Farmworkers and White Collar Crime

Farmworkers and White Collar Crime The United Nation's World Health Organization estimates that on an annual basis, over 3 million agricultural workers experience severe and sometimes fatal exposure to poisoning from pesticides used in the production of various farming activities. An additional 25-30 million likely experience mild pesticide poisoning, and, because the long-term effects have not been longitudinally document, most scholars believe that occupational exposure to pesticides over time may be associated with leukemia, cancers, and a variety of other diseases (McCauley, Anger, Keifer, et.al., 2006).

Epidemiologists world-wide have confirmed these findings but are often challenged to consistently prove individual results because of the nature of the farm-worker paradigm. Most farm workers lack insurance; many move around so regularly that any health care received is sporadic and in different towns, cities, and even countries; as the farmworker population ages, adequate records are not kept on cause of death, etc. (Zahm and Blair, 2001).

Case Issues -- We have been hired by the Farm Worker's Union to investigate the issues surrounding the use of pesticides that have deleterious effects on individuals employed as workers in the agricultural industry. According to the Union, each year several thousands of workers become ill because of their exposure to the toxins. Among other methods, workers are exposed to the pesticides when planes and helicopters spray nearby fields and winds drift fumes and contaminants onto workers.

The industry is aware of the problem, but since they are not directly spraying on the workers have considered it to be a non-issue. The government considers the problem of pesticide drift to be so statistically small based on the total amount of pesticide application and usage as not to be an issue at all, either. The Union believes there is collusion between the industry and the government. However, recent data now shows that pesticide drift affects more than just workers in adjoining fields.

For instance, in Lindsay, a small central Californian town, several times a week pesticides are sprayed during the night that drift into rural or worker homes, often causing headaches, nausea, and vomiting - even among children.

In 1996, Congress required the EPA to set standards by 2006 to protect children from pesticides and while the agency has made some minor progress (banning the use of some products from homes and yards), the EPA has failed to protect migrant children from these very same pesticides as they drift from field to field into nearby schools, homes, parks, and daycare facilities.

As Project Director and Attorney with the California Rural Legal Assistance Foundation noted: "It's outrageous that our own government isn't protecting our children from being poisoned by pesticides drifting on their homes and schools. How can parents possibly protect their children from these dangers on their own?" (Farm Workers and Allies Ask Government to Protect Kids, 2009).

Our analysis will provide some basic background information for the Union focused on the following: Criminal intent of Farm Industry; Criminal intent of the Governmet; Worker's Options for relief other than the legal sysem; Hisotircal issues surrounding improvement of safety issues in the workplace. Criminal Intent/Culpability of the Farm Industry -- Certainly, the agricultural business is aware of the issues surrounding pesticide drift. In some reas, the drift has beome so bad that some schools have been forced to closed.

The University of Florida's Agricultural Institute has doe a great deal of research on the subject and has developed a number of recommendations to help mitigate the situation (Pesticide Drift in Florida: School Children Still at Risk, 2009). From a legal standpoint, the Farm Industry is not, according to most Federal and State regulations, acting in a criminal manner by intentionally placing its workers or the public at harm.

For instance, point source pollution (a single indentifiable localized source of polution in which a speicific cause-effect relationship can be proven) is illegal based on the Clean Water Act and the Clean Air Act (Womach, 2006). This is not, however, a new problem. As early as 1964 the industry was notified that there was a problem with lack of specific delivery methodologies. One would also think that logically, the industry would not want to "waste" chemicals.

However, much of the spraying is from such a high altitude (to cover maximum crops) that it would require an updating of equipment to solve the problem -- something industry is almost always against due to fiscal issues.

Therefore, the tactics, as have worked historically, have been to use denial, subtrefuge, and legal maneuvers to obfuscate the problem to such a point that the victim side looks both paradnoid anduntenable (Cox, 1995) Criminal Intent/Culpability of the Government -- Again, since there is no proof of collusion and there are laws and regulations in place, the government is leglly protected.

The government defines Pesticide Drift as: The drift of spray and dust from pesticide applications can expose people, wildlife, and the environment to pesticide residues that can cause health and environmental effects and property damage. For these reasons, and because EPA's Office of Pesticide Programs (OPP) is responsible for regulating the use of pesticides in the United States, OPP has been actively engaged in a number of initiatives to help prevent such problems.

These initiatives include: broadening our understanding of the science and predictability of pesticide drift based on many new studies, improving the clarity and enforceability of product label use directions and drift restrictions, facilitating the use of drift reducing application technologies and best management practices to minimize drift, and promoting applicator education and training programs (Agency, 2009). The official view is that in November 2009 the EPA proposed guidance for new pesticide labeling and off-target drift spray.

The comment period on this issue was extended to March 5, 2010 and allows industry, academia, and worker organizations to comment on proposed legislation designed to reduce the problem. The draft notice provides specifics including: A general drift statement that varies according to product type. The general drift statement prohibits drift that could cause an adverse effect to people or any other non-target organism or site. Examples of risk-based, product-specific drift use restrictions, along with formats for presenting these statements on product labeling.

On a pesticide-by-pesticide basis, based on individual product use patterns, EPA will evaluate scientific information on risk and exposure from pesticide drift. These assessments will help the Agency determine whether product-specific use restrictions are needed to protect people, wildlife, water resources, schools, or other sensitive sites from potential harm. These restrictions could include no-spray buffer zones, or requirements related to droplet or particle size, nozzle height, or weather conditions at the time of application.

Guidance to applicants and registrants about the process for implementing the new statements and formats on product labeling (Ibid). One of the key issues, though, at least as the government is involved focuses on enforcement of any new labeling and disbursement recommendations; especially as regulations seem to vary from state to state.

It is likely, based on documents reviewed, that for the near future, the very best one can expect from the government is a slow change in attitude about the issue of drift and its encouragement of industry to participate in what it calls the DRT (Drift Reduction Technology) Program. This program, co-developed by academia and governmental scientists, is completely voluntary at present. Its focus is to develop new technologies that will drastically reduce spray drift, and allow companies to test and use governmental resources to develop those technologies.

If agribusiness and pesticide companies were to utilize this program it would, in fact, save them thousands of dollars in research and development time, engineering technology, and certainly fast-track to market and use. However, while the EPA finally acknowledges that "incidents from drift remain a significant environmental problem," there is still no official legislation in place requiring a timeline for implementation of new technology designed to limit the problem (Verification of Pesticide Drift Reduction Technologies, 2007).

Options for Worker Relief -- the years 2000-2005 did see some improvement in the Federal government's acknowledgement of the pesticide drift issue, as well as opening up the forum, however slow, to address the issue. It is no longer simply a "rumor" or "fallacy" that the problem exists, but only how to quantify it and prove an exact and measurable cause and effect for specific individuals. In the San Joaquin Valley, for instance, Fresno County records note pesticides are appliced an average of almost 300,000 times per year.

The lack of staff and adeqate scientific and longitudinal studies often makes it difficult to prove that Pesticide a, intent for Field a, actually ends up not only in surrounding fields, but also in the nearby towns, schools, and playgrounds. Social issues also abound; numerous members of these communities are non-English speaking, some undocumented, and many afraid of any governmental involvement at all.

Current options for these people are somewhat limited, but revolve around three major efforts, one to protect; one to publicize, and one to document: Protection -- Many of the families that work or live in these areas are quite poor and unable to move to a location that might protect them. Simple procedures can help, but not eliminate drift issues, and are quite low tech. First, depending on the wind and time of day, close the windows that face the field or prevailing wind.

Add a fan to create a backdraft by pulling air through the home in the opposite direction of the drift. Once the spraying is done and the drift settled a bit, hose down nearby bushes, windows, the roof and outside of the house. At any signs of exposure, wash eyes with clear water and try to shower several times to remove as much of the potential chemical contamination as possible Publicize -- Certainly public strikes, marches, and visible actions bring public scruitiny into the issue.

Because a great deal of the problem lies in the California agricultural region, an organization was formed as a type of State and national clearinghouse for action, information, and change. This organization, Californians for Pesticide Reform, wishes to improve and protect human health, act as a proponent for suistanable agriculture, and improve environmental quality.

They also wish to build a strong, multi-racial conglomoration that will change statewide, and eventually national, policies and practices regarding pesticide drift (Reform, 2010) Document -- Working with the Pesticide Action Network of North America, and supplemented with mini-grants from numerous Latino action groups, ordinary citizens in these towns and camps near fields are working to take regular air samples from various parts of the town; document these results, and then submit to the University of California, Berkeley, for analysis.

The residents also note wind direction and approximate speed, as well as any symptoms they notice on particular days. While the EPA has no official federal standards regarding acceptable levels of drift, most activisits believe that scientific papers published by peer reviewed academics will carry more weight once enough data is collected. An additional challenge, though, is that the vast majority of many of the active chemicals in modern pesticides, sometimes over a thousand, have not been assessed and studied in any scientific manner.

Testing, notes one EPA official, was never designed to identify problems in extremely small parts per million that have drifted several miles based on weather and wind speed (Clarren, 2008). Historical Basis for Worker's Gaining Improvement in Safety Conditions -- Interestingly enough, there have been two rather popular motion pictures that were based on actual cases in which members of the public were exposed to toxic chemicals simply because of the location of their homes. A Civil Action (1998) based on a book of the same name told the story of environmental.