BILL NUMBER: SB 391 CHAPTERED 09/30/04 CHAPTER 913 FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2004 APPROVED BY GOVERNOR SEPTEMBER 29, 2004 PASSED THE SENATE AUGUST 28, 2004 PASSED THE ASSEMBLY AUGUST 28, 2004 AMENDED IN ASSEMBLY AUGUST 26, 2004 AMENDED IN ASSEMBLY AUGUST 23, 2004 AMENDED IN ASSEMBLY AUGUST 17, 2004 AMENDED IN ASSEMBLY JULY 23, 2004 AMENDED IN ASSEMBLY JUNE 29, 2004 AMENDED IN ASSEMBLY MAY 24, 2004 AMENDED IN SENATE JANUARY 5, 2004 INTRODUCED BY Senators Florez and Escutia FEBRUARY 20, 2003 An act to add Sections 12996.5, 12997.5, and 12997.7 to the Food and Agricultural Code, relating to pesticides. LEGISLATIVE COUNSEL'S DIGEST SB 391, Florez. Pesticide drift exposure. Under existing law, the Department of Pesticide Regulation is charged with enforcing pesticide laws and regulations, violation of which is subject to criminal and civil sanctions and penalties. Existing law establishes the Department of Pesticide Regulation Fund. Existing law establishes reporting requirements relating to pesticide poisoning, and requires the Office of Environmental Health Hazard Assessment to develop and implement a program to alert physicians and others regarding symptoms, diagnosis, and treatment. This bill would, in addition to other penalties, make any person found to have violated provisions relating to pesticides, liable for certain costs related to a resulting illness or injury. The bill would provide that the exposure of each person to pesticide shall constitute a separate violation of related provisions, thereby imposing a state-mandated local program by changing the disposition of a crime. This bill would require the California Environmental Protection Agency to establish minimum standard protocols for the purposes of amending area plans and would require the certified uniform program agency to amend the area plan for emergency response accordingly. By requiring local agencies to comply with these requirements, this bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason. With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 12996.5 is added to the Food and Agricultural Code, to read: 12996.5. (a) For the purposes of this chapter: (1) "Office" means the Office of Environmental Health Hazard Assessment. (2) "Department" means the Department of Pesticide Regulation. (3) "Certified Unified Program Agency" or "CUPA" means the agency certified by the Secretary for Environmental Protection to implement the unified program specified in Chapter 6.11 (commencing with Section 25404) of Division 20 of the Health and Safety Code within a jurisdiction. (4) "Agency" means the California Environmental Protection Agency. (5) "Nonoccupational" means that the person exposed to the pesticide was not at the time of the exposure performing work as an employee. (6) "Acute" means a medical condition that involves a sudden onset of symptoms due to an illness, injury, or other medical problem that requires prompt medical attention and that has a limited duration. (7) "Uncompensated medical care" means the cost of care not covered by any other program, including, but not limited to copayments for medical insurance, Healthy Families Program, or Medi-Cal. Reimbursed medical costs shall not exceed 125 percent of the Medi-Cal reimbursement rates. (b) The exposure of each person to a pesticide resulting from the violation of Section 12972 or 12973, or any regulation adopted pursuant to Section 12976, 12981, or 14005, that causes acute illnesses or injury, shall constitute a separate violation of the statute or regulation. SEC. 2. Section 12997.5 is added to the Food and Agricultural Code, to read: 12997.5. (a) In addition to any penalties paid in connection with an enforcement action taken pursuant to Sections 12996, 12997, 12999, and 12999.5, any person who is found in violation of any provision of this division related to pesticides or any regulation related to pesticides adopted pursuant to this division that results in illness or injury requiring emergency medical transport or immediate medical treatment of any individual in a nonoccupational setting from any pesticide used in the production of an agricultural commodity, shall be liable to the individual harmed or to the medical provider for the immediate costs of uncompensated medical care from acute injuries and illnesses of the exposed individual. (b) Any order issued in connection with a finding of a violation as described in subdivision (a) shall include the obligation to reimburse medical costs from acute illnesses and injuries of any individual requiring immediate medical treatment as a consequence of this violation to the injured individuals or their medical providers. (c) Any person found in violation of this section shall submit to the director within 30 days of the final determination of liability, a written plan on how they will pay individuals and medical providers for the emergency medical transport and the immediate medical costs from acute medical injuries and illnesses of all individuals requiring immediate medical treatment as a consequence of the violation. A person alleged to have violated subdivision (a) may voluntarily submit a written plan pursuant to this section prior to the determination of liability. The contents of the voluntary plan shall not be held against the person in any action to determine whether the person violated those provisions. (d) Any violation of this section shall be subject to the criminal and civil sanctions and penalties set forth in this division. (e) Payment of emergency medical costs pursuant to this section shall not preclude an affected person from filing a civil action for injuries, illnesses, or costs related to the incident. Any damage award associated with a civil action related to the incident shall be reduced by the amount the plaintiff received from this section. (f) Payment of emergency medical costs pursuant to this section shall not be held against the person in any action to determine whether the person violated those provisions. (g) For any person who provides for the immediate reimbursement of medical costs for acute medical illnesses and injuries prior to a final determination by the department, the director or agricultural commissioner may reduce, by not more than 50 percent, the fines imposed pursuant to Section 12996.5. This reduction shall not limit the responsible party's financial obligation under this section. The department or agricultural commissioner shall attempt to complete the determination within 45 days of the incident. SEC. 3. Section 12997.7 is added to the Food and Agricultural Code, to read: 12997.7. (a) The agency, in consultation with the department, the office, county agricultural commissioners, local health officers, CUPAs, and affected community members, shall by August 31, 2005, establish minimum standard protocols for the purposes of amending area plans. (b) The protocols shall include, but not be limited to, all of the following: (1) Protocols for requesting and providing immediate access to pesticide-specific information necessary to assist emergency medical services personnel in identifying pesticides that may be causing a pesticide drift exposure incident and appropriate treatments. (2) Protocols to delineate specific agency responsibilities and the process for responding to calls, notifying residents, and coordinating evacuation, if needed. (3) Protocols to establish emergency shelter procedures and locations to be used in the event evacuation is needed. (4) Protocols to access services in all languages known to be spoken in the affected area in accordance with Section 11135 of the Government Code. (5) Protocols to ensure access to health care within 24 hours of the exposure and up to a week after the exposure. (6) Protocols to notify medical providers regarding eligibility for reimbursement pursuant to Section 12997.5. (c) The CUPA or administering agency shall amend the area plan for emergency response, pursuant to subdivision (c) of Section 25503, to specifically address pesticide drift exposure and to incorporate provisions of the protocols of subdivision (b). (d) Upon the next scheduled update of the area plan, all CUPAs shall have incorporated a pesticide drift component into their area plan. (e) The minimum standard protocols developed under subdivision (a) shall be in accordance with the California Environmental Protection Agency's guidelines. SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because in that regard this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. However, notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund.