Michigan Department of Agriculture Comments on 2007 

Revised Issue Papers 

WPS4, WPS 5, & WPS 6 

Date of Comments: 6-25-2007 

Contact: Antonio Castro-Escobar (517) 373-6350 or escobara@michigan.gov

WPS 4 ISSUE PAPER TITLE: Establish miscellaneous regulatory and 

implementation issues with the agricultural Worker Protection 

regulation that cause gaps in worker protection

Date of Issue Paper: May 2007

PROPOSED OPTIONS UNDER CONSIDERATION: 

40 CFR §170.1 Scope and Purpose 

Proposed Option: 

Expand scope of WPS to cover dairy, livestock, landscape, and maintenance 

workers using pesticides. 

Michigan Comments: Michigan does not agree with the proposal to expand the WPS 

protections to cover dairy, livestock, landscape, and maintenance workers. We think that 

in Michigan there is a limited number of workers who may be exposed to pesticides 

occupationally in these industries due to the nature of the work they perform. Landscape 

and lawn care workers may benefit from expanded WPS protections. However, there are 

already federal and state regulations such pesticide applicator certification and pesticide 

applicator licensing that provide protection to these employees. We do not think the WPS 

is the best fit to afford additional protections because the work performed in the 

landscape/lawn care industry is different than that of agriculture. This could result in too 

many changes to the WPS that could result in too many exceptions and interpretation 

complexity. In addition, the number of inspectors would have to be increased to cover 

the WPS in this sector. 

40 CFR §170.3 Definitions 

Proposed Option: 

Develop regulatory definitions for the following terms: closed system; enclosed cab; 

greenhouse; and commercial purposes. The proposed definitions for greenhouse and 

commercial purposes would be based on existing IGW policy decisions on these 

issues. Proposed definitions of closed systems and enclosed cabs will be developed in 

consultation with States, industry, CES, and others. 

Michigan Comments: Michigan agrees that these definitions need to be clarified so 

they could be better understood by the regulated community and make it easer for 

inspectors to enforce. Michigan agrees with the proposed process to develop such 

definitions.

Michigan Department of Agriculture 1
40 CFR §170.7 General Duties and Prohibited Actions 

Proposed Option: 

Better define its view of retaliation under the WPS and provide examples of 

retaliatory acts in the rule. Add anti-retaliation provisions to worker training and 

provide examples of what things are considered retaliation under the WPS so 

workers have a better understanding of what is covered under WPS and what isn't. 

 

Michigan Comments: Michigan agrees that retaliation needs to be better defined and 

exemplify in the WPS. However, Michigan believes that there might be limitations 

within the states authority to enforce/investigate retaliation incidents. Training needs to 

be made available for states to investigate/enforce retaliation incidents.

40 CFR §170.103 Exceptions 

Proposed Option: 

Clarify the existing exceptions in the WPS to address "wide-area public pest 

control," and "in a manner not directly related to the production of agricultural 

plants." The language for the exceptions would be based on existing IGW policy 

decisions on these issues. 

Michigan Comments: Michigan agrees with the suggestion to clarify these exceptions. 

Michigan has not experienced confusion with the “area-wide public pest control” 

exception, but has with “related to the production of agricultural plants.” We think that 

such confusion is in part because such definition includes both the production process 

and the care for certain plants as part of production of agricultural plants, so a definition 

in the WPS would help.

40 CFR §170.104 Exemptions 

Proposed Option: 

Clarify the owner exemption and the concerns related to the immediate family 

definition that have been raised to the IGW. The language for the exceptions would 

be based on existing IGW policy decisions on these issues. 

Michigan Comments: Michigan is in favor of this clarification.

40 CFR §170.110 Restrictions associated with pesticide applications 

Proposed Option: 

Add treated area "buffer zone" restrictions to the WPS for certain applications on 

farms/forests like those that are already in the WPS for nurseries/greenhouses. The 

restrictions would be designed to address applications that have a high potential for 

worker or bystander exposure from drift such as aerial, airblast, and fumigant 

applications. EPA will consider whether some products should be excluded from 

such restrictions based on its toxicity and risk. 

EPA is considering a proposed option that would prohibit any worker from being 

permitted inside enclosed areas such as greenhouses or mushroom houses while 

Michigan Department of Agriculture 2
spraying is occurring; the option would also potentially change the current 

greenhouse ventilation criteria. 

Michigan Comments: Michigan is in favor of requiring buffer zones for applications 

that have high potential for worker and bystander exposure. Michigan has experienced 

the need for such buffers when applications take place around migrant housing. 

Although, by using the term bystander we are not sure if the scope of the WPS will be 

expanded to cover non-agricultural employees. 

Michigan believes that protections are already in place for the second option. We do not 

think there is a need to change it.

40 CFR §170.120 Notice of Applications 

Proposed Option: 

Change the requirements for the design of the treated area warning sign and the 

information required to be contained on the sign, as well as posting requirements 

for the sign. EPA is also considering the following additional options: 1) In fields 

covered by REIs of more than 72 hours, a warning sign should also be posted at the 

usual points of entry to the field and every 100 feet around the field’s perimeter. The 

posted warning sign should bear the skull and cross bones, not the current sign (i.e., 

a man with an upraised hand); 2) All fields which are or have been under an REI 

during the preceding 30 days, must have a sign at the usual points of entry with the 

following specific information: name of pesticide applied; application date and 

times; REI; contact information for employer, on-farm manager or pesticide 

applicator; and date and time that REI expires. In addition, attached to each sign 

should be a written list of the pesticides used on that field during the past 30 days. 

 

Michigan comments: The WPS allows growers the choice to post or orally notify 

workers of pesticide treated areas, except for greenhouses and as indicated in the label for 

highly toxic pesticides. Instead of modifying the posting requirements for pesticides with 

REIs of 72 hours, it seems that it would be more beneficial to workers and less confusing 

and expensive for growers to either require that growers do both orally notify workers 

and post all pesticide applications, or eliminate the choice for oral notification and just 

require posting all pesticide applications. This would eliminate the need for putting too 

many signs around the field. 

Adding too much information to the warning sign could be too burdensome and may not 

add protection to workers, perhaps requiring the date of application and the REI of the 

product would have some merit. It will provide workers a more realistic way of knowing 

if the sign is still up because of the REI is in effect, or is up because the grower did not 

remove it. It will also provide inspectors a better way to determine if the grower is in 

compliance with putting up and removing the sign as required. 

 

Michigan does not believe that adding a list of pesticide products to the posting sign will 

result in added protection to workers. Since it would be a changing list of products, it 

will be difficult to manage; in addition, a special ink and material to withstand the 

Michigan Department of Agriculture 3
weather will be needed, letter size, and language, may also be an issue. Many growers 

have expressed that it is even to cumbersome to have such a requirement in the central 

notification, and complain that workers do not look at such information. 

Michigan thinks that protection of workers is important, but believes that the proposed 

changes to the sign will not add to the protection of workers and will instead add 

confusion and burden to the grower. Michigan suggests leaving the posting sign as is, 

since both workers and growers are already familiar with it. 

40 CFR §170.122 Providing Specific Information about Applications 

Proposed Option: 

Require that the posted application information contains the time the application 

was completed and the start and end times for the REI so that workers will be better 

informed about areas under REIs and the information will be more useful and 

protective. 

Michigan Comments: Michigan agrees that adding the time the application was 

completed will help workers better understand the REI. 

40 CFR §170.135 Posted Pesticide Safety Information 

Proposed Option: 

Require an EPA-approved pesticide safety poster to be posted at the typical points 

of entry to a treated field or at the site of the decontamination water. 

 

Michigan Comments: Michigan disagrees with this proposal, it will add little to the 

protection of workers, and postings will need to be made of special material to withstand 

the weather. 

40 CFR §170.150 Decontamination 

Proposed Option: 

Require all farms to have an area where workers can change into work clothes and 

store clean clothing. Handwashing water, soap and towels must also be available at 

these sites. 

 

Michigan Comments: Michigan understands that having a place for workers to change 

their clothes daily may reduce the risk of exposure by bringing contaminated clothing 

inside the house, but such a requirement is not a guarantee that workers would change 

clothes daily. Some or most farms that have migrant camps in Michigan, have a shower 

facility in the migrant camp separate from the homes, so perhaps workers need to be 

trained in the importance of showering and changing clothes daily after each day of work. 

Is it assumed that by adding the proposed requirement, workers would change clothes 

every day after work? Or would it be made mandatory that growers make sure that 

workers change clothes daily after work? 

40 CFR §170.160 Emergency Assistance

Proposed Option: 

Michigan Department of Agriculture 4
Require employers, in cases of suspected pesticide exposure to a worker, a worker’s 

family member or bystander, to provide pesticide application information and a 

copy of the label(s) and MSDS or information sheets to the affected person, his/her 

representative or a health care professional, upon request, within two business days. 

In the event of a medical emergency, the information must be provided within one 

hour. 

Michigan Comments: The WPS is covers agricultural employees so it looks like WPS 

coverage would be expanded to cover non-agricultural employees in these situations. 

Michigan has not experienced instances in which the current WPS provision has not 

worked during emergency situations. It is not clear how the affected person would be 

better protected providing the label and medical information to additional people. It 

seems that the proposed requirement is just expanding who has access to the application 

information. If there are situation in which such information was not provided during 

pesticide emergencies, then the current WPS provides means for enforcement. 

Instead of the two day, Michigan suggests removing the word “promptly” from the 

current provision and change it to read “immediately upon request.” 

Michigan is not sure how the MSDS will add protective measures to the information 

already found on the product label. 

40 CFR §170.240 Personal Protective Equipment 

Proposed Option: 

Requiring respirator fit-testing, training and medical monitoring (such as those 

found in the OSHA respirator standard, 29 CFR 1910.134) for all handlers using 

any pesticides with requirements for respiratory protection beyond mist filters. 

[Note: The Agency could establish requirements under 170.240 to incorporate 

requirements onto pesticide labels via the 40 CFR 170 reference statement; or the 

Agency could choose to establish requirements under the 40 CFR 156 labeling 

requirements so that each product label would contain specific label requirements 

for respirator fit-testing, training and medical monitoring under the PPE 

requirements section of the label (as is currently the case with metam sodium and 

1,3 dichloroprpene products).] 

Michigan Comments: Michigan believes that these requirements should be part of the 

pesticide label and not be made part of the WPS.

40 CFR 170 No Current Provision 

Proposed Option: 

Require medical monitoring of pesticide handlers, who mix, load or apply Toxicity 

Category 1 or 2 OPs or CBs for 30 or more hours in a 30 day period, which includes 

taking baseline and periodic plasma and red blood cell cholinesterase tests. 

Employers must pay the cost of the medical monitoring, but doctors must inform 

workers and employers of results and results must be reported directly by the 

laboratory to the state agency overseeing the program. When workers experience a 

Michigan Department of Agriculture 5
20% or more cholinesterase depression, the state agency must investigate and report 

on possible cause(s). When workers experience a 30% depression of RBC or a 40% 

depression of plasma cholinesterase, they must be removed from work until their 

cholinesterase rebounds to 90% of normal. During this period, they must receive 

their average rate of pay for the last full pay period in which they worked. (Removal 

protection wages must be available for at least three months.) Laboratory tests 

should be performed by a single laboratory for both the baseline and follow-up 

tests. Each state lead agency should report annually the number of workers with 

cholinesterase depressions of 20% or more and the likely causes. In addition, each 

state lead agency should report on the number of workers removed from work, due 

to cholinesterase depression, and the length of time they had to stay out of work 

before their cholinesterase level returned to 90% of normal. 

 

Michigan Comments: Michigan is not sure if by requesting cholinesterase testing really 

adds to handler protection. It is not clear if states with cholinesterase monitoring have 

seen a difference in the level of protection or a reduction in the number of certain 

pesticide related incidents. Michigan understands that there is variation in cholinesterase 

sampling, detection methods, and time lapse between sample collection and 

cholinesterase testing that may result in altered cholinesterase levels masking the test 

results. So with too many variables, at this point, Michigan does not have enough 

evidence to either support or reject this provision. 

If this provision is adopted, reporting of results by the laboratory to doctors and from 

doctors to the employer and handler and from the laboratory directly to the lead agency 

would be complicated and difficult to achieve. Who would have the authority or the 

responsibility to make sure these reports do happen? The state of Michigan has a 

provision in the state health code that requires physicians to report any suspected 

pesticide related injuries to the health department. Our experience during outreach to the 

health care community showed none or little compliance with such requirement. 

Physicians cited not having enough time to fill paper work to report such incidents. The 

State Health Department is the agency responsible for enforcing this requirement, but it 

does not seem to be a priority. Michigan Advocacy groups have also worked with the 

State health Department in doing outreach to physicians about such requirement with no 

meaningful results. 

 

The proposal also indicates that growers are responsible for paying for the tests, so we 

need to take into consideration the state’s authority in situations when the employer 

passes on the cost for testing to handlers, or refuses to pay for testing. 

In addition, it seems that states would also be involved in enforcing labor laws when a 

worker is removed from work due to low levels of cholinesterase, they have to make sure 

that workers are paid for lost days of work. Pesticide laws do not provide state’s 

authority to require that violators provide monetary compensation to the affected party. 

Michigan Department of Agriculture 6
WPS 5 ISSUE PAPER TITLE: Ensure Protection of Employees of Certified 

Crop Advisors

Date of Issue Paper: May 2007

PROPOSED OPTIONS UNDER CONSIDERATION: 

Option 1: Retain the current exemption under the WPS for certified crop advisors 

as is without any changes. 

Michigan Comments: Although Michigan has not experienced any problems with the 

current exemption, we support the second option that provides added protection to 

persons working under the supervision of certified crop advisors. We do not understand 

however why the no more than 10 minute time was selected, was it based on risk base 

assessment data? 

Option 2: Retain the current exemption under the WPS for certified crop advisors 

but modify the terms of the exemption. The terms of the exemption would be 

modified so that employees of certified crop advisors would be prohibited from 

entering treated areas during the REI to conduct crop advisor activities unless they 

received all applicable WPS protections required for other handlers under the rule. 

A short, time-limited exception to the prohibition on entry during the REI would be 

allowed for the employees of certified crop advisors so they could enter treated 

areas during the REI. The exception would allow no more than ten minutes of entry 

during the REI unless full PPE and other applicable protections are provided. 

WPS 6 ISSUE PAPER TITLE: Ensure that Exceptions to Treated Area 

Entry Restrictions are Clear, Enforceable, and Adequately Protective of 

Workers

Date of Issue Paper: May 2007

PROPOSED OPTIONS UNDER CONSIDERATION: 

Option 1: Only make regulatory revisions to the current WPS REI exceptions to 

clarify vague language and address issues raised by stakeholders concerning poorly 

defined, unenforceable sections of the exception provisions. 

Michigan Comments: Michigan supports option two. 

Option 2: Same as Option 1 AND incorporate the two administrative exceptions for 

irrigation and limited contact activities that were granted in 1995 into the WPS as 

permanent exceptions, and address issues or problems identified by stakeholders 

concerning these two exceptions. 

Michigan Department of Agriculture 7
Michigan Comments: Michigan agrees with this option, incorporation of the two into 

one is a good approach since these two exemptions are very similar 

Option 3: Same as Option 1 AND repeal the two administrative REI exceptions for 

irrigation and limited contact activities that were granted in 1995, eliminate the 

existing “no contact” exception provision in the WPS. 

Michigan Comments: Michigan disagrees with this option. 

Option 4: Make no changes to the WPS to clarify the existing exceptions to the entry 

restrictions or to address the existing regulatory problems with these provisions. 

Michigan Comments: Michigan disagrees with this Option. Michigan believes that it 

needs clarification and needs to be incorporated into the WPS. 

Michigan Department of Agriculture 8