------------------------------------------------------------------------ ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFICE OF PREVENTION, PESTICIDES, AND TOXIC SUBSTANCES October 21, 1994 October 26, 1994 (stamped date) (stamped Received-NASDA) Mr. Rick Perry Chairman, NASDA Worker Protection Task Force Commissioner, Texas Department of Agriculture 1156 - 15th Street Washington, D.C. 20005 Dear Mr. Perry: On July 8, 1994, you submitted to the Administrator of the Environmental Protection Agency (EPA) a petition for rulemaking to revise portions of the Worker Protection Standard (WPS). The petition requested rulemaking be completed by January 1, 1995, in nine distinct areas. This letter represents the Agency's formal response to the petition. I also have addressed issues raised in the petition in my September 22, 1994, letter to you and my September 30 and October 7, 1994, letters to Mr. Richard Kirchhoff of the National Association of State Departments of Agriculture (NASDA). The Agency is committed to working with you and all stakeholders in implementing a program that meets the WPS goal of protecting the four million farmworkers of this country. Toward this end, the EPA Office of Pesticide Programs (OPP) has made every effort to work with your organization and others to address many of the issues raised in your petition. Since your petition requests the Agency to engage in rulemaking, we should note that WPS rulemaking is subject to the requirements of both the Administrative Procedures Act (APA) and the risk/benefit standard contained in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The same risk/benefit standard applies to the WPS exception process. The Agency will be in a position to amend the rule or grant an exception when changes are supported by a public record compiled before the end of a public comment period. Only with this information is the Agency able to grant some or all of the proposed amendments or exceptions. We have carefully considered your request to engage in further rulemaking. Our responses to the specific requests made in your petition follow: A. Timing of Agriculture Worker Training The Agency has drafted a proposed rule that will address the issues of the training grace period and retraining intervals raised in this portion of your petition. The Agency hopes to publish the proposed rule for comment in the very near future, and to conclude the rulemaking early in 1995. As on all issues, EPA hopes NASDA will provide its views and supporting information on the grace period and retraining intervals during the comment period that will be part of this rulemaking. B. Low Contact Activities The Agency has drafted a proposed exception that will address the issue of early entry requirements for workers performing low-contact irrigation-related tasks, and hopes to publish that proposal for comment in the very near future. Additional supporting information during the comment period may be necessary in order for some or all of the exception to be granted. In addition, the Agency has met with you, and will continue to meet with you to determine whether additional exceptions should be proposed for particular early entry tasks which may result in little contact with pesticide residue and whether an amendment to the rule should be proposed that deals with low-contact issues generically. C. Establish RIE's Based on Actual Exposure The Agency will be publishing in the near future a draft Pesticide Registration Notice (PRN) for public comment which would allow pesticide registrants to reduce the restricted entry intervals for many products in toxicity categories 3 and 4 from 12 hours to 4 hours. These will be products that are not known to cause chronic health risks. The Agency hopes to reach a final decision on this PRN before January 1, 1995. The proposal will address many of the changes proposed in your matrix for Tox 3 and 4 products. We believe that you will concur with this approach. However, you may wish to resubmit this portion of your petition, to the extent you believe changes remain necessary, after the Agency issues the final PRN. D. Crop Advisors The Agency intends to issue a proposed rule for comment addressing WPS crop advisor provisions before 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. The Agency therefore intends to issue guidance to States concerning appropriate enforcement before final changes are made. E. Duration of the Decontamination Facility Requirement The Agency supports the current thirty-day requirement based on supporting incident data demonstrating that worker poisonings have occurred from exposure to residues beyond thirty days after an application. I understand that you will resubmit this portion of your petition and I propose that we first meet in early November to review our supporting data. F. Employee Responsibility Regarding Protective Equipment The Agency will be meeting with NASDA on October 31, 1994, to discuss this issue. I hope these discussions resolve any concerns you may have. A determination on whether any proposed rulemaking is warranted on this issue will be made after discussions with NASDA have been completed. G. Broadening the Exception Process The Agency does not intend to take any action at this time to broaden the scope of the exception process. The exception process was created and limited to worker early entry because the Agency expected that there might be numerous requests for exceptions based on particular crop-growing needs and other circumstances. EPA does not anticipate site-specific problems with the WPS outside of early entry issues. Further, the exception process is similar to the rulemaking process. If anyone believes the WPS should be amended, a petition for rulemaking provides a procedure, similar to the exception process, to seek changes. At this time, we believe that the rulemaking process allows the Agency to deal adequately with situations where we need to consider changes to the WPS outside of exceptions to the early entry restrictions. We do not believe there is a demonstrated need for expanding the exception process at this time. However, we will reconsider this issue if need for expanding the exception process is established. H. Bilingual Requirements Your petition references the posting and training provision of the WPS. The training provision for workers and the pesticide handler do not contain requirements for bilingual training. The provisions do require that training be conducted "in a manner that the {trainee} can understand (such as through a translator) using nontechnical terms". This requirement is not limited to Spanish-speaking workers, and it certainly does not require that any training be available in Spanish if no Spanish-speaking workers are present. On a related issue, the Agency is working with the State of Hawaii to resolve whether the WPS field warning sign in that state could be printed with a second language other than Spanish because of the principal languages spoken by workers in Hawaii. We are working with the State to reach a satisfactory solution. I. Employer/Owner Liability As with the employee responsibility issue, the Agency will be meeting with NASDA to discuss employer/owner liability issues, and will determine whether any action is warranted after discussions with NASDA have been completed. If you have any questions concerning this response to your petition, please contact Penny Fenner-Crisp, Acting Deputy Director of the EPA Office of Pesticide Programs, on 703-305-7092. Sincerely, [signed] Lynn R. Goldman, M.D. Assistant Administrator cc: Richard W. Kirchhoff, NASA Executive Vice President James V. Aidala, Associate Assistant Administrator Dan Barolo, Director, Office of Pesticide Programs Penny Fenner-Crisp, Acting OPP Deputy Director Allan Abramson, Director, OPP Field Operations Division