BILL ANALYSIS Ó
AB 304
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Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 304 (Williams) - As Amended: April 8, 2013
SUBJECT : Pesticides: toxic air contaminant: control measures.
SUMMARY : Requires the Department of Pesticide Regulation
(DPR), within two years of the determination of the need for
control measures for pesticides determined to be toxic air
contaminants (TACs) or hazardous air pollutant toxic air
contaminants (HAPTACs), to adopt control measures to protect
human health. Specifically, this bill :
1)Requires the director of DPR's (director's) written
determination and any formal written comments made by
specified consulting agencies regarding the need for and
appropriate degree of control measures for each pesticide
listed as a TAC to be made available to the public.
2)Requires the director, for each HAPTAC for which a risk
assessment has been completed, to determine the need for, and
appropriate degree of, control measures.
a) Requires this determination to be completed in
consultation with the Office of Environmental Health Hazard
Assessment (OEHHA), the State Air Resources Board (ARB),
and the air pollution control or air quality management
districts in the affected counties.
b) Authorizes any person to submit written information for
consideration by the director in making determinations on
such control measures.
c) Requires that the director's written determination and
any formal written comments made by the consulting agencies
to be made available to the public.
3)Requires the director, within two years of the determination
of the need for control measures for TACs and HAPTACs, to
adopt control measures to protect human health.
a) Requires the director, if she or he is unable to adopt
control measures to protect human health within two years
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of the determination of the need for control measures, to
submit a report to the appropriate committees of the
Legislature setting forth the reasons this requirement has
not been met.
b) Requires the director to update the report submitted to
the appropriate committees of the Legislature every two
years until the control measures have been adopted.
c) Requires, if the registration for the use of a
particular pesticide is rescinded or if the director
determines there has been a dramatic decline in the use of
a particular pesticide so that control measures for that
particular pesticide are no longer needed, the director to
include this information in the report submitted to the
appropriate committees of the Legislature and the
director's obligations shall be deemed to have been met.
d) Requires, for any pesticide for which a determination of
the need for control measures was made before January 1,
2014, the two-year period for the requirement of the
adoption of control measures to commence on January 1,
2014.
4)Makes technical corrections to existing statute by correcting
the reference to the Office of Environmental Health Hazard
Assessments (OEHHA).
EXISTING LAW :
1)Establishes OEHHA pursuant to the Governor's Reorganization
Plan Number 1 of 1991. Provides that OEHHA succeeds to, and
is vested with, all the duties, powers, purposes,
responsibilities and jurisdiction of the Health Hazard
Assessment Division of Department of Health Services (DHS).
(Health and Safety Code (HSC) § 59000) Requires OEHHA to
provide scientific peer review of risk assessments conducted
by DPR. (Food and Agriculture Code (FAC) § 11454.1)
2)Requires DPR to regulate the business of pest control. (FAC §
11401 et. seq.)
3)Defines "toxic air contaminant" (TAC) as an air pollutant that
may cause or contribute to an increase in mortality or an
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increase in serious illness, or that may pose a present or
potential hazard to human health. Specifies that pesticides
that have been identified as HAPs pursuant to federal law
shall be identified by the director as TACs. (FAC § 14021)
4)Requires the director, in consultation with DHS and the ARB,
to evaluate, as specified, the health effects of pesticides
that may be or are emitted into the ambient air of California
and that may be determined to be a TAC which poses a present
or potential threat to human health. (FAC § 14022)
5)Requires, upon completion of the evaluation and in
consultation with DHS, the director to prepare a report, as
specified, on the health effects of the pesticide that may be
determined to be a TAC. Requires the report to be reviewed by
the scientific review panel, as specified. Requires the
director, following receipt of the findings of the scientific
review panel, to conduct a public hearing and then list, by
regulation, pesticides determined to be TACs. (FAC § 14023)
6)Requires the director to determine, in consultation with DHS,
the ARB, and the air pollution control districts or air
quality management districts in the affected counties, the
need for and appropriate degree of control measures for each
pesticide listed as a TAC. (FAC § 14023)
7)Requires, for pesticides determined to need control measures,
the director, in consultation with the agricultural
commissioners, air pollution control districts and air quality
management districts in the affected counties, to develop
control measures that reduce emissions sufficiently so that
the source will not expose the public to the levels of
exposure that may cause or contribute to significant adverse
health effects. (FAC § 14024)
8)Requires the director to adopt, by regulation, control
measures, including application of the best practicable
control techniques, for those pesticides for which a need has
been determined. (FAC § 14024)
FISCAL EFFECT : Unknown.
COMMENTS :
Need for the bill : According to the author's office, "In 1983,
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the California legislature passed the Toxic Air Contaminant
(TAC) Act with the intent of protecting public health from toxic
airborne pollutants, including pesticides. However,
California's law to protect the public from airborne
pesticides-most notably fumigants-is not functioning as
intended. Nearly 3 decades later, DPR has listed seven
pesticides and one product that is the result of pesticide
breakdown. This means DPR has listed eight products out of 900+
pesticides registered in the state. The exceptionally low rate
at which pesticides have been listed is concerning.
Of even greater concern, is the fact that DPR has taken far too
long to adopt mitigation measures for the listed products. For
example, the fumigant breakdown product methylisothiocyanate
(MITC) was declared a TAC in 2002; it took eight years for DPR
to issue suggested use restrictions. What's worse, these
restrictions only partially mitigate exposure to MITC. We know
that MITC is still a problem because drift of MITC was
responsible for 612 illnesses between 1997 and 2002 (DPR
Pesticide Illness Database).
AB 304 would require the director of the DPR to adopt control
measures for pesticides determined to be TACs within two years
of the department determining that additional mitigation
measures are necessary. This will provide a definitive time
frame for DPR to adopt mitigation measures for TACs and HAPTACs.
Properly implemented and enforced, the TAC Act could do a
tremendous amount to reduce pesticide air pollution. AB 304
does this by creating an enforceable timeline by which DPR shall
adopt mitigation measures meant to protect public health."
California's pesticide program : DPR has authority over the
registration, sale and use of pesticides in California in order
to protect public health and the environment. DPR notes that
this authority is derived from several laws that cover all
aspects of pesticide use in all media; air; ground and surface
water; food; and, in agricultural, industrial, institutional,
occupational and home-and-garden settings. Statutory regulatory
authority allows DPR to regulate application rates; ensure
pesticide efficacy; designate pesticides as restricted
materials; develop criteria to prevent unacceptable pesticide
residues in food and water; license applicators and dealers;
and, adopt rules to protect workers and the public from
overexposure. This full exercise of DPR's authority extends to
the suspension of a pesticide's registration, ending all use
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immediately. DPR's TAC program is one of several options DPR
can use to control airborne pesticide residues.
The toxic air contaminant (TAC) program : The Legislature
created the statutory framework for the evaluation and control
of chemicals as TACs with the enactment of California's Toxic
Air Contaminant Act (AB 1807, Tanner, Chapter 1047, Statutes of
1983). The statute defines TACs as air pollutants that may
cause or contribute to increases in serious illness or death, or
that may pose a present or potential hazard to human health.
Included in the definition are substances listed as hazardous
air pollutants (HAPs) under United States Code. DPR is
responsible for the evaluation of pesticides as TACs.
According to DPR, the TAC program consists of two phases: risk
assessment (evaluation and identification) and risk management
(control).
The program's first phase involves an extensive evaluation of
the candidate pesticide to assess potential adverse health
effects and to estimate levels of exposure associated with its
use. Following the evaluation, the law requires the preparation
of a report for each pesticide that includes: an assessment of
exposure of the public to ambient concentrations of the
pesticide; a risk assessment; an overview of the environmental
fate and use of the pesticide; and, the results of air
monitoring studies to measure the levels of the candidate
pesticide present in ambient air. The report is reviewed by
OEHHA and the ARB, and is made available for public review. The
draft then undergoes peer review for scientific soundness by the
scientific review panel, a panel of experts representing a range
of scientific disciplines. Based on the results of this
comprehensive evaluation, the director of DPR determines whether
the candidate is a TAC. If the director determines the
pesticide meets the criteria to be a TAC, DPR declares the
pesticide a TAC in regulation, and adds it to the TAC list.
Once a candidate pesticide has been declared a TAC, it enters
phase two of the program-the mitigation, or control, phase. In
the mitigation phase, DPR, in consultation with OEHHA, the ARB
and local air pollution control districts, investigates the need
for, and appropriate degree of, control for the TAC. If
reductions in exposure are needed, DPR must develop control
measures to reduce emissions to levels that adequately protect
public health. In developing control measures, DPR consults
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with OEHHA, the ARB, the Department of Food and Agriculture,
agricultural commissioners and air pollution control districts.
Control measures may include product labeling changes;
applicator training; limits on application methods, crops, or
locations; reclassifying the pesticide as a restricted material
(a site-specific permit would be required and added controls
imposed); and, canceling a product's registration (ban of the
product).
Supporters and the author of this bill argue that the current
DPR TAC and HAPTAC listing and mitigation processes are prone to
excessive delays, posing unacceptable risks to public, worker
and environmental health and safety. They cite exposure
incidents from pesticides that are listed, or slated to be
listed, as TACs, but that don't yet have control measures in
place, in which hundreds of people were impacted. They also
point to studies that show public exposure to pesticides in that
same category. While the TAC program was enacted to protect
public, worker and environmental health, if control measures
aren't established, the program does not function. AB 304 is
intended to expedite the development of control measure for TACs
and provide accountability if DPR fails to do so.
Recent related legislation :
AB 1176 (Williams, 2011): Would have required DPR to adhere to
a 180 day deadline for specified steps in the TAC process.
Would have required DPR to each year adopt, by regulation,
control measures to protect human health for at least two TACs.
In 2011, this bill passed the Assembly ESTM Committee on a 5 - 3
vote, but then failed passage in the Assembly Agriculture
Committee. The bill was substantially amended to include
language similar to AB 304 (2013), but it again failed passage
in the Assembly Agriculture Committee in 2012.
REGISTERED SUPPORT / OPPOSITION :
Support
American Congress of Obstetricians and Gynecologists
Breast Cancer Fund
California Rural Legal Assistance Foundation
Center for Environmental Health
Clean Water Action
Coalition for Clean Air
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Organizacion en California de Lideres Campesinas, Inc.
Pesticide Action Network
Sierra Club California
Opposition
None received.
Analysis Prepared by : Shannon McKinney / E.S. & T.M. / (916)
319-3965