Farmworkers plagued by pesticides, red tape

By Ronnie Greene, iWatch News by The Center for Public Integrity 

NASHVILLE, Tenn. — Laboring in the blackberry fields of central Arkansas, the 18-year-old Mexican immigrant suddenly turned ill. Her nose began to bleed, her skin developed a rash, and she vomited.

The doctor told her it was most likely flu or bacterial infection, but farmworker Tania Banda-Rodriguez suspected pesticides. Under federal law, growers must promptly report the chemicals they spray.

It took the worker, and a Tennessee legal services lawyer helping her, six months to learn precisely what chemical doused those blackberry fields. The company ignored her requests for the information. The Arkansas State Plant Board initially refused to provide records to her lawyer, saying it didn’t respond to out-of-state requests. An Arkansas inspector, dispatched after the complaint, didn’t initially discern what pesticides were used the day the worker became ill, records show.

When answers finally arrived — the fungicide was Switch 62.5WG, a chemical that can irritate the eyes and skin — Banda-Rodriguez had already left Arkansas to follow the season to Virginia and ultimately returned to Mexico. She never learned whether the pesticide sickened her.

The episode is as telling a snapshot today as it was six years ago for one of America’s most grueling and lowest-paying vocations. Pesticides can endanger farmworkers, but thin layers of government protect them and no one knows the full scope of the environmental perils in the fields.

The Environmental Protection Agency administers a Worker Protection Standardmeant to regulate pesticides and protect workers and handlers. Yet the agency maintains no comprehensive database to track pesticide exposure incidents nationwide.

In 1993, the Government Accountability Office (then called the General Accounting Office) warned that the lack of data could lead to a “significant underestimation of both the frequency and the severity of pesticide illnesses.”

Nearly 20 years later, the EPA can still only guess at the scope of pesticide-related ailments in an industry where many workers, toiling in the shadows, are reluctant to speak up. The EPA often hands enforcement of pesticide regulations to states, which receive and investigate few formal complaints each year, federal records show.

“The system in place to address pesticide exposure is horrible. It’s dysfunctional,” said Caitlin Berberich, an attorney with Southern Migrant Legal Services, a Nashville nonprofit that provides free legal services to farmworkers in six southern states. “It just doesn’t work at all.”

Some top state regulators agree the full toll of pesticides on farmworkers is not documented. Yet reforms requiring more complete disclosure of pesticide use have been caught up in EPA red tape.

The EPA did not respond to repeated requests for comment and written questions, sent by the Center for Public Integrity over the last month, about its pesticide oversight. The EPA “estimates that 10,000-20,000 physician-diagnosed pesticide poisonings occur each year among the approximately 2 million U.S. agricultural workers,” federal records show.

Yet when workers do complain — as in the case in Arkansas — securing hard information can be daunting.

Sometimes, workers say, they pay a price for speaking up.

When pesticides were sprayed near them in 2010 in the tomato fields outside the city of Newport, in a patch of east Tennessee where the mountains touch the clouds and road signs warn of falling rock, the migrant farmworkers complained to state regulators. When it happened again, they say, they snapped videos with their cell phones.

The tomato farm’s response, the workers say in an ongoing federal lawsuit: to fire them on the spot, pile them on a bus and route them back to Mexico. The company denies any wrongdoing or retaliation.

In Florida in late 2009, farmworker Jovita Alfau, working in an open-air plant nursery in a rural swath of south Miami-Dade County, said she became dizzy and weak, with numbness in her mouth, and vomited.

Alfau said she had been told to tend to hibiscus plants at the Homestead nursery less than 24 hours after they had been sprayed with the pesticide endosulfan. The grower sent workers out too soon after the spraying, Alfau said in a lawsuit, violating the Worker Protection Standard, and did not tell her when pesticides were applied, provide protective gear or tell her how to protect herself.

Endosulfan is so toxic that, by summer 2010, the EPA banned its use, saying the pesticide “poses unacceptable risks to agricultural workers and wildlife.”

Several days after falling ill, Alfau went to the doctor but was not asked about pesticides, said her lawyer, Karla Martinez of the Migrant Farmworker Justice Project. Alfau, a legal U.S. resident and Mexican native, said she has been unable to work regularly since.

Power Bloom Farms and Growers denies wrongdoing, but agreed this month to settle Alfau’s case for $100,000, court records show. Under terms of the settlement, the company could also pay up to $75,000 total to other affected workers in a case that also included wage abuse allegations. The company did not respond to an interview request.

Farmworkers who have spent decades in the fields say one constant remains: Workers have little voice when it comes to pesticides.

“We have to run to the cars and close the windows because the plane is putting pesticides in the fields. After that happens, people feel sick,” said Yolanda Gomez, who began picking Florida oranges when she was nine and spent more than 30 years following the harvest from Florida to Washington State. “When you go to the field you go clean, and when you come out of the field you can see your eyes are very red.”

Raised in a family of farmworkers, with a father who once carried signs for Cesar Chavez, Gomez is now a community organizer for the Farmworker Association of Florida, in Apopka. Farmworkers frequently trek into the office complaining of pesticide-related illnesses, she said.

“When you tell them, ‘Let’s make this paper and put your name on it so we can make a difference,’ they just won’t do it,” Gomez said. “‘I don’t have any papers. I have to work. This is the only way I can feed my family.’ They don’t see another way out of the system.”

The system, she said, “should care about the human side of the worker.”

Bottom of the food chain

The battle over pesticides is a microcosm of the larger struggle for laborers at the bottom rung of the economic food chain.

“There’s this disenchantment,” said attorney Adriane Busby, who focuses on pesticide safety policy for the nonprofit Farmworker Justice in Washington, D.C. “They just don’t believe anything will happen if they go above and beyond in reporting things. They don’t believe in the system protecting them.”

For farmworkers, just getting clear answers about pesticides is a struggle. No one, the EPA included, has a full picture of the problem.

An EPA slideshow report in 2006, for instance, opened with a question: How many occupational pesticide incidents are there each year in the United States?

The slide listed multiple possibilities, from 1,300 to 300,000. Each number could be true, the report said – it just depends upon the source. One number came from the Poison Control Center, another from EPA estimates and yet another from the Council of State and Territorial Epidemiologists.

This uncertainty, even the EPA admits, can carry real consequences. As its slide noted, the lack of accurate information “inhibits clear problem identification.”

Advocates say the dearth of information triggers another problem: It’s hard to hold government and industry accountable when there is no benchmark from which to judge.

In its 2006 report, the EPA set goals of gathering more complete information and creating a more consistent means of tracking incidents. Among its recommendations: To “prepare a report on occupational incidents.”

Six years later, asked whether such a report has been prepared, the EPA did not respond.

Instead of maintaining its own database, the EPA depends on states to report complaints. But those annual reports list minuscule numbers. In 2011, for instance, North Carolina listed a total of five investigations based on complaints — for the entire state. South Carolina, another major agricultural producer, reported zero. Tennessee: 3.

Florida, the nation’s second-biggest agricultural state after California, reported 61 complaint-based investigations that year.

But Gregory Schell, managing attorney with the Migrant Farmworker Justice Project in Lake Worth, said just a fraction of the pesticide incidents are reported.

His guess: “One-tenth of 1 percent, in Florida.”

In 2005, Schell surveyed laborers who worked for a grape tomato grower in northern Florida that season. Nearly one in four said they had been directly sprayed with pesticides or other chemicals. Just under half said they had encountered drift from nearby fields. Thirty-six percent said they had become sick or nauseous from pesticides, and more than four of 10 said they developed skin rashes or irritation.

Had those numbers been extrapolated out for a state with 200,000 farmworkers, there would have been thousands of complaints, not dozens.

“Workers view these exposures as an occupational hazard. Even when they do complain, there’s an unwillingness to come forward,” Schell said. “One [reason] is their immigration status. The other is the employer can and will fire them.

“It is like pulling teeth for us to get people to file pesticide complaints.”

The official count doesn’t reflect reality, agrees Andy Rackley, director of agricultural environmental services for Florida’s Department of Agriculture and Consumer Services. “I would say we probably don’t have a good handle on it,” Rackley said. “It’s probably not as big as some people say it is but it’s probably bigger than what our complaint investigation files would indicate.”

Rackley believes growers should be required to more fully disclose where farmworkers are when pesticides are being sprayed. “Where were the workers at the same time, were they harvesting in the same fields?” he asked. “That won’t keep anybody who’s intent on hiding something from doing something, but it certainly raises the stakes.”

Growers log their pesticide use, and many track workers’ activities — but there’s no rule requiring one report tying the two, Rackley said. “EPA has been working on a rule to do that for at least eight years, maybe longer,” he said, “but we still don’t have it.”

Language barriers add another hurdle.

Pesticide warning labels are not required to be in Spanish, though eight of every 10 farmworkers are foreign born and most of the nation’s agricultural workforce comes from Mexico.

On average, according to the U.S. Department of Labor’s National Agricultural Workers Survey, crop workers had not advanced beyond the seventh grade. Forty-four percent said they could not speak English and 53 percent could not read the language. When farmworkers can’t read safety instructions, they face higher risks of exposure, say advocates who have pushed the EPA to require bilingual labeling.

With a scarcity of hard data, advocates are sometimes left to cite decades-old reports as proof of pesticide’s perils. One report, from the U.S. Bureau of Labor Statistics, said farmworkers suffer the highest rate of chemical-related illness of any occupational group, at 5.5 per 1,000. The report date: 1987

Florida’s Rackley believes the EPA should more fully fund qualified advocacy groups to train workers on pesticide safety — empowering workers, giving growers a level of comfort, and building trust between the two. “Listen, the growers need the workers and the workers need the growers, that’s the bottom line,” he said. In recent years, records show, the EPA has provided funding from $25,000 to a nonprofit to help reduce farmworker pesticide exposures in New Jersey to up to $1.2 million over five years to help train clinicians working with farmworkers.

A conflict in Tennessee

Workers who speak up sometimes find themselves immersed in conflict.

In Newport, Tenn., tomato grower Fish Farms hired workers under the federal government’s H-2A temporary agricultural program, in which legal foreign workers can be brought in when industry lacks local laborers for the job.

At Fish Farms, 15 workers contend in an ongoing lawsuit, pesticides were sprayed in the fields while they worked and close to their trailer homes, in a secluded stretch of a city of almost 7,000 whose commercial strip includes Debbie’s Drive Inn, For Heaven’s Cake & Bakery and the Newport Plain Talk newspaper.

In July 2010, aided by Southern Migrant Legal Services, the laborers complained to the pesticides administrator of the Tennessee Department of Agriculture, “citing frequent exposure to pesticides while working at Fish Farms, physical symptoms, and the absence of medical care,” according to the lawsuit. Some laborers told the state they had lost fingernails that season, and said pesticides were sprayed 30 feet away from them.

That August, the workers turned to the Knoxville Area Office of the Wage and Hour Division of the U.S. Department of Labor, contending the company skirted federal and state pay and housing laws. The workers said they had to wash their clothes in a nearby river, and that their trailers were insect-infected and overcrowded, with holes in the walls. The company said the housing met federal standards, and any violations were caused by the workers.

On August 23, 2010, the Labor Department conducted an on-site investigation — leading to a skirmish. Two Fish Farms bosses “impeded” the inspectors’ discussions with the workers, the federal lawsuit says, and two others “arrived brandishing firearms.”

Fish Farms disputes that account in its response to the lawsuit. Instead, the company said, one worker “held a knife in a threatening manner.” The company fired him and filed an aggravated assault charge. The worker said he had been using the knife to cook with and did not threaten anyone. The state dropped the charge.

On September 5, 2010, the workers said, pesticides were again sprayed close to their trailers. This time, they took out their cell phones and began taking video of tractors passing by. Fish Farms bosses again turned out.

Workers said they retreated to their trailers, but, according to their lawsuit, a Fish Farms boss kicked in one door and two bosses yelled obscenities, including “f—ing Mexicans.” Farm bosses snatched their cell phones, loaded workers on a bus and arranged their return to Mexico, the suit said.

This May, Fish Farms referred a reporter’s inquiry to the company’s Knoxville attorney, Jay Mader. The lawyer did not respond to three interview requests, but the company challenges the workers’ account in a formal response to the lawsuit filed this month.

On the September day workers began taking video footage, Fish Farms said, the laborers were actually trying to “fabricate evidence of improper pesticide spraying.” The decision to fire them was warranted for “excessive absences,” the company wrote, and because the farmworkers “knowingly engaged in behavior that falsely portrayed Fish Farms as being out of compliance with local, state, and federal law.”

A Fish Farms boss “may have briefly removed” cell phones in his face, but returned them. The company said it paid for lodging and bus tickets for the workers to return to Mexico. There were “heated exchanges,” the company admitted, but executives said they could not recall the exact words.

After the lawsuit was filed, Fish Farms tried to get the case dismissed, saying the former H-2A workers lacked legal standing. A judge denied the farm’s request last month,calling its argument “completely unsubstantiated and devoid of merit.” The company continues to seek the case’s dismissal.

Ultimately, the Tennessee Department of Agriculture investigated the pesticide complaints. In November 2010, months after the workers had returned to Mexico, the state cited Fish Farms for using pesticides inconsistent with labeling, and for not displaying specific information about pesticides used.

The civil fine imposed: $425, which Fish Farms paid that same month. “The department considers this matter to be closed,” the state wrote.

Maze of red tape

The case in Arkansas opens a window into the maze farmworkers enter when they think they’ve been poisoned by pesticides.

Banda-Rodriguez, the 18-year-old farmworker toiling in the blackberry fields in Judsonia, Ark., said she started getting sick one day in June 2006. A short time later, she reached out to attorney Melody Fowler-Green of Southern Migrant Legal Services about another matter, involving immigration. Later, the worker mentioned her sickness.

In October 2006, Fowler-Green sent a certified letter asking the grower, Gillam Farms, to tell her what pesticides were used the day the woman became ill. She cited the EPA’s Worker Protection Standard, which mandates disclosure. Gillam Farms did not respond, the lawyer said in a letter to the EPA the following year.

Gillam Farms did not respond to two interview requests from the Center for Public Integrity.

In Arkansas, the EPA defers regulation to the state Plant Board. In November 2006, after not hearing back from the grower, Fowler-Green contacted the state and said she was told her phone call constituted a complaint.

In January 2007, a state official told her an investigator had visited the farm “but failed to gather information regarding the pesticide used on the fields when my client became ill,” Fowler-Green wrote the EPA. “I was not offered any coherent explanation for this failure.”

She followed up again in February 2007, when the Plant Board faxed to her a complaint form to fill out. Fowler-Green said it was the first time she was told she had to submit that paperwork.

Along with a complaint, the lawyer filed an open records request to obtain the Plant Board’s investigative file.

That same month, a lawyer for Gillam Farms questioned the pesticides inquiry in a letter to the state. “My client intends to cooperate with any legitimate investigation by the Plant Board,” wrote attorney Byron Freeland. “However, we are concerned that the Plant Board is being used by a former Gillam Farms employee and her attorney to harass Gillam in an attempt to gain information for a spurious claim.”

That April, Fowler-Green said, the Plant Board finally told her the pesticide that had been used: Switch 62.5WG, a fungicide made by the Swiss conglomerate Syngenta that kills diseases on crops ranging from blackberries to turnip greens.

But the agency still hadn’t turned over its investigative case file.

“It is the opinion of the Arkansas Attorney General’s Office that the state FOIA [Freedom of Information Act] does not apply to persons outside the state,” Plant Board Director Darryl Little wrote the Nashville attorney that July.

Only when she threatened to sue did the board provide the information.

All told, it took the lawyer six months to learn the name of the pesticide Banda-Rodriguez encountered — and 10 months to get a copy of the state’s investigative file. By that time, the farmworker was back in Mexico.

In an interview, Plant Board Director Little said the agency was hamstrung because the initial complaint did not arrive until months after the worker became sick. Normally, he said, the department aims to move as quickly as possible to gather evidence.

“It was frustrating figuring out what we could do to help this lady since it had been such a long time since this incident occurred,” Little said.

Yet the director acknowledged that his office, once contacted, moved slowly.

“We were extremely short-handed in that division at the time and I am sure we were slow — there’s no question about that,” he said. “We were struggling in our division at that time to keep our nose above water.” He said the Plant Board is back to full staffing.

Asked about his initial records response, Little said he was simply applying the law. “The way it’s written states that the records are open to the citizens of the state,” Little said. “But my take on it is, the only thing you’re going to do is make somebody mad and they’re going to call someone they know in Arkansas and they are going to get the records.”

His ultimate call, he said: “Give them the records. And that’s what we did.”

In the end, the Plant Board concluded it had insufficient evidence to determine whether the worker had been exposed to pesticides, or whether the Worker Protection Standard had been violated.

When Fowler-Green complained to the EPA, the federal agency replied that Arkansas’ review was proper. The EPA does not meddle in state public records disputes, an official said – and, if anything, the worker should have filed her complaint sooner.

If it took a lawyer this long to obtain basic information, Fowler-Green thought, imagine the difficulty farmworkers face.

“Yes, of course complaints should be made right away,” said Fowler-Green, who recently took a job with another law firm. “But whether it’s a month, two months or three months, the worker still should have a right to the name of the pesticide that was applied.”

Advocates wage longshot campaigns. Southern Migrant Legal Services has four lawyers handling farmworker cases in six states.

Yet the federal Worker Protection Standard meant to protect laborers has gone 20 years since a thorough revamping.

Farmworker Justice and the nonprofit environmental law firm Earthjustice are pressing for upgrades, writing to EPA Administrator Lisa Jackson last November and calling for reforms, including:

• Expanded training requirements for agricultural workers and pesticide handlers;
• Strict limits on when workers can re-enter the fields after spraying, and more complete information provided about the pesticides they encounter;
• Rules mandating special areas for workers to change into their work clothes, store clean clothing, and shower at day’s end, so they don’t carry pesticide residues home.

Asked about the suggestions, the EPA did not respond.

Ronnie Greene is a former reporter and editor at The Miami Herald