Without protection from OSHA, farmworkers rely on EPA’s Worker Protection Standard, which is not adequately enforced.
Without protection from OSHA, farmworkers rely on EPA’s Worker Protection Standard, which is not adequately enforced.
September 7, 2022
Ramona Reyes Saucedo was getting containers of a pesticide called Virkon S ready to be sprayed in greenhouses at Mastronardi Farms in Coldwater, Michigan, when she started to get sick. “I had burning sensations in my nostrils, and then I felt like I couldn’t breathe well, and then my nose started bleeding,” she told Civil Eats over the phone, in Spanish. “I wore a surgical mask and goggles on top of my glasses, but . . . it wasn’t enough. I needed a special mask.”
Reyes Saucedo, who is originally from Mexico, had tended to Mastronardi’s tomato, cucumber, and strawberry plants seasonally for about six years before the company—which sells its produce under the brand Sunset—hired her as a sanitation worker. According to a lawsuit filed on behalf of workers on June 1, a tomato virus hit the greenhouses just as she was starting her new role. (Mastronardi did not respond to multiple requests for comment.)
“The very fact that the agency in charge of approving pesticides is the same one that’s in charge of establishing and enforcing worker standards is troubling, to say the least.”
To fight the pathogen, supervisors began telling workers to apply pesticides more frequently. Virkon S—which is known to cause respiratory irritation and which the U.S. Environmental Protection Agency (EPA) cautions can cause “irreversible eye damage and skin burns”—was one of three identified in the lawsuit. Reyes Saucedo’s co-workers were also allegedly exposed to bleach and Virocid, which is harmful if inhaled and can cause severe burns, eye damage, and allergic skin reactions. Reyes Saucedo said one of her co-workers had a rash all over her arms. Many complained of burning eyes and bloody noses.
At the core of the lawsuit, filed by attorneys Trent Taylor at Farmworker Justice and Anna Hill Galendez at the Michigan Immigrant Rights Center, is the claim that Reyes Saucedo and about 200 other farmworkers were exposed to dangerous pesticides because Mastronardi Farms failed to provide the kinds of training, proper protective gear, and ventilation required by federal laws.
And those workers are far from alone. According to several experts and evidence compiled in multiple new reports, those laws are inadequate and there’s very little incentive across the industry to follow them. Furthermore, the EPA is tasked with enforcing the rules while the Occupational Safety and Health Administration (OSHA)—the agency usually in charge of protecting workers from on-the-job hazards, including pesticide exposure in other industries—is out of the loop.
“The very fact that the agency in charge of approving pesticides is the same one that’s in charge of establishing and enforcing worker standards is troubling, to say the least,” a team of experts wrote in an analysis on pesticides and environmental injustice published in the journal BMC Public Health in April.
Records show states conduct very few inspections to make sure farms are meeting the requirements; and while the inspections that are completed reveal high rates of violations, farms are rarely penalized for those violations.
Finally, farmworkers who witness violations on the job have few options to hold employers accountable because the EPA’s Agricultural Worker Protection Standard (WPS) does not give them legal recourse. And those working on farms under H-2A visas have even fewer options.
“Farmworkers are afforded fewer protections than other workers, and that started off when our labor laws came into place in this country,” says Amy Liebman, the chief program officer for Workers, Environment, and Climate at the Migrant Clinicians Network, and one of the authors of the BMC Public Health report. “We have this long history of exceptionalism, and the fact that farmworkers are unlike any other worker group protected [from pesticide exposure] by the standards of OSHA is another example of that.”
Farmworkers are also the most likely to be harmed by pesticides, given their proximity to chemicals in fields and greenhouses, and incidents have occasionally made news. In 2019, a team of about 20 farmworkers working for Pioneer Hi-Bred in Illinois claimed that they had been sprayed by a plane applying pesticides. When they arrived at the hospital with rashes, red eyes, and vomiting, doctors concluded they had been exposed to chemicals, but their employer denied it. In his 2011 book Tomatoland, Barry Estabrook also chronicled the prevalence of devastating birth defects in children born to farmworkers exposed to dozens of pesticides working in Florida’s tomato fields.
But the scale and impact of exposure is difficult to quantify because there is no national data being collected about individual poisoning incidents. Similarly, there is limited scientific understanding of what regular, repeated smaller exposures—doses that don’t cause acute reactions—might mean for workers’ health over time.
“Some of the big questions are, ‘What are the health effects of some of the current-use pesticides like pyrethroids and neonicotinoids?'”
“We’re still at the stage of trying to understand the levels of exposure to many of these pesticides,” says Carly Hyland, a researcher at the Curl Agricultural Health Lab at Boise State University, who has been studying the issue for about seven years.
The Centers for Disease Control’s (CDC) National Institute for Occupational Safety and Health (NIOSH) collects some data on exposure incidents from states, but it’s incomplete and out of date. NIOSH lists 13 participating states, and its most recent data available is from 2011. In response to questions from Civil Eats, a spokesperson said the program “continues to work with state partners,” but in 2017, only six states reported data; in 2018, two states reported; and only one reported in 2019.
Since then, she said, “State and federal resources have been directed to respond to the pandemic. However, work on acute pesticide surveillance is restarting. We plan to have the website updated with more recent data before the end of the year. Two papers describing more recent data are in different states of development.”
The most recent NIOSH report counted more than 2,600 illnesses and injuries reported between 2007 and 2011 in 12 states, including two deaths, with pyrethroids, organophosphates, and glyphosate accounting for the most incidents. But the agency also acknowledges in the report that the real number is much higher, since very few poisoning incidents are reported. Many doctors aren’t trained to recognize pesticide poisoning, and farmworkers, many of whom are undocumented and lack health insurance and other economic resources, are fearful and reluctant to seek medical attention.
“Workers are going to have to be pretty sick to want to go seek care,” Liebman said. “There’s also isolation and geographic distances. All of that makes a difference.”
Meanwhile, medical monitoring, an even more sophisticated means of tracking exposure, is only done in a couple of states for a very limited number of pesticides. Hyland and her team are currently conducting a study tracking exposure to glyphosate (Roundup) and other pesticides in Idaho farmworkers using urine samples. Hyland is hoping their data will allow them to compare farmworker exposure to the general population, since the CDC recently released data on overall glyphosate exposure.
But she emphasized that even as a growing number of studies track pesticide exposure in farmworkers, the sheer number of chemicals each person may be exposed to has made it challenging to draw conclusions about the impacts of each one
For example, one study Hyland worked on used data from the CHAMACOS project, which has followed farmworker women and their children in California’s Salinas Valley for more than two decades. Her team found prenatal exposure to organophosphates was linked to a range of negative neurodevelopmental outcomes, including decreased I.Q. and increased hyperactivity later in life.
But now that those chemicals are increasingly being phased out and replaced with others, Hyland says, “some of the big questions are, ‘What are the health effects of some of the current-use pesticides like pyrethroids and neonicotinoids?’”
In order to determine which pesticides are safe enough to use, the EPA is tasked with following the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) guidelines to conduct a cost-benefit analysis. If it determines health or environmental risks are outweighed by benefits in the form of crop yields or quality, the agency can approve the chemical for use. And past investigations have thoroughly documented how representatives from the pesticide industry develop relationships with agency officials and push for approvals.
The biggest issue is that unlike with other environmental statutes, the EPA is not doing enough to monitor whether states are actually making sure agricultural operations are meeting the requirements of the Worker Protection Standard.
FIFRA directed the EPA to regulate pesticides based on “any unreasonable risk to man.” Using that authority, in 1992, the EPA created the Agricultural Worker Protection Standard (WPS) for farmworkers, essentially preventing OSHA from regulating farmworker pesticide exposure. OSHA does oversee farmworker safety on practices such as handling dangerous equipment, and it handles pesticide exposure for workers exposed on the job in other industries, like landscaping.
Through cooperative agreements, the EPA then delegates enforcement of the WPS to state agencies. Some states assign enforcement to their labor, health, or environmental agencies, but many states—including ag-intensive states like Washington, Illinois, and Florida—put the agriculture department in charge, according to a report published today by Vermont Law Schools’ (VLS) Center for Agriculture and Food Systems.
State-level agriculture departments, the report authors note, are not typically set up for worker safety enforcement, and in some cases their mandate may be at odds with farmworker protection. “These agencies have the primary goal of keeping the agricultural industry productive, and, in some cases, view growers as their customers,” they write.
The EPA’s Worker Protection Standard, which each state agency should be following and enforcing, does include a long list of protections: it requires employers to provide pesticide safety information and training, personal protective equipment, and decontamination supplies. It also prohibits retaliation against workers who report pesticide violations and requires employers to provide emergency assistance and transportation to obtain medical care. In 2015, the EPA revised the standard to include new provisions that required employers to keep workers out of areas where pesticides were being applied during application.
Liebman called the updates a “modest step forward,” but said that overall, the Worker Protection Standard still falls short of OSHA’s stricter standards for worker protection, which include medical monitoring in some cases.
The biggest issue, said Laurie Beyranevand, director of the Center for Agriculture and Food Systems at VLS, is that unlike with other environmental statutes, the EPA is not doing enough to monitor whether states are actually making sure agricultural operations are meeting the requirements of the Worker Protection Standard. “You can have all these regulations, but they’re only as good as the enforcement,” Beyranevand said.
According to Melissa Sullivan, an agency spokesperson, the EPA uses “a variety of tools to help with compliance assurance. We also invest in compliance assistance tools to help regulated entities understand regulatory expectations and understand what they need to do to comply.” Sullivan also said that the law gives states primary enforcement responsibility, essentially limiting what the EPA can do.
The EPA can do its own inspections, but rarely does—unless a state refers a case to them. According to the VLS report, the agency only conducted an average of 13 inspections per year between 2015 and 2019.
Meanwhile, state agencies inspected just over 1 percent of the 346,000 agricultural operations using pesticides for WPS compliance between 2015 and 2019. Nearly half of those inspections identified at least one violation, and many identified several. Only 19 percent of violations resulted in a consequence more severe than a warning.
On paper, Washington state has some of the strongest protections in place for farmworkers. Yet even there, the Department of Agriculture conducted just 37 WPS inspections in 2019 and more than three-quarters of those sites were out of compliance.
States aren’t required to report inspection and violation data, and discrepancies in state and federal data make it clear that the numbers are not reliable. For example, California’s state agency that it conducted 2,240 WPS inspections in 2019, while EPA data shows just 33 inspections in California.
When asked about the discrepancies, Sullivan said the EPA’s agreements with each state define how WPS inspections are reported. “In addition to WPS and other types of inspections that are funded by federal grants, states may at their discretion fund and conduct their own inspection initiatives which could have different criteria than those defined in the cooperative agreements and reported to EPA,” she said.
On the rare occasions when agencies do penalize farms for WPS violations, the fines levied are generally low. In California between December 2019 and December 2021, close to 90 percent of penalties assessed were $500 or less.
And even if a state agency wanted to levy a larger fine, their hands may be tied. According to the EPA spokesperson, FIFRA generally dictates the enforcement actions. “Often, a notice of warning is the only option for first-time violators,” she said.
In Washington, two of the most common violations are related to farms not providing farmworkers with the required information and training on pesticides. But Liebman said even when farms do provide that training, it rarely protects workers because it’s too general. “There’s no requirement for workers to be trained about the individual chemicals they work with,” she said.
Reyes Saucedo and her coworkers reported their illnesses to supervisors, and she says they were told, “There’s nothing we can do.”
At Mastronardi Farms, Reyes Saucedo remembered supervisors sharing general information on pesticides, such as “this is for this and this for that,” but she didn’t receive any real safety training, even when she handled pesticides closely. According to the complaint, neither of the other two greenhouse workers in the case said they did receive the training required under the WPS.
Reyes Saucedo and her coworkers reported their illnesses to supervisors, and she says they were told, “There’s nothing we can do.” The workers reached out to the Michigan Immigrant Rights Center because they saw no other avenue for help.
Galendez and Taylor agreed to take the case pro bono. They sued using the Agricultural Workers Protection Act (AWPA), which allows for legal action when a working arrangement is breached. The lawyers are arguing that, by violating the WPS, Mastronardi breached the working arrangement, which is in turn a violation of the AWPA. But in the end, the remedy allowed for violations under AWPA is only $500 per worker, so even if they win, the compensation will be minimal. And about half of the 200 workers, those who were hired under the H-2A program, won’t be eligible for any relief.
Given these legal hurdles, infrequent WPS inspections, and the lack of significant penalties, “it’s just more economical for a grower who doesn’t care about the health and welfare of their workers . . . to carry out business [as usual] without taking special safeguards to protect them,” said Taylor.
Taylor and Galendez want to see a law that provides farmworkers, including H-2A workers, with the right to sue for pesticide exposure-related injuries and damages. But to truly prevent long-term health issues, experts say the law also needs to more proactively protect workers from all exposure.
In the BMC Public Health analysis, Liebman and her co-authors recommended “a well-funded, nationwide monitoring system to incorporate data from all states and standardize reporting and collection to the federal government.” They also urge EPA to require medical monitoring for farmworkers who work with dangerous pesticides and to engage directly with the farmworker community to strengthen training requirements. But, most importantly, they want the agency to strictly enforce the Worker Protection Standard. “This would require appropriating resources for inspection and enforcement activities and holding unscrupulous employers accountable to the full extent possible under the law.”
The Vermont Law School report comes to similar conclusions. But a larger, more transformational fix is at the top of their list: “Congress should return jurisdiction over the regulation of pesticide-related occupational hazards, at least in part, to OSHA,” they write.
In the meantime, after about a year of symptoms, Reyes Saucedo is feeling better. She has not, however, gone back to farm work, “even though it’s my favorite job,” she said. Now, she is waiting, along with her former co-workers, for the case against Mastronardi Farms to move forward. While it took courage to come forward, she decided to, she said, “so that other employees don’t experience what I experienced while I worked there.”
September 30, 2022
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