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EPA Takes Action to Enforce Farmworker Protection Law

(Beyond Pesticides, August 29, 2008) It was seen as a positive development when EPA this summer announced that, “Through recent settlements with four Puerto Rico farms, the U.S. Environmental Protection Agency (EPA) is sending a message to farm owners that protecting their workers must be their first priority.” That is tough talk from an agency that has long been criticized for its abysmal record of instituting and enforcing even the most basic human health protections from pesticides for those who are responsible for planting and harvesting much of the nation’s food. And it turns attention to the larger question of whether the enforcement system that EPA has in place is adequate.

This case started in October 2007 when EPA filed a complaint against four Puerto Rico farms for being in violation of the worker protection standard (WPS) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Under the settlement, each farm has agreed to pay a civil penalty, and to display information on pesticide applications, information on pesticide safety and emergency medical care, as well as to provide decontamination supplies for workers and handlers, personal protective equipment, and pesticide safety training for workers and handlers. The farms have agreed to meet specific deadlines set by the EPA to report on progress that has been made under the settlement agreements. Owners of Finca Roman Farm, Anthuriums de Puerto Rico and the Javier Quiles Farm, all in Adjuntas, as well as the owner of Finca Los Tres Picachos in Jayuya, failed to display specific pesticide application information for agricultural workers and pesticide handlers. Several of the farm owners also failed to provide workers with training, protective equipment or ways to wash off residual pesticides before leaving the work sites. Additionally, some of the farm owners failed to provide medical care information to workers and pesticide handlers and did not follow the pesticide label instructions for proper pesticide use and disposal.

Earlier on January 19, 2007, the Environmental Protection Agency (EPA) assessed the second highest penalty for violating worker protection provisions of U.S. pesticide laws to an agricultural company based in Puerto Rico. According to the EPA, Martex Farms has been ordered to pay a total penalty of $92,620 by EPA’s Administrative Law Judge (ALJ). (See Daily News of February 7, 2007.)

On an historical note, farmworkers were originally “protected” 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.”

GAO, in its 2000 analysis Improvements Needed to Ensure the Safety of Farmworkers and Their Children (GAO-GAO/RCED-00-40), describes the background on the WPS:

EPA established the Standard in 1974, but in 1980, the agency reviewed the Standard and found it inadequate to protect agricultural workers from exposure to pesticides. In 1992, EPA made major revisions to the Standard that the agency began enforcing in January 1995. The revised Standard contains general protections applicable to farmworkers and others, including prohibiting the spraying of pesticides while anyone is in a field or allowing the exposure of people to pesticide spray drift. The Standard also contains provisions that specifically apply to farmworkers, including restricting entry into treated areas for specified periods and requiring employers to provide workers with, among other things, (1) information about when and where pesticides were applied, (2) basic pesticide safety training, and (3) supplies (soap, water water, and towels) for workers to use to decontaminate themselves. (p7 GAO/RCED-00-40)

GAO is extremely critical of the enforcement apparatus that EPA has established to carry out the WPS. According to Farmworker Justice http://www.fwjustice.org/health&safety/Pesticides.htm, “Most violations merely result in a letter of warning, and few monetary penalties are issued.” GAO, in its reports cites limited inspections that could lead to enforcement actions. The enforcement system relies heavily on states under cooperative agreements with EPA, which provides funding for state enforcement activities.

According to GAO:

In fiscal year 1998, 5 states reported to EPA that they had conducted no routine worker protection inspections, and 11 other states each reported conducting fewer than 10 routine inspections under the cooperative agreements with EPA.6 In addition to the inspections conducted under the cooperative agreements, states can conduct additional worker protection inspections using state resources. However, EPA regional officials told us that they generally do not receive information on the number of inspections conducted with state resources. Moreover, officials from several EPA regions told us that worker protection enforcement is in its infancy in some states and that the states had conducted few, if any, routine worker protection inspections on their own. (p21)

We also found inconsistency among EPA’s regions in whether they negotiated goals for the number of routine worker protection inspections that the states should conduct under the cooperative agreements. Specifically, while three of EPA’s regions had established goals for the number of routine worker protection inspections that states in their regions should conduct, the remaining seven regions had not. Within the three regions, the goals have established at least a minimum number of routine worker protection inspections to be conducted under the cooperative agIn reements. For example, beginning in fiscal year 1999, EPA’s Atlanta region reached agreement that each of the eight states in the region would conduct between 60 and 100 routine worker protection inspections annually. These goals call for several of the states in the region to do many more inspections than they have done in the past. In fiscal year 1998, Alabama reported that it had conducted only five routine inspections under its cooperative agreement, and Tennessee reported it had conducted four such inspections. The remaining seven EPA regions had not negotiated routine worker protection inspection goals, and according to officials from several regions, it is up to the states to decide how to spend their federal pesticide resources.

Besides the inconsistency in setting inspection goals, EPA was also inconsistent in establishing minimum requirements for what constitutes a worker protection inspection for reporting purposes under the cooperative agreements. Officials from six regions told us that states have varying interpretations of what constitutes a worker protection inspection for reporting purposes. For example, as part of our analysis of the number of worker protection inspections conducted under the cooperative agreements during fiscal year 1998, we noted that Oklahoma had reported conducting 174 such inspections, while New Mexico reported conducting 1 inspection.

We also found that EPA’s regions were inconsistent in the extent to which they oversaw and monitored the states’ implementation and enforcement of the Standard. During fiscal year 1998, three of EPA’s regional offices limited their oversight of the states’ worker protection enforcement programs to file reviews, meetings and discussions with state officials, and mid- and end-of-year reports. No one from these regional offices accompanied state officials on any worker protection inspections during the year.

We found that the regions did not know how many and what types of actions the states had taken in response to worker protection violations. Although the states report to EPA on the number and types of actions (such as fines or warning letters) taken under their pesticide enforcement programs, these statistics do not isolate the number and types of actions that involved worker protection as opposed to other pesticide requirements such as the proper labeling of pesticide products. EPA’s Atlanta region, however, has developed a tracking system that is intended to provide the region with statistics on actions states have taken in response to worker protection violations. (p 22)

In 2005, EPA developed a new WPS How to Comply (HTC) Manual which supersedes the 1993 version. EPA maintains that changes to the WPS since 1993 have made the earlier version obsolete, and its continued use may lead an employer to be out of compliance. The 2005 HTC Manual revision was coordinated by EPA’s National Agricultural Compliance Assistance Center and a workgroup consisting of representatives from EPA Headquarters, EPA Regional Offices, and several state agencies, with input solicited from USDA and other state and tribal pesticide agencies.

See EPA press release here.


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