The Environmental Protection Agency plans to reinstate protections for farmworkers exposed to pesticides, officially dumping a 2020 Trump administration rule that went into effect briefly before the Biden administration took office.
EPA is proposing to mostly return to regulations adopted in 2015 — and which are still in effect — establishing Application Exclusion Zones for pesticide spraying that do not allow the presence of people within 25 feet or 100 feet, depending on the method of application.
But the proposal also retains provisions from the 2020 rule allowing farm owners and their immediate families “to remain inside enclosed structures or homes while pesticide applications are made, providing family members flexibility to decide whether to stay on-site during pesticide applications, rather than compelling them to leave even when they feel safe remaining in their own homes,” the agency said.
EPA also is “clarifying” that suspended pesticide applications can resume after people leave the AEZ.
Specifically, EPA said the AEZ would apply “beyond an establishment’s boundaries and when individuals are within easements (such as easements for utility workers to access telephone lines).” The AEZ distance for ground-based spray applications will be 25 feet “for medium or larger sprays when sprayed from a height greater than 12 inches from the soil surface or planting medium and 100 feet for fine sprays.” Aerial spraying also requires a 100-foot AEZ.
The 2020 rule, published just days before the presidential election, had established a 25-foot zone for all ground applications and 100 feet for aerial applications. It also prevented the AEZ from extending beyond the boundaries of the operation. EPA Assistant Administrator for the Office of Chemical Safety and Pollution Prevention Michal Freedhoff told reporters Thursday that would have left any person standing two feet beyond the boundary unprotected “even from the most dangerous pesticides.”
Freedhoff said the proposal reflects the Biden administration’s commitment to environmental justice and farmworkers in particular.
“Farmworkers are the people who work long hours, sometimes in staggering heat during days that begin well before dawn to put food on tables all across America,” she said.
A draft of the proposed rule was provided to USDA under the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act, but Carolyn Schroeder, chief of the certification and worker protection branch in EPA’s Office of Pesticide Programs, told reporters USDA has not yet fully reviewed it.
“Initial reactions were it sounded consistent with where they were interested with this proposal going,” she said.
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The AEZ regulations have been a source of disagreement between ag producers and farmworker advocacy groups and states that successfully challenged the 2020 rule in federal court, which resulted in an injunction preventing the rule from going into effect. Shortly afterward, on Jan. 7, 2021, EPA said it discovered a factual error in the 2020 rule and needed time to re-evaluate it. The parties in the litigation mutually agreed to stay the case, and EPA began a new rulemaking process.
New York, California, Illinois, Maryland, and Minnesota sued, as well as a collection of farmworker groups, including the United Farm Workers and Farmworker Association of Florida.
In its proposal, EPA said it had determined the 2020 rule overstated some of the training approved by EPA and provided to farmworkers.
“Some of the trainings (EPA) has approved since 2018 only contained a partial set of the topics provided in guidance regarding best pesticide application practices near the borders of an establishment and on potential measures that can be used to prevent contact through drift,” EPA said.
“The reliance on this inaccurate assumption provides further reason to reinstate the 2015 requirements regarding the applicability of AEZs for individuals off the establishment and within easements,” EPA’s proposal said.
The agency said the new regulations would result in “minimal cost to the regulated community.” The 2020 rule said its revisions were made “in the spirit” of a 2017 Executive Order, “Promoting Agriculture and Rural Prosperity in America,” the intent of which “was to help ensure that regulatory burdens do not unnecessarily encumber agricultural production or harm rural communities.”
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