According to a recent report by EPA’s Office of Inspector General (OIG), the Agency has not collected information on occurrences of agricultural worker exposure to dangerous pesticides and, therefore, cannot gauge the effect of its regulations to protect workers from those exposures. The OIG offered this assessment in the context of EPA’s 2015 revision of its agricultural Worker Protection Standard ((WPS), November 2, 2015, Federal Register (FR)).
Inspectors Say Agency Should Develop Methodology
According to the OIG, the Agency relies on information assessed during pesticide reevaluations and taken from voluntary reporting databases. While the EPA told the OIG that it is working to improve the accuracy of these data, the OIG says it remains concerned.
“The absence of comprehensive occupational agricultural pesticide exposure incidents data may result in the Agency being unable to determine whether the revised WPS meets its intended goal of reducing pesticide exposure incidents among farmworkers and pesticide handlers,” writes the OIG.
The OIG recommends that the EPA develop a methodology to evaluate the impact of the revised standard on pesticide exposure incidents among the WPS target population. The Agency disagreed with this recommendation, stating that it has no statutory authority to compel reporting of incident data. Furthermore, the EPA offered no alternative approach for collecting data that satisfied the OIG. As a result, the OIG says the recommendation is unresolved, and “resolution efforts are in progress.”
The inability of the EPA to gauge the effectiveness of the WPS would seem to throw the rationale for the rulemaking into question. Why promulgate a rule when its effectiveness can be only partially evaluated and perhaps very poorly evaluated? The best estimate of benefits the EPA could come up with is that 1,810 to 2,950 acute pesticide exposures annually “potentially could” be prevented by the WPS. Also, agricultural employers will need to comply with the many revisions of the previous (1992) version of the WPS. But federal and state inspectors combined will likely visit only a very small percentage of the nation’s 600,000 agricultural establishments that employ an estimated 2 million agricultural workers and pesticide handlers. The Agency seems to be saying that the revised WPS has to improve worker protections, but the degree that it actually will improve protections can be no more than an educated guess at best and unknown at worst.
In its report, the OIG addresses three aspects of the WPS: (1) the absence of comprehensive incident data at the EPA; (2) the absence of a method to acquire such data; and (3) EPA’s provision of training and guidance material to assist state, Indian tribe, and territorial agencies in implementing the WPS. Of the three, the EPA appears to have resolved only the guidance issue.
Background
It can be argued that in the United States, there are no two groups more exposed to hazardous chemicals than agricultural workers and handers of pesticide products. The EPA has estimated that as many as 20,000 individuals experience occupational exposure to pesticides every year. In fact, it is likely that this number only scratches the surface of what is actually occurring. The problem is that up to 95 percent of pesticide exposure incidents involving farmworkers and pesticide handlers are not reported. Many of these workers lead migratory lives, are viewed by employers as quickly replaceable, and are undocumented immigrants. Among them, the fear of losing their jobs or other retaliation for reporting exposure or sickness, which may put employers in a difficult position with regulators or law enforcement, creates a culture of silence.
Among its many provisions, the revised WPS requires that employers provide workers with annual training about required protections; prohibits children under the age of 18 from handling pesticides; requires 100-foot, no-entry, application-exclusion zones; requires that farmworkers and their representatives have access to pesticide application information; and provides antiretaliation protections to those who report unauthorized exposures or illnesses.
In terms of benefits of the revision, EPA’s determined that even if only 10 percent of worker pesticide poisonings are reported, those benefits would be about $2.6 million annually.
Guidance
EPA’s Office of Pesticide Programs (OPP) and Office of Enforcement and Compliance Assurance (OECA) work in collaboration with the states, tribes, and territories to manage enforcement of and compliance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), of which the WPS is a component. In February 2017, these EPA offices issued a document stating that the OPP will provide funding to support “education, outreach, training, technical assistance and evaluation activities” for pesticide program development and implementation.
Several months before issuance of this document, the National Association of State Departments of Agriculture (NASDA) and the American Farm Bureau Federation (AFBF) petitioned the EPA to delay the January 2, 2017, compliance date for most provisions in the WPS “until at least January 2, 2018, or until adequate enforcement guidance, educational materials, and training resources have been completed and the state lead agencies have the tools, time, and resources necessary to effectively implement the rule changes and assist the regulated community with compliance activities.” The EPA denied this petition in January 2017. In February 2017, the NASDA made the same request; in May 2017, the Agency reversed itself and agreed to grant the petition. However, in December 2017, the Agency changed its mind again and said all compliance dates in the 2015 WPS remained in effect, with three exceptions affecting handler pesticide safety training materials.
In a draft of its report, the OIG noted that OPP/OECA did not have “essential educational and implementation materials available by January 2, 2017”; accordingly, the OIG recommended that the Agency should delay WPS’s compliance deadlines at least until those materials are available. Responding to OIG’s recommendation that compliance dates be changed, the EPA listed eight educational and guidance documents that it had made available, thereby satisfying OIG’s recommendation. The OIG withdrew the recommendation but was somewhat vague on whether the EPA had actually accomplished what was recommended.
No Data, No Method
OIG’s main concern is EPA’s inability to collect occupational pesticide exposure data among the WPS target populations, which means it has no method to determine if the revised rule is reducing occupational pesticide exposure incidents. Consequently, the OIG makes a simple recommendation to the OPP/OECA—“Develop and implement a methodology to evaluate the impact of the revised Agricultural Worker Protection Standard on pesticide exposure incidents among target populations.”
But, according to the EPA, there is nothing simple about carrying out this recommendation. The Agency offers the following reasons:
Statutory authority. The federal pesticide program does not provide the Agency with clear statutory authority to require the submission of pesticide exposure incident information from states or target populations. Furthermore, even if the EPA could issue a rule to compel the submission of such information, the Agency says it lacks the authority under FIFRA to prosecute any failure to comply with such a rule.
Declining to discuss the statutory bar, the OIG simply responded that the Agency must have the ability to measure the impact of the revised WPS and appears disappointed that the Agency did not propose any action to address its concern.
Data unavailable. The EPA notes that although there are efforts in a small number of states to collect occupational pesticide incident data from farmworkers, data on farmworker pesticide exposure incidents is generally unavailable.
“OPP collects pesticide incident data from a wide variety of sources, but even in combination, those sources are neither detailed nor comprehensive enough to provide a statistically representative picture of farmworker pesticide incidents,” says the EPA.
The Agency points specifically to California. While the state does collect incident data, the EPA argues that there are problems in using that data to measure the impact of the revised WPS. The Agency explains:
“The National Institute [for]Occupational Safety and Health’s (NIOSH) Sentinel Event Notification System for Occupational Risk (SENSOR) Pesticides database collects occupational incident data from 9 to 13 states and provides the best reach into farmworker exposures, in part due to contributions from the California Department of Pesticide Regulation’s (CDPR) unique surveillance system, the Pesticide Incident Surveillance Program (PISP). The PISP captures required reporting on pesticide poisoning from physicians and from analyses of workman’s compensation information and provides follow-up investigation of each incident, including details about the circumstances of the exposure. The PISP is supported by a team at CDPR and 56 county agricultural commissioners who provide the detailed follow up [sic]. Without rigorous investigation and capture of critical details about each incident, a reliable analysis of the impact of the WPS cannot be made. Even California’s data does [sic] not provide a complete snapshot of the impact of the WPS because California regulates worker safety under separate requirements, which differ from the revised WPS (but are considered equivalent in protection).”
The OIG responded generally that it learned from the Migrant Clinician Network that 30 states collect pesticide incident data. The EPA answered that the data exist, but the Agency does not have a mechanism to access it and collects only a fraction of the available information.
Cost and quality. The EPA says it uses NIOSH’s SENSOR Pesticides database of occupational pesticide incidents and other incident information to help characterize risk, identify problem areas, make risk management decisions on specific pesticides, and support rulemaking. But SENSOR does not represent the full national count of farmworker incidents. For example, about half of the incidents in SENSOR are provided by California. The OPP said it has contributed between $100,000 and $175,000 annually to support this data collection. It is unlikely that the SENSOR database could be expanded to include all states due to competing priorities and staff constraints at the state level and a limited amount of federal funding to support state participation.
The EPA further asserts that even where the best incident surveillance systems are in place, underreporting of pesticide exposure and incidents is a significant concern. Underreporting may occur due to symptoms that are not easily recognized or diagnosed as pesticide-related and/or are due to potential barriers that exist for farmworkers to seek medical attention.
Enforcement data. In its draft of the report, the OIG stated that enforcement data can be a source of incident data. The EPA disagreed. According to the Agency, this would not be a productive approach. First, inspections focus on identifying misuse of a pesticide, and not all misuse results in pesticide exposure. Second, misuse inspections are conducted by states, and state reporting to the EPA is limited to minimize the resource burden on state agencies. Third, the number of inspections is very small compared to the universe of establishments covered by the WPS, and strategies to select inspection targets vary from state to state and year to year.
Finally, the EPA notes that there are methods outside the WPS to obtain incident data. For example, the CDPR has, on occasion, issued letters to physicians reminding them of their mandated responsibility to report pesticide incidents, resulting in a significant increase compared with previous years’ data.
The OIG and the EPA have attempted to modify the wording of OIG’s recommendation regarding development of a methodology to collect incident data to measure the impact of the revised WPS on target populations. As of publication of OIG’s report, those attempts have not been successful.
OIG’s report is here.