Document ymJZzQky87bJbE7NMVzzq24pV

United States Env'toemeria! Protection Agency Worker Protection Standard Application Exclusion Zone Requirements Question and Answer Fact Sheet 4/14/2016 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00044538-00001 U.S. Environmental Protection Agency Question and Answer Fact Sheet Worker Protection Standard (WPS) Application Exclusion Zone (AEZ) Requirements Q: What is the "Application Exclusion Zone" or AEZ? A: The "Application Exclusion Zone" or AEZ is a new term used in the WPS rule and refers to the area surrounding the pesticide application equipment that must be free of all persons other than appropriately trained and equipped handlers during pesticide applications. Q: How is the AEZ measured and the size of the AEZ determined? The AEZ is the purple area around the application equipment, it moves with the application equipment as ft proceeds. The AEZ is generally within the treated area, except when the application equipment is near the edges of the treated area. A: The AEZ is measured from the application equipment. The AEZ also moves with the application equipment like a halo around the application equipment The size of an AEZ varies depending on the type of application and other factors, including droplet size, and height of nozzles above the planting medium. 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 (a volume median droplet diameter (VMD) size of less than 294 microns). 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. Q: I am confused as to whether the new WPS requirements related to the AEZ apply to the agricultural employer or the handler making the application. Please clarify. A: There are several different requirements regarding the AEZ in the revised WPS. First, the WPS provision at 170.405(a)(1) establishes the applicable AEZ distances. This is a generic description of the AEZ and is independent of the location (on or off the establishment). Second, the WPS provision at 170.405(a)(2) establishes a requirement for the agricultural employer to not allow any workers or other persons in the AEZ within the boundaries of the establishment until the application is complete. Compliance is required with this requirement beginning January 2, 2017. 1 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00044538-00002 Third, the provision at 170.505(b) establishes a requirement for the handler to suspend the application if any workers or other persons are anywhere in the AEZ. This requirement is NOT limited to the boundaries of the establishment This applies to any area on or off the establishment within the AEZ while the application is ongoing. Please note that this is one of the WPS provisions that is delayed in implementation until January 2, 2018, to allow time for the handlers to receive training on the new requirement The requirement for the agricultural employer to keep persons out of the AEZ only applies within the boundaries of the establishment because the agricultural employer cannot be expected to control persons off the establishment The "suspend application" provision does apply beyond the boundaries of the establishment because the handler (applicator) and handler employer DO have control over the pesticide application and are subject to a WPS requirement to apply the pesticide in a way that will not contact workers or other persons on or off the establishment Q: What are the agricultural employer's responsibilities related to the pesticide applications and the new AEZ requirements, and when does this requirement go into effect? A: The agricultural employer has two responsibilities related to the pesticide applications and the new AEZ requirements: During any WPS-covered pesticide application, the agricultural employer must keep workers and all other persons (other than appropriately trained and equipped handlers involved in the application) out of the treated area and the AEZ within the boundary of the agricultural establishment This includes people occupying migrant labor camps or other housing or buildings that are located on the agricultural establishment. The agricultural employer may not allow a pesticide to be applied while any worker or other person on the establishment is in the treated area or within the AEZ. (Note that if the agricultural employer is also the handler making the pesticide application, he or she must suspend a pesticide application if any worker or other person is within the AEZ beyond the boundary of the agricultural establishment) The requirements related to the AEZ will go into effect January 2, 2017. Q: Does the agricultural employer have WPS responsibilities related to the new AEZ requirements if workers or other persons are off his/her establishment? A: The AEZ requirement at 170.405(a) imposes no responsibilities on an agricultural employer in regard to workers or other persons who are not on the agricultural establishment as long as the agricultural employer is not the pesticide applicator. If the agricultural employer is also the handler making the pesticide application, then 170.505 would require him/her to suspend a pesticide application if any worker or other person is within the AEZ beyond the boundary of the agricultural establishment. Q: What are the applicator's/pesticide handler's responsibilities related to the pesticide applications and the new AEZ requirements, and when does this requirement go into effect? A: Starting January 2, 2018, the handler performing the application must immediately suspend the pesticide application if any worker or other person, other than an appropriately trained and equipped handler involved in the application, is in the AEZ, regardless of whether such persons are on or off the establishment. 2 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00044538-00003 Q: Why is the implementation date for the handler's requirement to suspend a pesticide application if workers or other persons are in the AEZ delayed until January 2, 2018? A: The implementation date for this requirement is delayed until January 2, 2018, to allow time for pesticide handlers to receive training on the new requirement. Q: As noted above, the pesticide handler performing the application must immediately suspend the pesticide application if any worker or other person, other than an appropriately trained and equipped handler involved in the application, is in the AEZ, regardless of whether such persons are on or off the establishment. When and under what circumstances can a handler resume a pesticide application? A: If the AEZ stretches beyond the property of the agricultural establishment being treated, and a worker or other person is in this portion of the AEZ, the applicator must temporarily suspend the application, and may not proceed until the applicator can ensure that the pesticide will not contact any persons that are in the AEZ area that extends beyond the boundary of the establishment. This is explained in more detail in EPA's Interpretive Policy below. The agricultural employer may not allow a pesticide to be applied, or a suspended application to be resumed, while any worker or other person on the establishment is in the treated area or within the AEZ. Note that both the handler employer and the handler are required to ensure that no workers or other persons, other than appropriately trained and equipped handlers involved in the application, are ever contacted by a pesticide, either directly or through drift, regardless of whether such persons are on or off the establishment or beyond the boundary of the AEZ. Interpretive Policy on when a handler may resume a suspended application when a person is in the AEZ Q: The final WPS rule contains a provision at 170.505(b) that says: After January 2, 2018, the handler performing the application must immediately suspend a pesticide application if any worker or other person, other than an appropriately trained and equipped handler involved in the application, is in the application exclusion zone (AEZ) described in 170.405(a)(1) or the area specified in column B of the Table in 170.405(b)(4). We understand this requirement for the handler to suspend the application if workers or other persons are in the AEZ applies even when the workers or other persons are not on the agricultural establishment. However, the rule does not state when the handler may resume a pesticide application if the application was suspended because workers or other persons were in the AEZ but off the establishment property. In this situation, the employer does not have WPS responsibility to keep those other persons out of the AEZ, but also does not have control over those other persons and cannot make them move. Please clarify when the handler may resume the application. A: If workers or other persons are within the AEZ, the handler must suspend the application whether the workers and other persons are located on or off the agricultural establishment Before resuming the application when workers and other persons are in the AEZ but located off the establishment, the handler must take measures to ensure that such workers and other persons will not be contacted by the pesticide application either directly or through drift. Examples of such measures include assessing the wind and other weather conditions to confirm they will prevent 3 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00044538-00004 workers or other persons from being contacted by the pesticide either directly or through drift; adjusting the application method or employing drift reduction measures in such a way to ensure that resuming the application will not result in workers or other persons off the establishment being contacted by the pesticide; asking the workers or other persons to move out of the AEZ until the application is complete; or adjusting the treated area or the path of the application equipment away from the workers or other persons so they would not be in the AEZ. The handler may resume the pesticide application when a worker or other person is in the AEZ only if the handler can ensure that it can be carried out in compliance with all of the pesticide's applicable labeling requirements and restrictions, and that workers and other persons on and off the establishment will not be contacted by the pesticide as a result of the application except as may be permitted by the pesticide's labeling. It is important to note that this answer only applies in regard to workers and other persons beyond the boundaries of the establishment; if a handler were to resume an application while workers or other persons on the establishment are still within the AEZ, that would give rise to a violation of 170.405. Additional Information on EPA's Worker Protection Standard is available at www.epa.gov/pesticide-worker-safetv. 4 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00044538-00005