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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`Civil Action No.
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`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
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`RURAL & MIGRANT MINISTRY, ALIANZA
`NACIONAL DE CAMPESINAS, EL COMITE
`DE APOYO A LOS TRABAJADORES
`AGRÍCOLAS, FARMWORKER
`ASSOCIATION OF FLORIDA, MIGRANT
`CLINICIANS NETWORK, PINEROS Y
`CAMPESINOS UNIDOS DEL NOROESTE,
`RURAL COALITION, UNITED FARM
`WORKERS, UNITED FARM WORKERS
`FOUNDATION,
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`Plaintiffs,
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` v.
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`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY and Andrew Wheeler,
`in his official capacity as Administrator of the
`United States Environmental Protection Agency,
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`Defendants.
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`INTRODUCTION
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`1.
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`Plaintiffs Rural & Migrant Ministry, Alianza Nacional De Campesinas, El Comite
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`De Apoyo a Los Trabajadores Agrícolas, Farmworker Association of Florida, Migrant Clinicians
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`Network, Pineros y Campesinos Unidos Del Noroeste, Rural Coalition, United Farm Workers,
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`and United Farm Workers Foundation (collectively, “Farmworkers”), seek declaratory and
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`injunctive relief related to a final rule issued by the U.S. Environmental Protection Agency (EPA
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`or Agency), Pesticides; Agricultural Worker Protection Standard; Revision of the Application
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`Exclusion Zone Requirements, 85 Fed. Reg. 68,760-01, 68,762 (Oct. 30, 2020) (Final Rule),
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`attached as Exhibit 1. The Final Rule unjustifiably weakens a regulatory safeguard against
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`Case 1:20-cv-10645-UA Document 1 Filed 12/16/20 Page 2 of 28
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`pesticide poisoning known as the Application Exclusion Zone (AEZ). The AEZ was enacted by
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`EPA to protect farmworkers and frontline communities from being poisoned by the drift of
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`sprayed pesticides at the time of application. The Final Rule’s erosion of this protection poses an
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`unreasonable risk of harm to human health, in violation of the Federal Insecticide, Fungicide,
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`and Rodenticide Act (FIFRA). EPA’s decision to eliminate AEZ safeguards is an unlawful
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`reversal of its position from just a few years ago, when it determined the AEZ was necessary to
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`fulfill its duty under FIFRA. EPA reversed its position and promulgated the Final Rule despite
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`lack of record support and, therefore, in violation of the Administrative Procedure Act (APA).
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`2.
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`Pesticides are inherently toxic chemicals used to kill or control pests. Many
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`pesticides pose serious public health and environmental threats, but they are of particular concern
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`for farmworkers, who face the highest levels of exposure to these toxic substances, and their
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`families, who are exposed to pesticide residues from the workers’ clothing and skin.
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`Farmworkers provide essential labor that feeds our country, but they continue to face a number
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`of societal and economic inequities that exacerbate the threats pesticides pose to their health,
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`safety, and well-being.
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`3.
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`In 2015, EPA understood the vital and urgent need for additional protections from
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`pesticides and created the AEZ. The Agency pointed to overwhelming evidence that people were
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`still being sprayed by pesticides, both on and off of growing areas, despite existing protections,
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`such as the “do not contact” provision. This evidence included data from state pesticide exposure
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`databases and information from commenters and stakeholders. EPA established the AEZ to
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`address one of the most common causes of pesticide poisoning: exposure to pesticide spray drift
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`during applications. The AEZ provision provides that during an active pesticide application, no
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`person can be within a 100-foot radius (or 25-foot radius for certain applications) of the pesticide
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`2
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`Case 1:20-cv-10645-UA Document 1 Filed 12/16/20 Page 3 of 28
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`application equipment. If someone is in this radius, that is within the “Application Exclusion
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`Zone,” when a pesticide is being sprayed (other than a trained and equipped person involved in
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`the pesticide application), the applicator must take a simple and common-sense step: suspend
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`pesticide application immediately until the person has moved outside of the AEZ. The
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`protections afforded by the AEZ apply whether the person who is in the radius is on the property
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`of the grower or on neighboring property.
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`4.
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`On October 30, 2020, EPA published the Final Rule, which guts the
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`AEZ protections by limiting its scope to the boundaries of the agricultural establishment, despite
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`the fact that pesticide drift does not stop at property lines; allowing pesticide handlers to make
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`or resume an application despite the presence of someone within the AEZ under certain
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`circumstances; and reducing the AEZ from 100 feet to 25 feet for many applications.
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`5.
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`The Final Rule, which takes effect December 29, 2020, threatens the health and
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`safety of farmworkers, farmworker families, and communities located near agricultural
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`establishments. Without this protection in place, the rate of pesticide exposures is likely to rise,
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`increasing the risk to millions of people of adverse health effects ranging from headaches,
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`nausea, and skin rashes to pregnancy complications, difficulty breathing, unconsciousness, and,
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`in severe cases, death.
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`6.
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`Plaintiffs, a group of organizations representing farmworkers and rural
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`communities, respectfully request that the Court grant a temporary restraining order and/or
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`preliminary injunction enjoining implementation of the rule, or a stay preventing the modified
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`AEZ provision from taking effect until this case has been fully adjudicated, and then hold that
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`(1) the Final Rule violates FIFRA because EPA promulgated it without substantial evidence that
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`the modified AEZ would avert “unreasonable adverse effects” of pesticide use to workers and
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`3
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`Case 1:20-cv-10645-UA Document 1 Filed 12/16/20 Page 4 of 28
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`bystanders and (2) that the Final Rule violates the APA because it is arbitrary, capricious, an
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`abuse of discretion, and otherwise not in accordance with law. In addition, Plaintiffs seek an
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`order vacating the Final Rule.
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`JURISDICTION AND VENUE
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`7.
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`This action arises under FIFRA, 7 U.S.C. § 136 et. seq., and the APA, 5 U.S.C. §§
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`701–06. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (action arising under the laws
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`of the United States) and 5 U.S.C. § 702 (judicial review of agency actions).
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`8.
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`This Court has the authority to grant the requested declaratory and injunctive
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`relief pursuant to 28 U.S.C. §§ 2201–202, and 5 U.S.C. §§ 702 and 706. This Court has the
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`authority to grant the requested preliminary relief under 5 U.S.C. § 705 and Fed. R. Civ. Proc.
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`65.
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`9.
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`Venue is proper in the Southern District of New York pursuant to 28 U.S.C. §
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`1391(e), because this civil action is brought against an agency of the United States and Plaintiff
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`Rural & Migrant Ministry has its principal place of business in Poughkeepsie, New York, which
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`is in this District, and no real property is involved in the action.
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`PARTIES
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`10.
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`Plaintiff Rural & Migrant Ministry (RMM) is a statewide, non-profit organization
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`founded in 1981 that advocates for, and works closely with, rural and migrant communities
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`throughout New York. RMM works with rural leaders towards the creation of a just, rural New
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`York State through nurturing leadership; standing with the disenfranchised, especially
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`farmworkers and rural workers; and changing unjust systems and structures. RMM implements
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`its mission through three programs: an accompaniment program, in which RMM accompanies
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`and supports rural workers—most often, farmworkers—who seek to improve working and
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`4
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`living conditions; an education program to strengthen rural leaders; and a youth empowerment
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`program committed to empowering rural children to create opportunities for themselves while at
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`the same time learning how to change their world. The communities that RMM works with give
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`direct input into RMM’s programs and RMM staff frequently visit farms to speak with workers
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`and learn about their concerns. RMM’s stakeholders include farmworkers and rural
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`communities who will be at increased risk of pesticide exposure as a result of the Final Rule.
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`Furthermore, RMM’s mission to advance a just and rural New York State in which farmworkers
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`operate in safe working and living conditions cannot be fulfilled when worker protections like
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`the AEZ are weakened. Thus, in order to notify farmworkers and communities about their
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`increased vulnerability to pesticides as result of the Final Rule, and how to manage that
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`increased risk, RMM is planning additional education and outreach programs for farmworkers
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`on pesticide use and exposure if the Final Rule goes into effect.
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`11.
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`Plaintiff Alianza Nacional de Campesinas (Alianza), founded in 2011, is a
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`national non-profit farmworker organization that serves the unique needs and concerns of our
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`nation’s more than 700,000 farmworker women and their families. Alianza’s 15 member
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`organizations include: Organización en California de Líderes Campesinas, Mujeres Luchadoras
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`Progresistas, La Mujer Obrera, Workers’ Center of Central New York, Workers Justice Center
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`of New York, Mujeres Divinas, Centro de los Derechos del Migrante, Inc, Mujeres Campesinas
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`Unidas de Florida, and fellow plaintiffs Asociación Campesina de Florida, Pineros y
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`Campesinos Unidos del Noroeste, and Rural Coalition. Alianza works to build the capacity and
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`leadership of farmworker women through its national organizing efforts, public education and
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`outreach campaigns, and federal policy-advocacy work, a core prong of which is preventing
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`exposure to pesticides. Alianza’s members have suffered from exposure to off-target pesticide
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`5
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`Case 1:20-cv-10645-UA Document 1 Filed 12/16/20 Page 6 of 28
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`drift, including pesticides landing on their homes, personal items and clothing, and in many
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`instances, directly onto them and their children. As a result of pesticide exposure, Alianza
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`members have suffered health impacts including reproductive harms, and the Final Rule
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`increases their risk of such harms in the future. To protect farmworker women, their families,
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`and others from pesticide exposure, Alianza and its member organizations have developed a
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`national curriculum on pesticide safety, and they work to train staff and members of the
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`community on pesticide exposure and the illnesses and health effects caused by it.
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`12.
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`Plaintiff El Comite de Apoyo a Los Trabajadores Agrícolas (The Farmworkers
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`Support Committee or CATA) is a non-profit migrant farmworker organization founded in
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`southern New Jersey in 1979 to empower and educate farmworkers. CATA, which is comprised
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`of farmworker members who are actively engaged in the struggle for better working and living
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`conditions, is dedicated to empowering and educating farmworkers through leadership
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`development and capacity building. CATA operates in Southern New Jersey, parts of
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`Pennsylvania, and the Delmarva Peninsula in Maryland. To fulfill its mission of improving its
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`members’ working and living conditions, CATA offers WPS safety training to farmworkers and
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`documents pesticide safety practices on certain farms. CATA’s members have suffered from
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`exposure to off-target pesticide drift, and EPA’s weakening of the AEZ increases their risk of
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`such exposure.
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`13.
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`Plaintiff Farmworker Association of Florida (FWAF) is a non-profit organization
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`based in Florida. More than 8,000 families are members of FWAF, which has five locations
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`throughout Central and South Florida. FWAF conducts programs and activities that build
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`leadership and activist skills among low-income communities of color who are
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`disproportionately affected by pesticide exposure and health problems as well as environmental
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`contamination, racism, exploitation, and political under-representation. FWAF’s long-standing
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`mission is to build power among farmworker and rural low-income communities to respond to
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`the myriad of workplace, economic, health, and environmental justice issues that impact their
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`lives. FWAF is familiar with personal accounts of farmworkers’ suffering the consequences of
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`off-target pesticide drift. EPA’s Final Rule increases the likelihood that workers, including
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`FWAF’s members, will experience both immediate and long-term health effects from pesticide
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`exposure.
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`14.
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`Plaintiff Migrant Clinicians Network (MCN) is a national non-profit organization
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`with more than 10,000 constituent clinicians who work in community health centers and other
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`health care delivery sites to provide care for migrants, of which many are farmworkers and live
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`near farms. To serve immigrants, health centers, and clinicians, MCN develops appropriate
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`resources, engages outside partners, directs a worldwide continuity of care service, provides
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`continuing education, and runs programs that support clinical care on the front lines of health
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`care for immigrant workers, their families, and other underserved populations. Pesticide
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`exposure is a pressing concern for the populations MCN serves and MCN advocates for policy
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`changes and reform regarding pesticide use. To that end, MCN has actively advocated for a
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`stronger WPS that would guard farmworkers against pesticide exposure, and it strongly objected
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`to EPA’s decision to weaken the WPS. In response to EPA’s Final Rule, farmworkers, migrants,
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`and others that MCN serves will be at increased risk of pesticide exposure and adverse health
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`impacts and thus MCN will have to place greater focus on training and education on the
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`treatment of pesticide injuries and illness, diverting resources needed for other activities.
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`15.
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` Plaintiff Pineros y Campesinos Unidos del Noroeste (Northwest Treeplanters
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`and Farmworkers United or PCUN), founded in 1985, is Oregon’s only farmworker union and
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`7
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`the largest Latino organization in the state. Based in Woodburn, Oregon—the center of
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`Oregon’s agricultural industry—PCUN’s mission is to empower farmworkers to recognize and
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`take action against systematic exploitation and all of its effects. Since its founding, PCUN has
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`registered over 6,000 members, 98 percent of whom are immigrants from Mexico and Central
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`America. Approximately one-third of PCUN’s members come from indigenous communities in
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`Mexico and speak indigenous languages, but little to no English or Spanish. Many of PCUN’s
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`members have experienced the dangerous effects of pesticide exposure at work. In addition,
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`many PCUN members live very close to areas where pesticides are applied, and, as a result, they
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`and their family members are threatened by exposure due to pesticide drift even in their homes.
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`PCUN has worked to raise awareness among its members about the dangers of pesticide
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`exposure.
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`16.
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`Plaintiff Rural Coalition amplifies the voices of its 50 grassroots member
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`organizations, representing African American, American Indian, Asian American, Euro-
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`American, Latino, and women farmers, ranchers, farm workers, and rural communities. Rural
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`Coalition and its members seek just and sustainable food systems, fair working conditions and
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`dignity for farmworkers and food chain workers, protection of the earth, and safe, adequate, and
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`healthy food for all. Many of Rural Coalition’s members are farmers, farmworkers, or
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`individuals who live in rural areas where large amounts of pesticides are applied to crops, and
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`Rural Coalition’s members are exposed to pesticides through pesticide drift. Rural Coalition has
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`heard of workers who were sprayed with pesticides directly and suffered severe illness as a
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`result, and Rural Coalition’s members regularly report exposure to pesticide drift. Due to their
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`jobs and where they live, Rural Coalition’s members are at increased risk of pesticide exposure
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`if the Final Rule takes effect.
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`17.
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`Plaintiff United Farm Workers (UFW) is the nation’s oldest and largest
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`farmworker membership organization. UFW is headquartered in California and serves
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`farmworkers in offices all across the country. UFW has represented farmworkers for more than
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`40 years and currently has more than 45,000 members, many of whom are migrant and seasonal
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`farmworkers. UFW’s mission is to protect and expand farmworkers’ labor rights, including
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`rights pertaining to health and safety issues. Many of UFW’s members have reported being
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`exposed to pesticides and developing pesticide-related illnesses, including skin rashes, eye
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`irritation, nausea and dizziness, pregnancy complications, miscarriages, and permanent
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`disability. In many instances, UFW’s members were exposed due to off-target pesticide drift.
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`Exposure due to off-target drift is common because many farmworkers and their family
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`members work, live, or attend school in areas that border farmlands. EPA’s weakening of the
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`AEZ will place UFW members and their families at a heightened risk of pesticide exposure
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`because of the frequency of off-target pesticide drift.
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`18.
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`Plaintiff United Farm Workers Foundation (UFW Foundation) is a dynamic non-
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`profit organization established in 2006 with the core purpose of empowering communities to
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`ensure human dignity. UFW Foundation’s regional offices are safe havens that provide
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`resources and services—such as credible immigration legal representation—and act as hubs for
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`educational outreach and organizing. UFW Foundation is a sister organization to the United
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`Farm Workers labor union, and it serves over 100,000 farmworkers and low-income community
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`members in California and Arizona. UFW Foundation members work on farms where pesticides
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`are sprayed, and they have been exposed to and harmed by pesticide drift.
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`19.
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`Plaintiffs’ members include farmworkers who live and work in areas where there
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`is heavy pesticide use. They, along with their children and other family members, face a high
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`Case 1:20-cv-10645-UA Document 1 Filed 12/16/20 Page 10 of 28
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`risk of pesticide poisoning through spray drift, which causes severe health harms. They depend
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`on provisions, such as the AEZ, to protect them from exposure to pesticides from off-target
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`drift. Any weakening of such protections threatens to expose them to an unreasonable risk of
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`harm.
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`20.
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`21.
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`Defendant EPA is an agency of the United States government.
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`Defendant Andrew Wheeler, Administrator of the EPA, has oversight authority
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`for all actions taken by EPA and is responsible for ensuring the Agency’s compliance with the
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`law. Defendant Wheeler is sued in his official capacity.
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`I.
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`LEGAL BACKGROUND
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`FIFRA AND THE AGRICULTURAL WORKER PROTECTION STANDARD
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`22.
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`EPA is required by, and authorized under, FIFRA to ensure that workers, their
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`families, and surrounding communities are protected from pesticides. Specifically, EPA must
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`ensure that the use of pesticides does not cause “any unreasonable risk to man or the
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`environment, taking into account the economic, social, and environmental costs and benefits of
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`the use of any pesticide.” See 7 U.S.C. §§ 136(bb), 136a. Congress intended FIFRA to protect
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`man and the environment, and farmers and farmworkers are the most obvious objects of the
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`statute’s protection. EPA must support the decisions it makes under FIFRA with “substantial
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`evidence when considered on the record as a whole.” Id. § 136n(b).
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`23.
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`Pursuant to this authority, EPA has implemented measures to protect workers,
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`pesticide handlers, and others from pesticide exposure in two primary ways: (1) through specific
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`use instructions and restrictions on pesticide product labeling, and (2) through the Agricultural
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`Worker Protection Standard (WPS), 40 C.F.R. pt. 170. See Pesticides; Agricultural Worker
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`Protection Standard Revisions, 80 Fed. Reg. 67,496, 67,500 (Nov. 2, 2015).
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`24.
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`The WPS, originally promulgated in 1974 and substantively revised in 1992 and
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`again in 2015, is a uniform set of requirements for farmworkers, pesticide handlers, and their
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`employers that provides a comprehensive collection of pesticide management practices that
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`apply to agricultural pesticide use in crop production and complements the product-specific
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`requirements on individual pesticide product labels. Id. In EPA’s own words, “[t]he WPS plays
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`an important role in reducing the risk of pesticide illness and injury among agricultural workers
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`and pesticide handlers” because it “offers occupational protections to over 2 million agricultural
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`workers . . . and pesticide handlers . . . who work at over 600,000 agricultural establishments
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`(farms, forests, nurseries and greenhouses).” EPA Office of Inspector General, EPA Needs to
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`Evaluate the Impact of the Revised Agricultural Worker Protection Standard on Pesticide
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`Exposure Incidents, Report No. 18-P-0080 at 13 (Feb. 15, 2018),
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`https://www.epa.gov/sites/production/files/2018-02/documents/_epaoig_20180215-18-p-
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`0080.pdf.
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`25.
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`The WPS—with its three key components of information, protection, and
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`mitigation—is “designed to reduce the risks of illness or injury resulting from workers’ and
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`handlers’ occupational exposures to pesticides used in the production of agricultural plants on
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`farms or in nurseries, greenhouses, and forests and also from the accidental exposure of workers
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`and other persons to such pesticides.” 40 C.F.R. § 170.1. It is “designed to reduce or eliminate
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`exposure to pesticides and establishes procedures for responding to exposure-related
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`emergencies.” Id. (emphasis added).
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`26.
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` “Workers” protected by the WPS are individuals who are employed to “perform[]
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`activities relating to the production of agricultural plants on an agricultural establishment . . . .”
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`40 C.F.R. § 170.3. “Handlers” are individuals employed by an agricultural establishment or
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`11
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`Case 1:20-cv-10645-UA Document 1 Filed 12/16/20 Page 12 of 28
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`commercial pesticide handling establishment who, among other things, mix, load, or apply
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`pesticides; dispose of pesticides; or handle opened containers of pesticides. Id.
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`II.
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`ADMINISTRATIVE PROCEDURE ACT
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`27.
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`The APA provides for judicial review of agency action, 5 U.S.C. § 702, and
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`requires the reviewing court to “hold unlawful and set aside agency action . . . found to be
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`arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
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`§ 706(2)(A). An agency acts in a manner that is arbitrary and capricious when it reverses its
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`position on a policy choice without providing a “reasoned explanation. . . for disregarding facts
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`and circumstances that underlay or were engendered by the prior policy.” Fed. Commc’ns
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`Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). An agency also acts in a
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`manner that is arbitrary and capricious when it fails to “examine the relevant data and articulate
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`a satisfactory explanation for its action” and when it has “entirely failed to consider an
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`important aspect of the problem, offered an explanation for its decision that runs counter to the
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`evidence before the agency, or is so implausible that it could not be ascribed to a difference in
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`view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State
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`Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43–44 (1983).
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`FACTUAL BACKGROUND
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`I.
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`PESTICIDE EXPOSURE AMONG AGRICULTURAL WORKERS, THEIR
`FAMILIES, AND COMMUNITIES NEAR FARMS
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`28.
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`The approximately 2.1 million farmworkers who are employed annually on crop
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`farms in this country are laboring in an industry known to be among the most hazardous. See
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`National Institute of Occupational Safety and Health (NIOSH), Agricultural Safety, Center for
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`Disease Control and Prevention, https://www.cdc.gov/niosh/topics/aginjury/default.html.
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`29.
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`EPA estimates that approximately 1,800 to 3,000 acute pesticide exposure
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`incidents occur each year on agricultural establishments covered by the WPS. See 80 Fed. Reg.
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`at 67,502. Although these figures account for underreporting, they necessarily are estimates,
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`given that studies suggest that underreporting of pesticide exposure by farmworkers and
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`handlers ranges from 20 to 90 percent. See Pesticides; Agricultural Worker Protection Standard
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`Revisions, 79 Fed. Reg. 15, 444, 15,449 (Mar. 19, 2014).
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`30.
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`Health incident surveillance data and studies show that workers and handlers
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`bring home pesticide residues on their bodies and clothing and thereby also expose family
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`members, including children, to pesticides. See 80 Fed. Reg. at 67,502.
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`31. Moreover, these figures do not include the more difficult to quantify chronic
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`pesticide exposure that a sizeable portion of the agricultural workforce may be subjected to,
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`which poses significant short and long-term health risks. See 80 Fed. Reg. at 67,498-99. Peer-
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`reviewed scientific literature demonstrates well-documented associations between pesticide
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`exposure and certain cancer and non-cancer chronic health effects. See 79 Fed. Reg. at 15,450;
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`see also, Fenske R.A., et. al., Breaking the take home pesticide exposure pathway for
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`agricultural families: workplace predictors of residential contamination, 56 Am. J. Indus. Med.
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`1063-71 (2013); Shelton J.F. et. al., Neurodevelopmental disorders and prenatal residential
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`proximity to agricultural pesticides: the CHARGE study, 122 Env’t Health Persp. A266 (2014);
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`Paul K. Mills & Sandy Kwong, Cancer Incidence in the United Farmworkers of America
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`(UFW), 1987-1997, 40 Am. J. Indus. Med. 596, 599 (2001) (finding that, compared to the
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`general population, farmworkers had a 59% higher rate of leukemia, a 69% higher rate of
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`stomach cancer, a 63% higher rate of uterine/cervical cancer, and a 68% higher rate of uterine
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`corpus cancer); Vincent F. Garry et al., Pesticide Appliers, Biocides and Birth Defects in Rural
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`Minnesota, 104 Env’t Health Persp. 394, 395–98 (1996) (birth defect rate was significantly
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`increased in children born to pesticide appliers); Elizabeth Grossman, From the Fields to Inner
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`City, Pesticides Affect Children’s IQ, Yale Env’t 360 (May 16, 2011),
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`https://e360.yale.edu/features/from_the_fields_to_inner_city_pesticides_affect_childrens_iq#:~:t
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`ext=The%20New%20York%20study%20found,greater%20the%20impact%20on%20cognitio
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`(babies exposed to high levels of common pesticides in utero have lower I.Q. scores than their
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`peers by the time they reach school age, according to three new studies); Freya Kamel & Jane A.
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`Hoppin, Association of Pesticide Exposure with Neurologic Dysfunction and Disease, 112 Env’t
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`Health Persp. 950, 950 (2004) (poisoning by acute high-level exposure to certain pesticides has
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`well-known neurotoxic effects; most studies of moderate pesticide exposure have found
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`increased prevalence of neurologic symptoms and changes in neurobehavioral performance,
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`reflecting cognitive and psychomotor dysfunction); Victoria McGovern, Autism and Agricultural
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`Pesticides: Integrating Data to Track Trends, 115 Env’t Health Persp. A504, A504 (Oct. 2007),
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`(finding an association between autism spectrum disorders and prenatal exposure to
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`organochlorine pesticides); Caroline M. Tanner et al., Rotenone, Paraquat, and Parkinson’s
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`Disease, 119 Env’t Health Persp. 866, 868–69 (June 2011), (finding that Parkinson’s Disease is
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`positively associated with two classes of pesticides).
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`32.
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`One of the most common contributors to farmworker pesticide exposure is off-
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`target drift that occurs when a sprayed pesticide moves beyond its intended target. EPA
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`previously found that as much as 37% to 68% of acute pesticide-related illnesses in agricultural
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`workers are caused by spray drift. See 79 Fed. Reg. at 15,448.
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`33.
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`Homes, schools, and community spaces are often located next to farms, and
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`community members in these areas are at risk of pesticide exposure due to off-target drift. For
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`14
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`Case 1:20-cv-10645-UA Document 1 Filed 12/16/20 Page 15 of 28
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`example, Pedro Olivares, a farmworker at a fernery in Pierson, Florida, lives directly next to the
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`fernery and he states that when it sprays pesticides, he can smell them inside his house and feel
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`them inside his mouth and nose and on his skin. See Earthjustice, Photo Essay: Pesticide
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`Exposure in Muck Fields & Ferneries in Florida, https://earthjustice.org/features/pesticide-
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`exposure-in-muck-fields-and-ferneries-in-florida. Renato Hernandez, another farmworker in
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`Pierson, also lives directly next to a fernery, and he explains that the fernery does not provide
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`any notice before it sprays pesticides, so it is difficult to take precautions to prevent them from
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`entering his home. Id. In Grandview, Washington, a children’s nursery is across the street from
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`an orchard, and two day care centers are within a few feet of orchards. See Comments of
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`Alianza Naciónal de Campesinas, et. al., Comment ID No. EPA-HQ-OPP-2017-0543-0136, at
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`11–12 (Jan. 30, 2020) (“Farmworker Comments”), attached as Exhibit 2. In San Benito, Texas,
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`the parking lot of a lumber company is less than 50 feet from a cornfield, and a school is
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`approximately 100 feet from a cornfield. Id. at 14. Community members who live near, work
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`near, and visit these places are all at risk of pesticide exposure due to off-target drift.
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`34.
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`The high risks associated with labor in the agricultural sector—for workers and
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`their families—are particularly troubling in light of the societal and economic challenges facing
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`the populations that largely occupy this sector. According to the Department of Labor, 70% of
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`agricultural workers in the United States were born in Mexico, and Central and South America.
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`See 80 Fed. Reg. at 67,502. Approximately 65% of these workers speak little or no English, and
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`many have received minimal formal education. Id. A vast majority of agricultural workers do
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`not have access to employer-provided health-insurance, and most workers fear seeking medical
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`treatment, as they fear being replaced or fired for being “troublemakers.” Id. A majority of
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`workers reported a total family annual income below $22,500, id., and many do not have
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`15
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`Case 1:20-cv-10645-UA Document 1 Filed 12/16/20 Page 16 of 28
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`permanent housing and generally live close to the agricultural areas where they work and where
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`pesticides are applied. See 79 Fed. Reg. at 15,457.
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`II.
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`THE 2015 REVISIONS TO THE WORKER PROTECTION STANDARD
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`35.
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`In 2014, EPA issued a proposed rule to revise the WPS in light of data showing
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`that the existing 1992 rule was inadequate to protect against pesticide poisoning. Id. at 15,450.
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`There was “strong evidence that workers and handlers may be exposed to pesticides at levels
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`that can cause adverse effects and that both the exposures and the risks can be substantially
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`reduced” through more protective regulations. Id. at 15,446.
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`36.
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`At that time, the main protections in place for agricultural establishments during
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`pesticide application were (1) a prohibition on allowing or directing any worker to enter or
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`remain in a treated area, and (2) a requirement that handler employees ensure that pesticides are
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`applied in a manner that will not contact a worker either directly or through drift, i.e. the “do not
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`contact” provision. 80 Fed. Reg. at 67,522. The WPS has long included this “do not contact”
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`provision, which was first added to Part 170 of the C.F.R. in 1974. See Worker Protection
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`Standards for Agricultural Pesticides, 39 Fed. Reg. 16,825, 16,890 (May 10, 1974).
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`37.
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`However, after reviewing numerous cases of workers who were sprayed with
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`pesticides, EPA concluded that “experiences such as those of workers having to move to get out
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`of the way of the tractor that was applying pesticide . . . and workers being directly sprayed
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`confirm EPA’s position that additional protections [were] necessary during pesticide
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`appl