BILL ANALYSIS �
AB 304
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 304
AUTHOR: Williams
AMENDED: April 8, 2013
FISCAL: Yes HEARING DATE: June 26, 2013
URGENCY: No CONSULTANT: Laura
Feinstein
SUBJECT : PESTICIDES: TOXIC AIR CONTAMINANT: CONTROL
MEASURES
SUMMARY :
Existing federal law:
1)Under the Clean Air Act, defines Hazardous Air Pollutants
(HAP) as pollutants which present, or may present, through
inhalation or other routes of exposure, a threat of adverse
human health effects (United States Code Title 42 �7412).
Existing state law :
1) Requires the Department of Pesticide Regulation (DPR) to
protect the environment from environmentally harmful
pesticides by prohibiting, regulating, or ensuring proper
stewardship of those pesticides (Food and Agricultural Code
�11501).
2) Under California's Toxic Air Contaminant Act, defines a
"toxic air contaminant" (TAC) as an air pollutant that may
cause or contribute to an increase in mortality or an
increase in serious illness, or which 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).
3) Requires the Director of Pesticide Regulation (director),
in consultation with the Department of Public Health (DPH)
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and the Air Resources Board (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 (FAC �14022).
4) Requires, upon completion of the evaluation and in
consultation with DPH, 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 a 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).
5) Requires the director to determine, in consultation with
DPH, 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).
6) 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).
This bill :
1) Sets a two-year deadline for the director of DPR to adopt
control measures for pesticides listed as a TAC, or
identified as TACs because they are listed as HAPs in
federal statute (commonly referred to as HAPTACs). The
two-year period commences once the need for and appropriate
degree of control measures has been determined.
2) Specifies that if a determination of the need for control
measures was made prior to January 1, 2014, the two-year
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period commences on January 1, 2014.
3) Specifies that if the director of DPR is unable to adopt
control measures within two years, they will submit a
report to the appropriate committees of the Legislature
setting forth the reasons this requirement has not been
met. The report will be updated every two years until the
control measures have been adopted.
4) Specifies that if the registration for a pesticide is
rescinded or there has been a decline in its use so that
control measures for a pesticide are no longer needed, the
director shall include this information in the report to
the Legislature and the director's obligations shall be
deemed to have been met.
5) Requires that the director of DPR's written determination
and any formal written comments made by consulting agencies
regarding the need for and appropriate degree of control
measures be made available to the public.
6) Makes technical corrections to existing statute by changing
references to Department of Health Services (now the
Department of Public Health) to the Office of Environmental
Health Hazard Assessment (OEHHA) as the appropriate
advising/consulting agency.
COMMENTS :
1) Purpose of Bill . The author states that the California
Legislature passed the Toxic Air Contaminant (TAC) Act of
1983 with the intent of protecting public health from toxic
airborne pollutants, including pesticides. However, the
author feels that this law, which should protect the public
from airborne pesticides - most notably fumigants - is not
functioning as intended.
The author is concerned that DPR has taken too long to
adopt mitigation measures for listed products. For example,
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the fumigant breakdown product methylisothiocyanate (MITC)
was declared a TAC in 2002; it took eight years for DPR to
issue suggested use restrictions.
The author states that repeated requests from
non-governmental organizations have not led to improvements
in the pace of review of pesticides as candidate TACs or of
adoption of mitigation measures for listed pesticides. The
author is concerned that, in the meantime, these toxic
substances continue to be used in our communities and have
serious health implications.
The author supports AB 304 because it would require the
director of 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. The
author argues that, properly implemented and enforced, the
TAC Act could do a tremendous amount to reduce pesticide
air pollution. The author has proposed the measures in AB
304 to create an enforceable timeline by which DPR shall
adopt mitigation measures meant to protect public health.
2) Overview of DPR's Toxic Air Contaminant Program . DPR's
process for regulating pesticides as Toxic Air Contaminants
follows a procedure that can be summarized in six steps,
listed below. DPR refers to steps a) through d) as the risk
assessment phase, and steps e) and f) as the risk
management phase.
a) Pesticides are flagged for risk assessments. DPR, in
consultation with OEHHA and ARB, prioritizes pesticides
for risk assessment based on how much of the pesticide
is used and sold in California, its persistence in the
atmosphere, and health effects information.
b) Risk assessment is performed. DPR requests ARB to
conduct monitoring studies to measure the air
concentrations of pesticides. For each candidate
pesticide, ARB collects samples near an application site
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and in ambient air of nearby communities.
c) Risk characterization document is prepared.
Continuing the evaluation for each pesticide, the law
requires DPR to prepare a report that includes:
i) An assessment of exposure of the public to
ambient concentrations of the pesticide.
ii) Data on health effects including potency,
mode of action and other biological factors.
iii) A review of the environmental fate and use of
the pesticide.
iv) The results of monitoring studies conducted
in California to measure the levels of the
candidate pesticide in ambient air.
The draft report is peer-reviewed by OEHHA and the ARB
and is made available for public review. Based on the
results of these reviews, DPR scientists revise the
draft report as appropriate, which includes OEHHA's
separate findings. The draft undergoes a peer review for
scientific soundness by the TAC Scientific Review Panel
(SRP). The SRP is a panel of experts representing a
range of scientific disciplines who hold, or have held,
academic or equivalent appointments at universities and
their affiliates in California.
d) Listing as a TAC. DPR receives a recommendation from
the SRP on whether the pesticide meets the criteria for
listing as a TAC. If the pesticide meets the criteria,
DPR adopts a regulation listing it as a TAC.
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e) Risk management decision is made. Consulting with
OEHHA, ARB and local air pollution control districts,
DPR examines the need for and suitable degree of
controls.
f) Control measures are developed. If reductions in
exposure are needed, DPR develops control measures (also
called mitigation measures) to reduce emissions to
levels that adequately protect public health. At
present, there is no statutory limit on the amount of
time from when a risk management decision is made and
control measures adopted. DPR must use the best
practicable control techniques available, which may
include:
i) Requesting that the registrant work with the
United States Environmental Protection Agency to
change use instructions on the product label.
ii) Applicator training.
iii) Limits on application methods, crops, or
locations.
iv) Reclassifying the pesticide as a restricted
material, meaning that a site-specific permit would
be required and added controls imposed, based on
local conditions.
v) Banning the use by canceling a product's
registration.
3) Differences in how TACs and HAPs are treated under the TAC
program . Chemicals the federal government classifies as
hazardous air pollutants (HAPs) are administratively listed
as TACs and not subject to the evaluation and control
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provisions of the TAC statute. Such chemicals are referred
to as HAPTACs. Under existing statute, DPR is not required
to develop control measures for the HAPTACs; this bill
would add that requirement.
4) Health effects of pesticides listed as TACs . DPR maintains
a Pesticide Illness Surveillance Program (PISP) database
that tracks cases of illness attributable to pesticides.
The database lists 686 cases of illness definitely or
probably due to drift of chloropicrin in California from
2000 - 2010, and five due to the drift of sulfuryl
fluoride. These two pesticides are listed as TACs, but
DPR's final control measures are still pending.
5) Present timeline for adoption of control measures . Eight
chemicals are listed as TACs because DPR's evaluation
process determined they met TAC criteria. DPR has adopted
control measures for only one of the listed chemicals:
Methyl isothiocyanate (MITC) and other pesticides that
generate MITC. The director of DPR recommended that MITC be
listed as a TAC in 2002; control measures were adopted
eight years later, in 2010. Two chemicals have control
measures pending. The first, sulfuryl fluoride, was
recommended for listing as a TAC in 2006; DPR is awaiting
further data before proceeding with control measures.
Chloropicrin was recommended for listing in 2010; control
measures are still in progress. The remaining five TACs are
not being considered for control measures because they are
rarely used, have an inactive registration or their
registration for use in California is being cancelled. Of
the ten agricultural pesticides that are listed as TACs
because they are federal Hazardous Air Pollutants
(HAPTACs), four have control measures in place and six do
not.
6) New activities at DPR . At present, DPR is in the process of
commissioning a study from the National Academy of Science
to review the process and scientific methodology DPR
employs in risk assessments. The final report is expected
approximately at the end of 2014. In the 2013-14 Budget,
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the Legislature approved a total of ten new staff members
for DPR, five of whom DPR can assign duties at their
discretion.
7) Related legislation . AB 1176 (Williams) of 2011 would have
required DPR to adhere to a 180-day deadline for specified
steps in the TAC process and required DPR to adopt control
measures for at least two TACs every year. The bill failed
passage in the Assembly Agriculture Committee. The bill was
substantially amended to include language similar to AB
304, but again failed passage in the Assembly Agriculture
Committee in 2012.
SOURCE : Assemblyman Williams
SUPPORT : American Congress of Obstetricians and Gynecologists
Breast Cancer Fund
California Association of Professional
Scientists
California Rural Legal Assistance Foundation
Center for Environmental Health
Clean Water Action
Coalition for Clean Air
Organizacion en California de Lideres
Campesinas, Inc.
Pesticide Action Network
Sierra Club California
OPPOSITION : None on file