29
Jan
GAO Report Identifies Need for Improving EPA Protection of Farmworkers
(Beyond Pesticides, January 29, 2021) More oversight is needed to ensure farmworkers are protected from toxic pesticides, according to a report published this month by the U.S. Government Accountability Office (GAO) (the federal agency that provides auditing, evaluation, and investigative services for Congress). Revisions to the Worker Protection Standards (WPS) governing farmworker safety were updated by the Obama administration in 2015, but GAO identified a number of shortfalls in EPA’s administration of the changes. GAO focused its review on the implementation of the ‘designated representative’ provision, which grants farmworkers the ability to task an individual they designate to request information on toxic pesticides from their employers. Providing farmworkers with a designated representative allows for the access of pesticide application and hazard information, so that they may take proper precautions or seek medical care. A farmworker may use this provision when they are no longer near the farm they worked on, or if there are language barriers. Without this provision, the information farmworkers receive would be at the whim of employers, and past incidents show that lack of information can lead to hazardous, abusive conditions for workers.
EPA officials, state officials, and stakeholders told GAO there was no evidence of such misuse of obtained pesticide information. GAO recommends that EPA coordinate with states to collect information on use of this process and take particular steps to clarify agency expectation about appropriate use of such pesticide information provided to designated representatives. GAO reports that “EPA agreed, in part, to both recommendations.”
EPA explains that instead of focusing on one particular provision, it focused resources on “collecting information on broader indicators for the WPS,” according to the report. Although it is encouraging that some information is being collected, GAO provided the recommendation that the agency should coordinate with states on data specifically related to the designated representative provision. “By coordinating with states, through its annual cooperative agreement work plans with states or another mechanism, to collect information on the use of the designated representative, EPA would be better positioned to determine if the designated representative provision is serving the intended purpose,” GAO indicates.
GAO also heard that industry groups are concerned about the information received by designated representatives being misused, in order to gain competitive advantage over other producers. Although this corporate paranoia was expressed to GAO, neither stakeholders, state, nor federal officials were able to point to a specific instance of the provision being misused. EPA indicated that it would expect industry groups to relay any potential problems or misuse to the agency. Nonetheless, GAO did accept that EPA guidance does not adequately explain how information obtained by a designated representative should be used. As a result, it was recommended that EPA publish clear guidance on the provision.
The protection of farmworkers from the threats of pesticide exposures has been the subject of multiple recent developments and actions by the U.S. Environmental Protection Agency (EPA), the federal court for the Southern District Court of New York (SDNY), the General Accountability Office (GAO), advocacy groups, and a coalition of five states, led by the New York State Attorney General (AG). Those actions include, respectively, a finalized rollback of aspects of EPA’s pesticide Application Exclusion Zone (AEZ) rules; a temporary stay on implementation of those rule changes by SDNY; a set of recommendations from GAO (the U.S. General Accountability Office) to EPA; advocacy by Beyond Pesticides and others, including Farmworker Justice and Earthjustice; and litigation against EPA by the five-state coalition for the agency’s retrograde October 2020 rule on AEZs. Beyond Pesticides has called attention to the inadequate state of farmworker protections from pesticides, and advocated for robust regulation to ensure the health of these essential workers, including extra protections during the Covid-19 pandemic.
At the center of this flurry of activity are pesticide AEZs, or Application Exclusion Zones — essentially, buffer zones in which people (other than applicators) are prohibited during pesticide applications because of the health threats of exposures. The Obama administration made revisions, in 2015, to the larger EPA Worker Protection Standard (WPS) for farmworkers, including some expansion of such no-entry buffer zones. Those changes aimed to improve farmworker and farm family protections, including from significant off-site drift of aerially sprayed pesticides.
However, the agrochemical-industry-friendly (and regulation allergic) Trump administration changed that trajectory when, in 2019, EPA proposed, and in October 2020, finalized, a rule change on AEZs that would functionally shrink the buffer zones, thus, putting farmworkers, their families, and farm owner families (and rural residents generally) at heightened risk for exposure to toxic chemicals.
In its coverage of farmworker protections and lack thereof, Beyond Pesticides recently described these changed features of the new rules: “Chemical intensive farms would no longer be required to keep bystanders out of off-site spray areas, and pesticide applications could be restarted when an individual leaves an AEZ. Current rules require farms to keep individuals out of areas where pesticides are applied, both on and off-site, and require set safety requirements about when spraying can start and stop. The [new rules] would also change the way family members living on a farm are treated. While current rules incorporate protections for these family members, the changes would exempt immediate family members ‘from all aspects of the AEZ requirement.’ . . . Family members could remain inside while a pesticide spraying is occurring, ‘rather than compelling them to leave even when they feel safe remaining inside.’ Health advocates indicate that such a proposal amounts to a dereliction of the agency’s duty to inform farmers and the general public about the inherent hazards of pesticide use, as feeling safe and being safe are critically important distinctions when it comes to chemical exposure.” The Pesticide Action Networks expresses the risks to farm families pithily: “If you’re a farm owner or family and you’re inside, you’re not protected.”
EPA’s new AEZ rules were to have gone into effect on December 29, 2020. On December 18, Farmworker Justice, Earthjustice, and other advocacy groups filed an emergency motion to prevent the new regulations from taking effect. Farmworker Justice writes, “The rule limits the AEZ to the boundaries of the agricultural establishment, even though pesticide drift often crosses property boundaries. Other adjustments to the rule allow pesticide application regardless of whether non-employees are on a property if they are subject to easement — in other words, if they have a right to be on the property. . . . These changes increase the risk of pesticide exposure for non-employees as well as nearby homes, schools, hospitals. . . . The EPA ruling willfully prioritizes the convenience of growers while endangering the health of the people who work in the fields. The new regulations do not account for the aerial drift of these pesticides that go beyond arbitrary property lines. The previous regulations must be reinstated for the safety and long-term health of farmworkers.”
The complaint itself says, “The AEZ was enacted by EPA to protect farmworkers and frontline communities from being poisoned by the drift of sprayed pesticides at the time of application. The final rule’s erosion of this protection poses an unreasonable risk of harm to human health, in violation of the Federal Insecticide, Fungicide, and Rodenticide Act.”
On that same December day, New York AG Letitia James announced a lawsuit brought by a coalition of five states (led by New York), that include California, Illinois, Maryland, and Minnesota, asking that the new rule be vacated and the agency barred from implementing it. The litigation argued that “EPA violated federal law when it adopted a regulation that allows pesticide spraying to continue even if farmworkers or other persons are within the area immediately surrounding the spraying equipment, if that area is outside the farm’s boundaries.”
The states argue that this deviation from the 2015 rule — which required that there be no one (other than trained and equipped handlers or applicators) within a 100-foot buffer area of an AEZ during pesticide application, including affected areas beyond a farm’s boundaries because of the risk of pesticide drift — puts many more people at significant risk of dangerous exposures to pesticides. The suit also charges that through this rule, EPA is “ignoring its obligation to identify and address the disproportionately high and adverse effects of this policy change on minority and low-income populations.”
Ms. James commented, at the time of the announcement, that pesticides are “extremely dangerous to the health of farming communities. . . . Trump’s EPA knowingly increased the risk that farmworkers, their families, and others will be exposed to these dangerous chemicals. Throughout the COVID-19 crisis, farming communities have been our front-line workers, underpinning our economy and ensuring we have enough food on our tables. To further endanger their health and safety is as unconscionable as it is illegal, and we will fight back against this latest example of the outgoing administration’s unrelenting assault on science, public health, and the law.”
Then-AG of California, Xavier Becerra, added, “The Trump Administration’s decision to undercut existing public health protections for these workers is not only reprehensible — it’s illegal. We’re going to court to prove it.” (Mr. Becerra is currently President Biden’s nominee for Secretary of Health and Human Services.) Another participating AG, Maryland’s Brian Frosh, also weighed in: “It is EPA’s job to protect farmworkers, their families and others who are exposed to pesticides. These regulations prioritize killing bugs over protecting people.” The SDNY issued, a mere 10 days later, a temporary restraining order against EPA, prohibiting the agency from implementing the revised AEZ rules (see more, below).
Although ultimately, GAO’s recommendations could result in more transparency and better information flow, the agency’s attention to such bureaucratic minutiae, and to handholding recalcitrant farmer-owners (so that they will comply with rules about disclosing pesticides in use) pales in comparison to the larger point: EPA fails broadly to protect farmworkers adequately. GAO might do better to evaluate EPA’s poor risk assessment of specific pesticides (see this Daily News item on glyphosate), its ignoring of the science on risk (see this, on chlorpyrifos), or its outrageous March 2020 suspension of the agency’s safety enforcement program at the start of the pandemic.
These failures put agricultural workers and their families, who already endure heightened health risks from acute and chronic pesticide exposures, at ongoing risk of illness and worse. Farmworkers deserve far better protection. With an average farmworker life expectancy of roughly 56 years (compared with an average for all U.S. adults of nearly 79 years), it is morally indefensible that a federal agency should tolerate and perpetuate this level of risk. The situation for farmworkers — and the general public, ecosystems, biodiversity, and irreplaceable natural resources negatively affected by pesticide use — is made even more senseless by the reality that organic, regenerative agriculture eliminates these toxic compounds and exposures, and is a viable, profitable, and protective approach to food production.
The restraining order issued by SDNY, preventing implementation of the revised AEZ rules, now shifts the decision about whether or not to defend EPA’s industry-friendly rule to the new Biden administration. Beyond Pesticides wrote, on January 5, “While maintaining the changes agreed to under the Obama Administration would be an important start, it is evident that further safeguards are needed. A recent incident [in which more than] two dozen Texan farmworkers working in Illinois were repeatedly sprayed with toxic pesticides via aircraft, despite current rules, underscores the importance of strong enforcement to drive compliance.”
NPR (National Public Radio) and many other outlets have reported that the Biden administration is embarking on reviews of all Trump-era policies that “were harmful to public health, damaging to the environment, unsupported by the best available science, or otherwise not in the national interest.” NPR notes that the administration will specifically revisit the revised EPA rules on AEZs.
Constant pressure and vigilance are needed to protect people, given the influence of corporate interests on federal agencies. Although industry often paints a picture that new rules, such as the designated representative provision, will harm business, this GAO report provides evidence that this is not the case. Mindful that the SDNY restraining order is temporary, Beyond Pesticides strongly encourages the Biden EPA to undo permanently this harmful rule, and generally, to be bold in fighting for systemic change, and ending corporate deception and influence on our public agencies. It is what members of the public — and farmworkers — deserve.
Sources: https://beyondpesticides.org/dailynewsblog/2021/01/federal-court-blocks-epa-from-weakening-farmworker-protections/ and https://ag.ny.gov/press-release/2020/ag-james-sues-stop-epa-weakening-pesticide-poisoning-protections-farmworkers.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Really well written and interesting piece. I enjoyed reading this thank you.
January 31st, 2021 at 1:21 pm