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?’”
Federal Protections for Farmworkers
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.