The Farmworker Protection StandardsRevisited

by Lisa J. Gold

Research Report No. 34May 2004

The Farmworker Protection Standards Revisitedby Lisa J. Gold

Research Report No. 34May 2004

Abstract

Nearly a decade ago, the EPA implemented comprehensive regulations intended to protect farmworkers fromthe harmful effects of pesticides in the workplace. These “Worker Protection Standards” mandated thatfarmworkers receive training in the avoidance of pesticide exposure and what to do if an exposure occurs. TheWPS was a sign of progress in the area of occupational health of farmworkers, and brought farmworkers closerto receiving some of the protections provided by federal law.

In 1996, JSRI published a research report which examined the history, requirements, and implementation ofthe WPS. That report discussed the absence of information available in Michigan about farmworker health andoccupational illness. This research report updates to the earlier one, examining issues affecting theimplementation and efficacy of the WPS since 1996, and examing what can be learned from recent informationon the occupational health of farmworkers regarding pesticide exposures in the fields.

About the Author: Lisa J. Gold

Lisa J. Gold is a graduate of the U.C. Berkeley School of Law. She has been practicing environmental lawfor nineteen years, most recently for the Los Angeles firm of Johnson & Higgin LLP. She has also worked as aResearch Scholar for JSRI, and has taught at Michigan State University College of Law.

SUGGESTED CITATION

Gold, Lisa J. “The Farmworker Protection Standards Revisited,”JSRI Research Report #34, The JulianSamora Research Institute, Michigan State University, East Lansing, Michigan, 2004.

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The Farmworker Protection Standards Revisited

Table of Contents

The WPS on the National Level ........................................................................1

How the WPS Address the Dangers Posed by Pesticides..............................1

The Clinton Administration’s Focus..............................................................3

The GAO Report..............................................................................................5

The National Assessment of the WPS............................................................6

The New Inspection Guidance........................................................................7

The WPS in Michigan ..........................................................................................7

Michigan’s Agricultural Industry....................................................................7

Migrant Farmworker Health in Michigan ....................................................8

Conclusions & Recommendations ....................................................................10

Nine years ago, the EPA began to implement thefirst set of comprehensive regulations intended toprotect farmworkers from the harmful effects ofpesticides in the workplace.1 These regulations,known as the Worker Protection Standards,mandated that farmworkers receive training in howto avoid exposure to pesticides in their work, andwhat to do if an exposure occurs. Despite the factthat they were late in coming, the creation andimplementation of the WPS was a sign of progress inthe area of occupational health of farmworkers, andbrought farmworkers a step closer to receiving someof the protections provided by federal law to otherhazardous occupations.

In 1996, at the beginning of the era of the WPS,JSRI published a research report which examinedthe history and requirements of the WorkerProtection Standards and described theirimplementation.2 That report also discussed thealmost total lack of information available inMichigan (and generally) about farmworker healthand occupational illness. This report will serve as anupdate to that one, examining issues affecting theimplementation and efficacy of the WorkerProtection Standards since 1996. It will then look atwhat can be learned from recent information on theoccupational health of farmworkers regardingpesticide exposures in the fields.3

The WPS on the National Level

How the Worker Protection Standards Addressthe Dangers Posed by Pesticides

Pesticides are designed to kill pests, but manycan also kill people. Many pesticides arecarcinogens; most also disrupt the reproductivesystem and the endocrine system. These are veryserious dangers. Farmworkers can be exposed topesticides in many ways: by preparing or mixing apesticide for use; by loading it into the applicationequipment; by applying the pesticide; by entering anarea where pesticides have been applied; by being inan area to which pesticides have drifted; and by

being around other farmworkers who have beenexposed and are carrying pesticide residues on theirclothing or equipment. Farmworkers’ families can beexposed in these same ways.

Pesticides encompass many products. They areused to kill insects, weeds, fungi, rodents, and allmanner of other pests that prey on crops and plants.There are about 17,000 different pesticide productsused in the U.S., many manufactured by some of thelargest American chemical companies (and some ofthe largest companies around the world). Theseproducts contain thousands of different chemicalingredients. According to the EPA, “Adverse effectsof pesticide exposure range from mild symptoms ofdizziness and nausea to serious, long-termneurological, developmental and reproductivedisorders. Americans use more than a billion poundsof pesticides each year to combat pests on farmcrops, in homes, places of business, schools, parks,hospitals, and other public places.”4

The WPS were proposed by the EPA5 in 1988,adopted in 1992, and went into effect in 1995. TheWPS require that farmworkers receive training inhow to avoid pesticide poisoning.6 Theserequirements are accompanied by parallelregulations requiring that worker protectioninformation be provided on the label of pesticidecontainers. Providing the WPS training is theresponsibility of the farmer or employer. Providingaccurate information on the pesticide label on how tosafely handle that pesticide and how to avoidexposures to farmworkers is the responsibility of thechemical company manufacturing the pesticide. TheWPS are actually enforced as labeling requirementsrather than as workplace safety requirements.Failure to properly implement the worker protectionrequirements constitutes “use of a registeredpesticide in a manner inconsistent with its labeling,”which is a violation of federal law and can lead tomonetary penalties.7 According to the EPA, the WPSprovides protection to more than 3.5 million peoplewho work with pesticides at over 560,000workplaces.

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The Farmworker Protection Standards Revisited

Two kinds of employers are subject to theworker protection requirements.8 The first isagricultural employers, who include “any personwho hires or contracts for the services of workers ...to perform activities related to the production ofagricultural plants, or any person who is an owner ofor is responsible for the management or condition ofan agricultural establishment that uses suchworkers.”9 This is a broad definition, pulling in farmowners, farm managers, and labor contractorsworking on farms, forests, nurseries, andgreenhouses. It does not apply to dairies or anyanimal farms.

The second category of covered employers arehandler employers, who include those who employworkers that handle, mix, and apply the pesticides.

For the last nine years, these employers havebeen responsible for ensuring workers receive theprotections required by the rules, that all pesticidesare used in a manner consistent with their labeling,and that all supervisors implement the protections.10

Employers can be fined for taking retaliatory actionagainst any farmworker or handler for attempting tocomply with the regulations, and employers areprohibited from doing anything that discouragescompliance. If a farm manager decides to ignore aprotection requirement, both the manager and thefarm owner can be fined.

The specific safety standards coveringfarmworkers have several aspects:

(1) Employers may not allow or direct workersto enter or remain in a treated area duringapplication of a pesticide, except forappropriately trained and equipped handlers.However, there is no mechanism by whichworkers in the field are ensured that they will bewarned prior to the spraying of adjacent fields;11

(2) Employers must consult the pesticide label todetermine the restricted-entry interval (“REI”)for each pesticide application, and may not allowor direct any worker to enter or remain in anytreated area during the REI;12

(3) Employers must provide notice to workers ofpesticide applications, in language that isunderstandable to the workers. The noticeusually consists of specified signage in red(PELIGRO • PESTICIDAS • NO ENTRE,DANGER • PESTICIDES • DO NOT ENTER)which must be posted at field entrances beforethe application and remain throughout the REI;13

(4) Workers must be provided with specificinformation about any pesticides that have beenapplied within the last 30 days, including suchthings as the product name and its activeingredients;14

(5) Employers must provide workers withpesticide safety training within the first five daysof employment (unless the worker haspreviously been verifiably trained at anotherfarm), and must retrain them every five years;15

(6) Employers must post, within certain areas,specific pesticide safety information regardingexposure prevention and what to do if oneoccurs, including how to obtain emergencymedical care;16

(7) Employers must provide a decontaminationsite at the nearest place of vehicular access, withample clean water and soap;17 and(8) When pesticide poisoning occurs, employersmust make available immediate transportation toan emergency medical facility, and provide themedical personnel with any availableinformation on the pesticide, the application, andthe circumstances of the exposure.18

In addition, pesticide product labels mustindicate how a pesticide may be used and whatprotective clothing or other measures may benecessary for maintaining worker safety.

There are several requirements which apply tothe safety training, the keystone of workerprotection. First of all, employers themselves mustbe trained by EPA-approved trainers in how toprovide safety training (the “train the trainer”requirement).19 The training itself must conveyunderstandable information (that is, in the languageof the audience) regarding the hazards of pesticides,

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acute and chronic effects of exposure, delayedeffects, sensitization, how pesticides enter the body,signs of common types of poisoning, how to getemergency medical care, how to decontaminate,hazards from drift, hazards from pesticide residueson clothing, how to avoid taking residues home, andan explanation of the REI and the required signage.Although training materials include videos, theremust be a certified trainer present at all trainings toanswer questions.20

State land grant universities and state pesticideregulatory agencies are expected to participate andsupport the implementation and enforcement of theWPS. States do this by entering into cooperativeagreements with the EPA, by which the state agreesto carry certain implementation and enforcementactivities with regard to the WPS, and the EPAagrees to provide a certain amount of funding forthis effort. In Michigan, the designated lead agencyfor enforcement of the WPS is the MichiganDepartment of Agriculture.

A violation of any provision of the WPS cansubject the violator to penalties.21 The enforcementoptions available to state inspectors are: notices ofwarning; civil administrative penalties; stopping thesale or use of a pesticide or removing it from themarket; seizures; injunctions; and criminalsanctions.22 Federal law requires that a first offenseby a private applicator result only in a writtenwarning – civil penalties may be imposed forsubsequent violations.23 The government is requiredto take certain considerations into account whendeciding which type of penalty to impose and howlarge the monetary penalty should be.24 Factors likethe toxicity of the pesticide, the severity of the injuryto human health or the environment, the compliancehistory of the violator, the size of the business, andthe ability of the violator to continue in business areall considered in determining penalties.

The Clinton Administration’s Focus onChildren and Environmental Hazards

During the Clinton Administration, some interestwas focused on the issues of environmental justiceand the effects of environmental hazards on children.President Clinton issued an Executive Order onEnvironmental Justice, which directed that whenthere is a group disproportionately exposed to anenvironmental poison, the EPA should “fully enforcethe environmental laws.”25 As a result, the EPAissued a report on the greatest environmental hazardsto children, and set up the Children’s HealthProtection Advisory Committee in 1997. TheCHPAC was asked to develop a set ofrecommendations to take to the EPA Administratorconcerning which regulations, of the hundreds ofthousands that exist, should be reevaluated basedupon the effect on children’s health. The Committeesubmitted its five recommendations, three of themconcerning pesticides,26 in 1998. CHPACrecommended the EPA reevaluate theimplementation and enforcement of the WPS,pesticide tolerances27 for organophosphates (themost common types of pesticides in use), andpesticide tolerances for atrazine.28

The recommendation stated: “Children may beexposed to pesticides through employment in farmwork, by eating fruits and vegetables directly fromthe fields while at work, or by drift from fieldapplications to neighboring residential areas andschools. Pregnant and lactating women who work infarm fields or reside in neighboring areas can alsoexpose fetuses and neonates to pesticides. Thecurrent (farm) worker protection standard has notconsidered these pesticide exposures to children.Under [federal law] (the) EPA has the authority toregulate these childhood and prenatal exposures topesticides… The CHPAC recommends that (the)EPA expeditiously re-evaluate the worker protectionstandard in order to determine whether it adequatelyprotects children’s health.”29 The EPA responded byadopting the recommendation and offering to “carryout a more comprehensive set of initiatives thanrecommended.”

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Part of the EPA’s plan included a nationalassessment of the implementation and enforcementof the WPS. The EPA also considered revising itsprocess for determining pesticide residue tolerancesand exposure tolerances for children, to take intoaccount the fact that exposure to children is moredangerous than exposure to adults.

Children’s pesticide tolerances needed revisionbecause research has shown that children have afaster metabolism than adults, causing their bodiesto process more toxin from the same amount ofexposure as an adult. This is because they eat, drink,and breathe more, relative to their body weight, thanadults do.30 This makes all exposures toenvironmental toxins more dangerous for children.31

Hence, the EPA realized that all risk assessmentdeterminations need to take the specialcharacteristics of children into account, and setseparate requirements for children.

In 1996, this issue was addressed by the newfederal Food Quality Protection Act of 1996, whichchanged pesticide regulation. The FQPA did notmake any changes to the WPS, but it did change therequirements for setting pesticide residue tolerancesby identifying the problem with the tolerance settingprocess for infants and children, and mandating thatthese settings take account of their differences.32 TheFQPA requires the EPA to reevaluate the amount ofpesticide residues allowed on or in food, taking intoaccount consumers’ aggregate exposure from othersources, including residential exposures. It alsorequires the EPA to apply an additional margin ofsafety, usually tenfold, in setting residue limits toensure the safety of food for infants and children.

This law also directed the EPA to considerwhether there exists “major identifiable subgroups”of the population in the setting of pesticidetolerances, that require special consideration.33 Usingthis provision, the Natural Resources DefenseCouncil, one of the most powerful pro-environmentactivist organizations, petitioned the EPA in 1998 toidentify farm children as a “major identifiablesubgroup” under the FQPA, so a separate set oftolerances could be set for this special population.34

The NRDC pointed out that farm children aredisproportionately exposed to pesticides. Thepetition has not yet been acted upon by the EPA, andalso became a lawsuit with the same goal. InSeptember 2003, 11 farmworker and environmentalgroups sued the EPA in federal court in New YorkCity, charging that the EPA is allowing fivehazardous pesticides to be used on food withoutensuring the safety of infants and children, inviolation of the FQPA.35

Relying on its own 1998 report, “Trouble on theFarm: Growing Up With Pesticides in AgriculturalCommunities,” the NRDC argues that farm childrenof all ages spend time in the fields, whether they areworking, walking through, or playing while theirparents work. The NRDC posits that approximately320,000 children under the age of six live on farms,and that the nation’s 2.5 million farmworkers haveapproximately 1 million children living in the U.S.They come into contact with pesticide residues fromtheir parents’ skin and clothing, dust tracked into thehouse, contaminated soil in play areas, drift fromaerial spraying, indoor and outdoor aircontamination, food eaten directly from the fields,and contaminated well-water, as well as by working.Though occupational health data is slim (see II. B.,infra), there is sufficient data to show farm childrenare at an increased risk due to their contact withpesticides.36 Human Rights Watch estimates thatthere are between 400,000 and 800,000 children whoare farmworkers in the United States.37

This situation could not happen in any industryother than agriculture, due to the unique legalconcept known as “agricultural exceptionalism.”Based upon the purported exceptional nature of thisindustry, agricultural workers are excluded from themost basic of federal laws designed to protect therights and health of the labor force in the UnitedStates.38 For example, agricultural workers areexcluded from coverage under the National LaborRelations Act, which accords federal protection toorganizational and collective bargaining activities inmost industries [29 USC § 152(3)]. Michigan’scomprehensive labor relations act also excludesfarmworkers [MCL § 423.2(e), 423.8]. Likewise, theFair Labor Standards Act, which sets basic wage and

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hour standards, as well as child labor limits,prohibits the employment of minors under 16 yearsof age, in general, but exempts children employed inagricultural labor from that provision [29 USC §213(a)(6)]. Children as young as 16 may work inagriculture in any capacity, including in hazardousoccupations, while children generally may not workin hazardous occupations until age 18.39 That lawalso allows for the employment of children, 10-16years old with parental consent, but only inagricultural labor [29 USC § 213(c)(1), (c)(4)].Michigan law likewise allows for the employment ofchildren under 16 years of age in agricultural labor[MCL § 409.119].

The NRDC’s lawsuit is an attempt to make smallinroads against the inequities brought about byagricultural exceptionalism. However, it willprobably be several years before it results in anyEPA action, as presidential administrations havechanged and the EPA’s focus is now elsewhere.

The GAO Report

Additional political forces brought pressure tobear on EPA to take another look at the enforcementof the WPS. In 1999, Representatives HenryWaxman (D-Cal.), Tom Lantos (D-Cal.), andBernard Sanders (I-Vt.), requested the U.S. GeneralAccounting Office – the audit, evaluation, andinvestigative arm of Congress – to investigate andreport to the House on issues related to the safety ofchildren who may be exposed to pesticides inagricultural settings. Pursuant to the request of thethree congressmen, the GAO investigated thesethree questions: (1) what federal requirementsgovern the safe use of pesticides, particularly as theyrelate to protecting children in agricultural settings;(2) what information is available on the acute andchronic effects of agricultural pesticide exposure,particularly on children; and (3) what has EPA doneto ensure that the WPS considers the needs ofchildren and is being adequately implemented andenforced.

The GAO produced a comprehensive and highlycritical report on the EPA’s implementation of theWPS.40

Most notably, the GAO Report confirmed andcondemned the total lack of data on the issue of thehealth effects of pesticide exposure on farmworkers.“Comprehensive information on the occurrence ofacute and chronic health effects due to pesticideexposure does not exist – whether for farmworkers,farm children, or the population in general.”41 In1993, the GAO reported that there was no way ofmonitoring rates of pesticide related illnesses, andthe 2000 GAO Report states “Our current workshows that this problem remains largelyunaddressed… the studies that have been conductedto date have been limited, inconsistent, andinconclusive.”42 “No comprehensive national dataexist on the extent to which farmworkers (and farmchildren) are experiencing acute pesticide incidentsor illnesses.”43 The GAO Report notes that severalstudies are ongoing (referring to those listed infootnote 31, supra), “but it will be many years,perhaps decades, before conclusive results fromthese studies are known.”44

The EPA, the Centers for Disease Control, andthe National Institutes of Health all reported to thecongressional investigators that “the chronic effectsof agricultural pesticide exposure on humans havenot yet been conclusively researched… NIOSH toldus that virtually nothing is known about thecombined effects of different pesticides on humanhealth. The chronic effects of pesticides on childrenhave been researched even less than these effects onadults.”45

The GAO makes several conclusions critical ofEPA’s lack of commitment to the WPS, finding the“EPA has little assurance that the protections calledfor in the Standard are actually being provided tofarmworkers generally or to children who work inagriculture.”46 The GAO Report focuses on twospecific problems that need immediate action: (1)the fact that the reentry intervals appear to have beenset based upon adult tolerances for exposure eventhough data shows that children are also in the fields,and (2) the fact that the regions of the country areentirely inconsistent in their enforcement of theWPS, with some states performing manyinspections, and other states performing none at all.

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The GAO noted the EPA needs to provideleadership in the area of enforcement by coming upwith a set of consistent policies as to whatconstitutes an adequate WPS compliance inspection,and how many inspections should be undertakeneach year in the states; as well as making animmediate adjustment to the REIs if they are notprotective of children.

The GAO Report cites the Department of Laborestimates that there are about 2.5 million hiredfarmworkers in the United States, but states that thenumber of children who work in agriculture is notreliably known. The DOL’s National AgriculturalWorkers Survey indicates that in 1998 about 129,00014- to 17-year-olds were being hired to work oncrops in the U.S. – surely an underestimate. TheDOL did not survey workers under 14, but didindicate that, in 1996 and 1997 for example, 7% offarmworkers with children 5 years of age or youngertook their children with them, at least sometimes, tothe fields. The DOL’s Wage and Hour Divisionreported in 1999 that “farmworker children [are]forced to suffer long hours in the fields with bothparents working and [virtually] no day carealternatives.”47

The WPS are supposed to apply to any personwho is compensated for activities related toproducing agricultural plants, and that definitionwould include children who are below the legal ageto work, which is generally 12 years old inagriculture (although it can go lower). As the GAOnotes, “enforcement of the Standard specifically forthese young children is problematic because provingthat children are working for compensation isdifficult when such activity is illegal.”48 It is unlikelythat a state inspector will find any records pertainingto the illegal employment, thus it may appear thatchildren are not working in the fields when, in fact,they are. Theoretically, all children working inagriculture for compensation should be receiving thesame training that the adult workers are required toreceive, should be aware of the signs indicatingwhen a field cannot be entered, and should be awareof where and how to seek help if they become ill.

The National Assessment of the WPS

After the issuance of the GAO Report, the EPAconducted a national assessment of the WPS. Thisassessment consisted of three meetings – one each inCalifornia, Florida, and Washington, D.C. – takingcomments from all attendees and compiling thosecomments into Workshop Reports, which areavailable from EPA’s website. The WorkshopReports reveal that farmworkers, handlers, farmers,and state inspectors all agree that the WPS programis not working well, is not reaching the targetpopulation in many cases, and needs seriousimprovements in order to bring pesticide safetytraining to those who need it.49

The EPA made the decision to hold theworkshops and perform the assessment, based uponthe fact that state officials in charge of the day-to-day implementation and enforcement of the WPShad many serious concerns about how the programoperated. In addition, the EPA cited the GAO andCHPAC studies and recommendations as significantfactors in influencing the EPA to perform theassessment, as well as collecting input fromfarmworker groups. In addition to looking at theeffectiveness of the WPS and the scope, quality, anddelivery of the states’ program, the EPA committedto reviewing the special needs of children asagricultural workers, and strategies for educatinghealthcare workers and the medical communityabout the dangers of pesticides and treatments forexposures.

The assessment reveals many of the failures ofthe WPS thus far. The WPS is an unfunded mandateand, while states put money into the initialimplementation of the program, much of that moneyhas dried up; the EPA has not sufficiently funded theWPS program at the state level. As a result, manystates attempt to simply “get away with not havingit.” 50 State structures are beginning to disappear dueto lack of funding support, and no mechanism hasyet been devised to require employers to pay for theprogram. Some participants reported that higherenforcement penalties would be appropriate, both asa deterrent and as a source of funding for theprogram.

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Participants noted that because the WPS lawdoes not require any recordkeeping, complaintsoften come down to ‘word against word.’51

Inspection criteria are also not defined in the law,and each state applies its inspection criteriainconsistently. There is no single centralized place toreport problems or pesticide exposures, andincidents often go unreported. Participants furthernoted that there is no national system forenforcement or reporting – voluntary reportingsimply does not work and, even if it did, is not goodenough to protect this population.

Participants noted that it currently makeseconomic sense for farmers to violate the WPSbecause the penalties do not stiff enough to outweighthe cost of compliance. Most enforcement actionsconsist of warning letters. There is no system fortracking repeat offenders, and inspectors themselvesreported feeling that the laws are not meaningful.Clearly this will affect their motivation to enforcethese laws. In addition, prosecutions for violationsare almost impossible where the evidence of injuryis not collected quickly and preserved. Commentsinclude “Workers have to know WHO to complain toand workers must do it quickly because the evidencetrail grows cold quickly,” and “Put some teeth intothe existing WPS.”52

Participants supported such potential changes inthe WPS as: the establishment of a toll-freetelephone number to educate workers on complaintand referral processes; requiring the worker trainingto include instruction in how to make a complaint;and the development of regulatory changes thatwould require the agricultural industry to train itsworkers just like other industries that use chemicals.Finally, participants agreed that healthcare providersneed additional training, especially in theimportance of treating and reporting occupationalexposures to pesticides.

Thus far, the National Assessment has notresulted in any changes to either the content of, orthe funding for, the WPS. However, the NationalAssessment and the GAO Report did result in theissuance of new inspection guidance from the EPA.

The New Inspection Guidance

Michigan is located within Region V of the EPA.This region has recently adopted a set of criteria forperforming worker protection inspections, known asthe “EPA-WPS Routine Agricultural-Use InspectionGuidance.” This document sets standards forinspections similar to those that were already in usein Michigan, with the addition that a routineinspection now requires inspectors interview one ormore available employed farmworkers and handlers.Previously, inspectors were only required tointerview the farmer. Now, under the new criteria, inorder for the inspection to count towards that state’srequired allotment of inspections, at least oneworker must be interviewed as well, or anexplanation must be provided as to why no workerscould be interviewed. The guidance recommendsthat interviews be conducted privately, outside thepresence of the employer or supervisor, and awayfrom the farm, if necessary, with a translator.Compliance with all WPS provisions should beverified by the inspector, pesticide labels on siteshould be reviewed, photos should be taken, and areport produced.

The WPS in Michigan

Michigan’s Agricultural Industry

According to April 2001 data provided by theMigrant Services Division of the Michigan FamilyIndependence Agency, Michigan had approximately40,000 migrant agricultural workers, making it thefifth largest user of actively transient migrantworkers.53 Seventy percent of these migrants travelnorth from Texas and Mexico, 25% from Florida,and 5% from other states. Mexican-Americanscomprise 98% of this population. The averagefamily size is 3.5 persons; the average annualincome for a family of four is $7,500. Adults inMichigan’s migrant labor force average a sixth gradeeducation while youths average a ninth gradeeducation.

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Agriculture is Michigan’s second largestindustry. Michigan is the nation’s number oneproducer of nine different crops, includingblueberries, tart cherries, pickling cucumbers, andgeraniums. Michigan ranks second nationally inproduction of celery, and third in production ofapples. Although corn, hay, and soybeans are the topcrops in terms of revenue and are mechanicallyharvested, many of Michigan’s other major cropsrequire hand harvesting. Another striking feature ofMichigan’s agricultural output is that, of the top 13Michigan crops on which migrants work, seven ofthem are flowers or potted plants. All of these cropsrequire the use of pesticides.

Total cash receipts from farm production forMichigan were approximately $3.4 billion in 2002.54

In producing its 1997 crops, 26,000 Michigan farmsspent $182,500,000 on agricultural chemicals(excluding fertilizers), deployed on approximately5.5 million acres of Michigan farmland.55 Of thisacreage, pesticides were used on about 1.2 millionacres and herbicides were used on about 4.3 million.While the total number of farms has decreased since1987, these numbers are fairly consistent through the1987, 1992, and 1997 Censuses of Agriculture.

Data collected on six targeted fruit crops in 1993showed that a total of 82 different active ingredientswere applied as agricultural chemicals to Michigan’sapples, blueberries, grapes, peaches, and sweetcherries and tart cherries.56 For example, in 1993,Michigan’s apples received about 12 pounds per acreof Captan (a fungicide) and 39 pounds per acre ofpetroleum distillate (an insecticide), along with 36other chemical herbicides, insecticides, andfungicides. Michigan’s blueberries received about 4pounds per acre of Malathion (an insecticide) alongwith 14 other chemicals.

The Michigan Department of Agriculture isresponsible for implementing and enforcing theWPS, including overseeing all aspects of the use ofpesticides in the state. This includes the certificationof handlers, the use of pesticides in conformancewith the requirements set out in the labeling, the useof only legally registered pesticides, workerprotection, and inspections of farms.57 Twenty-eight

worker protection inspections were performed inMichigan in 2002, and 26 in 2003. Of the 26inspections, 9 were of farms, 12 of greenhouses, 3 ofnurseries, and 2 of commercial farms where theprimary business is application. The first threecategories of workplace involve the use offarmworkers, some of them seasonal. A handful ofgrowers were fined for violations of the WPS, andall violations found were corrected. EPA inspectorsaccompanied state inspectors on some inspections.

The state inspectors generally keep theenforcement focus on farms that employ manymigrant workers, and farms that are known violatorsor potential violators. Inspectors arrive during theworking day, and talk to handlers and farmworkers,as the new guidance requires. The EPA Region Voffice received one report of alleged pesticideexposure as a result of misuse in Michigan in 2002,and one in 2003.

Migrant Farmworker Health in Michigan

In 1974, Michigan enacted the MichiganOccupational Safety and Health Act, which providesfor mandatory recordkeeping on occupationalinjuries and illnesses (although reporting to a stateagency is not required in most instances).58

MIOSHA is enforced by the Michigan Departmentof Public Health, the Division of OccupationalHealth, and the Michigan Department of Labor,Bureau of Safety and Regulation. In addition toMIOSHA, Michigan’s Public Health Code alsorequires reporting to the MDPH of occupationaldiseases by all physicians, hospitals, clinics, andemployers.59 Hence, Michigan has devised twoseparate mandates for collecting data onoccupational injuries and illnesses.

Despite this, Michigan does not appear to have agreat deal of information on the health of its migrantfarmworker population. Data shows that, in 2002,the state spent $3 million on Medicaid expendituresfor migrants, and no dollars on hospitalization formigrants.60 The 2002 Michigan Census of FatalOccupational Injuries61 shows that, out of 152Michigan workers killed on the job that year, fourwere killed as a result of exposure to a caustic,

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noxious, or allergenic substance. Seven of thosekilled were “Hispanic or Latino,” 23 of those killedworked in the industries of farming, forestry, andfishing (which are lumped together). Five of thosekilled were farmworkers, and three of those killedwere in ‘related agricultural occupations.’ Tenfatalities occurred on crop farms. Unfortunately, it isnot possible to tell, from the way the data ispresented, how the farm fatalities occurred –whether as a result of contact with machinery,pesticides, or other causes.62

Other occupational health data for Michiganshows that in 2001, for the ‘agriculture, forestry, andfishing’ industry, the average number of days awayfrom work due to nonfatal occupational injury orillness was seven.63 This was lower than the numberfor construction and one-fourth the number formining, but this might be due to the fact that there isno such thing as “time off with pay” forfarmworkers. In 2002, the total number of nonfataloccupational injuries and illnesses in the agriculture,forestry, and fishing industries combined was 2,500;most of those did not involve any lost work days.

While we do not know much about theoccupational health of Michigan’s migrantfarmworker population, we do have evidence thatfarmworkers in general have health problems similarto (but worse than) those of the general population.But they have less access to medical insurance andmedical care.64 According to “Suffering in Silence: AReport on the Health of California’s AgriculturalWorkers,” published in 2000 by the CaliforniaInstitute for Rural Studies, farmworkers suffer froma higher incidence of high cholesterol, high bloodpressure, obesity, and iron deficiency anemia thanthe U.S. population overall, and lack access to dentaland eye care. This study involved 971 agriculturalworkers, (from 1,174 randomly selected dwellings,including cars) from various parts of California, whoshared information about their health. Physicalexams and blood chemistry data were obtained from652 of the persons in the study. The overall projectdesign, and the specific questions asked, wereguided by the input of a committee of currentlyworking farmworkers. More than 100 individualsconducted the field research, and five migrant clinics

participated in performing the physicals. It is theonly comprehensive survey of the health of hiredfarmworkers that I encountered in my research. Thereport concludes, “As a result of theirsocioeconomic conditions and immigration status,no group of workers in America faces greaterbarriers in accessing basic health services.”65

The survey sample was mostly comprised ofyoung, married men, with little formal education –96% identified themselves as Mexican, Hispanic, orLatino, and 92% were foreign born, with 938 of the971 subjects completing the survey instrument inSpanish. Half of all male subjects reported that theyhad never been to a dentist, and 32% of all malesubjects reported that they had never been to adoctor or clinic. Two-thirds of subjects had neverhad an eye care visit. Only 57% said they had everreceived pesticide safety training, and 82% reportedthat their employer provided toilets, wash water, andclean drinking water. The report concludes that “therisks for chronic disease, such as heart disease,stroke, asthma, and diabetes, are startlingly high” fora group that is “mostly comprised of young men”who would normally be in peak physical condition.66

The most commonly reported physical problemswere back pain and irritated eyes; the mostcommonly reported mental health conditions werenervios (agitation) and corajes (frustration oranger).67 At least one group reported concern aboutthe fact that they were required to ‘test the fruit’before picking it to see if it was sweet enough toharvest. This applied specifically to unwashedgrapes, which obviously still had pesticide residueson them, and farmworkers were concerned aboutingestion of these residues.68

Clearly, hired farm work is very strenuous anddangerous. Yet farmworkers are one of the leastinsured occupational groups. Almost 70% ofsubjects reported that they had no form of healthinsurance; 11% said that they had health insurancethrough their place of employment. Governmentprograms, such as Medi-Cal, Medicare, and MIA,covered only 7% of respondents.69

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The National Institute for Occupational Safetyand Health is in the process of attempting to create anational reporting system for pesticide relatedillnesses. EPA and NIOSH are funding a program tosupport the pilot testing of standardized datacollection on pesticide illnesses and injuries.However, the program is currently limited to onlynine states, including Michigan. The MichiganDepartment of Community Health is carrying outthis program, known as the Michigan OccupationalPesticide Illness and Injury Surveillance Project (the“Michigan Project”). The MDCH works with theMDA and the Michigan Department of Consumerand Industry Services to compile information onexposures. This system came into use in 2001.

About 80% of the data that is obtained by theMichigan Project comes from poison control centerreports, which are unlikely to reach most of thepesticide related illnesses that occur. Althoughhealthcare providers and employers are required bythe Michigan Public Health Code to report work-related pesticide poisonings, they are still not thelargest source of the data. According to the MichiganProject, eight cases of acute occupational pesticideillness occurred in the occupation of farming duringthe period of 1999-2002. The Project does notmonitor chronic illness. Farming accounted for 11%of all cases of pesticide related illness. Of the total of75 cases of such illness that were identified for thisperiod, 12 were considered to be of moderateseverity, and 63 were classified as low severity.

Two case studies are reported in some detail bythe Michigan Project. One involves a 19-year-oldfarmworker, who had been working in a fieldrecently treated with pesticides, and later came to anemergency room with a throbbing headache,stomachache and dizziness. He also reported that hehad been lightheaded and shaky, with muscle crampsand blurred vision, for the previous five days atwork. He was diagnosed with organophosphatepesticide70 poisoning, and was advised to stay offwork until his symptoms had subsided (which couldnot happen if the daily exposure continued). TheMichigan Project reported that this worker was lostto follow up by both the health center where he hadbeen diagnosed and the MDCH.

As the Project’s preliminary report states, inaddition to the problems of getting physicians andclinicians to recognize and diagnose pesticiderelated illness and then report it, “other difficultieswith occupational pesticide surveillance include thereluctance on the part of workers and their healthcare providers to involve state agencies because ofconcerns about job security, and difficulties infollowing up with reported cases because oflanguage barriers or worker mobility, especiallyamong seasonal farmworkers.”71 Of course, medicalcare may not be sought for financial reasons as well,where there is no insurance. How many farmworkersare spending their workday lightheaded and shaky,dizzy and headachy, and simply enduring, waitingfor the off-season for those symptoms of poisoningto go away? Current occupational health data do notallow us to answer this question.

Conclusions and Recommendations

Like the proverbial broken record, the issue ofpesticide exposure and farmworker health appears togive rise to a lot of repetition. The GAO Reportmade reference to the lack of change in this areasince the GAO’s prior investigation into it, and thisreport must conclude the same way. While theClinton Administration’s focus on environmentalhazards and children provided the impetus for theEPA to eventually issue new inspection guidance,that is the only substantive change that occurred withrespect to the WPS since their inception. Thisdespite the fact that the GAO Report and theNational Assessment were very critical of the WPSperformance thus far, and showed that much morework is required in this area. Meanwhile, newstudies in the area of children’s health and pesticideswill hopefully have beneficial effects on the adultpopulation that works in the fields and orchards.

As JSRI reported in 1996, several actions can betaken in Michigan to improve this situation (and therecommendations are much the same as they werethen):

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(1) the WPS training can be used to provideinformation to farmworkers emphasizing how tospot the symptoms of pesticide exposurethemselves and the importance of seekingtreatment immediately; (2) the state can ensure that there are a sufficientnumber of migrant health clinics and ruralphysicians, and can offer enhanced training indiagnosis and treatment of pesticide-relatedinjuries and illnesses;(3) migrant health clinics, rural physicians, andagricultural employers can receive informationregarding the existence of the occupationaldisease reporting law and how to comply,including how to document the diagnosis and theincident that led to the diagnosis; and(4) state personnel can step up efforts to finehospitals, clinics, physicians, and employerswho fail to make the required reports.

These steps can be taken by Michigan now. Thecollection of reliable health data is the necessary firststep to strengthening the WPS and making the lawsmore effective.

More difficult (and even more necessary)reforms require lobbying Congress to reconsider thepolicy of agricultural exceptionalism that excludesfarmworkers from the protections of federal laws,and allows for the employment of such youngchildren in this industry. The types of financialprotections that are commonly available to workersin other industries, such as health insurance andcompensated time off for illness, would undoubtedlybenefit farmworker health. The idea that theagricultural industry needs to be regulated as thoughit is still dominated by the family farm, where thekids need the day off of school to help bring in theharvest, is outdated and anachronistic. Federal lawneeds to recognize who is really doing the work ofproviding food for our population. In addition,though the issue of undocumented immigration willalways complicate this field, it cannot be allowed tostand in the way of providing basic employmentprotections to all workers that are offered jobs in theUnited States, whether they were born here or not.

Endnotes

1 Worker Protection Standards, 40 CFR Part 170.The term “pesticide” as used herein, and underthe law, includes insecticides, fungicides, andherbicides. 7 U.S.C. § 136(u).

2 Lisa J. Gold, “Pesticide Laws and Michigan’sMigrant Farmworkers: Are They Protected?,”JSRI Research Report No. 12 (1996).

3 The author gratefully acknowledges theinformation provided by Antonio CastroEscobar, Michigan Department of Agriculture;Abby Schwartz, Michigan Department ofCommunity Health; and Donald Baumgartner,U.S. Environmental Protection Agency, RegionV.

4 U.S. EPA, Pesticides: Topical and Chemical FactSheets, Protecting Children from Pesticides,January 2002, available at www.epa.gov/pesticides/factsheets/kidpesticide.htm.

5 The U.S. Occupational Safety and HealthAdministration (“OSHA”) is the federal agencyresponsible for worker safety, and is empoweredto make and enforce regulations in that area in alltypes of industries. However, a legal challengeby farmworker groups, who wanted to seeOSHA carry the burden for regulation ofworkplace safety for farmworkers rather than theEPA, was unsuccessful despite OSHA’s greaterexperience and tougher enforcement powers.Organized Migrants in Community Action, Inc.v. Brennan,520 F.2d 1161 (D.C. Cir. 1975).

6 57 Fed. Reg. 38151 (1992)(codified as 40 CFRPart 170).

7 40 CFR § 170.9(a); see, also, 40 CFR §156.10(i)(2).

8 40 CFR § 170.3.9 40 CFR § 170.3. 10 40 CFR § 170.7.11 40 CFR § 170.110.12 40 CFR § 170.112.13 40 CFR § 170.120.14 40 CFR § 170.122.15 40 CFR § 170.130.16 40 CFR § 170.135.17 40 CFR § 170.150.18 40 CFR § 170.160.19 40 CFR § 170.130(c).

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20 40 CFR § 170.130(d).21 7 USC §§ 136j, 136l.22 7 USC §§ 136k, 136l.23 7 USC § 136l(a)(2).24 7 USC § 136l(a)(4).25 Executive Order No. 12898, 3 CFR § 859

(1994), reprinted in 42 USC § 4321 (2000).26 See 64 Fed.Reg. 5277-01, February 3, 1999.27 EPA is responsible for regulating the presence of

pesticide residues in food and animal feed,known as “tolerances,” under the Federal Food,Drug, and Cosmetic Act (“FFDCA”). 21 USC §301, et seq.; 21 USC § 346a,348. EPA will notregister a pesticide under the Federal Insecticide,Fungicide and Rodenticide Act (“FIFRA”) untilthe registration applicant has received thenecessary tolerance under the FFDCA. 40 CFR §152.112(g). The tolerance set (usually expressedin parts per million) is the maximum level of apesticide residue that may be present on foodwhen it leaves the field. 21 USC § 346a, 348.The two federal schemes are intended to worktogether this way: if a pesticide is applied inaccordance with its EPA approved label, theresidue remaining on the food will fall within thetolerance limit, which itself has been set as aresult of an EPA approved scientific riskassessment. See, e.g., 40 CFR §§ 152.170, 154.7.However, in setting residue tolerances, humanhealth is not the only factor. 21 USC § 346a(b).The FFDCA requires that EPA consider as“relevant” factors in setting a tolerance the needfor an “economical” food supply and the“usefulness” of the pesticide.

28 The other two recommendations concernedexposure to mercury, and how indoor andoutdoor air quality relates to childhood asthmarates.

29 64 Fed.Reg. 5277-01, 5279.30 National Academy of Sciences, “Pesticides in

the Diets of Infants and Children,” (1993).

31 EPA has created eight “Centers of Excellence inChildren’s Environmental Health Research,” andtwo of these are currently studying the effects ofpesticides on farmworker children – one at theUniversity of California at Berkeley studyingchildren in the Salinas area, and the other at theUniversity of Washington studying children inthe Yakima Valley. In addition, the EPA and theCenters for Disease Control, as well as otherfederal agencies, are currently conducting astudy of pesticide exposure and potential healtheffects in young children along the U.S.-Mexicoborder. See, U.S.EPA, U.S.-Mexico Border 2012Environmental Health Workgroup, PesticideExposure and Potential Health Effects in YoungChildren Along the U.S.-Mexico Border,www.epa.gov/orsearth/pesticide5_13.htm. Thisproject will “assess the relationship of healthoutcomes in children to repeated persistentpesticide exposures via multiple sources andpathways. The issue of exposure to pesticides isespecially critical for the children along the U.S.-Mexico Border. These children are thought tohave a high risk of exposure to pesticidesbecause of the extensive use of pesticides in theyear round agriculture industry of the area, thelarge number of parents who work in agriculture,and the suspected heavy use of pesticides forinsect control in their homes.” Id. While the EPAreports that data “of excellent quality” wereavailable for California and Arizona, data mustbe gathered for New Mexico and Texas becausethese states, for example, do not require thereporting of pesticide sales and usage.

32 21 USC § 346a(b)(2)(D).33 Id.34 See, Scott Cook, “Farm Children As A ‘Major

Identifiable Subgroup’ For Setting TolerancesUnder the Food Quality Protection Act of 1996,”81 Tex.L.Rev. 1121 (2003).

35 Natural Resources Defense Council, et al. v.Marianne Lamont Horinko,brought by NRDC,Farmworker Justice Fund (a subsidiary of theNational Council of La Raza), FarmworkerLegal Services of New York, and other groups.

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36 See, e.g., Shelley Davis and James B. Leonard,Farmworker Justice Fund, “The Ones the LawForgot: Children Working in Agriculture (2002)available at www.fwjustice.org; National Centerfor Farmworker Health, Overview of America’sFarmworkers, available at www.ncfh.org; U.S.GAO, Report to Congressional Requesters,“Pesticides: Improvements Needed to Ensure theSafety of Farmworkers and Their Children”(March 14, 2000) (RCED-00-40); Richard A.Fenske, et al., “Biologically Based PesticideDose Estimates for Children in an AgriculturalCommunity,” 108 Envtl. Health Persp. 515(2000); Don Villarejo et al., “Suffering inSilence: A Report on the Health of CaliforniaAgricultural Workers, (Nov. 2000), available atwww.calendow.org.

37 Human Rights Watch, Fingers to the Bone:United States’ Failure to Protect ChildFarmworkers,at 10, 16-22 (2000).

38 For some fascinating discussions of thecompletely unique exclusion of farmworkersfrom the protection of American labor laws see,Guadalupe T. Luna, “An Infinited Distance?:Agricultural Exceptionalism and AgriculturalLabor,” 1 U.Pa.J.Labor & Employment Law 487(1998); Sean A. Andrade, “Biting the Hand ThatFeeds You: How Federal Law Has PermittedEmployers to Violate the Basic Rights ofFarmworkers and How This Has Begun toImpact Other Industries,” 4 U.Pa.J.Labor &Employment Law 601 (2002); Juan F. Perea, “ABrief History of Race and the U.S.-MexicanBorder: Tracing the Trajectories of Conquest,”51 U.C.L.A. Law Rev. 283 (2003).

39 See, “Child Labor in Agriculture: ChangesNeeded to Better Protect Health and EducationalOpportunities,” GAO/HEHs-98-193, Aug. 21,1998.

40 GAO/RCED-00-40, “Pesticides: ImprovementsNeeded to Ensure the Safety of Farmworkers andTheir Children” (2000).

41 Id. at 4.42 Id., referring to, “Pesticides on Farms: Limited

Capability Exists to Monitor OccupationalIllnesses and Injuries,” GAO/PEMD-94-6, Dec.15, 1993.

43 Id. at 11.

44 Id. at 10.45 Id. at 14.46 Id. at 5.47 Id. at 6.48 Id. at 7.49 See EPA, National Assessment of the Worker

Protection Program #2 and #3, at www.epa.gov/oppfead1/safety/newnote/workshop.

50 Id. at 7.51 Id. at 21.52 Id. at 28.53 Michigan Family Independence Agency,

Migrant Services Div., April 2001, Profile ofMichigan’s Migrant Agricultural Labor Force.

54 Michigan Department of Agriculture, MichiganAgricultural Statistics Service, Michigan 2002-2003 Highlights, David D. Kleweno, Dec. 5,2003, available at www.michigan.gov/mda.

55 USDA, National Agricultural Statistics Service,1997 Census of Agriculture – State Data,Michigan, available at nass.usda.gov/census/census97/volume1/mi-22/mi1_14.pdf.

56 Michigan Department of Agriculture, MichiganAgricultural Statistics 1994, Lansing, MI: 1994,pgs. 35-40.

57 The MSU Pesticide Education Program isresponsible for developing, publishing, andrevising all of the various pesticide applicatortraining manuals that are in use in Michigan. Thecore training manual for applicators is availablein Spanish. The manual, Manual Basico deEntrenameinto para Aplicadores de Pesticidas,E-2195SP, is available for free on the PesticideEducation website, at www.pested.msu.edu.

58 MCLA §§ 408.1001, et seq., 408.1061; Mich.Admin. Code R 408.22103, et seq.

59 MCLA §§ 333.5601-333.5639; 333.5611. 60 2002 Program Year Michigan Family

Independence Agency Migrant Expenditures,available at www.michigan.gov/fia.

61 MIOSHA Information Division, Michigan Dept.of Consumer & Industry Services, 2002 Censusof Fatal Occupational Injuries, October, 2003.

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62 The Lansing State Journalreported on March14, 2004, p. 1E, that, according to informationrecently released by the Bureau of LaborStatistics and the Associated Press, Mexicanimmigrant workers are 80% more likely to die onthe job in the United States than native-bornworkers, and 50% more likely to die on the jobthan other foreign-born workers.

63 All occupational data cited herein for Michiganis available from www.michigan.gov.

64 Don Villarejo et al., “Suffering in Silence: AReport on the Health of California AgriculturalWorkers, (Nov. 2000), available atwww.calendow.org.

65 Id. at 5.66 Id. at 7.67 Id. at 27.68 Id. at 29.69 Id. at 25.70 This is one of the most common types of

pesticides in use, and one of the types targeted bythe CHPAC’s recommendations for reevaluation.

71 MDCH, Acute Occupational PesticidePoisoning, July 17, 2003.

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