NATIONAL ENVIRONMENTAL JUSTICE ADVISORY
	COUNCIL	
Members
Richard Moore, Chair
Jill Heaps, Vice-Chair
Sylvia Orduno, Vice-
Chair
April Baptiste
Charles Chase
Ellen Drew
Lisa Finley-DeVille
Jabari O. Edwards
Michael Ellerbrock
Jan Fritz
Rita Harris
Erica L. Holloman
Na'Taki Osborne Jelks
Cheryl Johnson
Rosalyn LaPier
Mildred McClain
Melissa McGee-Collier
Jeremy F. Orr
Dennis Randolph
Cynthia Kim Len Rezentes
Deidre Sanders
Jerome Shabazz
Fatemeh Shafiei
Nicky Sheats
Paul Shoemaker
Karen Sprayberry
Michael Tilchin
Hermila Trevino-Sauceda
Sandra Whitehead
Sacoby Wilson
Kelly C. Wright
Dewey F. Youngerman, III
December 18, 2018
Andrew Wheeler
Acting Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460
Dear Acting Administrator Wheeler:
The National Environmental Justice Advisory Council (NEJAC) urges you to halt
efforts to rescind portions of the Agricultural Worker Protection Standard and the
Certification of Pesticide Applicators rule. NEJAC believes that the rules should be
implemented as they are currently written to better protect farmworkers and rural,
agricultural communities. We urge you to rigorously enforce these rules, as they
provide the necessary protections to vulnerable farmworkers from exposure to toxic
pesticides.
A.
Farmworkers and their families are a vulnerable group of people
that need strong EPA rules to protect them from pesticide
exposure.
The EPA established the Worker Protection Standard and the Certification of
Pesticide Applicators rule in part to protect non-English speaking farmworkers.
According to the National Agricultural Workers Survey, more than half of U.S.
farmworkers primarily speak Spanish,1 but farmworkers across the country speak a
variety of languages. Further, approximately 59% of farmworkers speak a little or
no English; 38% cannot read English at all and another 23% can only read English a
little.2
In addition to having limited English proficiency, many farmworkers also have
concerns related to their immigration status. From 2013-2014, 73% of workers were
1	U.S. Dep't. of Lab., Findings from the Nat'l Agric. Workers Surv. 2013-2014 (2016),
available at https://www.doleta.gov/naws/pages/researcli/docs/NAWS_Research_Report_12.pdf.
The preamble to the Worker Protection Standards summarizes the Findings from the National
Agricultural Workers Survey as "Approximately 65% of the [farmworker] population speaks little of
no English; 38% cannot read English at all and another r30% can only read English a little." 80 Fed.
Reg. 67496, 67502.
2	U.S. Dep't. of Lab., Findings from the Nat'l Agric. Workers Surv. 2013-2014 (2016).

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foreign born, compared to 74% in 2010-2012.3 The share of hired crop workers not
legally authorized to work in the U.S. grew from 15% in 1989-1991 to almost 55%
in 1999-2001, and has since fluctuated around 50%.4 Undocumented workers are
worried about speaking up with safety concerns or to learn their rights because they
worry about retaliation5 and that raising concerns will cost them their jobs.6 Cultural
barriers factor into farmworkers' vulnerability, as well, as many farmworkers are
unaccustomed to standards, regulations, policies, procedures, and workplace culture
in the U.S. Cultural norms in their communities may differ, and the workplace can be
challenging, not just in terms of arduous working conditions, but in having to
navigate within a different culture. Many farmworkers are also women, who
frequently work throughout their pregnancies and have concerns about exposing
their children to pesticides in utero. Further, most farmworkers live and send their
children to school near the farms where they work. Farmworkers need safeguards to
protect themselves and their families from pesticide exposure.
B. These provisions are incredibly important and protect this
vulnerable population.
The purpose of the 2015 revisions to both the Worker Protection Standard and the
Certification of Pesticide Applicators rule was to reduce occupational pesticide
exposure and incidents of related illness among agricultural workers and pesticide
handlers. Additionally, these revisions aim to protect bystanders and others from
being exposed to agricultural pesticides. The Worker Protection Standard requires
agricultural establishments to adopt workplace practices to reduce or eliminate
exposure to pesticides and establish procedures for responding to exposure-related
emergencies. These rules, in combination with other components of EPA's pesticide
regulatory program, intend to prevent unreasonable adverse effects of pesticides
among workers, handlers, and other persons who may be on or near agricultural
establishments, including vulnerable groups, such as minority and low-income
populations. The provisions regarding minimum age, designated representatives, and
the application exclusion zone are essential to achieving this purpose.
3	Id.
4	U.S. Dep't. of Agric., Farm Lab. (2018) https://www.ers.usda.gov/topics/farm-economy/farm-
labor/#legalstatus.
5	See Michael Frank, Can America's Farms Survive the Threat of Deportations?, ROUTE FIFTY (Jun. 7,
2017) https://www.routefiftv.eom/public-safetv/2017/06/can-americas-farms-survive-threat-
deportations/138471/ (explaining the fear farmworkers experience now that the U.S. Immigration and
Customs Enforcement (ICE) have expanded their efforts to find undocumented workers).
6	See Richard L. Gaw, Twelve Arrested in ICE Raid at Mushroom Farm, CFIESTER COUNTY PRESS
(May 3, 2017) http://www.chestercountv.com/2017/05/Q3/141298/twelve-arrested-in-ice-raid-at-
mushroom-farm (explaining how ICE is increasingly targeting farms in Pennsylvania and the
Northeast that employ undocumented workers).
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The minimum age requirement, the designated representative, and the application
exclusion zone are essential for protecting the health of vulnerable farmworkers.
The minimum age requirement ensures that children will not be harmed by pesticide
exposure because it guarantees that children will not handle or apply pesticides. The
Worker Protection Standard's designated representative requirement protects
farmworkers by allowing farmworkers to have someone help obtain information
about the pesticides that they may have been exposed to in the workplace. The
application exclusion zone prohibits pesticide applicators from exposing people,
including workers and non-workers, within the immediate area surrounding the
application equipment. These rules represent a first step in protecting farmworker
children, helping farmworkers obtain important information about their exposure to
pesticides, and protecting people who work and live near farms from pesticide
exposure.
1. Minimum age requirements protect vulnerable young people
from harmful pesticide exposure.
Raising the minimum age to 18 for pesticide handlers and early entry workers
protects adolescent farmworkers. Adolescent farmworkers are at risk of potential
health effects from pesticide exposure because their bodies are still developing.
Adolescent farmworkers are also put in jeopardy because their behavior is riskier
than that of adults, which puts them and everyone nearby at risk. Youth under 21
years of age are not eligible to rent a car, for example, from most car rental
companies, for the very reason that statistics indicate that younger drivers are more
at risk for accidents due to lack of experience and a penchant for risk taking. For
these reasons, thousands who commented on the proposed rules supported raising the
age to 18 to protect teenagers from harm. The few commenters who supported a
minimum age of 16 did not provide any research or data showing that 16 and 17-year
old adolescents would not suffer adverse chronic effects from potential pesticide
exposure from applying pesticides.
Reserving pesticide handlers' and applicators' jobs for adults is consistent with how
the Fair Labor Standards Act already protects children. Provisions in the Fair Labor
Standards Act prohibit anyone under the age of 18 from working in hazardous
conditions. The Fair Labor Standards Act defines "oppressive child labor" as a
condition of employment in which "any employee between the ages of sixteen and
eighteen years is employed by an employer in any occupation ... to be particularly
hazardous for the employment of children between such ages or detrimental to their
health or well-being."7
7 29 U.S.C. § 203(1)(2)
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2.	The Designated Representative requirement ensures that there is
someone who can effectively communicate with farmworkers and
obtain information about the pesticides they were exposed to in
the workplace.
Many farmworkers do not speak English or have a limited understanding of the
language. Therefore, workers and handlers may be reluctant to request information
for themselves due to their inability to communicate effectively with, or fear of
retaliation from their employer, or because they may not be able to understand the
information without help. The Worker Protection Standard allows farmworkers to
designate a representative to obtain pesticide application information on their behalf.
Without this right, the Worker Protection Standard will fail to ensure that vulnerable
farmworkers know what pesticides they were exposed to and understand the
potential adverse health effects of those exposures. Furthermore, having detailed
information about the name and class of pesticide can help farmworkers seek and
obtain an accurate diagnosis and proper medical care after a pesticide-poisoning
incident.
3.	The Application Exclusion Zone is a first important step to
protect farmworkers, their families, and their neighbors from
pesticide exposure.
An application exclusion zone is a 25-100-foot area immediately surrounding the
application equipment during a pesticide application. If a pesticide applicator sees a
non-trained and unprotected person within this zone, they must suspend the
application and resume after the person leaves the area. The application exclusion
zone provision establishes clear areas where pesticides can be sprayed in order to
prevent others from harm. The rule recognizes that pesticide drift may affect
neighboring farms. Recent cases in California and Florida have resulted in
farmworkers suffering adverse health effects and even hospitalization from pesticide
applications that have drifted from the farm where the application was occurring to a
neighboring farm where workers were harvesting crops. These incidents not only led
to illness and hardship to workers, but loss of production in the field, economic loss
to the farms, lengthy investigations of the incidents, and fines for the farm that
caused the incident. The application exclusion zone reduces the risk of these
incidents from occurring.
C. The EPA must protect and preserve the current rules.
1. These rules were created after a robust process.
The Worker Protection Standard and the Certification of Pesticide Applicators rule
were the result of numerous stakeholder and working group meetings over months
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and years. Stakeholders included farmworker organizations, health care providers,
state regulators, educators and trainers, pesticide manufacturers, farmers,
organizations representing agricultural commodity producers, and crop advisors.
The EPA received substantial feedback on the 2015 proposals to implement these
protections, including over 2,400 written comments with over 393,000 signatures.
Commenters included farmworker advocacy organizations, state pesticide regulatory
agencies and organizations, public health organizations, public health agencies,
growers and grower organizations, agricultural producer organizations, applicators
and applicator organizations, pesticide manufacturers and organizations, Personal
Protective Equipment manufacturers, farm bureaus, crop consultants and
organizations, and others. The comments received covered a wide range of issues
and took diverse positions. These issues ranged from protecting children from
pesticide exposure because their developing bodies are susceptible to agriculture
chemical exposure, to following the same guidelines that other agriculture-reliant
states have implemented regarding a minimum age requirement of 18 for pesticide
handlers.
The EPA engaged with these stakeholders formally through the National Assessment
of the Pesticide Worker Safety Program, public meetings, federal advisory
committee meetings, and a Small Business Advocacy Review Panel. The EPA also
engaged stakeholders informally, meeting with farmworker organizations, with
individuals and other stakeholder groups. For example, EPA Administrator Gina
McCarthy met with farmworker women in California and found their concerns to be
valid and their requests for stronger protections compelling.
Because the Worker Protection Standard and the Certification of Pesticide
Applicators rule were developed and finalized through numerous stakeholder
discussions and a formal administrative process designed to address real and urgent
concerns and to withstand the whims of partisan politics, they must be preserved
unless there is compelling new evidence that would warrant walking back the
regulations as they now stand.
2. There is no new information justifying a rollback.
The current Administration has failed to present any new information that justifies
rolling back the Worker Protection Standard or the Certification of Pesticide
Applicators rule. No new studies or reports have been published that would change
the exhaustive information, public comments, agency review, and debate that took
place before the rules were finalized.
EPA's formal notice that it is considering undoing these new rules protecting
farmworkers mentions the Pesticide Program Dialogue Committee meetings as
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justification to reconsider the rules. However, those discussions do not provide
support for ending these key farmworker protections. The Pesticide Program
Dialogue Committee met on May 4, 2017 to discuss President Trump's Executive
Order 13777 establishing a task force to evaluate existing regulations and make
recommendations about potential regulatory repeal, replacements or modifications.
The Pesticide Program Dialogue Committee attendees then expressed their thoughts,
comments, and concerns about what pesticide regulations should be repealed,
replaced, or modified. Numerous representatives from various organizations
expressed concerns about eliminating provisions that protect these vulnerable
farmworkers because they believed that these provisions protect workers, especially
children, from the harmful effects of pesticide exposure. The organizations
represented include the Migrant Clinicians Network, the Center for Biological
Diversity, Farmworker Justice, Oregon Law Center, and Beyond Pesticides.
The Pesticide Program Dialogue Committee met again on November 2, 2017 to
discuss provisions in the Worker Protection Standard and Certification of Pesticide
Applicator rule that are the subject of the proposed rule change. Committee members
representing diverse organizations agreed that the minimum age requirement for
handling pesticides should be 18. The committee members also agreed on the
importance of the designated representative requirement. One committee member
representing a state pesticide regulatory organization volunteered to gather
information about state laws that provide farmworkers a right to a designated
representative and how those states have implemented this requirement. The
committee also came to a consensus regarding the importance of the Application
Exclusion Zone. Some committee members suggested forming a working group to
address issues and concerns raised about its implementation.
During this public meeting, no members of the Pesticide Program Dialogue
Committee proposed rolling back requirements in the Worker Protection Standard or
the Certification of Pesticide Applicators rule. To the contrary, committee members
representing diverse stakeholders strongly advocated for keeping the rules in place,
and only proposed minor changes to help clarify or improve the rules changes. Even
more important are the extensive public comments made from a wide variety of
stakeholders; significant scientific studies included in the docket, and Environmental
Protection Agency review and analysis over many years. This rulemaking process
included over 15 years of outreach, meetings, and engagement with affected sectors
and revealed overwhelming support for the provisions of the regulation. To overturn
these three provisions, after such extensive and exhaustive work by the Agency, not
only puts farmworkers and agricultural communities at greater risk, but undermines
the Agency's own efforts. There is no reasonable justification for a roll back.
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3. Supreme Court precedent, recently confirmed by the Keystone
XL decision, makes clear that the Administration may not
rollback policy decisions without "good reasons" for the new
policy.
The United States Supreme Court established a four-part test to determine whether a
policy change is legal under the Administrative Procedures Act: "(1) the agency
displays 'awareness that it is changing position;' (2) the agency shows that 'the new
policy is permissible under the statute;' (3) the agency 'believes' the new policy is
better; and (4) the agency provides 'good reasons' for the new policy." Indigenous
People's Network v. U.S. Dept. of State, 2018 WL 5840768 *12 (D. Mont. Nov. 8,
2018) citingF.C.C. v. Fox Television Stations, 556 U.S. 502, 515-16 (2009).
The recent decision invalidating the U.S. Department of State's 2017 reversal of its
2015 decision not to approve the Keystone XL pipeline reaffirms Supreme Court
precedent that "'even when reversing a policy after an election, an agency may not
simply discard prior factual findings without a reasoned explanation.'" Indigenous
People's Network v. U.S. Dept. of State, 2018 WL 5840768, (D. Mont. Nov. 8,
2018)(citing Org. Vill. ofKakev. U.S. Dept. ofAgric.. 795 F.3d 956. 968 (9th Cir.
2015). quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)). The Keystone XL decision reinforced the
Supreme Court's holding that an "agency cannot simply disregard contrary or
inconvenient factual determinations that it made in the past, any more than it can
ignore inconvenient facts when it writes on a blank slate." Fox, 556 U.S. at 537.
As with the Keystone XL decision, the EPA cannot "ignore inconvenient facts"
about pesticide harms to farmworkers and farmworker adolescents, nor can it reverse
the Worker Protection Standards and Certification of Pesticide Applicators rule
"without a reasoned explanation." Because there is no "reasoned explanation" to roll
back these critical protections, we strongly urge EPA not to move forward with this
proposal that is both illegal and harmful to vulnerable farmworkers.
CONCLUSION
For these reasons, the NEJAC strongly urges you to fully enforce the standards laid
out in the current versions of the Worker Protection Standard and the Certification of
Pesticide Applicators rule. These measures exist to protect vulnerable farmworkers
and people living in rural, agricultural communities who need protection from the
federal government in order to work safely. It is the duty of the Agency to ensure
their health and safety. Farmworkers are essential to agricultural work, and without
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them the entire industry would fail. Therefore, it is necessary to guarantee that they
are protected with the utmost care in order to ensure that the industry thrives with
healthy workers.
Sincerely,
National Environmental Justice Advisory Council
Richard Moore
Chair
cc: NEJAC Members
Henry Darwin, Acting Deputy Administrator
Brittany Bolen, Associate Administrator for the Office of Policy
Matthew Tejada, Director for the Office of Environmental Justice
Karen L. Martin, Designated Federal Officer and NEJAC Program Manager
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