Workers, Idahoans could have less pesticide protection if EPA rolls back this regulation

Workers, Idahoans could have less pesticide protection if EPA rolls back this regulation

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Crop Dusters

Keith Johnson, a pilot with Ken Spray, sprays a field south of Twin Falls on Wednesday, June 4, 2014.

BOISE — Federal regulations intended to protect farmworkers from pesticide exposure and drift seemed to fail to protect a group of Idaho farmworkers last year. Now, the U.S. Environmental Protection Agency is proposing a series of changes that advocates say would weaken those protections.

In November, the EPA announced plans for “narrow updates” to federal worker protection laws that govern safe pesticide spray, opening the proposed changes to public comment. Most of the changes relate to the Application Exclusion Zone — the part of the EPA Worker Protection Standard dictating where pesticide applicators are allowed to spray when people are nearby.

“The targeted updates would improve enforceability for state regulators and reduce regulatory burdens for farmers,” reads the announcement on the EPA’s website. “It would also maintain public health protections for farm workers and other individuals near agricultural establishments that could be exposed to agricultural pesticide applications.”

Depending on whether the pesticide is sprayed from the air or on the ground, current EPA regulations generally ban pesticide applicators from spraying within 25-100 feet of any people, although rules also vary based on conditions, spray height and the pesticide in use.

“EPA’s proposed changes would remove protection for people and bystanders not in the field being sprayed, even if they are within the protection zone,” wrote the United Farm Workers labor union in a Jan. 17 call for supporters to oppose the rollback.

The proposed updates include the following:

Limiting the requirements of the Application Exclusion Zone (AEZ) to the farm owner’s property and not property that is technically “off-farm.”

Immediate family members of the farm owners are exempt from all AEZ requirements. They can choose to seek shelter from pesticide spray, or remain if they feel safe.

Clarifying that pesticide applicators may resume suspended sprays after people have safely exited the zone.

In a document comparing its proposed revisions to the current Worker Protection Standard rules, the EPA says the proposal to limit the buffer zone between pesticide spray and workers is a result of employers not being able to control people who are not their employees or located on their property. Besides, pesticide applicators such as crop dusters are still required to abide by a “do not contact” provision that prohibits spraying pesticides in a way that may expose people.

But pesticide safety and farmworker advocates say the “do not contact” provision is even more difficult to enforce than the AEZ provisions the EPA wants to rescind.

“EPA’s own administrative record and more recent examples show that many of the incidents in which people have reported being illegally sprayed involve people who are outside the boundaries of the establishment,” the Pesticide Action Network in California wrote in a comment letter submitted to the EPA.

Visión 2C, a new Canyon County chapter of Idaho Organization Resource Council focusing on worker safety and other issues important to the Latino community, is also watching the changes with concern. The group formed in response to a pesticide exposure incident in May 2019 that sent more than a dozen Parma farmworkers to the hospital.

“Idaho is going to be losing an important tool to protect farmworkers in the state,” said organization spokeswoman Marielena Vega.

CURRENT REGULATIONS DIDN’T PROTECT IDAHO FARMWORKERS LAST SUMMER. NOW, THEY’LL BE WEAKER.

In an effort to protect farmworkers, bystanders or even houses in nearby neighborhoods from pesticide drift exposure, crop dusters in particular usually cannot spray when people are within 100 feet of their targeted field. Instead, applicators are required to stop spraying immediately, tell the person to move or wait to complete the job until the person is no longer within the zone.

But the regulations on the books are hardly fool-proof, as pesticides can still drift beyond that protective zone and cause injuries or death.

An October investigation by the Idaho Statesman found that several farmworkers were still sick months after the Memorial Day pesticide exposure incident in Parma. Farmworkers working in an Obendorf Hop field claimed a pesticide sprayed on a neighboring Obendorf Farms onion field caused their illnesses.

“When the plane went up above us, we could smell what it dropped,” said Ascención Antunez, one of the farmworkers in the field at the time who shared his story with the Statesman. “It went up our noses.”

State agriculture investigators found that the crop duster pilot didn’t violate the Worker Protection Standard because the workers were more than 100 feet away at the time of the application. They also couldn’t verify the sick farmworkers were exposed to the pesticide from the crop duster, due to mismatched symptoms and a lack of lab testing.

The owners of the Obendorf Hop and Obendorf Farms fields also were not cited, because the rules for that pesticide required only that farmers notify their own employees. The two companies are technically separate entities, even though they are all members of the same family.

If the rules are narrowed the way the EPA is proposing, the workers’ proximity to the area sprayed by the crop duster wouldn’t matter. The new changes would protect only those on the property being sprayed. Farmers and their immediate family members would be exempt from those protections, too.

Antunez, 77, told the Statesman in a September interview that he was unable to walk or get out of bed for about a month after the incident.

The Statesman was unable to reach Antunez after the September interview or independently verify his medical condition because of patient privacy rules. However, Marsing Housing Authority staff and Jose Ramirez, a neighbor and one of the farmworkers involved in the May incident, told the Statesman that Antunez has since returned home to Mexico “to die in peace.”

WHAT DOES THIS MEAN FOR IDAHO?

If these changes are implemented, they could have an immediate impact on how Idaho handles the regulation of pesticide application and the enforcement of exposure incidents.

Idaho has few additional state rules or regulations governing the aerial application of pesticides beyond Idaho Code 22-3420(8), which prohibits applying pesticides in a “faulty, careless, or negligent manner.” The Valley Air pilot involved in the Parma incident received a state regulatory letter for violating this code, because state ag officials said he could have chosen to wait once he saw there were workers in a nearby field.

Christina Stucker-Gassi from the Northwest Center for Alternatives to Pesticides said the current Application Exclusion Zone in the Worker Protection Standard is the “best line of defense” for protecting people from pesticide exposure on the job. However, she acknowledged those regulations had proved nearly impossible to enforce in Idaho.

“There is very little documentation on how it’s been enforced at the state level,” Stucker-Gassi said. “In Idaho, from what I understand, we’ve had no documented cases of the AEZ being used to bring about behavioral change or of it being enforced.”

Many pesticide exposure incidents resulted in drift that was already outside of the AEZ, Stucker-Gassi said. And while farmworkers are the people most vulnerable to these changes, it would also mean that farmers, bystanders and homeowners could go unprotected.

An Idaho Statesman review of Valley Air’s complaint and discipline records found that several complaints against the company originated from homeowners and even motorists who said pesticides drifted onto their homes, cars and even children. The Caldwell-based company is just one of many aerial application businesses that operate in Idaho.

If the EPA does indeed roll back the AEZ protections as proposed, Stucker-Gassi said it would be a good opportunity for state lawmakers to begin their own discussions about how to protect farmworkers. Lawmakers in Washington state have proposed a working group to study the issue of pesticide drift.

“I don’t think it would be that burdensome to investigate the issue and bring it out of the shadows,” Stucker-Gassi said. “I think it would be really useful. Everyone is in support of protecting human health.”

The Idaho State Department of Agriculture did not submit comments on the proposed changes, and an agency spokeswoman declined to comment further on the matter.

The state Legislature’s Senate Agricultural Committee unanimously approved the reauthorization of rules on pesticide use and application during a Tuesday morning meeting. Victor Mason, the state’s administrator of agricultural resources, said more than 1,000 words were trimmed from the rules, but few substantive changes were made.

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