EPA Finalizes Strategy to Protect Endangered Species from Herbicides

The EPA released its final Herbicide Strategy, an unprecedented step in protecting over 900 federally endangered and threatened (listed) species from the potential impacts of herbicide, which are chemicals used to control weeds. EPA will use the strategy to identify measures to reduce the amount of herbicides exposure to these species when it registers new herbicides and when it reevaluates registered herbicides under a process called registration review. The final strategy incorporates a wide range of stakeholder input, ensuring EPA not only protects species but also preserves a wide range of pesticides for farmers and growers.

 

The Biden-Harris Administration’s new approaches for protecting endangered species, which include the Herbicide Strategy, have resolved multiple lawsuits against EPA. For decades, EPA has tried to comply with the Endangered Species Act (ESA) on a pesticide-by-pesticide, species-by-species basis. However, because this approach is very slow and costly, it resulted in litigation against the agency and uncertainty for users about the continued availability of many pesticides. At the beginning of 2021, EPA faced almost two dozen lawsuits covering thousands of pesticide products due to its longstanding failure to meet ESA obligations for pesticides. Some of these lawsuits resulted in courts removing pesticides from the market until EPA ensured the pesticides comply with the ESA. Now, all but one of those lawsuits has been resolved. Unlike EPA’s historic approach to compliance, the Herbicide Strategy identifies protections for hundreds of listed species up front and will apply to thousands of pesticide products as they go through registration or registration review, thus allowing EPA to protect listed species much faster.

 

In July 2023, EPA released a draft of this strategy for public comment. EPA received extensive comments, with many reiterating the importance of protecting listed species from herbicides but also minimizing impacts on farmers and other pesticide users. In response to comments, EPA made many improvements to the draft, with the primary changes falling into three categories:

 

EPA focused this strategy on conventional herbicides used in agriculture in the lower 48 states because the most herbicides are applied there. In 2022, approximately 264 million acres of cropland were treated with herbicides, according to the Census of Agriculture from the U.S. Department of Agriculture (USDA). The number of cropland acres treated with herbicides has remained fairly consistent since the early 2010s. EPA is also focusing this strategy on species listed by the U.S. Fish and Wildlife Service (FWS) because herbicides generally impact those species. For species listed by the National Marine Fisheries Service, EPA is addressing pesticide impacts through a separate initiative with that agency.

 

 

The final strategy includes more options for mitigation measures compared to the draft, while still protecting listed species. The strategy also reduces the level of mitigation needed for applicators who have already implemented measures identified in the strategy to reduce pesticide movement from treated fields into habitats through pesticide spray drift and runoff from a field. The measures include cover crops, conservation tillage, windbreaks, and adjuvants. Further, some measures, such as berms, are enough to fully address runoff concerns. Growers who already use those measures will not need any other runoff measures. EPA identified these options for growers through its collaborations with USDA under its February 2024 interagency MOU and through over two dozen meetings and workshops with agricultural groups in 2024 alone.

 

The final strategy also recognizes that applicators who work with a runoff/erosion specialist or participate in a conservation program are more likely to effectively implement mitigation measures. These conservation programs include the USDA’s Natural Resources Conservation Service practices and state or private stewardship measures that are effective at reducing pesticide runoff. The strategy reduces the level of mitigation needed for applicators who employ a specialist or participate in a program. Geographic characteristics may also reduce the level of mitigation needed, such as farming in an area with flat lands, or with minimal rain such as western U.S. counties that are in the driest climates. As a result, in many of those counties, a grower may need to undertake few or no additional runoff mitigations for herbicides that are not very toxic to listed species.

 

The final strategy uses the most updated information and processes to determine whether an herbicide will impact a listed species and identify protections to address any impacts. To determine impacts, the strategy considers where a species lives, what it needs to survive (for example for food or pollinators), where the pesticide will end up in the environment, and what kind of impacts the pesticide might have if it reaches the species. These refinements allow EPA to focus restrictions only in situations where they are needed.

 

The final strategy will also expedite how EPA complies with the ESA through future consultations with FWS by identifying mitigations to address the potential impacts of each herbicide on listed species even before the agency completes the consultation process for that herbicide—which in many cases, can take five years or more. Further, EPA and FWS expect to formalize their understanding of how this strategy can inform and streamline future ESA consultations for herbicides.

 

The final strategy itself does not impose any requirements or restrictions on pesticide use. Rather, EPA will use the strategy to inform mitigations for new active ingredient registrations and registration review of conventional herbicides. EPA understands that the spray drift and runoff mitigation from the strategy can be complicated for some pesticide users to adopt for the first time. EPA has also developed a document that details multiple real-world examples of how a pesticide applicator could adopt the mitigation from this strategy when those measures appear on pesticide labels.

 

To help applicators consider their mitigation options, EPA is developing a mitigation menu website that the agency will release in fall 2024 and plans to periodically update with additional mitigation options, allowing applicators to use the most up-to-date mitigations without requiring pesticide product labels to be amended each time new measures become available. EPA is also developing a calculator that applicators can use to help determine what further mitigation measures, if any, they may need to take in light of mitigations they may already have in place. EPA will also continue to develop educational and outreach materials to inform the public and help applicators understand mitigation needs and where descriptions of mitigations are located.

 

The EPA has finalized a settlement with Applied Energy Systems Puerto Rico, LP (AES) that requires it to operate monitors and pay a penalty for violations of the Clean Air Act (CAA) at its facility in Guayama, Puerto Rico, underscoring EPA’s commitment to hold companies accountable when they violate the Clean Air Act, and potentially put a community’s health at risk. EPA found that the company did not properly monitor for mercury, particulate matter and hydrochloric acid emissions, and that it did not properly report mercury emissions as required. As part of the settlement, the company will pay a civil penalty of $3.1 million, and AES will address violations of the Mercury and Air Toxics Standards (MATS). 

 

AES has agreed to operate two recently installed mercury process monitors to support the facility’s operation of its system to remove mercury from its emissions. To increase transparency with the public, the company has also agreed to post its MATS compliance reports and its site-specific monitoring plan to its public website. EPA expects that these environmental improvements will benefit communities near the facility.

 

“This settlement underscores EPA’s commitment to hold companies accountable when they violate the Clean Air Act, and potentially put a community’s health at risk,” said Regional Administrator, Lisa F. Garcia. “Toxic air pollution from power plants can make people sick and EPA is taking action to hold coal-fired power plants accountable. This settlement is specific to the Clean Air Act, but EPA is continuing to assess this facility for compliance with other environmental laws.”

 

AES produces about one-quarter of Puerto Rico’s power via its coal-fired power plant in Guayama. The plant’s contract with the government of Puerto Rico calls for the closure of the power plant by December 2027. Any fossil fuel-fired combustion unit exceeding 25 megawatts that produces electricity for sale must comply with the MATS, which include specific emission and operating limits.

 

EPA’s investigation and discussions with AES specifically revealed multiple alleged violations of the MATS, such as failure to properly operate a mercury monitoring system at all times. AES also failed to comply with the applicable mercury emission limit on two occasions, specifically during the periods of March 17-21, 2022, and April 5-12, 2022.  AES failed to comply with calibration, installation, maintenance, and reporting requirements under the MATS and the facility’s air permits. EPA issued a notice of violation in July 2022 to AES for violating the Puerto Rico regulations for the Control of Atmospheric Pollution and the MATS, along with air permits. 

 

Power plants are among the largest domestic sources of emissions of mercury and other toxic air pollutants such as arsenic, chromium, cobalt, nickel, lead, hydrogen chloride, beryllium, and cadmium. Exposure to these hazardous air pollutants, at certain levels and durations, is associated with a variety of adverse health effects, which may include irritation of the lungs and skin, detrimental effects on the central nervous system, damage to the kidneys, and cancer.

 

 

The National Integrated Heat Health Information System (NIHHIS) released its first National Heat Strategy. Through 2030, this document will guide the 29 federal agencies within NIHHIS in building the nation’s resilience to extreme heat. The strategy encompasses constituent agencies’ range of jurisdictions, but as CDC is a lead agency within NIHHIS and other partner agencies include NIOSH and OSHA, some of the strategic goals relate directly to protecting the health and safety of workers and their communities. While the beginning of the document states that NIHHIS’ “vision for a thriving, heat-resilient nation is all encompassing,” the strategy recognizes those who work in hot environments as one of the populations “disproportionately affected by extreme heat.”

 

The National Heat Strategy explains that NIHHIS “is a focal point for collaboration between Federal agencies to address the challenge of extreme heat,” launched in 2015 and based on the Integrated Information System (IIS) model. “An IIS is designed to inform and improve the policy and decision-making landscape, connect and amplify existing programs and networks, and respond to emerging priorities in a rapidly changing climate,” the document states.

 

Part of the strategy lays out each NIHHIS agency’s roles in addressing heat. CDC’s roles include tracking heat-related illnesses, conducting translational research on heat-related topics, providing information on heat health and safety, and building local health departments’ capacity to prepare for and respond to heat events. NIOSH’s role is to conduct research and make recommendations to prevent work-related heat illnesses and injuries. OSHA is responsible for ensuring employers meet their obligations related to heat illnesses and injuries, such as by developing safety standards and guidance and responding to reports of occupational heat illnesses and fatalities. Other agencies with roles in NIHHIS include EPA, the Federal Emergency Management Agency, the Food and Drug Administration, and the National Institutes of Health.

 

The National Heat Strategy groups NIHHIS agency activities into four overarching goals: communication, outreach, and education; science; solutions; and support. Although these goals are broad in scope, some components detailed in the document explicitly refer to workers and their health and safety. Within Goal 1, “Communication, Outreach, and Education,” workers and employers are listed among the populations for whom NIHHIS should expand opportunities for heat health training. Goal 3, “Solutions,” in part addresses occupational health and safety, including potential standards and regulations.

 

The U.S. Department of Health and Human Services announced the new National Heat Strategy with a press release that also links to heat-related resources developed by NIHHIS agencies. These include the Building Blocks for a Heat Stress Prevention Training Program (PDF), developed by the National Institute of Environmental Health Sciences Worker Training Program. The WTP training document includes tools and checklists that help workers prevent, recognize, and respond to heat stress.

 

A PDF of the National Heat Strategy may be downloaded from the HHS press release.

 

 

Many workplaces in the engineered stone fabrication and installation industries inspected by OSHA during the last year had not properly conducted exposure assessments for silica, according to a new hazard analysis published by the agency. The document outlines OSHA’s findings from these workplace inspections, which stemmed from an enforcement and compliance initiative launched in September 2023 to help protect workers in stone establishments where their work can expose them to high levels of silica dust. Engineered stone is of particular concern because it can contain more than 90 percent crystalline silica content, far higher than the 10 to 45 percent typical with granite, according to a hazard alert (PDF) from OSHA and NIOSH.

 

From the launch of the initiative until July 8, 2024, OSHA conducted 204 targeted inspections in the engineered stone industries—160 inspections of companies in cut stone and stone product manufacturing and 44 of merchant wholesalers of brick, stone, and related construction material—as well as another 42 unprogrammed inspections. OSHA says it issued violations in 149 of these inspections and identified 68 overexposures to respirable crystalline silica.

 

The OSHA document contains examples of issues employers have experienced when attempting to control worker exposures to respirable crystalline silica. In one case, a marble and granite company was incorrectly using table 1 from OSHA’s respirable crystalline silica standard for construction for compliance. While the table allows the use of wet cutting methods for exposure control in construction, OSHA explains that the standard for general industry “prohibits using the construction table if the task is performed regularly in the same environment and conditions” such as in the company’s shop. During a different inspection of a brick manufacturer, the agency identified several overexposures to respirable crystalline silica among saw operators, including overexposures up to 373 µg/m³, which OSHA stresses is more than seven times the permissible exposure limit for silica. The manufacturer had also implemented wet cutting methods as part of its workplace controls, but it was recycling the cutting water, which the agency notes could concentrate contaminants including silica.

 

The most common violation identified by OSHA during its recent inspections of stone establishments was failure to implement written hazard communication programs. Other frequent violations included missing elements of respiratory protection programs and lack of medical examinations for workers wearing respirators.

 

Further details can be found in OSHA’s hazard analysis document (PDF).

 

The U.S. Department of Labor has reached a settlement agreement with a Hattiesburg poultry processing plant that requires the company to pay $164,814 in fines and implement enhanced safety measures to protect their employees from well-known machine hazards.

 

The agreement follows an investigation by OSHA into the failure by Mar-Jac Poultry to use required safety procedures that would have kept a teenaged worker from being fatally caught in a machine as they cleaned it in July 2023.

 

In addition to abating all violations cited by OSHA, Mar-Jac Poultry MS, LLC must implement the following enhancements:

 

“Tragically, a teenage boy died needlessly before Mar-Jac Poultry took required steps to protect its workers,” said OSHA Regional Administrator Kurt Petermeyer in Atlanta. “This settlement demands the company commit to a safer workplace environment and take tangible actions to protect their employees from well-known hazards. Enhanced supervision and increased training can go a long way toward minimizing risks faced by workers in meat processing facilities.”

 

OSHA offers small and medium-size employers no-cost safety consultation services to assist them in developing a comprehensive safety program to prevent incidents that can cause serious and fatal injuries.

 

Headquartered in Gainesville, Georgia, Mar-Jac Poultry has raised live birds for poultry production since 1954 at facilities in Alabama, Georgia and Mississippi for food service customers in the U.S and abroad.

 

 

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