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Last year Bayer announced a plan to settle lawsuits alleging injury due to exposure to Roundup™. Lawsuits alleging injuries related to pesticide exposure, such as the lawsuits involving Roundup™, are not new, and they are ongoing. Plaintiffs in these lawsuits have alleged a variety of health concerns, including skin irritation, respiratory problems, neurological and developmental problems in children (including autism) and cancers. Due to potential health concerns about pesticide exposure, the Environmental Protection Agency requires agricultural establishments (“owners”) to provide workers with information about pesticide and other chemical exposures. Workers are entitled to:
- The safety data sheet (SDS),
- The name, EPA registration number and active ingredients in the pesticides,
- A description of the crop or site treated,
- The dates and times of the application of the pesticide,
- The length of restricted entry period (after application of the pesticide) specified in the label on the pesticide.
Agricultural workers can obtain this information in several ways:
- Information must be posted in a central location where it can be accessed by workers,
- The worker can directly ask the owner to provide the information,
- A medical provider treating the worker can ask for the information,
- A designated representative can, on behalf of the worker, request information from the owner.
Information requested by a designated representative is supposed to be used to protect / benefit the worker’s health. In advance of the EPA’s adoption of the “designated representative” provision, owners expressed concern that the designated representative provision could be misused. The concerns included:
- Confidential / proprietary information could be obtained and shared with competitors,
- Designated representatives could request information merely to harass the owner and/or create unfavorable press about the owner.
- Designated representatives could request information to aid in filing class action lawsuits,
- Since the worker himself / herself was not requesting the information, how would the owner to know if the designated representative truly represented a worker / former worker.
In the Pesticide Registration Improvement Extension Act of 2018, Congress designated the Government Accountability Office (GAO) to study (1) how often and how designated representatives are being used and the impact of the designated representative provision on the information available to employees, and (2) any misuse of the designated representative provision.
In its January 2021 report, the GAO made two recommendations. Here is the current status, given the EPA’s December 2020 response:
First, the GAO recommended that the EPA work with the States to find out how designated representatives were being used, such as how often designated representatives were being used to request information and whether permitting designated representatives to request information on behalf of workers actually made pesticide information more available to workers. The GAO noted that the EPA does not currently collect information on the use of the designated representative provision nor collaborate with the States to obtain the information. The GAO also noted that EPA does obtain information from States regarding owners’ compliance with other regulatory provisions designed to protect workers from pesticide exposures, and suggested that EPA could require States to compile and provide information regarding the use of the designated representative provision and owners’ compliance with it.
The EPA declined to require States to track and collect data on how and how often the designated representative provision is being used, including whether owners are complying with requests form designated representatives. The EPA stated that it already worked with organizations within the States regarding pesticide regulation, including worker safety. EPA further stated that there was no regulatory requirement that owners retain records regarding requests made by designated representatives — which would mean that any information the EPA might collect under the current regulatory scheme would be incomplete.
Second, the GAO recommended that the EPA provide information to the public about what the EPA considers to be appropriate use of information obtained by designated representatives.
The EPA responded, and said there did not appear to be any instances of misuse of the designated representative provision and also noted that there was no provision in the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) or 40 CFR 170 (which details which, when, etc., pesticide information is to be given to workers) to regulate how designated representatives use the information obtained — meaning that the current regulatory scheme merely specifies the procedure by which designated representative may obtain information but does not curtail how designated representatives can use the information. Consequently, any efforts to fully adopt the GAOs recommendations would require the enactment of further regulatory requirements to include record keeping requirements and limitations on the use of information obtained by designated representatives.
Are the GAO’s recommendations in its January 2021 report necessary? They would certainly add to the regulatory paperwork required to be created and maintained by owners. Would they help workers better protect their health and be compensated for injuries? As demonstrated by the number of lawsuits related to pesticide exposure, it appears that workers are already able to get the information about pesticides currently mandated by the EPA. Whether that information is useful in determining if the pesticide exposure caused the alleged injury or promoting the compensation of any pesticide associated injury was not addressed by the GAO’s report and remains in the domain of the courts.
“Bayer announces agreements to resolve major legacy Monsanto litigation,” June 24, 2020
Cronin, Dana, “Lawsuit Alleges Farmworkers Sickened After Pesticide Exposure,” December 10, 2020, WGLT.Org 89.1 FM (NPR for Illinois Statue University)
Peg, JR, “Corteva facing farmworker lawsuits over chlorpyrifos,” October 27, 2020, Chemical Week
40 CFR 170.311 https://www.ecfr.gov/cgi-bin/text-idx?mc=true&node=pt40.24.170&rgn=div5
“FARMWORKERS, Additional Information Needed to Better Protect Workers from Pesticide Exposure,” Government Accountability Office Report to Congressional Committees, January 2021