16
Sep
Farmworkers Still Inadequately Protected from Pesticides, Report Finds
(Beyond Pesticides, September 16, 2022) A report issued on September 7 analyzes the U.S. regulatory structure that is supposed to protect agricultural workers from the harms of pesticide use. Its conclusion? 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.” The report, Exposed and At Risk: Opportunities to Strengthen Enforcement of Pesticide Regulations for Farmworker Safety, was developed by the Center for Agriculture and Food Systems at Vermont Law and Graduate School, in partnership with the nonprofit advocacy group, Farmworker Justice. Beyond Pesticides’ coverage of farmworker exposure to pesticides and resultant harms began in the late 1970s; it continues today, most recently with attention to incidence of kidney damage, systemic racism in the farmworker policies of EPA (the U.S. Environmental Protection Agency), and extra risks endured by farmworkers during the COVID-19 pandemic.
Exposed and At Risk is issued as part of the Center for Agriculture and Food Systems (CAFS) Food System Workers Law and Policy Project. Previously, CAFS issued a report in conjunction with the Johns Hopkins Center for a Livable Future, titled, Essentially Unprotected: A Focus on Farmworker Health Laws and Policies Addressing Pesticide Exposure and Heat-Related Illness. The report authors, in addition to executing extensive other research, conducted interviews and gathered “stories from the fields” in Washington, Illinois, Florida, and California.
Pesticide risks to agricultural workers (and pesticide applicators) are significant. The farming sector uses roughly 90% of the one billion pounds of various pesticides deployed annually in the U.S. (across all sectors). Thus, agricultural workers are regularly exposed, at atypically high rates, to chemicals that can pose considerable safety and health risks to humans (in addition to their impacts on the environment, non-human organisms, and ecosystems broadly). These risks to farmworkers and pesticide applicators are made worse, according to the report, by inadequate training in handling pesticides, and subsequent improper handling and application “in the farm field” or on other kinds of sites, as well as by bureaucratic, regulatory, and policy issues, as detailed below.
The federal Agricultural Worker Protection Standard (WPS) is the premier regulation, authorized under a provision of FIFRA (the Federal Insecticide, Fungicide, and Rodenticide Act), for protection of farmworkers and pesticide handlers from “pesticide poisonings and injuries.” Although the WPS is a federal regulation, it is largely administered by states through “cooperative agreements” — negotiated with states by EPA’s 10 regional offices — that allow states to enact enforce federal pesticide protections (e.g., via WPS and FIFRA). Farmworkers are uniquely not generally covered by the Occupational Safety and Health Act and the Occupational Safety and Health Administration.
The chief goal of these cooperative agreements is to enforce federal law and tailor the enforcement to regional/state needs. Typically, a state will task a lead agency, such as a department of agriculture, with primary enforcement responsibility (more on this below). These state systems (of enforcement) vary widely, exacerbating the risks to agricultural workers, causing disproportionate risks from one state to the next, and in some cases, reflecting what the report calls, “the persistent realities of systemic racism and the routine dehumanization of noncitizen workers.” For more about pesticides and structural racism, read Beyond Pesticides’ 2021 reporting, Disproportionate Pesticide Harm Is Racial Injustice / Documenting Victimization: Structural Racism.
The CAFS report outlines the parameters of how this all works: “As with many environmental laws in the United States, the federal government sets broad national standards and works cooperatively with states to enforce them. In addition, states may enact laws regarding the use of pesticides, with the caveat that FIFRA expressly preempts states from creating supplemental or different labeling requirements. However, FIFRA provides only the floor of protection for the issues states are not preempted from regulating. This means, for example, that states can prohibit use of a pesticide that EPA would otherwise allow, but it cannot allow use of a pesticide that is prohibited by EPA.”
Beyond Pesticides has written that the original, 1974 WPS “offered virtually no occupational safety standards for workers being exposed to highly toxic pesticides.” Indeed, in 1983, EPA finally and “officially” found it inadequate to offer adequate protections, but it was not until 1992 that the agency updated the regulation. (Read about the role Beyond Pesticides played in the 1983 assessment here.) We wrote: “Those 1992 updates to the WPS were intended to eliminate or reduce exposure to pesticides, mitigate exposures that occur, and inform employees about the hazards of pesticides. Despite these intentions, the updated WPS still did not adequately protect farmworkers.”
In 2015, the Obama EPA again updated the WPS, this time strengthening the regulation via, for example, more training for handlers, and a minimum age at which children would be allowed to work around pesticides. Then, the Trump administration weakened the standard, including reducing protections via Application Exclusion Zones (AEZs, or buffer zones), which were to have gone into effect in late 2020. In early 2021, the federal GAO (Government Accountability Office) issued a report asserting that EPA was failing to administer the 2015 changes to WPS effectively.
In early 2021, Beyond Pesticides noted that the protection of farmworkers from the threats of pesticide exposures had been the subject of multiple recent developments and actions, including 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; the recommendations from GAO mentioned above; and advocacy by Beyond Pesticides and others, including Farmworker Justice and Earthjustice. 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.
Another of those developments was 2020’s litigation against EPA, by a five-state coalition led by New York’s Attorney General Letitia James, for the agency’s retrograde October 2020 rule on AEZs. The suit 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.” Plaintiffs added that the AEZ regulation “puts many more people at significant risk of dangerous exposures to pesticides,” and that EPA was “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.”
An important aspect of the CAFS report’s findings is that, even with regulations and laws for farmworker protection in place — such as the federal WPS — enforcement of these is weak. In a fairly clear “fox and henhouse” example, the report notes that, often, the very state agencies (such as agriculture departments) that are charged with enforcement of federal and state pesticide laws are also the entities whose tasks include promotion of the state’s agriculture sector and its economic interests. Thus, the report opines that “the agencies charged with pesticide regulation at the state and federal level may not be the best suited for this [enforcement] role. Further, because the current enforcement system lacks capacity to inspect all farms, the likelihood of catching violators is low, resulting in frequent violations by growers.”
The report names multiple problems the research has unearthed in its section titled, “Effect of our Current Structure of Pesticide Regulation Enforcement” (p. 22):
- inappropriate agencies take the lead on pesticide regulation enforcement at the federal and state levels
- different agencies sharing some degree of regulatory jurisdiction can create confusion
- substantial discrepancies between data reported by EPA and the states make it difficult to understand the performance of pesticide regulation enforcement programs
- EPA rarely exercises its authority to conduct inspections
- EPA has failed to issue standard expectations for state enforcement programs
- EPA lacks meaningful recourse to discipline states for poor enforcement
- states lack sufficient mandatory reporting requirements
- the rate of state inspections is low and many inspections are substandard
- nationally, the rate of violations resulting from inspections is high while the rate of enforcement actions taken in response to violations is low
- penalties for violations are disproportionately low
- farmworker victims of WPS violations have limited individual recourse for enforcement and no opportunities to receive support under FIFRA
Exposed and At Risk notes that, not only is there often inadequate state agency response to reported worker protection violations, but also, that farmworkers themselves are frequently reluctant to report violations of such regulations because of poor access to resources and/or fear of retaliation or even deportation. According to a press release from Vermont Law and Graduate School, the report “identifies gaps in pesticide safety enforcement and proposes a set of policy recommendations that were formulated with the lived experience of farmworkers in mind,” and focuses on recommendations to address structural flaws in the enforcement system.
The reports introduces its recommendations with this: “To ensure that [farmworkers] receive sufficient health and safety protection, significant social, cultural, and political conditions must be addressed. At a minimum, the regulatory system that has the potential to protect them should not be working against them. To start, law and policymakers must address the structural flaws in pesticide law enforcement. The following recommendations reflect steps that can be taken to further this objective.” The report goes on to make recommendations to Congress, to EPA, and to states:
- Congress should:
- restore partial jurisdiction over the regulation of pesticide-related occupational hazards to OSHA (the federal Occupational, Safety and Health Administration) to ensure better coordination between OSHA and EPA
- consider amending FIFRA to model other environmental statutes administered by EPA
- grant EPA greater authority to respond to states failing to meet enforcement goals, including the authority to impose sanctions related to the agriculture industry
- appropriate more funds to NIOSH’s SENSOR program to support states in consistently reporting data on acute pesticide-related illness and to expand the number of states in the program
- EPA should:
- incorporate more “pick-list” program areas (see p. 13 of the report) into its required program area list, especially those areas that affect human health and safety, such as spray drift and emerging public health pesticide issues
- through its rulemaking process, engage stakeholders in order to understand what factors are most important in assessing compliance with WPS (e.g., number of exposures, quality of response to exposures, etc.), and establish clear metrics through which it can measure that compliance
- issue mandatory and universal standards for inspections and responses to violations, at least for federally funded enforcement activities
- mandate “whole of program” annual reporting as a condition of receiving federal grants
- require that state lead agencies for pesticide regulation enforcement be departments of labor, departments dedicated to pesticide regulation, or another department whose main priority is human health and safety
- Also, regional EPA offices should conduct more inspections as part of their routine oversight duties; EPA should consider a public-private partnership to fulfill this obligation.
- States should:
- streamline their administration of pesticide regulations
- commit to reducing the influence of industry over pesticide regulation
- implement a neighbor notification system to reduce the incidence of exposure caused by pesticide drift, and receive federal assistance to do so
- implement mandatory reporting requirements, both for pesticide use and for incidents of pesticide exposure
- conduct more routine inspections without providing advance notice to growers
Additional recommendations are (1) state legislatures should grant state departments of health more authority to conduct inspections and investigations of suspected pesticide exposure incidents, independent of the state’s designated lead agency; and (2) penalties for violations of the WPS (or state-equivalent regulations) should be increased to reflect the grave harm caused to human health and safety.
This report responds to the somewhat chaotic state of enforcement of pesticide regulations across the country. Its recommendations would likely be helpful in addressing the risks experienced by farmworkers and others vocationally exposed to pesticides. (See Beyond Pesticides’ webpage on Agricultural Justice.)
That said, Beyond Pesticides maintains that a far better use of the energy, time, and expense that goes into evaluating and regulating pesticides, and enforcing rules about them, would be to undertake the broad and necessary transition away from toxic synthetic pesticide use and to employment of organic regenerative agricultural systems. Organic practices avoid industrial agriculture’s reliance on these chemical pesticide inputs (and on harmful synthetic fertilizers). They have been proven to be successful, cost-effective, and beneficial for soil health, the environment, the food supply, public health, biodiversity, climate, and natural resources.
The removal of toxic pesticides from agriculture through adoption of these practices would also be a huge boon for farmworkers, on whose work we all depend for sustenance, and who deserve a work environment free of pesticide risks and harms. To these ends, please join Beyond Pesticides, participate for the balance of our 2022 National Forum Series on Health, Biodiversity, and Climate, and/or reach out to us about pesticide concerns for your own community.
Sources: https://www.vermontlaw.edu/news-and-events/newsroom/press-release/new-report-exposes-significant-gaps-in-pesticide-safety and https://www.vermontlaw.edu/sites/default/files/2022-09/Exposed-and-At-Risk.pdf
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
