NAAA pushed back strongly against the idea that aerial application “present[s] a high risk of exposure” as the agency claimed in the proposed rule. 

 

EPA responded to NAAA by stating that “EPA has not characterized aerial application as a ‘high risk’ application method in the final rule. However, both the proposed and final rules properly reflect the fact that aerial application presents different, and in most cases, greater potential for RUP exposure than other application methods if not performed properly, and therefore requires specialized training and experience.” Thus, EPA will still require certification in a special “aerial application” category for all aerial applicators.

 

The removal of “high risk of exposure” text from the final rule is positive as it peels off undue potential for legal liability on aerial applicators and their farmer customers.

NAAA was concerned that the proposed rule would bring too heavy an economic burden upon state pesticide offices, who would pass that burden onto applicators. NAAA stated in its comments to the Federal Register that “… we are concerned that the requirements of the proposed rule would adversely affect all state pesticide programs, resulting in increased compliance burdens and fees for GUP [(general use pesticide)] as well as RUP applicators. The economic analysis provided in the proposed rule is extremely conservative, and does not account for impacts on GUP programs. State regulators with limited resources likely will pass on the costs of the proposed rule by raising fees and/or have limiting programs.”

 

As a result, EPA drastically amended its final rule. EPA will no longer require applicators to complete a specific number of CEUs or hours of training to maintain certification. Instead, the final rule establishes a framework for certifying authorities to develop a recertification program within their jurisdictions. This means each certifying authority, like a state or a tribe, can submit recertification plans to EPA. Each state may have a different plan with varying hour requirements and tests, which allows each state to craft a recertification system that is better suited for their needs, and is less of a burden on their state office. States will continue to be able to rely on CEUs, an exam or both to certify applicators.

EPA’s proposed definition of a pesticide “mishap” would apply to anything with potential to “adversely affect man or the environment … that is related to the use or presence of a pesticide …” This definition would thereby inadvertently include any use or presence of a pesticide as a mishap. EPA changed the definition of “mishap” to read: “An event that adversely affects man or the environment and that is related to the use or presence of a pesticide, whether the event was unexpected or intentional.” This ensures an event must adversely affect man or the environment, not just have the potential to do so, to be labeled a mishap.

 

Similarly, the proposed definition of pesticide “use” was overly broad as it would have required certification for anyone involved with “arranging for the application of the pesticide” and “making necessary preparations for the application of the pesticide.” This could have required that people cleaning equipment, storing pesticide containers that have been opened, trainers, and corporate partners all be certified as applicators.

 

EPA narrowed its definition of “use” in the final rule by limiting certification requirements to “pre-application activities involving mixing and loading the pesticide,” “applying the pesticide” and “other pesticide-related activities” like transporting or storing an open pesticide container or cleaning and disposing of a pesticide.

 

The EPA made several other changes to its certification rules, most of which were supported by the Pesticide Policy Coalition, of which NAAA is the chair of the Application Subcommittee; however, some were not glowingly accepted, such as the first bullet below:

 

• The final rule sets the minimum age for commercial applicators at 18 years old, even if under direct supervision by a commercial applicator.
  
  There is an exception, however, for private applicators over 16 years of age who are under direct supervision of an immediate family member. An immediate family member includes a spouse, children, stepchildren, foster children, parents, stepparents, foster parents, brothers and sisters.
  
  There is also an exception for states to allow applicators under the minimum age requirement who are currently certified to retain their certification.

• The final rule, just like the proposed rule, has an added certification category for aerial application. Aerial applicators will be required to demonstrate core competency in pesticide use through an exam, CEUs or both, and be certified separately for aerial application, again through an exam, CEUs or both depending on a state’s EPA accepted plan.
  
  
• States now have three years, instead of two, to submit a certification plan to EPA for approval, and EPA has two years to approve that plan. Until EPA approval, the original state certification system will remain in place. Once EPA approves a plan, EPA will specify how much longer the preexisting plan may remain in effect while a state prepares to implement the new plan, but EPA anticipates most states will have two years from the date of EPA approval to fully implement their revised certification plans. That means states will likely have seven years until they must fully implement their certification plans.
  
  
• EPA stated that it “… may revisit the issue of using drones for RUP applications and whether additional competency standards are necessary in the future, but in the meantime, it seems likely that RUPs applied by drone would be ‘applied by fixed or rotary wing aircraft’ and thus be subject to the aerial applicator certification requirements of the final rule.” In other words, for the time being drones will be subject to the same environmental regulations as are manned aircraft when it comes to pesticide application.

 

NAAA spent much of the last year working to lessen the burden of EPA’s certification rule on aerial applicators. That hard work paid off.

 

Aerial applicators no longer need to worry about being defined as “high risk,” and the lawsuits that could stem from that mistaken definition. Aerial applicators in many states can now be recertified every five years instead of every three, saving time and money. Also saving time and money, NAAA was successful in convincing the EPA to limit the category of people requiring certification. Each of these amendments to EPA’s proposed rule will strengthen and protect the aerial application industry as NAAA continues to fight for agricultural aviators in Washington, D.C.