## Michigan Department of Agri culture 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 Work er 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, liv estock, landscape, and maintena nce workers. We think that in Michigan there is a lim ited number of workers who ma y be exposed to pesticides occupationally in these industries due to the na ture of the work they perform. Landscape and lawn care workers may benefit from expa nded WPS protections. However, there are already federal and state regula tions such pesticide applicat or certification and pesticide applicator licensing that provi de 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 th at of agriculture. Th is could result in too many changes to the WPS that could result in too many exceptions and interpretation complexity. In addition, the number of insp ectors would have to be increased to cover

the WPS in this sector.

40 CFR §170.3 Definitions Proposed Option: Develop regulatory definitions for the followi ng terms: closed system; enclosed cab; greenhouse; and commercial purposes. The pr oposed definitions for greenhouse and commercial purposes would be based on ex isting 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 defi nitions need to be clarified so they could be better understood by the re gulated community and make it easer for inspectors to enforce. Michigan agrees with the proposed process to develop such

definitions.

Michigan Department of Agriculture 140 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 provisi ons 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 retaliati on needs to be better defined and exemplify in the WPS. However, Michigan believes that there might be limitations within the states authority to enforce/investig ate retaliation incidents. Training needs to

be made available for states to i nvestigate/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 sugge stion to clarify these exceptions. Michigan has not experienced confusion w ith the “area-wide pub lic pest control” exception, but has with “related to the production of agricultur al 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 agricu ltural plants, so a definition in the WPS would help.

40 CFR §170.104 Exemptions Proposed Option: Clarify the owner exemption and the conc erns related to th e immediate family

definition that have been raised to th e 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" restriction s 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 a pplications 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 2spraying is occurring; the option woul d also potentially change the current greenhouse ventilation criteria.

Michigan Comments: Michigan is in favor of requi ring buffer zones for applications that have high potential for worker and bys tander exposure. Mich igan has experienced the need for such buffers when applic ations take place around migrant housing. Although, by using the term bystander we are no t sure if the scope of the WPS will be expanded to cover non-agricultural employees.

Michigan believes that protec tions are already in place fo r 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 wa rning sign and the information required to be contained on the sign, as well as posting requirements for the sign. EPA is also considering the fo llowing 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 fi eld’s perimeter. The posted warning sign should bear the skul l 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 em ployer, on-farm manager or pesticide applicator; and date and time that REI expi res. 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 ar eas, 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 mo re 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 elimin ate the choice for oral notification and just require posting all pesticide applications. Th is would eliminate the need for putting too many signs around the field.

Adding too much information to the warni ng sign could be too burdensome and may not add protection to workers, perhaps requiring th e date of applicati on and the REI of the product would have some merit. It will prov ide 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. Sin ce it would be a changing list of products, it will be difficult to manage; in addition, a sp ecial ink and material to withstand the

Michigan Department of Agriculture 3weather will be needed, lette r 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 worker s 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. Michig an suggests leaving th e posting sign as is, since both workers and growers are already familiar with it.

40 CFR §170.122 Providing Specific In formation about Applications Proposed Option: Require that the posted application inform ation contains the time the application was completed and the start and end times fo r the REI so that workers will be better

informed about areas under REIs and th e 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 po ster to be posted at the typical points of entry to a treated field or at th e 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 wo rkers can change into work clothes and store clean clothing. Handwashing water, s oap 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 ha ve 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 chan ging clothes daily after each day of work. Is it assumed that by adding the proposed requirement, workers w ould change clothes every day after work? Or would it be made mandatory that growers make sure that workers change clothe s daily after work?

40 CFR §170.160 Emergency Assistance Proposed Option:

Michigan Department of Agriculture 4Require employers, in cases of suspected pe sticide 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 informat ion sheets to the affected person, his/her representative or a health care profession al, 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-agri cultural 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 whic h such information was not provided during pesticide emergencies, then the current WPS provides means for enforcement.

Instead of the two day, Mich igan 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 a dd 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 respira tory 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 re quirements 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 re quirements 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 ha ndlers, 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 a nd red blood cell cholinesterase tests. Employers must pay the cost of the medi cal monitoring, but doctors must inform workers and employers of results and resul ts must be reported directly by the laboratory to the state agency overseeing the program. When workers experience a

Michigan Department of Agriculture 520% or more cholinesterase depression, the state agency must investigate and report on possible cause(s). When workers experi ence 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 labora tory 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 rem oved 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 reque sting cholinesterase testing really adds to handler protection. It is not clear if states with cholinesterase monitoring have seen a difference in the level of protecti on or a reduction in the number of certain pesticide related incidents. Mi chigan understands that there is variation in cholinesterase sampling, detection methods, and time lapse between sample collection and cholinesterase testing that may result in a ltered 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 resu lts 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? Th e state of Michigan has a provision in the state health code that requires physicia ns to report any suspected pesticide related injuries to the health department. Our experience during outreach to the health care community showed none or litt le compliance with such requirement. Physicians cited not having e nough time to fill paper work to report such incidents. The State Health Department is the agency respons ible 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 handl ers, 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 wo rk. Pesticide laws do not provide state’s authority to require that viol ators provide monetary compensation to the affected party.

Michigan Department of Agriculture 6WPS 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 experi enced any problems with the current exemption, we support the second option that provides added protection to persons working under the supervision of cer tified 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 re quired for other handlers under the rule. A short, time-limited excepti on to the prohibition on entry during the REI would be allowed for the employees of certified cro p advisors so they could enter treated areas during the REI. The exception would a llow no more than ten minutes of entry during the REI unless full PPE and other a pplicable protections are provided.

WPS 6 ISSUE PAPER TITLE: 

### Ensure that Exceptions to Treated Area Entry Restrictions are Clear, Enforcea ble, and Adequately Protective of

Workers

Date of Issue Paper: May 2007

PROPOSED OPTIONS UNDER CONSIDERATION:

Option 1: Only make regulatory revisi ons to the current WP S REI exceptions to clarify vague language and address issues ra ised by stakeholders concerning poorly defined, unenforceable sections of the exception provisions.

Michigan Comments : Michigan su pports option two.

Option 2: Same as Option 1 AND incorpor ate 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 7Michigan 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 reg ulatory 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