Tuesday, June 15, 2021

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Article Index

A. Direct Regulation of Pesticides

In 1947, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) was enacted to ensure the effective registration of pesticides containing chemical ingredients that had been largely created during World War II. In 1970, the Environmental Protection Agency (EPA) was established and FIFRA administration and staff were transferred to it from the United States Department of Agriculture At that time, FIFRA focused mainly on issues such as pesticide labeling and registration and not on workplace safety. Later that year, the Occupational Safety and Health Act of 1970 (OSH Act) was signed into law. The OSH Act created the Occupational Safety and Health Administration (OSHA), which had the mandate to assure as far as possible every working man and woman in the Nation safe and healthful working through the promulgation and enforcement of occupational safety standards. Although it seems logical that OSHA would assume regulatory authority over agricultural workplace hazards such as pesticides, this was not to be the case. The OSH Act included a clause that prevented the Secretary of Labor from regulating working conditions when another federal agency had statutory authority to do so. The EPA had been moving in the direction of regulating agricultural pesticide exposure when it promulgated an early version of the Worker Protection Standard (WPS) in 1974. Sensing impending negative consequences for farmworkers in having the EPA administer pesticide safety regulations, two advocacy groups and a pesticide-affected worker filed an action to compel the Secretary of Labor to issue permanent farmworker pesticide safety regulations under OSHA, but the D.C. Circuit held that Congress had conferred authority to regulate pesticides at agricultural workplaces to the EPA. Currently, OSHA maintains only a limited role in promoting agricultural pesticide safety through provisions such as the Field Sanitation Standard.

Under FIFRA, there are essentially two avenues of pesticide regulation that directly affect farmworkers: the registration and re-registration processes and the WPS. According to FIFRA, in order for a pesticide to be distributed or sold, it must first be registered. To register a pesticide, an applicant must submit information such as the chemical formula, a request that the pesticide be classified for general use or for restricted use (or both), the proposed labeling, and ... if requested by the Administrator, a full description of the tests made and the results thereof upon which the claims are based, or alternatively a citation to data that appear in the public literature or that previously had been submitted to the Administrator The Administrator shall register a pesticide if the Administrator is satisfied with the labeling and other material submitted and if the Administrator determines the pesticide will not cause unreasonable adverse effects on the The definition of environment includes water, air, land, and all plants and man and other animals living therein, and the interrelationships which exist among

There are several concerns regarding the data requirements and other provisions of the registration process. First, there is much flexibility to the data requirements, including exemptions, exceptions, and other Administrator discretion regarding the provision of data. Second, in addressing the proper registration, labeling, and seizure of misbranded pesticides, the Administrator can rely on assurances and studies by manufacturers themselves-- which creates a conflict of interest. In fact, the pressure from pesticide manufacturers and agribusiness in the past has resulted in the EPA streamlining the registration process. Third, the registration process requires an applicant to submit test data to the EPA demonstrating that the pesticide will perform its intended function without unreasonable adverse effects, including reports of acute and chronic health effects. However, as discussed, these data are lacking and there is no special consideration for people who work daily with these pesticides, such as farmworkers. Finally, one of the most controversial aspects of the registration process is that several provisions explicitly describe the consideration of economic factors such as the benefits of using the pesticide and the expense of generating data. In other words, the regulation provides for a cost/benefit analysis that weighs the unreasonable risk to humans or environment against the beneficial commercial use of the pesticide in question. Yet, the adverse effect of pesticides on workers is a public health matter, and it is questionable whether it should be subject to an economically driven calculation.

The second FIFRA component that directly impacts farmworkers and pesticide safety is the WPS, which was expanded in 1992 to include not only workers performing hand labor in fields and nurseries, but also those who mixed and applied pesticides. According to the WPS, the specific means by which an employer is required to protect farmworkers include: enforcing entry time restrictions into pesticide treated areas; providing posted and/or oral notice about treated areas to farmworkers; providing information about applied pesticides in a centrally located area; and providing training with specific instructions about how farmworkers can protect themselves from pesticides. The WPS also requires employers to provide sufficient direction about the regulation to supervisors of workers and to require those supervisors to assure workers' protection and compliance with the regulations. Employers are directed, in the event of a poisoning, to provide prompt transportation from the workplace to an emergency medical facility where the employer shall inform the treating medical personnel of the type of pesticide involved and the circumstances of exposure.

Several evaluations have questioned whether the WPS has succeeded in protecting farmworkers from pesticide exposure. In particular, the quality and effectiveness of WPS training for farmworkers has been questioned. Researchers have found that employer training may be nonexistent, minimal, or in a format that does not guarantee that workers actually learn anything. There are many practical considerations that prevent farmworkers from complying with safety recommendations as well. For example, farmworkers may not have access to facilities where they can wash their hands during the workday or to washing machines or showers after work. Furthermore, several investigations suggest that perceived control over the ability to protect oneself from pesticide exposure is strongly correlated with behavior and that farmworkers do not feel a sense of control at their workplaces. Finally, the WPS requires that technical, accurate pesticide safety information be communicated through employers and supervisors, thus assuring that farmworkers are dependent on these parties for their personal safety.

Another major criticism of the WPS has to do with states' role and history in enforcement. Under FIFRA, primary authority to enforce pesticide regulations is devolved to the states under a cooperative federalism scheme in which the EPA retains overseer capacity to ensure that states continue to meet the federal standards. The anticipated benefit of devolving environmental statutes is that decision-making is moved closer to an affected public and thus will be more efficient and democratic. This again assumes, however, that the affected public has full access to information about an issue and that the overseer federal agency follows through when needed on its ability to withdraw a state's authority. If this does not occur, the fear is that the states will engage in a race to the bottom and that a nationally inconsistent pattern of monitoring practices will emerge. Indeed, this is reported to be the case with the WPS and FIFRA's labeling and use requirements, with detrimental results including: a lack of a standardized monitoring; lack of inspections; unpenalized violations; underreported violations; lack of worker training; lack of posting of information; and early re-entry into treated work areas.

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