Regulatory Developments

FIFRA: Final EPA Rule Requires Stronger Standards for Applying Riskiest Pesticides

January 4, 2017

On January 4, 2017, the U.S. Environmental Protection Agency (EPA) published its final rule revising its regulation concerning the certification of applicators of restricted use pesticides (RUP).  EPA states that the final rule is intended to ensure federal certification program standards adequately protect applicators, the public, and the environment from risks associated with the use of RUPs.  According to EPA, the final rule will improve the competency of certified applicators of RUPs, increase protection for noncertified applicators using RUPs under the direct supervision of a certified applicator through enhanced pesticide safety training and standards for supervision of noncertified applicators, and establish a minimum age requirement for certified and noncertified applicators using RUPs under the direct supervision of a certified applicator.  EPA states that in recognition of its commitment to work more closely with tribal governments to strengthen environmental protection in Indian country, the final rule will provide more practical options for establishing certification programs in Indian country.  The final rule will be effective on March 6, 2017.  EPA has posted several supplemental materials on its pesticide worker safety website, including a fact sheet, comparison tables of the final rule’s revisions to the existing rule, and questions and answers concerning the final rule.

The final rule revises the existing certification of pesticide applicators regulation, 40 C.F.R. Part 171 (certification rule).  The certification rule establishes standards of competency for persons who use RUPs and creates a framework for certifying authorities to administer pesticide applicator certification programs.  According to EPA, the final rule seeks to ensure that persons using RUPs are competent to use these products without causing unreasonable adverse effects to themselves, the public, or the environment.  EPA states that it has taken into account in the the final rule comments received from the public in response to EPA’s August 24, 2015, proposed rule, as well as additional information, such as reported incidents of pesticide-related illness or injury.

EPA’s revisions to the existing regulation are intended to enhance the following provisions:  private applicator competency standards; exam and training security standards; standards for noncertified applicators working under the direct supervision of a certified applicator; tribal applicator certification; and state, tribal, federal agency, and EPA-administered certification plans.  The final rule revises the existing regulation to add categories of certification for commercial and private applicators; a recertification interval and criteria for recertification programs administered by certifying authorities; and a minimum age for certified applicators and noncertified applicators using RUPs under direct supervision of certified applicators.  Below is more information about the revisions.

Private Applicator Competency Standards

EPA proposed requiring noncertified applicators to qualify as competent to use RUPs under the direct supervision of a certified applicator by completing pesticide safety training covering content outlined in the proposed rule.  The proposed rule included two alternative ways to qualify -- completing pesticide safety training for handlers under the Worker Protection Standard (WPS), which covers many noncertified applicators in agriculture, or passing the exam for commercial applicators that covers core competency (but not a category exam).  Under the proposed rule, certifying authorities would have been required either to adopt the proposed standards for noncertified applicators or to prohibit the use of RUPs by noncertified applicators.

The final rule allows noncertified applicators to establish their competency by completing pesticide safety training covering content outlined in the rule; by completing pesticide safety training for handlers as required by the WPS; by meeting requirements established by a certifying authority that meet or exceed the standards for noncertified applicator qualifications established in the final rule; or by being a certified applicator in a category other than the category covering the supervised application.  The final rule amends the options for determining private applicator competency by requiring the applicator to complete a training program or to pass a written exam that covers the specific competency standards in this rule.  The final rule eliminates from the existing rule the non-reader certification option, which allowed certification by oral exam to use a single product.

Additional Categories of Certification for Commercial Applicators and Private Applicators

EPA proposed the addition of “application method-specific” categories (aerial application, soil fumigation, and non-soil fumigation) for both commercial and private applicators.  The proposed rule would have required commercial applicators to be certified in at least one category before being eligible to obtain an application method-specific certification (i.e., hold concurrent certifications in a pest control category (e.g., turf and ornamental) and an application method-specific category (e.g., soil fumigation).  Under the proposed rule, private applicators would have needed to hold a valid private applicator certification to be eligible to obtain an application method-specific certification.  EPA also proposed adding predator control categories for private and commercial applicators, with subcategories under each covering the use of sodium cyanide dispensed through a mechanical ejection device and sodium fluoroacetate dispensed through livestock protection collars.

The final rule adds to the existing rule additional categories for commercial and private applicators, which certifying authorities may adopt if relevant in their jurisdiction.  EPA added categories for both private and commercial applicators covering aerial application, soil fumigation, non-soil fumigation, the use of sodium cyanide dispensed through a mechanical ejection device, and the use of sodium fluoroacetate dispensed through livestock protection collars.  EPA notes that these are stand-alone certification categories and do not necessarily require concurrent certification in another existing category.

Recertification Standards and Interval

In its 2015 proposed rule, EPA proposed establishing a maximum certification period of three years and requiring applicators to earn a specific number of continuing education units (CEU), based on their existing certification, to maintain their certification.  The proposed rule defined a CEU as 50 minutes of active training time.  The final rule establishes a maximum recertification interval of five years for commercial and private applicators.  The final rule does not require applicators to complete a specific number of CEUs or hours of training to maintain their certification.  Instead, the final rule establishes a framework for certifying authorities to develop a recertification program within their jurisdiction.  The recertification program must ensure that applicators maintain a level of competency to use RUPs without causing unreasonable adverse effects to human health and the environment.  The final rule specifies that such a recertification program may include exams and/or training.  EPA will approve recertification programs as part of its review of a certifying authority’s certification plan.

Standards for Noncertified Applicators Using RUPs under Supervision

The final rule establishes requirements to ensure that noncertified applicators are competent to use RUPs under the supervision of a certified applicator.  For noncertified applicators to use RUPs under the direct supervision of a certified applicator, they must qualify as competent under the rule.  The final rule includes four options for noncertified applicator qualification:  (1) complete specific training as outlined in the rule; (2) satisfy the handler training requirements under the WPS; (3) satisfy requirements adopted by the certifying authority that meet or exceed EPA’s standards for noncertified applicator qualification; or (4) be a currently certified applicator who is not certified to use RUPs in the category of the application.  The final rule requires noncertified applicators to receive annual training or to satisfy the requirements adopted by the certifying authority as part of the certification plan.

The supervising applicator is required to verify that noncertified applicators have satisfied the necessary requirements and must have access to the records documenting that the qualification requirement has been satisfied.  The final rule requires that a certified applicator supervising noncertified applicators be certified in each category relevant to the supervised application, to provide noncertified applicators access to a copy of the labeling for the RUPs used, and to ensure that a means for immediate communication between the supervising applicator and noncertified applicators under his or her direct supervision is available.

EPA proposed requiring commercial applicators to maintain records documenting that noncertified applicators using RUPs under their direct supervision have satisfied the training requirement.  The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) prohibits EPA from requiring private applicators to maintain records, however, so EPA did not propose a similar requirement for private applicators.  The final rule requires commercial applicators to maintain, verify, and have access to the records of the qualifications of noncertified applicators using RUPs under their direct supervision.

Certifying authorities have the option to adopt the standards for noncertified applicators outlined in the rule, establish alternative requirements for noncertified applicators that meet or exceed the standards in the rule, and/or prohibit the use of RUPs under the supervision of a private or commercial applicator.

Minimum Age

EPA proposed establishing a minimum age of 18 for private and commercial applicators, as well as for noncertified applicators working under their direct supervision.  The final rule establishes a minimum age of 18 for private and commercial applicators.  The final rule also establishes a minimum age of 18 for noncertified applicators working under the supervision of private and commercial applicators with a limited exception; the final rule establishes a minimum age of 16 for a noncertified applicator using agricultural RUPs under the supervision of a private applicator who is a member of the noncertified applicator’s immediate family, with certain restrictions.  The definition of “immediate family” in the final rule matches the definition of the same term in the revised WPS at 40 C.F.R. Section 170.305.

Identification of Candidates for Certification and Recertification

EPA proposed requiring certifying authorities to verify the identity of persons seeking certification or recertification by checking a government-issued photo identification for each candidate.  The final rule requires certifying authorities to verify the identity of persons seeking certification or recertifying by taking a written exam by checking a government-issued photo identification or by using another comparably reliable proof of identity approved by the certifying authority.  The final rule requires the certifying authority have a process in place to ensure persons seeking recertification successfully complete the course objectives, which includes verifying the identity of applicators, but does not include a requirement to check a government-issued photo identification.

Indian Country Certification

The final rule offers three options for certification for applicators in Indian country.  A tribe may choose to allow persons holding currently valid certifications issued under one or more specified state, tribal, or federal agency certification plans to apply RUPs within the tribe’s Indian country, develop its own certification plan for certifying private and commercial applicators, or take no action, in which case EPA may, in consultation with the tribe(s) affected, implement an EPA-administered certification plan within the tribe’s Indian country.  EPA currently administers a federal certification program covering Indian country not otherwise covered by a certification plan, as well as a certification program specifically for Navajo Indian country.

State, Tribal, Federal Agency, and EPA-Administered Certification Plans

The final rule updates the requirements for submission, approval, and maintenance of state, tribal, and federal agency certification plans.  The final rule deletes the section on Government Agency Plans (GAP) and codifies existing policy on review and approval of federal agency certification plans.  The final rule updates requirements for EPA-administered plans.

Implementation

EPA proposed allowing certifying authorities two years from the effective date of the final rule to develop and submit a certification plan for EPA review and approval, and two years for EPA to review and approve certification plans.  The proposed rule would allow certifying authorities that had submitted plans but had not yet received EPA approval to continue operating under their existing certification plan until EPA issued approval of the revised certification plan.

EPA states that the final rule adjusts the proposed implementation timeframe to provide additional flexibility.  Existing certification plans approved by EPA before the effective date of the final rule will remain in effect until three years after the effective date of the final rule.  If a certifying authority submits an amended certification plan to EPA for approval within three years of the effective date of the final rule, its existing certification plan will remain in effect until EPA has reviewed and responded to the amended certification plan, but no longer than two years, unless EPA authorizes further extension in its approval of an amended certification plan.  In its approval of an amended certification plan, EPA will specify how much longer the existing plan may remain in effect while the certifying authority prepares to implement its amended certification plan.  According to the final rule, EPA will base each certifying authority’s implementation period on the particular circumstances of that jurisdiction and the requests from the certifying authority, but “anticipates that most certifying authorities will be allowed two years from the date of EPA approval to fully implement their revised certification plans.”

Commentary

Although EPA has been working on this set of revisions for years and has attempted to include wide input into the process in the hopes of making the revisions more acceptable to all stakeholders, certain provisions of the final rule are and will remain controversial.

Of particular note is the somewhat pointed criticism of the proposals by the National Agricultural State Departments of Agriculture (NASDA).  Since under FIFRA, unlike the other EPA environmental statutes, state officials are the primary enforcement authority, NASDA members have a pivotal role in implementing and enforcing FIFRA requirements.  As part of the rule-making process, NASDA submitted extensive comments to the record which raised numerous serious objections to the proposed changes.

NASDA raised objections to various suggested changes.  Among the points NASDA’s comments emphasized were the following:  some of the changes proposed by EPA would require legislative changes to some of the states’ authority, and EPA has underestimated the needed time and costs of making the proposed changes; and second, the estimated costs and other predicted difficulties with implementing the changes could lead some states to abandon state implementation of the program and, as allowed under FIFRA, turn over responsibility for FIFRA enforcement in that state back to EPA.  Turning the certification and training programs back to EPA would be a significant change in the history of FIFRA state-federal partnerships, and would signal more than a little dissatisfaction with EPA leadership on the subject.

In its forty page submission commenting on the proposed rule, NASDA included the following statement as part of the summary of its views (emphasis in original):

NASDA has significant concerns with the proposed rule changes….  If the Agency promulgates a final rule, without fundamentally and comprehensively changing substantial portions of its proposal, the end result will require a significant number of state lead agencies to terminate administration of their certification programs, revert this responsibility and cost back to EPA, result in decreased training and education of the regulated community, and increased risks to human health and the environment.  In short, the proposed rule incentivizes both the state regulatory agencies and the regulated community to respond to implementation and compliance requirements in a manner that is in direct conflict with the Agency’s stated objectives for publishing this proposed rulemaking.

It is not clear how states will respond to the new requirements.  The arrival of a new Administration, with a stated emphasis on allowing states more flexibility in implementing environmental policies, might invite close scrutiny and possible legislative intervention by Congress of this “midnight” final rule issued in the period after the election and before the Inauguration of the new President.


 
BERGESON & CAMPBELL, P.C.
2200 Pennsylvania Ave, N.W. Suite 100W
Washington, D.C. 20037
(202) 557-3800 • (202) 557-3836 (fax) | lawbc.com
Contact • Twitter
 
Privacy and Terms of Use | Attorney Advertising | Trademarks
©2017 Bergeson & Campbell, P.C.
All Rights Reserved.