States want more time to comply with worker protection rule

WASHINGTON, Nov. 9, 2016 - State agencies that enforce farmworker protection standards would like more time to comply with EPA’s new regulations, scheduled to go into effect in January.

The biggest problem with the fast-approaching deadline is that EPA’s outreach materials, designed to help growers and pesticide applicators comply with the new standards, have only recently become available.

“It takes time,” said Liza Fleeson Trossbach, program manager for pesticide services in Virginia’s Department of Agriculture and Consumer Services. And given the busy-ness of the growing season and the delay in the release of educational materials, “We just haven’t had the opportunity” to get out and meet with growers, she said.

Trossbach spoke with Agri-Pulse after a session of EPA’s Pesticide Program Dialogue Committee, which met for two days last week in Arlington, Virginia. She was representing the Association of American Pesticide Control Officials (AAPCO). State agencies are charged with implementing the new standards, which were issued a year ago and which will mostly go into effect Jan. 2.

Trossbach said AAPCO is concerned about being able to meet the compliance date with the narrow window to reach growers and applicators.

Kevin Keaney, chief of EPA’s certification and worker protection branch in the Office of Pesticide Programs (OPP), said EPA would be speaking with affected parties, including AAPCO, on “how to accommodate your needs and still have things function.”

Among the states’ concerns is language in the final rule about application exclusion zones (AEZs). These are areas surrounding the pesticide application equipment “that must be free of all persons other than appropriately trained and equipped handlers during pesticide applications,” according to a list of Frequently Asked Question put out by the agency in April.

“The AEZ is 100 feet for aerial, air blast, fumigant, smoke, mist and fog applications, as well as spray applications using very fine or fine droplet sizes,” EPA says. Additionally, an AEZ of 25 feet is required when the pesticide is sprayed using droplet sizes of medium or larger and from more than 12 inches above the plant medium. An application that does not fall into one of these categories does not require an AEZ.

But state officials want to know whether the agency will allow workers to “shelter in place” if they happen to be living in housing within the AEZ.

AAPCO President Dennis Howard told OPP chief Jack Housenger in an August letter that “a number of states have stringent agricultural-labor housing regulations or standards. It is believed by many, that if the housing is adequate (fully enclosed and tightly constructed), it is safer to ‘shelter in place’ vs. leaving the AEZ and returning soon after the application.”

Housenger replied in October that EPA would continue to work with the states to resolve the AEZ issue.

One state, Oregon, plans to adopt regulations that will allow “shelter in place” within the AEZ. The state’s Occupational Safety and Health Division (known as Oregon OSHA), which does not fall under EPA’s jurisdiction, worked with an advisory committee that included growers and farmworker representatives to develop the regulations.

Kathleen Kincade, an occupational health specialist in Oregon OSHA, said fruit growers in the state were worried they might have to chop down trees in order to create enough space for AEZ’s.

In a proposed rule that is now open for public comment and will be the subject of hearings this month, “We did adopt the AEZ (provisions),” Kincade said. “But we also included a compliance alternative that we believe would be equally protective.”

Allowing workers to stay in housing that is sufficiently airtight would be better than forcing them to leave and stand in the cold just so they could be outside the 100-foot AEZ, she said.

Mike Doke agrees. He’s the executive director of Columbia Gorge Fruit Growers, many of whose 400-plus members would have been forced out of business if the EPA AEZ regulations were followed to the letter.

Doke says his growers have made significant progress in reducing the amount of pesticides they use, but sometimes have to spray in the middle of the night when the wind has died down in order to reduce drift. Airblast sprayers used to treat fruit trees, some of which are as tall as 30 feet, “are very precise,” Doke said.

The shelter-in-place requirements “will allow us to keep our safe practices. It really supports what our growers do here.”

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