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Environmental groups sue EPA for failing to protect farmworkers from pesticide exposure

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The delay also prevents the agency from setting an age requirement prohibiting young farmworkers from applying such pesticides.

The lawsuit argues that the Trump administration’s decision to postpone the effective date for implementation of the Certification of Pesticide Applicators (CPA) rule could lead to adverse harmful health issues for farmworkers and other people. That revised CPA rule–originally published on January 4 with an implementation date of March 6–would have, in part, imposed strict standards that require pesticide applicators to be at least 18 years old, be able to read and write, and establish an annual applicator safety training. Currently, there is no minimum age limit for the roughly one million certified applicators nationwide.

The lawsuit also states that the EPA failed to provide the public “adequate notice” to comment on rules to delay the effective date of implementation; failed to consider the adverse effects the delay would cause to farmworkers and their families regularly exposed to restricted use pesticides; and failed to consult with other government agencies to review environmental health consequences.

The CPA training would provide in-language lessons for people on the potential dangers of pesticide exposure, how to use equipment properly, how to prevent environmental contamination like runoff and drift, and how to report pesticide safety violations to enforcement agencies. The rule would also require training for aerial spray applications, so applicators would lessen the impact of the off-target movement of pesticides on plants, animals, and bystanders. A 2008 longitudinal government study found anywhere between 37 percent and 68 percent of acute pesticide-related illnesses are caused by pesticide drift into local communities.

Earlier this year, EPA Administrator Scott Pruitt delayed a decision to ban the restricted-use insecticide chlorpyrifos primarily used to systemically kill pests on agricultural crops. At the time, Pruitt’s agency rejected calls to ban the use of chlorpyrifos, claiming “the science addressing neurodevelopmental effects remains unresolved.”

Pruitt’s agency also put industry economic interests ahead of farmworker health safety, arguing that the continued use of chlorpyrifos would provide “regulatory certainty” for thousands of farms reliant on the pesticide and that more research was needed. His decision superseded the scientific recommendation made by the Obama administration supporting a gradual ban of chlorpyrifos. Past scientific research found a correlation between the pesticide and human health problems for farmworkers and children.

A 2012 Columbia University study found links between chlorpyrifos exposure and brain development and cognition issues in children and fetuses, even at exposure levels below the EPA threshold for toxicity. The EPA also found adverse risks among threatened and endangered species due to the pesticide.

The latest lawsuit comes days after seven states and several health and labor organizations directly challenged Pruitt’s decision, arguing that the EPA violated the Food Quality Protection Act of 1996 which requires the protection of infants and children from harm by pesticides in food, water, and exposure to indoor pesticides.

The lawsuit was filed on behalf of the advocacy groups Farmworker Association of Florida, United Farm Workers, Pineros y Campesinos Unidos del Noroeste, California Rural Legal Assistance Foundation and Pesticide Action Network North America.

Health and labor organizations, represented by the advocacy groups EarthJustice and Farmworker Justice, have strongly pressured the EPA to act on implementing the rule.

“EPA’s mission is to protect all Americans from significant risks to human health and yet it’s delaying life-saving information and training for the workers who handle the most toxic pesticides in the country,” Eve C. Gartner, an attorney with Earthjustice, said in a statement. “This delay jeopardizes everyone’s health and safety.”

In December 2016, the EPA said the rule could prevent upwards of 1,000 acute illnesses every year. Farmworkers–especially the two million immigrant farmworker labor force?–?are at the greatest risk of health problems because they’re most directly exposed to insecticides. Applicators mix and apply pesticides and can be exposed because of spills, splashes, defective, missing, or inadequate protective equipment, direct spray, or drift, according to Farmworker Justice. Farmworker families are also at risk because farmworkers bring home pesticides in the form of residue on their hair, skin, and clothing, or when pesticides drift into homes and schools near fields.

Immigrant farmworkers in particular are the least likely to receive health treatments or to file complaints because of fear of retaliation by employers. In one case, a woman whose fingernails turned black and skin peeled off her hands and face after pesticide exposure in Florida went to the doctor and didn’t file a complaint because she feared retaliation on her and her undocumented husband, the Palm Beach Post reported in 2003. In a 10-year period, less than eight percent of 4,609 violations of pesticide regulations in Florida resulted in fines, according to the Southern Poverty Law Center. And in May, several sick farmworkers in California left the scene when chlorpyrifos drifted into their field because they were likely afraid to confront medical members who could turn them into federal immigration authorities.

This article originally appeared at ThinkProgress on June 14, 2017. Reprinted with permission.

About the Author: Esther Yu Hsi Lee is an immigration reporter at ThinkProgress interested in migration and refugees. Contact her at EYLEE@thinkprogress.org.


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Trump targets USDA with some of the deepest proposed budget cuts

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President Donald Trump ran on a platform of giving a voice to rural voters who felt forgotten by politicians in Washington. But his proposed budget, released on Tuesday, proposes deep cuts to crucial Department of Agriculture programs that many rural residents, and farmers, depend on.

The budget proposes an almost 21 percent cut to the USDA, the third-largest percentage cut proposed for any agency, behind the Environmental Protection Agency and the State Department. It would cut crop insurance?—?which pays farmers for losses due to extreme weather, or compensates farmers for loss if prices are higher than guaranteed at the time of harvest?—?by 36 percent, far deeper cuts than were proposed under the Obama administration. And it proposes to “streamline” conservation programs, while eliminating the rural development program aimed at bringing infrastructure, technology, and utilities to rural communities.

“The Budget Proposal guts the USDA by 21 percent and makes further cuts to programs, all of which will leave rural and urban farmers, low-income families, and taxpayers more vulnerable,” Mike Lavender, senior Washington representative for the Union of Concerned Scientists, said in an emailed statement.

The proposed budget zeroes out programs like the USDA’s Farm Safety program, which seeks to reduce farm sector injuries by training workers in how to properly use farming equipment. It also eliminates programs like the Natural Resources Conservation Service’s watershed protection projects, which helps both protect sensitive watersheds from environmental degradation, like soil runoff, and helps rural communities respond to natural disasters like floods.

“Agriculture is a risky business, and we absolutely need an adequate safety net for farmers while also providing incentives that will accelerate adoption of conservation practices,” Callie Eideberg, senior policy manager for the Environmental Defense Fund, told ThinkProgress via email. “Eliminating any program that helps farmers increase resiliency and protect natural resources is a shortsighted decision that can have harmful consequences.”

Key research programs aimed at helping farmers adapt to the changing climate?—?like programs that offer grants to farmers interested in experimenting with innovative conservation techniques?—?would also face deep cuts under the proposed budget. More than $33 million would be cut from agricultural research programs like the Agriculture and Food Research Initiative (AFRI), which provides grants for agricultural sciences, and the Sustainable Agriculture Research & Education Program (SARE), which helps farmers fund conservation projects.

“The budget would slash funding for key agricultural research and conservation programs, undermining the ability of farmers to sustain their land and their livelihoods for the future,” Lavender said.

Cuts to USDA research programs would hardly be the first time the Trump administration showed science to be a low priority for the agency. Trump is expected to name Sam Clovis, a conservative talk-show host that denies the scientific consensus on climate change, to be the USDA’s undersecretary of research, education and economics. That would put Clovis in charge of the USDA’s entire scientific mission, including research programs aimed at helping farmers respond to climate change. Current Secretary of Agriculture Sonny Perdue also denies the scientific consensus on climate change, calling climate science “a running joke among the public” in a 2014 op-ed published in the National Review.

Perhaps surprisingly, the Trump budget does not specify what will become of one of the Obama administration’s signature climate-focused programs within the USDA, the regional climate hubs, which connect farmers with on-the-ground information about climate science and adaptation in their region. Office of Management and Budget Director Mick Mulvaney did say on Tuesday, however, that the budget at large was aimed at decreasing the “crazy” climate spending of the Obama administration.

This article was originally published at ThinkProgress.org on May 23, 2017. Reprinted with permission. 

About the Author: Natasha Geiling is a reporter at ThinkProgress. Contact her at ngeiling@americanprogress.org.


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Why Does the EEOC Make Mistakes (Part I)

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Over the years, the U.S. Equal Employment Opportunity Commission has been routinely criticized by charging parties, plaintiffs’ attorneys, respondents, and attorneys for respondents, as to virtually every aspect of the Commission’s activities including the filing,Richard Seymour investigation, and conciliation of charges, and the Commission’s litigation.

The courts have added their voices to the criticisms by charging parties and their counsel, with numerous courts coming to the rescue of charging parties by holding that the EEOC’s interim charge-processing steps are not jurisdictional prerequisites to a private suit and echoing the early words of the Fifth Circuit:

“Significantly, under EEOC regulations, a right to demand and receive such a notice accrues sixty days after the charge is filed regardless of any act or omission by the EEOC. Were this regulation not written, we would read it into the Act lest a claimant’s statutory right to sue in federal court become subject to such fortuitous variables as workload, mistakes, or possible lack of diligence of EEOC personnel.”

Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136, 1140 (5th Cir. 1971) (footnotes omitted). The period for requesting a notice of right to sue was later expanded, of course, to 180 days. 29 C.F.R. § 1628(a).

The courts have also echoed some of the concerns raised by respondents and their counsel, and have sometimes added teeth to the criticisms by sanctioning the EEOC for perceived failures in investigation, conciliation, and litigation. E.g., E.E.O.C. v. CRST Van Expedited, Inc., 2013 WL 3984478, 119 Fair Empl.Prac.Cas. (BNA) 739 (N.D.Iowa Aug. 1, 2013) (No. 07-CV-95-LRR), awarding $4,694,442.14 in defendant’s attorneys’ fees and costs against the EEOC for perceived failures of conciliation and for litigation missteps.

Some employers are using the courts’ criticisms in an effort to tie up the Commission’s enforcement efforts in red-tape preliminaries that could require more effort than the litigation they are trying to stave off. The Courts of Appeals are split as to whether respondents have an affirmative defense for the EEOC’s failure to conciliate reasonably, and the issue is now before the U.S. Supreme Court in Mach Mining, LLC, v. E.E.O.C., No. 13-1019 (scheduled for conference on June 19, 2014). Both sides have agreed that the Supreme Court should take the case and resolve this question, and we will shortly find out whether the Court will grant review. The Seventh Circuit had decided that courts could not enquire into the reasonableness of the EEOC’s conciliation efforts. E.E.O.C. v. Mach Mining, LLC, 738 F.3d 171 (7th Cir. 2013). The Commission’s response to the petition for certiorari, however, shows at pp. 3-4 the degree to which allowing such inquiries will stymie the EEOC’s enforcement efforts:

2. In 2008, a woman who had unsuccessfully applied for a mining position with petitioner filed a charge of unlawful employment discrimination with the Commission. . . . She contended that petitioner, which had never hired a woman for a mining position, refused to hire her based on her gender. . . . The Commission investigated the charge, found reasonable cause to believe petitioner had discriminated against a class of women who applied for mining-related jobs, and invited petitioner to conciliate. . . . From late 2010 to late 2011, the Commission attempted conciliation with petitioner, but no agreement was reached. . . .

The Commission then filed this lawsuit, contending that petitioner engaged in a pattern or practice of unlawful employment discrimination and used employment practices that had a disparate impact on female applicants. . . . In its answer, petitioner asserted a failure-to-conciliate affirmative defense, contending that the complaint should be dismissed because the Commission had failed to expend sufficient efforts on conciliation. . . . The Commission responded that Title VII includes no such failure-to-conciliate affirmative defense, and it moved for partial summary judgment on that basis. . . . In the meantime, petitioner submitted “extensive discovery requests”—including more than 600 requests for admissions of fact—that “s(ought) information about the EEOC’s investigation and conciliation efforts.” . . . . Petitioner also “slowed discovery on the merits” by objecting to the Commission’s merits-related discovery requests on “failure to conciliate” grounds. . . .

(Emphasis supplied.)  The petition, response, and reply can all be downloaded fromhttp://www.scotusblog.com/case-files/cases/mach-mining-v-equal-employment-opportunity-commission/. (ScotusBlog, www.scotusblog.com, is an extraordinarily useful website.) The text of the response makes a compelling case why there is no judicially-enforceable duty to conciliate; a later blog posting will address that question.

In the face of all these criticisms, fair-minded persons need to pause and consider how all these perceived problems came to exist.

First, expectations for the EEOC have always been very high. The Fourth Circuit’s view of the “public avenger” role of the EEOC after the 1972 amendments to Title VII giving it the power to sue in its own name were echoed by many courts in more prosaic opinions. Here is how the Fourth Circuit put it:

“But, unlike the individual charging party, the EEOC, when it sued, did so ‘to vindicate the public interest’ as expressed in the Congressional purpose of eliminating employment discrimination as a national evil rather than for the redress of the strictly private interests of the complaining party. Because of this significant difference, the EEOC’s suit was ‘broader (in scope) than the interests of the charging parties. It follows that the standing of the EEOC to sue under Title VII cannot be controlled or determined by the standing of the charging party to sue, limited as he is in rights to the vindication of his own individual rights. To hold otherwise, as did the District Court, would be to continue treating the sole purpose of the Title to be the correction of individual wrongs rather than of public or ‘societal’ wrongs as well as to deny to the EEOC the right to be any more than a mere proxy for the charging party rather than what Congress by the Amendments of 1972 intended, i.e., the public avenger by civil suit of any discrimination uncovered in a valid investigation and subjected to conciliation under the Act. We find no warrant whatsoever for placing such limitation on the right or standing of the EEOC to bring suit; indeed, were such limitation to be imposed, it would be in our opinion a clear nullification of the legislative intent in enacting the Amendments of 1972. . . . “

Equal Employment Opportunity Commission v. General Electric Co., 532 F.2d 359, 373 (4th Cir. 1976) (footnotes omitted; emphasis supplied).

Second, the EEOC has always been starved for resources, and the starvation has become endemic:.

President EEOC Authorized Staff When He Took the Oath of Office EEOC Authorized Staff When He Left Office Reduction from January 1981: No. Reduction from January 1981: %
Ronald Reagan January 1981:  3,696 January 1989:  3,198 498 14.1%
George H.W. Bush January 1989:  3,198 January 1993:  3,071 625 17.7%
Bill Clinton January 1993:  3,071 January 2001:  3,055 641 18.2%
George W. Bush January 2001:  3,055 January 2009:  2,556 1,140 32.3%
Barack Obama January 2009:  2,556 N.A.   Currently 2,347 1,349 38.2%

Source, EEOC Budget figures, http://www.eeoc.gov/eeoc/plan/budgetandstaffing.cfm, last visited June 8, 2014, with my calculations in the last two columns.

During this same time period, the EEOC has been given very substantial new responsibilities, including the Older Workers Benefit Protection Act of 1990, the Americans with Disabilities Act of 1990, and the Genetic Information Nondiscrimination Act of 2008.

Similarly, the EEOC’s web site shows that 93,727 charges were filed in FY 2013, compared with 72,302 in FY 1992, the earliest year with reported data. That is a 22.9% increase.

Moreover, during this period Congress has required the EEOC to devote a substantial part of its budget to help fund State and local fair employment practice agencies.

Third, the recent difficulties in financing government operations make realistic planning very difficult. Not only do agencies know whether the Office of Management and Budget will recommend budget figures for the next year comparable to those of the current year, the present dysfunction in Congress makes it impossible to tell what will be appropriated. There may be government-wide hiring freezes lasting for years. When those are lifted, agencies hire as many as possible, because they do not know when they will be able to hire again. Meanwhile, salaries and rents increase with inflation, and the training budget is among the first to be cut. The lack of professional training for attorneys, investigators, and others harms many aspects of the Commission’s operations.

Fourth, while many EEOC staff members are extremely well-skilled and dedicated, not all meet those criteria. The EEOC has never taken seriously the idea in the Civil Service Reform Act of 1978 that it should adopt truly objective and fair performance standards, train staff to meet those objective standards, and terminate staff who either cannot or will not come up to objective and fair performance standards. It has routinely refused to take action against unwilling or incompetent employees, and incoming Chairs have sometimes withdrawn pending disciplinary charges against large numbers of employees in a misguided effort to build good will, and an understandable but still mistaken effort to avoid the large amounts of management time that would have to be devoted to cleaning house.

Now consider: What private firm would have a chance of meeting its goals under these conditions: heavily increased workload, almost a 40% reduction in staff, little technology to make up the slack, no money for training, an inadequate effort to identify and get rid of poor performers, and the need to give a lot of discretion to untrained staff regardless of their performance?

It is close to a miracle that the EEOC can accomplish anything at all. Yet it has provided very useful guidance to employers, unions, and employees, and has recovered substantial amounts in resolutions of charges and in litigation.

When we criticize the agency, we need to be mindful of the difficulties under which it labors.

About the Author: Richard Seymour graduated from Harvard Law School in 1968, and has worked in civil rights and employee rights ever since. In the 36 years since leaving the U.S. Commission on Civil Rights in 1969, he have spent more than 90% of my time representing plaintiffs in class actions.


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