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Daily News Blog

14
Feb

EPA’s Worker Protection Standard Fails to Protect Farmworkers’ Health, Report Finds

(Beyond Pesticides, February 14, 2024) The latest in a series of reports on the state of farmworker protection, released last December, highlights the long history of health threats, regulatory failures, and structural racism that is imbued in the chemical-intensive agricultural system that feeds the nation and world. The authors conclude that farmworkers “face a level of occupational risk unrivaled by most workers.” They continue: “From repeated exposure to pesticides and extreme heat, to injuries from machinery and repetitive motion, conditions on American farms involve myriad hazards. Meanwhile, a lack of access to healthcare and legal services, low wages, marginalization, language barriers, racism, and the threat of deportation among these largely immigrant communities compound their many challenges.” Describing the U.S. food system and the workers who serve as its foundation, Precarious Protection: Analyzing Compliance with Pesticide Regulations for Farmworker Safety is the third publication in a series of reports on farmworker health and safety, led by the Center for Agriculture and Food Systems (CAFS) at Vermont Law and Graduate School and written with the Harvard Law School Food Law and Policy Clinic and the nonprofit group Farmworker Justice. Johns Hopkins Center for a Livable Future and Farmworker Justice partnered on the first and second reports, respectively. The report raises anew the question of whether continued use of petrochemical chemical pesticides and fertilizers in agriculture, with additional catastrophic threats to biodiversity, climate, and the general population, is justifiable in light of the commercial viability of organic agriculture in all food commodities.

The first report in the series, Essentially Unprotected, identifies gaps in U.S. laws and policies that put farmworkers at risk, specifically focusing on the workplace hazards of pesticide exposure and heat-related illness. The second report, Exposed and at Risk, in addition to highlighting the systemic racism of the country’s pesticide policies, outlines how state and federal enforcement of pesticide safety regulations are weak and unreliable—proposing policy solutions, given that the current “complex system of enforcement . . . lacks the capacity to effectively protect farmworkers. . . . [and] the cooperative agreement[s] between federal and state agencies makes it nearly impossible to ensure implementation of the federal Worker Protection Standard (WPS),” administered by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The new report focuses on states with significant farmworker populations, including California, Washington, Florida, Illinois, North Carolina, Oregon, and New York.

Challenges highlighted in the report focus on the shortcomings and compliance issues that undermine the WPS, including:

  • Ineffective training: training does not reach the majority of workers, no measure to verify retention, no refresher trainings for trainers or workers;
  • Access to information: lack of properly posted warnings, language barriers;
  • Pesticide drift: Application Exclusion Zone (AEZ)—
    • Radius not sufficient, drift can enter worker housing, nearby workers not protected;
    • Employer confusion about obligations under changing regulatory standards;
  • Exceptions to Restricted-Entry Interval (REI): working during periods when entry to treated areas should be restricted;
  • Poor personal protective equipment (PPE): lack or insufficient, in high temperatures, workers can face increased medical risks while wearing PPE [more on Heat Related Illness (HRI)];
  • Decontamination supplies: badly located, discouraged from using due to short or nonexistent breaks/workplace norms;
  • Emergency Assistance: lack of knowledge for how to recognize and treat toxic exposure among workers—
    • Workers fear retaliation, termination of a work visa, or deportation if they seek medical attention, given that there is no guarantee of confidentiality when reporting a violation;
    • Workers often do not know their symptoms reflect pesticide illness (and if employers do not tell workers about an application, workers may not link symptoms to pesticide exposure);
    • Medical facilities sparse in rural areas, medical personnel lack training, language barrier.

The report also identifies factors contributing to the compliance problems, power dynamics, the fear of retaliation, low penalties for violations, and a large number of agricultural workers vulnerable to exploitation due to their immigration status as H2A Visa holders without an understanding of their rights. The authors point out that while the prohibition of pesticides on certified organic farms protects against exposure, organic standards do not include labor standards. To address this deficiency, the Agricultural Justice Project, founded in 1999, created the Food Justice Certification that serves as an add-on label to USDA organic. The standard addresses: fair contracts and fair pricing for farmers, fair wages and fair working conditions for workers, safe working conditions, environmental stewardship through organic practices, and truth in labeling.

Farmworkers’ toxic chemical exposure does not fall under the jurisdiction of the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) like almost every other worker in the U.S. The WPS was developed out of a series of field hearings and replaced a rule under a 1974 standard in EPA regulations that only instructed growers to keep workers out of pesticide-treated fields until the dusts had settled or sprays had dried. That standard was developed after field hearings in which EPA heard from growers but not farmworkers. With the threat of litigation from the National Association of Farmworker Organizations and Migrant Legal Action Program in the late 1970s, the Carter Administration funded an effort to reach out to workers and collect data on their experiences with pesticide exposure and poisoning in the fields. Jay Feldman, Beyond Pesticides’ executive director, involved in that effort, points out that, “Chemical-intensive growers viewed the discussion about worker protection as a threat to agricultural production and their livelihood and resisted calls for new standards.” So, it was not until nearly 15 years after the Carter Administration began the review that EPA in 1992 upgraded the 1974 “standard.”  EPA’s current day WPS is largely administered by states through “cooperative agreements—negotiated by EPA’s ten regional offices—allowing states, mostly under the authority of state agriculture departments, to enforce federal pesticide protections with mixed results.

Despite questions about the reliability of the data, the report provide some insight into compliance rates with WPS. According to the report, “In 2021, states inspected 3,092 facilities and recorded 1,491 violations (a 48% noncompliance rate); tribes inspected 40 facilities and noted one violation; and the EPA inspected no facilities.”

Among numerous recommendations, the authors call for the following:  

  • Amend the federal pesticide law (FIFRA) to include a private right of action (individual or organization ability to sue for violations of the law) for WPS violations, with civil penalties recoverable by the workers put at risk.
  • EPA administration of cooperative agreements: incorporate stakeholders and partnerships to ensure community-based organizations play a significant or lead role in steering project that aim to benefit the farmworker community.
  • Support the education, training, and recruitment of bilingual inspectors and move toward making language skills a job requirement.
  • Engage in a national campaign, tailored to each region, to raise awareness of these obligations and their importance.
  • Evaluate the WPS overall and its individual components for protecting and promoting farmworker health and safety.

The report includes a section on “Organics” and discusses materials, although very few, that can have acute and respiratory effects to workers, including sulfur. Because of this, authors stress that organic farmers are responsible for complying with the WPS. In this regard, the authors suggest that organic regulations be amended to require, under the organic rules governing organic system plans (7 C.F.R. § 205.201), that growers using farm chemicals that trigger WPS requirements and certify their understanding of their obligations under the WPS.

Overall, however, the report notes, “Encouraging growers to transition to organic agriculture is a worthwhile strategy for mitigating the harm from the most toxic pesticides. Organic transitions can also mitigate concerns regarding pesticide drift from conventional operations onto organic operations. . .Farmworkers at organic agricultural establishments have been found to have lower concentrations of insecticide and fungicide metabolites in urine—an indicator of harmful pesticide exposure—compared to those working on conventional agricultural establishments. The National Organic Program’s (NOP) focus on promoting on-farm ecological balance by relying on mechanical, biological, and cultural practices rather than chemical applications can help reduce farmworkers’ exposure to harmful pesticides. Every certified-organic agricultural operation is required to develop an organic system plan (OSP), which specifies how farmers will control pests of concern, and submit it for approval to a third-party certifier. Thus, third-party certifiers can support the health and safety of farmworkers by emphasizing that pesticides should be considered only as a last resort and by ensuring that an OSP’s requirements remain rigorous and that the plan prioritizes techniques that promote ecological balance.”

The pesticide problem is not unique to farmworkers, but they and their families suffer a disproportionate burden of the hazards. Although choosing certified organic products in the marketplace eliminates nearly all of the hazardous pesticides on the farm, it does not ensure adequate working conditions, wages, and labor practices. The Agricultural Justice Project, and its Food Justice Certified labeling, address this gap in the organic marketplace, and producers should be encouraged by consumers to participate in this certification process .

Farmworkers need more protections, not industry-friendly compromises. Beyond Pesticides’ coverage of farmworker exposure to pesticides and resultant harms began in the late 1970s and continues to this day, with recent attention drawn to an incidence of kidney damage, systemic racism in EPA farmworker policies, and extra risks endured by farmworkers during the COVID-19 pandemic.

In addition, many farmworkers are migrant workers and subject to conditions that would not be permitted for U.S. citizens. The U.S. is not a signatory to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which would set a moral standard in this country to treat migrant workers with the same rights and dignities afforded U.S. citizens. 

To take action and protect those who grow our food, click here to tell EPA to strengthen pesticide rules to protect farmworkers and urge President Biden to sign the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. For more information, see Beyond Pesticides’ webpage on Disproportionate Risk

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Source:
Precarious Protection: Analyzing Compliance with Pesticide Regulations for Farmworker Safety, December 2023; Essential and in Crisis: A Review of the Public Health Threats Facing Farmworkers in the US, May 2021, Johns Hopkins Center for a Livable Future.

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