Hon. WARREN G. MAGNUSON, THE GENERAL COUNSEL OF THE TREASURY, Chairman, Committee on Commerce, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: The proposed "Federal Environmental Pesticide Control Act of 1971", H.R. 10729, has recently come to our attention. Since enactment of the bill would necessitate some action by this Department, we would like to offer our views on it. The bill would amend the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 135 et seq.), by expanding the comprehensive program for the control and use of pesticides, including Federal and State cooperation. Section 2 (aa) defines the term "State" as "a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa." This would extend the coverage of the Act to a geographical area greater than that comprising the Customs territory of the United States (the States, the District of Columbia and the Commonwealth of Puerto Rico). Therefore, we recommend that subsection 16(c) be amended to define "State" for the purposes of that subsection to include the States, the District of Columbia, and the Commonwealth of Puerto Rico. Section 16 (c), like the existing law (7 U.S.C. 135h), provides that the Secretary of the Treasury shall notify the Administrator of the Environmental Protection Agency of the arrival of pesticides and devices, and deliver samples to the Administrator, upon his request. Because acute dermal or inhalation toxicity of many of those substances may be hazardous to the persons handling them, we would expect to make regulations under the authority of section 16(e) to insure the safety of Customs officers taking samples. Section 16(c) would also provide that the Secretary of the Treasury may deliver a pesticide or device in violation of the provisions of the Act to the consignee pending examination and decision, on execution of a bond for the full amount of the invoice value plus duty. On refusal to return the pesticide or device to the custody of the Secretary of the Treasury, when demanded, the consignee shall forfeit the full amount of the bond. As worded, this provision would allow for no reduction of the claim for liquidated damages, such as presently provided for in section 1623(c), Tariff Act of 1930, under which the Secretary of the Treasury may cancel any charge against a bond upon payment of a lesser amount. As primary administrative and enforcement responsibility properly is to be exercised under the bill by the Administrator, Environmental Protection Agency, it is suggested that section 16 (e) be changed to read: "(e) Regulations.-The Administrator shall prescribe regulations for the enforcement of this section, and the Secretary of the Treasury, in consultation with the Administrator, shall prescribe conforming regulations for Customs enforecment and sampling procedures at ports of entry.” Since the Bureau of Customs does not have the expertise to determine if a pesticide or device complies with the requirements of the Environmental Protection Agency, you may wish to consider inclusion of a provision similar to the following: "Every person importing a pesticide or device into the United States shall furnish Customs at the port of entry a certificate of compliance in the form prescribed by the Administrator, certifying that such pesticide or device conforms to all Federal requirements prescribed under this Act, or that nonconforming articles will be brought into compliance under procedures prescribed in regulations of the Administrator." The Department defers to the Environmental Protection Agency, which has primary administrative and enforcment responsibilities, on the merits of the bill. The Department does not anticipate any unusual difficulties in carrying out at ports of entry its supporting enforceent responsibilities. The Department has been advised by the Office of Management and Budget that there is no objection from the standpoint of the Administration's program to the submission of this report to your Committee. Sincerely yours, 85-424 O 72-6 SAMUEL R. PIERCE, Jr., General Counsel. Senator HART. Our first witness, and we welcome her, is Mrs. Valerie Kantor of Migrant Legal Action, and also Mr. A. V. Krebs, Agribusiness Accountability Project, who is accompanied by Mr. Jerry Berman, legal counsel. STATEMENT OF A. V. KREBS, AGRIBUSINESS ACCOUNTABILITY PROJECT, WASHINGTON, D.C.; ACCOMPANIED BY VALERIE KANTOR, MIGRANT LEGAL ACTION, WASHINGTON, D.C.; AND JERRY BERMAN, LEGAL COUNSEL Mr. KREBS. Mr. Chairman, the Agribusiness Accountability Project appreciates the opportunity to present testimony today on legislation concerning the amending of the Federal Environmental Pesticide Control Act of 1972. My name is A. V. Krebs, corporate research associate for the Agribusiness Accountability Project. With me today is Jerry Berman, legal counsel to the Project. The Agribusiness Accountability Project is an independent, nonpartisan, nonprofit organization funded by the field foundation and sponsored by the Center for Community Change and the Project on Corporate Responsibility. Created in 1970, it is based here in Washington, D.C., and is engaged in public interest research, advocacy and education on the issues of corporate involvement in rural America. Mr. Chairman, once again the physical well-being and lives of the thousands of men, women, and children who grow and harvest the crops of the world's most abundant Nation are being deliberately ignored by laws which will affect them most intimately. Nowhere in the Federal Environmental Pesticide Control Act of 1972 do we find any mention of the farmworker. And to say, as one person who has worked extensively on this act told our project, that it is designed to provide for the protection of man and his environment and therefore, by inference, the farmworker, is being both naive and ignorant to the inhuman way American farmworkers have historically been treated by so-called protective Federal legislation. Is it no wonder they have become cynical and bitter when it comes to promises by our leaders in the White House and Congress of "equal justice under law?" But, Mr. Chairman, what the AAP finds most appalling in the legislative history of the act is the unfeeling and negligent manner in which the Environmental Protection Agency has conducted itself in supposedly assisting the House and Senate in drafting this act. The Agency's complete and deliberate silence before the Congress of the United States when it came to recommendations and provisions which would substantially protect the health of farmworkers in an economic-poisoned environment is a scandal of national import. How can we expect lawmakers to pass legislation which will benefit all our people if publicly established divisions of the Government like EPA go willfully about suppressing vital information? Disregarding their own studies which have shown both the shortand long-term harmful effects on farmworkers from economic poisons, even when the label recommendations are explicitly followed; ignoring the need for even more stringent controls on the application and increasing use of these poisons; shunting the necessity for rigid standards covering human experimentation involving economic poisons; and denying the fact that they need laws, not merely recommendations, to administer this act, EPA has acted shamefully, jeopardizing the health of America's some 2.6 million farmworkers. Throughout the country EPA has today some 15 offices of the community studies pesticides project. Their objective is "to collect and evaluate information aimed at finding whether and how exposure to pesticides, as experienced in an occupation or in the environment, is affecting the health of Americans." Each year these offices file a report with the division of pesticide community studies in Chamblee, Ga. Our project after reviewing the 1970 and 1971 California reports, which we obtained independently of EPA, sought similar reports from the other States. We were told by letter, however, that the division was unable to send copies of these reports to us. We did receive a selected reading list of papers available through EPA, many of which were obviously drawn from these past yearly reports. It is from the California reports and these individual papers that we have learned how the EPA has so utterly failed in its responsibilities in presenting the necessary information which would enable this Congress to enact a "pesticide control" bill worthy of its title. Let us take one of the key terms of the bill and see how it is defined. We refer to "substantial adverse effects on the environment." Section 2(bb) says: The term "substantial adverse effects on the environment" means any injury to man or any substantial adverse effects on environmental values, taking into account the public interest, including benefits from the use of pesticide. The key word here, as we interpret it, is "substantial," but nowhere is substantial defined in the act. It is left for the EPA and the administrator to give it meaning. While Mr. Ruckelshaus might define that word one way, his successor might choose to give it a different interpretation. We are a Nation that is supposed to be guided by laws, not men. The act itself should make clear the definition of "substantial." The EPA's handling of a case in California makes it imperative that a precise definition of the word "substantial" be made part of this act. 1 Before Sentator James Allen's Subcommittee on Agriculture and General Research the AAP presented testimony concerning a shocking story of how two major U.S. chemical companies performed economic poison experiments in 1970 in California using farmworkers as "human guinea pigs." I would like to say, however, in light of the recommendations made. by the California Department of Public Health in emergency regulations passed by the State of California Department of Agriculture, EPA turned its back on these recommendations and followed what the chemical companies maintained were the substantial safe reentry times, ignoring, as I say, their own reports. 1 See p. 317 on hearings before the U.S. Senate, Subcommittee on Agricultural Research and General Legislation of the Committee on Agriculture and Forestry, pt. II, Mar. 7 and 8, 1972. After several cases of farmworkers poisonings had been reported in California citrus orchards in 1970, that State's Department of Agriculture imposed an emergency 30-day reentry ban on the two pesticides, ethion and Guthion, suspected of causing the poisonings. Subsequently the two companies performed tests, which we described in our testimony before Senator Allen, in an effort to prove their labels recommending "zero days" reentry for ethion and "7 days" reentry time for Guthion were safe. The companies claimed after completing their tests that no worker's health was impaired. An analysis, however, of these tests by the Community Studies on Pesticides Division of the California Public Health Department showed that workers participating in these experiments had their plasma and red blood cells cholinesterase levels "depressed by absolute amounts or proportions and which by accepted medical standards represented a potential hazard to their health" and that "they should have been removed immediately from the fields." This complete analysis was sent to Chamblee, Ga., in December 1970. On February 11, 1971, the day following AAP's public disclosure of these tests, the California Department of Agriculture held hearings on why the emergency 30-day worker reentry ban for citrus should not be made permanent. On May 14, 1971, the Department issued an order adopting and repealing regulations of the California Department of Agriculture pertaining to economic poisons and injurious materials. In setting down worker safety time intervals for a variety of different economic poisons that are used in citrus, grapes, peaches, and nectarines, the order specified 30-day reentry intervals for ethion and Guthion when applied to citrus. The order noted that the regulations "become effective on June 15, 1971." In issuing their periodic "summary of registered agricultural pesticide chemical uses" the EPA subsequently choose to ignore California's order. Their latest summary for ethion, first issued on May 31, 1969, recommends "no time limitations" when used in citrus. The Guthion summary has been updated by the EPA-from an old U.S. Department of Agriculture summary. It is dated January 21, 1972, a full year after the community studies report and 7 months after the California regulation went into effect. This updated regulation for citrus, however, still states, "a single application per year may be applied up to within 7 days of picking.' In both cases EPA elected to dismiss the expert medical evidence provided under contract by one of its own divisions and follow what the chemical industry had defined as a "substantial" safe worker reentry period. You can see here, Mr. Chairman, why the AAP is concerned that the word "substantial" be defined by law and not arbitrarily be left up to the EPA. Another point. The manner in which the California tests were conducted we feel should have motivated the EPA to recommend that carefully prescribed guidelines for human experimentation where economic poisons are used be set down by law. When the AAP and the migrant legal action program petitioned the EPA in February 1971, for an emergency suspension of registration of all economic poisons for use in experiments and tests involving human subjects, John R. Quarles, Jr., Assistant Administrator for Standards and Enforcement and General Counsel, replied that there was nothing in the Federal Insecticide, Fungicide and Rodenticide Act, calling for "human data or human experiments" to support the registration of an economic poison and that therefore there was no such registrations to suspend. Contrast that reply with the remarks made by Dr. Raymond E. Johnson formerly of the EPA's Pesticide Office, after the AAP's disclosures appeared in the press. He said that to his knowledge "there are no restrictions that I know of" to prevent such experimentation, except those of decency and morality. "It's a serious thing. It's extremely difficult to solve this problem, because regardless of the use of restrictions we are still unable to regulate human behavior." Dr. Johnson went on to say that his office had "seen this problem shaping up" since the summer of 1970. "We are generally familiar with the problems of reentry of people in fields recently treated with organic phosphate chemicals." While the EPA may be full of vocal concern, the fact of the matter is that when it came to formulating this Control Act they made no objection to the wording of section 5(b) dealing with temporary tolerance levels in the issuing of experimental use permits. This section reads: If the Administrator determines that the use of a pesticide may reasonably be expected to result in any residue on or in food or feed, he may establish a temporary tolerance level for the residue of the pesticide before issuing the experimental use permit. [Emphasis added.] In agreeing to this terribly sloppy language EPA paid no heed to its own studies which have shown that "the exposure to dangerous pesticide residues of a professional farm worker is much more prolonged and intense than could possibly be matched by a consumer. The more skilled and dedicated the farm worker the greater the peril.' Also as far back as 1965 Wayland J. Hayes, Jr., of the Toxicology Section, Technology Branch, Comunicable Disease Center of the Public Health Service urged that certain prescribed laws be established governing the testing of economic poisons involving human subjects. There is another area where the EPA failed to provide the full measure of its expertise toward the strengthening of this act. I refer to section 11(a) which states that "no regulations prescribed by the Administrator for carrying out the provisions of this act shall require any private applicator to maintain any records or file any reports or other documents." In May 1971, Dr. Donald S. Kwalick, director of the New Jersey State Health Department's Community Study on Pesticides, in a study supported by the U.S. Department of Health, Education, and Welfare, the Public Health Service, and the Food and Drug Administration, and under contract to the EPA, declared: Organophosphates have caused over 60 percent (in New Jersey)... of the reported pesticide poisonings. Since 1967 the number of organophosphate poisonings has greatly exceeded poisoning from other pesticides. With the decreased use of persistent pesticides (such as DDT) there will be a corresponding increase in the use of less persistent compounds such as carbamates and organophosphates. Although less persistent, the organophosphates include some of the most dangerous chemicals known to man. An increased number of poisonings with possible fatal outcomes can be expected with the anticipated rise in organophosphates usage unless there is stringent control on the purchase and use of these substances, and unless there is intensive education of the public and many occupational-exposed individuals. |