The EPA’s recent proposal to amend its worker protection standard (WPS) presents a good opportunity to review the differing authorities of the two agencies with regard to protecting pesticide handlers and agricultural workers from exposure to pesticides.
The Occupational Safety and Health (OSH) Act provides OSHA with broad authority to issue regulations to protect workers from hazards in the workplace. However, Section 4(b)(1) of the OSH Act prohibits OSHA from regulating working conditions or hazards where other federal agencies exercise statutory authority to prescribe or enforce standards for occupational safety and health. In this case, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) provides the EPA, not OSHA, with statutory authority to protect farm workers in the field from pesticide exposure. However, OSHA regulations do apply when workers not in the field may be exposed to pesticides and also when workers in the field are exposed to hazardous chemicals other than pesticides.
More protective?
OSHA and the EPA have recognized that this dichotomy holds significant potential for either agency impeding on the other’s domain and confusing regulated entities about which agency’s regulations are governing in particular circumstances. As a consequence, the EPA and OSHA have made several attempts to coordinate regulations, inspections, and enforcement to ensure that each remains within the scope of its statutory authority.
At the same time, the fact that the requirements of the two agencies can apply in the same place to the same workers has highlighted the differences in the scope and effectiveness of the standards. It general, it has been claimed by some that OSHA’s standards are more protective of worker safety than the EPA’s WPS. Several aspects of the EPA’s proposal attempt to eliminate or narrow the differences.
Respirators
Under the WPS proposal, the EPA’s main action with regard to OSHA would be to adopt the OSHA standard for respirator use. The EPA’s existing WPS requirements specify that respirators must be appropriate for the pesticide product used and that the employer must ensure that the respirator fits correctly.
Proposed section 40 CFR 170.201(c)(3)(iii) enhances those provisions by requiring that training inform handlers that their employer must ensure thy have received respirator fit testing, training, and medical evaluation if they are required to wear a respirator. Only those handlers who would use a respirator would need to receive the full OSHA training on respirators. According to the EPA, this provision would reduce the burden on employers to comply with two separate standards.
Hazard communication standard
In addition, the proposal would bring amend the WPS to align the worker notification requirements closer to those specified in OSHA’s hazard communication standard HCS).
The WPS requires that limited information about pesticides used on the establishment be displayed in a central location. But health care, medical, and farmworker organizations have pointed out that the WPS does not require that this information contain an explanation of the symptoms associated with exposure to a specific product; nor does it provide other use-related information that would benefit workers, handlers, and health care providers in the event of a pesticide-related illness or an emergency.
In contrast, OSHA’s HCS requires that employers maintain chemical-specific hazard information (i.e., safety data sheets or SDSs) and provide this information to workers before they enter an area where they could be exposed and to make the same material available to workers upon request.
Access to SDSs
Accordingly, the EPA is now proposing to require that employers provide agricultural workers and pesticide handlers with access to copies of SDSs and pesticide labeling for products that have been applied on the establishment and to which workers and handlers may be exposed. The Agency says it believes making this information available to workers and handlers may assist them and possibly health care providers in the event of an emergency involving pesticide exposure. EPA also believes that providing access to specific hazard information would assist workers and handlers in better protecting themselves and others from pesticide hazards in the workplace.
Further, the proposed rule would also require employers to maintain a copy of pesticide labeling, the application records, and the SDSs, as well as the information currently required under the WPS, for 2 years after the product was applied on the establishment. The employer would be required to give a copy of this information to health care providers treating a worker or handler who was exposed on the establishment.
The EPA’s proposed amendments to its WPS in the March 19, 2014, FR.