United States. Congress. Senate. Committee on Labo.

OSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of online

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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 7 of 17)
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sengers were ill and two other flight attendants were unconscious. Only one flight
attendant was capable of performing crucial safety responsibilities. Even now, little
is known about the possible exposures that may have caused this reaction since the
FAA admitted that it was not equipped to do on-board testing and was unsure if
the airline had done so.

Since the FAA claimed total jurisdiction over airline crew member health and
safety in 1975, the FAA has failed to make any serious effort to address occupa-
tional safety and health issues outside the area of crash survivability. The threat
of turbulence, explosive decompressions, assaultive passengers, radiation, pas-
sengers' viral illnesses, 200 pouna, poorly designed meal and beverage carts, lengthy
duty days, noise and inadequate climate controls argues forcefully for strong agency
oversight of occupational hazards on aircraft. Yet, the reality is that flight attend-
ants are unprotected and desperately need OSHA coverage.

I want to note, before I conclude, that OSHA will bring many important changes
for flight attendants, including whistleblower protection. I have no protections in
blowing this whistle today since aviation workers are not covered by OSHA. I am
here anyway because I believe it is crucial that flight attendants be covered by
OSHA. I urge the Senate to rectify this problem and help insure the safest work
environment possible for flight attendants.

Thank you for allowing me to testify before you and I would be pleased to answer
any questions.

Supplement to Deanne Clakke's Tectimony, Association of Flight

Attendants, AFL-CIO

actions addressing airline's cabin air quality problems

— July 29, 1989 — First air quality incident is reported.

— November, 1989 — AFA Local Council begins sending air quality reports to FAA.

— March 26, 1990 — AFA demands airline take immediate steps to prevent further

air quality incidents and requests information on air quality incidents and illnesses.



41

— March 30, 1990 — AFA requests that FAA investigate airline's cabin air quality
and require immediate corrective action and follow-up inspections.

— April 3-^, 1990 — AFA requests Health Hazard Evaluation from NIOSH and
NTSB to conduct an investigation on incidents.

— April 18-May 8, 1990 — AFA requests airline and FAA to institute altitude re-
striction on planes with air quality problems and urges NTSB to pursue this matter
wi^ FAA. (FAA takes no action on air quality problem.)

— ay 10, 1990 — AFA repeats requests to airline for documents on air quEility inci-
dents and illnesses, imposition of altitude restrictions on affected planes, and allow-
ing AFA to designate a representative to work with company on air quality prob-
lems.

— une 25, 1990 — NIOSH issues Interim Health Hazard Evaluation Report to de-
termine an appropriate course for investigation.

— eptember 27-October 10, 1990 — AFA and airline representatives conduct follow-
up tests for carbon monoxide on 10 commercial flights by airline.

— May 13, 1991 — In response to a second NIOSH Interim Health Report issued
in April 1991, AFA urges NIOSH to conduct additional tests as proposed by AFA
consultant.

—June 14, 1991 — NIOSH completes Interim Medical Report based on an analysis
of available medical records.

— July-October, 1991 — AFA repeatedly expresses concern that the scope of testing
is too limited and the possibility of chemical exposure is underestimated by NIOSH.

— Feb. 5, 1993 — NIOSH issues Final Report stating, "the cause of incidents re-
mains undetermined" and findings are inconclusive.

—September, 1993— AIR QUALITY INCIDENTS CONTINUE TO OCCUR.

Senator Metzenbaum. We will now hear from Shelly Davis.

Ms. Davis. Good afternoon, Senator Metzenbaum. My name is
Shelly Davis, and I am an attorney with the Farmworker Justice
Fund and legal director of its health and safety project.

The Department of Labor reported last week that farm work is
the second most dangerous occupation in the United States. One of
the primary causes of illnesses and injuries in agriculture is expo-
sure to agricultural pesticides.

The EPA estimates that 300,000 farm workers are poisoned each
year due to pesticide exposure. In fact, agricultural workers suffer
the highest rate of chemical-related injuries of any occupational
group in the Nation.

In these circumstances, it is ironic that OSHA's hazard commu-
nication standard does not apply to farm workers. As a con-
sequence, farm workers are one of the only groups in the United
States who have no right to know the names of the chemicals in
their workplace, no right to specific training regarding these chemi-
cals, and no right to access to a material safety data sheet.

OSHA is deprived of iurisdiction in this area because of the ap-
plication of Section 4(1d)( 1) of the OSHA Act. Thus, even though the
EPA regulation of pesticides is wholly inadequate, OSHA cannot
protect farm workers.

This problem has real life consequences for agricultural workers.
Let me give you a couple of examples. Since 1991, scores of Florida
growers of ferns and ornamental plants have reported to the State
health department many diverse medical problems which they be-
lieve are caused by exposure to the fungicide benlate. These range
from respiratory and neurological problems to birth defects and tes-
ticular cancer, which is a very rare form of the disease.

Animal studies on benlate's active ingredient, benomyl, confirm
that this product causes birth defects, testicular damage, and can-
cer. And NIOSH is currently studying the effects of benlate expo-
sure on its users.



42

But as we stand here today, the 120,000 farm workers who work
in these nurseries do not know whether they were exposed to
benlate. And although many of these workers were exposed to that
chemical, and many are ill, none have received any compensation
as a result of these injuries.

Let me give you another example that has been caused by the
farm workers' lack of training with regard to the pesticides they
are exposed to.

On November 15, 1989, two crews of farm workers were directed
to tie cauliflower in a Florida field 12 hours after it was sprayed
with the pesticide phosdrin. A couple of hours after work beg£in in
that field, workers started getting sick, and over the course of that
day, 85 workers were taken out of that field to area hospitals and
clinics. It was later learned that they were poisoned by the insecti-
cide residue on the plants. The resulting injuries were that two
women had miscarriages; a third gave birth to a child with birth
defects; scores of workers suffered numbness, in some cases so se-
vere that lifelong farm workers who had been accustomed to carry-
ing 100-pound sacks of fruit on their backs were not able to pick
up a newspaper.

Phosdrin, in mode of action and level of toxicity, is like nerve
gas. Under the pesticide label, workers should not re-enter the field
for 48 hours after its application. Any worker who does re-enter a
field during that 48-hour period should be given a chemical-resist-
ant suit, gloves, and if the chemical is wet, a respirator.

The farm workers in this field could not protect themselves be-
cause they did not know these label requirements, and these un-
necessary illnesses and injuries resulted.

Under the proposal of S. 575, the focus will be put where it
should be — on whether another agency's regulation of a problem is
as effective as that of OSHA. When that proposal is enacted, farm
workers will get far greater workplace safety.

Today, farm workers suffer a life expectancy which is 20 years
shorter than that of the rest of the population. It is time that farm
workers get treated like all other workers and get the full protec-
tion of OSHA.

Thank you.

[The prepared statement of Ms. Davis follows:]

Prepared Statement of Shelley Davis

The Farmworker Justice Fund, Inc. (FJF) is a non-profit, national farmworker ad-
vocacy organization which provides free legal assistance to migrant and seasonal ag-
ricultural workers throu^out the Nation. I am an attorney for FJF and Legal Di-
rector of its Health and Safety Project. FJF submits this testimony on behalf of it-
self and its many farmworker clients.

In 1992, the Farmworker Justice Fund, Inc., founded the Farmworker Health and
Safety Institute with funding from the W.K. Kellogg Foundation and the Nathan
Cummings Foundation. The Institute is a consortium of grassroots farmworker orga-
nizations, including the Comite de Apoyo a los Trabajadores Agricolas, the Farm-
worker Association of Central Florida, the George Washington University Medical
Center's Division of Occupational and Environmental Medicine, and four Migrant
Health Centers serving farmworkers in New Jersey, Puerto Rico and Florida. The
Institute developed "train-the-trainer" modules (teaching guides) for farmworkers
and their health care providers explaining workplace health and safety hazards, in-
cluding pesticide safety issues. The Institute is also conducting trainings and evalu-
ating the results. The recent EPA worker protection regulations are an integral part
of the pesticide training sessions, but trainers are also directed to focus on the spe-
cific pesticide hazards which the workers face in their workplace.



43

In our testimony today we address the following issues: 1) how application of Sec.
4(bXl) of the Occupational Health and Safety Act (OSHAct) has deprived farm-
workers of the crucial protections of the Hazard Communication Standard (HCS).
29 C.F.R. Sec. 1910.1200; 2) how S. 575'b proposed amendment of Sec. 4(b)(1) would
greatly benefit farmworkers; and 3) what other obstacles prevent full OSHA protec-
tion for agricultural workers.

I. APPLICATION OF SECTION 4 (b) (1) OF THE OSHAct HAS DEPRIVED
FARMWORKERS OF THE RIGHT TO KNOW THE PESTICIDES TO WHICH
THEY ARE EXPOSED IN THE WORKPLACE

An estimated 300,000 farmworkers are injured each year due to occupational ex-
posures to pesticides, i Yet application of Sec. 4(b) (1) of the Occupational Health
and Safety Act, 29 U.S.C. Sec. 653(b)(1) has deprived farmworkers of the crucial
right to know the pesticides to which they are exposed in the workplace. Indeed,
ironically, farmworxers are virtually the only occupational group in the nation
which is not covered by OSHA's Hazard Communication Standard. This is particu-
larly unjust since the U.S. Bureau of Labor Statistics reoorts that agricultural work-
ers suffer the highest rate of chemical-related illness ol any occupational group: 5.5
per 1,000 workers. 2 State woriters compensation statistics tell the same story. In
Washington State, for example, in the period 1987-90, farmworkers had a rate of
systemic poisoning that was 3.2 times ni^er than that of all workers and a rate
of toxic disease which was 2.2 times the rate of all workers. 3 And these figures are
only the tip of the iceberg because occupational disease among farmworkers is gross-
ly under reported. ■*

Pesticide poisoning of field workers usually occurs through direct spray, » drift®
or exposure to pesticide residues on crops. Pesticide mixers, loaders and applicators
are also injured by spills or splashes. Such exposures can cause acute, supchronic
or chronic illnesses. Acute pesticide poisoning may cause skin rashes, eye injuries,
fever, vomiting, or even death. Chronic or subchronic exposure may lead to birth de-
fects, sterility, neurological damage, kidney or liver illness or cancer. '

The full extent of the chronic effects caused by virtually all available pesticides
remains unknown. » Nonetheless, at least 50 active ingredients are known or sus-
pected carcinogens and 20 are known or suspected teratogens. » Indeed, numerous
epidemiological studies have begun to document the link between pesticide exposure
and cancer, i"

Some pesticide exposure incidents end in tragedy. For Example, in 1983, a farm-
worker was drenched with the pesticide dinoseo and died within 24 hours." In a
California incident a pregnant farmworicer, sprayed with pesticides during her first
trimester of pregnancy, gave birth to a child who has no arms or legs. 12

A. Due to Sec. 4 (bX D The Protections of The Hazard Communication Standard
Are Unavailable to Farmworkers

'XT)he primary concern of (the Hazard Communication Standard] is the risk of
being exposed to chemicals without knowing what the hazards of those chemicals



1 United States General Accounting Office, Hired Farmworkers Health and Well-Being at Risk
at 13 (GAO/HRD-92-46) (February 1992); U.S. Congress, Office of Technology Assessment,
Neurotoxicity: Identifying and Controlling Poisons of the Nervous System, OTA-BA-436 (1990)
at 283; R. Wasserstrom and R Wiles, Field Duty: U.S. Farmworkers and Pesticide Safety at
3 (1985) (300,000 farm workers become ill each year due to occupational exposure to pesticides);
see 52 Fed. Beg. 16,050, 16065 (1987) (OSHA estimates that between 80,000-300,000 farm-
workers are injiu^ each year due to pesticides).

2 52 Fed. Reg. 16050, 16,059 (1987).

3 Department of Labor and Industries, Farm Worker Health and Safety in Washington State:
A Look at Workers' Compensation Date Olympia, WA. at 11 (1991).

«Id. at9-10.

»See e.g., Chacon v. Heinz Conp., C.A. No. 84-^4017 (CD. 111. 1986) (seven farmworkers har-
vesting tomatoes were injured when a cropduster, spraying an adjacent field, accidentelly hit
them with direct pesticide spray.)

• An estinnated 85-90 percent of p^ticides applied by aerial application do not hit the terget
and are dispersed through the air, soil and water through drift. G. Matthews, Pesticide Applica-
tion Methods (1982). Pesticides applied aerially or by ground rig sprayers can drift up to a mile
or more from the site of application, even under normal wind conditions. Id.

'See e.g., V. Wilk, The Occupational Health of Migrant Seasonal Farmworkers in the United
Stetes at 60. 67-68 (1986)/

sThe EPA has been reregistering pesticides for nearly 2 decades, but only a fraction of active
ingredients have been fully evaluated for chronic effects.

"See V. Wilk, The Occupational Health of Migrant Seasonal Farmworkers in the United
Stetes at 67-68 (1986).

10 See M. Moses, Cancer in Humans and Potential Occupational and Environmentel Exposure
to Pesticides: Selected Abstract (1988).

"See 51 Fed. Reg. 36,634, 36,637 (1986).

13 Aguirre v. Steufifer, No. 184159 (Kern Cty. Super. Ct).



44

are, and thus not being sure of the proper handling procedure8.''i3 Since 1987, vir-
tually all occupational groups in the iJnited States — except agricultural workers —
have been guaranteed the right: 1) of access to a list of the chemicals in the work-
place; 2) to training concerning the specific chemicals in the workplace; and 3) of
access to a Material Safety Data Sheet, stating, inter alia, the signs and symptoms
of poisoning from exposure to the chemical, the health risks associated with such
exposures and the appropriate treatment in case of accidental iryury. OSHA has in-
terpreted Sec. 4<bXl) to the OSHAct as prohibiting application of tne Hazard Com-
munication Standard to agricultural pesticides because the EPA regulates work-
place exposures to pesticides ^*; thus, OSHA has refused to enforce the HCS for the
Denefit of farmworsers. Consequently, no current federal law affords farmworkers
these protections.

1. Farmworkers do not know the names of the pesticides to which they are ex-
posed.

Under current Federal law, farmworkers have no right to know the names of the

fiesticides to which they are exposed in the workplace, i' This prevents farmworkers
rom taking the steps necessary to protect themselves and interferes with the ability
of their health care providers to accurately diagnose and treat pesticide-related ill-
nesses and iiyuries.

For example, in 1991, scores of Florida growers of ferns and ornamentals reported
to the state nealth department that they were experiencing a host of adverse health
eflects which they believed were caused by exposure to the fungicide benlate (chemi-
cal name benomyl). These problems range from respiratory and neurological ail-
ments to miscarriages and a surprising number of cases of testicular cancer, which
is a rare form of the disease. The State of Florida Department of Health and Reha-
bilitative Services was loathe to publicize these problems, however, for fear that
many of the 120,000 farmworkers employed in these nurseries would file workers
comp>ensation claims. The Health Department need not have worried because al-
though many of these farmworkers were exposed to benlate and are ill, the workers
do not know the names of the chemicals to which they were exposed and, thus, do
not know whether or not they were poisoned by benlate. Consequently, none of the
farmworkers have received compensation as a result of these iUnesses.

In another instance, a West Virginia farmworker was directed to spray pesticides
on apples and peaches for his employer, but never told the names oi the pesticides
he applied. The worker subsequently developed lung disease and died. It is likely
that he was exposed to paraquat, which is known to cause lung disease. Neverthe-
less, the employer refused to disclose the names of the pesticides he used to the
worker's family and kept no application records. As a consequence, the worker's
widow and children were never able to coUect workers compensation benefits.

In a third instance, a woriier who was sprayed with pesticides went to his physi-
cian on the day following his exposure, complaining of fatigue. While on the examin-
ing table, the worker's heart stopped beating. He was revived and rushed to the hos-
pital where he was placed in intensive care for four days. After an extensive battery
of tests, his doctor suspected a chemical cause of the illness. It was not until after
the worker's release from the hospital, however, that his employer informed him
that he had been sprayed with the pesticide lorsban (chemical name: chlorpyrifos),
which has a 24-hour reentry interval (or quarantine period). Had he known of the
use of this chemical prior to its application, the worker would have been in a posi-
tion to protect himself and prevent his injuries. This worker now has a permanent
neurological impairment. Fortunately, he has recovered some compensation for his
ailments, is

As these incidents illustrate, it is critically important for farmworkers to know the
names of the pesticides to which they are exposed on the farm. Farmworkers cannot



13 Notice of Proposed Rulemaking, 53 Fed. Reg. 29,822, 29,826 (August 8, 1988).

" Under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sec. 136 et seq., the
SPA is authorized to regulate pesticides to protect man and the environment Nonetheless the
vast bulk of its regulatory efTorts has been directed at determining which pesticides may be sold
("registered") and who may seal and apply them, rather that at protecting those who are actu-
ally exposed to pesticides on the farm. Consequently, EPA's current regulation of pesticide work
practices for field workers fill a single page in the Code of Federal Regulations. See 40 C.F.R.
Sec. 170. Even when its new Worker Protection Standard takes effect, the protections for work-
ers will not be comparable to those of the HCS and other OSHAct provisions.

"iThe EPA Worker Protection Standard (WPS), 57 Fed. Reg. 38102 (1992) will give farm-
workers some limited access to the names of chemicals in the workplace beginning in April
1994, but it will be limited to the names of the pesticides applied or subject to reentry intervals
within the last 30 days. By contrast, the HCs g^uarantees workers the right to list of all chemi-
cals in the workplace.

I'Mitschelen v. Weldun (worker received $60,000 settlement for his work-related ir^uries).



45

protect themselves without this information and their health care providers cannot
accurately diagnose and treat the resulting illnesses without it.

2. Training

The Hazard Communication Standard also requires employers to train their work-
ers concerning the pesticides in the workplace before they are exposed to them.
Under current federal law, however, farmworkers have no right to training concern-
ing the specific pesticides to which they are exposed in the workplace. Training is
essential to alert workers to the types of practices necessary to keep themselves safe
and to make them aware of the signs and symptoms of pesticide poisoning in case
of accidental exposure. This information will save lives and prevent illness.

For example, on November 15, 1989, two crews of farmworkers were directed to
tie cauliflower in a Balm, Florida field, a scant 12 hours after the field had been
sprayed with phosdrin (chemical name: mevinphos). Two hours afler work began,
workers started vomiting and fainting. Over the course of the day, 85 woricers were
poisoned by the pesticide residues on the plants and taken to area hospitals and
clinics. Nonetheless, work was not called ofT in that field until 5:00 pm. — and some
workers remained until quitting time because they didn't appreciate the danger they
faced and they feared losing their job.

Phosdrin, in mode of action and level of toxicity, is like nerve gas. According to
its label, workers should not work in a field sprayed with phosdrm until 48 hours
after application. The label also provides that workers who do return during the 48
hour reentry interval must be given protective clothing which Includes a respirator
(if the chemical is still wet), a chemical resistant suit, gloves, etc. These items were
not provided to the Balm workers. In aU, about a half dozen legal requirements
were violated here. Because the workers had never been trained concerning safe
work practices with phosdrin they did not know of these requirements — and could
not protect themselves or prevent this accident from occurring.

Phosdrin is suspected of causing miscarriages and birth defects in addition to
being a neurotoxin. In the aftermath of this incident, two women had miscarriages
and another gave birth to a child with six digits and a tumor on his face. Scores
of other workers suffered numbness in the limbs (called peripheral neuropathy). For
some, this ailment was so severe that farmworkers who were used to carrying 100-
pound sacks of fruit on their backs were unable to pick up a newspaper.

In July and August, 1993, 17 workers were hospitalized in separate incidents in
Washington State due to exposure to phosdrin. Most of these accidents could have
been prevented if the workers had been trained in the safe use of the product.

These incidents are typical of the accidents which occur with agricultural pes-
ticides. Because farmworkers are not trained concerning the specific pesticides with
which they work they do not know what is required to ensure their safety, e.g.,
when it is safe to reenter a field, what protective clothing or equipment must be
used, etc.

3. Material Safety Data Sheets

Because OSHA has refused to extend the protection of the hazard Communication
Standard to farmworkers, agricultural workers also lack access to material safety
data sheets (MSDS). These MSDS's provide such information as signs and symp-
toms of poisoning, health risks associated with exposure to a particular chemical
and appropriate first aid treatment. In the absence of this information, farmworkers
frequently do not know when their symptoms aie related to a pesticide exposure.
This is particularly troublesome since pesticide exposure often mirrors the flu or
other non-specific illnesses. A physician examining a farmworker is at an extreme
disadvantage in diagnosing and treating these ailments when the worker is un-
aware of the chemical cause of his illness. Following usual medical practice, a physi-
cian in these circumstances will treat a patient for the most likely cause of his or
her symptoms — which would be the flu rather than pesticide poisoning, i' A farm-
worker who is treated for the flu, however, when he or she has been poisoned by



I'The difficulty in accurately diagnosing pesticide poisoning is one of the reasons that there
are no accurate statistics concerning the number of workers poisoned annually by pesticides.
Other reasons include the absence of a mandatory national reporting requirement for pesticide
poisoning (by either employers or physicians) and (armworkers; lack of access to health care.



46

pesticides, will not benefit from the treatment. Indeed, the persistence of the chemi-
cal in his blood stream may lead to long-term neurological damage. i8


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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 7 of 17)