, pants, shoes, etc.); Entry allowed; normal clothing Entry allowed; reduced PPE III 2 hours; 12 hours 2 hours; label PPE; 1 hour in 24 time limit 6-12 hours; reduced PPE; no time limit Entry allowed; normal clothing Entry allowed; reduced PPE II 4 hours 24 hours 4-12 hours; label PPE; 1 hour in 24 time limit 12-24 hours; reduced PPE; no time limit Entry allowed; normal clothing Entry allowed; reduced PPE I 4 hours 48 hours* 4-24 hours; label PPE; 1 hour in 24 time limit 24-48 hours*; reduced PPE; no time limit Entry allowed; normal clothing Entry allowed; reduced PPE * In certain circumstances, the restricted entry interval for active ingredients with a toxicity Category I is 72 hours. 40 C.F.R. S 156.208(c)(2). In these circumstances, the total restricted entry interval and the Phase 2 restricted entry interval should be expanded to 72 hours. *********************************************** [the verbatim petition text continues] A significant advantage of a phased reentry requirement is that it would encourage use of less toxic chemicals, consistent with the Agency's frequently-stated goals. Under this approach, farmers could obtain timely feedback regarding the effectiveness of a lower-level toxicity pesticide application, eliminating the need for use of more acutely toxic materials to assure effective pest management. Under the present regulations, farmers might be forced to use more toxic pesticides or to revert to such environmentally undesirable management practices as automatic spray applications, in order to minimize the risk of crop loss or damage. NASDA's proposed phased approach also has the added benefit of eliminating certain unnecessary and impractical PPE requirements. For example, the present rules require a second layer of clothing in particular situations. See, e.g., 40 C.F.R. S 170.112(c)(4)(vi). For agricultural employees working in extremely high temperatures, this requirement is likely to lead to heat prostration or other similar health hazards. The phased approach, by incorporating more flexible PPE requirements, would remove this problem in many situations. D. Crop Advisors NASDA also requests a rulemaking for EPA to address crop advisors issues. The Pesticide Compliance Dates Extension Act referred to above includes a section concerning crop advisors. That section provides that, until January 1, 1995, crop advisors are not considered agricultural workers or pesticide handlers, and thus are not covered by the requirements of the worker protection standard. See Pub. L. 103-231, S 3. In enacting this legislation, Congress made clear that the current regulatory definition of "crop advisor" was applicable to this provision. See 140 Cong. Rec. S3805 (Mar. 24, 1994) (Statement of Senator Leahy, Senate Agriculture Committee Chairman). The regulatory definition of "crop advisor" includes "any person who is assessing pest numbers or damage, pesticide distribution, or the status or requirements of agricultural plants," and specifically excludes "any person who is performing hand labor tasks." 40 C.F.R. S 170.3. NASDA strongly supports the goal of the legislation and the related regulatory provision, which is to clearly distinguish between agricultural workers and crop advisers, so that employers are prevented from circumventing protection requirements by claiming that workers are performing crop advisor duties. See 140 Cong. Rec. S3805 (Mar. 24, 1994) (Letter from Assistant Administrator Lynn R. Goldman, included in statement by Senator Leahy). NASDA believes that EPA should revise the worker protection standard to provide a permanent distinction between crop advisors and agricultural workers or pesticide handlers, based on the tasks they perform. In addition, NASDA believes that the worker protection regulations should be revised to clarify that certain types of knowledgeable, well-trained individuals who are not working for the agricultural employer (either as crop advisors or hand laborers) are not covered by the worker protection standard. Specifically, NASDA recommends that the standard exclude persons such as government agency employees, pesticide company representatives and university researchers. This sort of exclusion is essential, since agricultural employers have no reliable means of providing pesticide information to these types of persons, with whom they have no direct (or even indirect) employment relationship. Also, by excluding these individuals from the scope of the crop advisor definition, EPA would make clear that these persons are different from the less knowledgeable employees whom the worker protection standard is meant to cover. Indeed, these types of individuals are likely to be the best-informed regarding the hazards associated with pesticides. NASDA also recommends that the standard exclude paid crop advisors that work on a full-time basis for a group of agricultural employers but only part-time for any single farmer. E. Duration of the Decontamination Facility Requirement The worker protection regulations currently require employers to provide decontamination facilities for thirty days following the application of a pesticide or a restricted-entry interval. See 40 C.F.R. S 170.150(a). NASDA believes that the thirty-day duration of this requirement is unnecessary and wasteful. Accordingly, NASDA requests a rulemaking to consider eliminating the decontamination requirement after the restricted entry interval. The thirty-day decontamination requirement is unnecessary because, by this time, dusts have settled and sprays have dried, resulting in the elimination of potential hazards associated with the pesticide application. The label restrictions, which are based on comprehensive, health-based analyses, should control decontamination facility requirements. When a health-based analysis indicates that reentry before thirty days is appropriate, decontamination facilities should not be needed when health-based assessments allow reentry. This approach corresponds with the risk-based structure of the worker protection standard. Requiring employers to provide decontamination facilities beyond the time period within which they are necessary is a wasteful use of equipment. It would be preferable, and certainly more practical, to limit decontamination kits to the time period when they are most needed: immediately following the pesticide application or restricted entry interval. After this time period, the equipment can be used at other sites. F. Employee Responsibility Regarding Personal Protective Equipment The worker protection standard mandates that PPE be used by employees and handlers in certain circumstances. See, e.g., 40 C.F.R. SS 170.112(a)(4) & 170.240(a). Among other requirements, the standard imposes on employers the responsibility for ensuring that this equipment is used correctly. See id. SS 170.112(c)(6) & 170.240(e). NASDA is concerned that these regulatory provisions may be read to impose liability on employers in situations where employees remove PPE in direct contravention of the employer's stated instructions and contrary to the employer-provided training. NASDA requests EPA confirmation that the worker protection standard does not hold employers responsible for violations caused by an employee's informed decision to disregard the standard's requirements. If employers provide the training required by the standard and supply employees with PPE that is clean and in good operating condition, NASDA firmly believes that these employers should not be held responsible if the employees subsequently act in a negligent manner. Employers simply cannot guarantee that their workers will wear coveralls, goggles and gloves at all times when the employer is not within watching distance. It is unrealistic, impractical and unfair to hold employers liable for the unanticipated actions of their employees. NASDA believes that such liability is not contemplated by the worker protection standard, and requests confirmation of that fact from EPA. While NASDA understands that EPA has taken this position in Agency guidance, NASDA requests that the analysis be formally adopted in a rulemaking. G. Exceptions From Worker Protection Standard Requirements The worker protection standard permits EPA to grant exceptions to the entry restrictions in appropriate circumstances. 40 C.F.R. S 170.112(e). NASDA believes this provision should be broadened to provide EPA with the authority to grant exceptions to other aspects of the workers protection standard on a case-by-case basis in appropriate circumstances. Such a general exception would be appropriately placed in Subpart A of the standard. H. Bilingual Requirements The posting and training provisions of the worker protection standard require agricultural employers to provide workers with certain information in English and Spanish. NASDA recognizes that this requirement enables Spanish-speaking workers to receive and understand crucial information regarding pesticide safety. However, in some areas of the country, Spanish-speaking workers are a rarity and it is difficult to find Spanish-speaking trainers to conduct training sessions. The requirements for conveying information in English and Spanish in these areas is burdensome and a waste of resources. Accordingly, NASDA requests EPA make clear in the context of a rulemaking action that the Spanish language requirements are limited to those areas within which a significant number of Spanish-speaking workers are employed. I. Employer/Owner Liability A final point regarding the worker protection standard relates to the entity responsible for complying with the standard. The current regulations impose most responsibilities on agricultural employers, which the regulations define to include "any person who is an owner of or is responsible for the management of or conditions of an agricultural establishment . . . ." 40 C.F.R. S 170.3 (emphasis added). According to the regulations, an owner is any person who has a present possessory interest (fee, lease-hold, rental, or other) in an agricultural establishment covered by this part. A person who has both leased such agricultural establishment to another person and granted that same person the right and full authority to manage and govern the use of such agricultural establishment is not an owner for purposes of this part. [Id.] NASDA has two concerns regarding these regulatory provisions. First, the provisions are unduly vague and may be interpreted to encompass absentee landlords within the scope of the worker protection standard. NASDA believes that it is not the intent of the standard to impose liability on such entities, and requests that EPA clarify in the regulations that these landlords are not subject to the worker protection standard. Second, the above definitions create overly broad coverage for workers who are actually employed by another entity, such as packing shed harvest crews. Under current rules, the owner of the agricultural establishment and the entity that is the actual employer are both responsible for providing required protections to the workers. This dual requirement is unfair and unduly burdensome to owners of agricultural establishments because the owner of the establishment does not control the workers or pay them directly, yet could be held liable if the employer is negligent in meeting the requirements of the standard. NASDA requests EPA's consideration of this issue in the requested rulemaking. * * * We appreciate your attention to the concerns raised in this petition. We look forward to working with EPA in the development of an improved and effective worker protection standard, and suggest that we meet with the Agency to discuss the issues outlined above. If you have any questions, please contact Mark Nestlen of the NASDA staff at (202) 296-9680. Respectfully submitted, Rick Perry, Chairman, NASDA Worker Protection Task Force Commissioner, Texas Department of Agriculture cc: Lynn R. Goldman, M.D.