BILL ANALYSIS                                                                                                                                                                                                    Ķ



          SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                              Senator Wieckowski, Chair
                                2015 - 2016  Regular 
           
          Bill No:            SB 1246
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          |Author:    |Nguyen                                               |
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          |Version:   |4/5/2016               |Hearing      |4/20/2016       |
          |           |                       |Date:        |                |
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          |Urgency:   |No                     |Fiscal:      |Yes             |
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          |Consultant:|Rachel Machi Wagoner                                 |
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          SUBJECT:  Pesticides:  aerial spraying:  notice from aerial  
          pesticide sprayers and mosquito and vector control districts

            ANALYSIS:
          
          Existing law:  
          
          1) Regulates the use of pesticides and the business of pest  
             control, and requires a person who operates a pest control  
             business to be licensed by the Director of Pesticide  
             Regulation (DPR) and registered by the county agricultural  
             commissioner. 


          2) Requires a pest control aircraft pilot to be registered with  
             the DPR.  A violation of those provisions is a misdemeanor. 


          3) Provides for the formation of mosquito abatement and vector  
             control districts, and prescribes the powers, functions, and  
             duties of those districts.


          This bill:  


          1) Requires pest control operators, pest control businesses, and  
             mosquito abatement and vector control districts, at least 7  
             days before administering pesticides by aircraft or unmanned  
             aircraft systems over a residential area, to notify various  







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             people and entities, including, but not limited to, State  
             Senate and Assembly Members, Members of Congress, affected  
             governmental agencies, school districts, and chambers of  
             commerce, except as specified due to the presence of an  
             emergency outbreak that threatens the public health or other  
             extenuating circumstances that warrant an immediate response.  



          2) Specifies the information required to be included in the  
             notice. 


          3) A violation of the bill's provisions relating to pest control  
             operators and pest control businesses would be a crime.


          4) By imposing additional duties on local governmental agencies  
             and because a violation of the bill's provisions would be a  
             crime, the bill would impose a state-mandated local program.


            Background
          
          1) Public Health and Vector Control.

             In 1967, the California State Board of Health adopted a  
             policy statement entitled "Recommended Standards Relating to  
             the Use of Pesticides in Vector Control."  This policy  
             statement stressed that pesticide use should be limited to  
             those vector populations which cannot be controlled  
             practicably by other means. 

             The State Board of Health clearly recognized the need for the  
             evolution of vector control from a reliance on pesticide  
             application to a program of integrated pest management (IPM)  
             that included source reduction and public education in  
             addition to the judicious use of pesticides. 

             The standards presented in this policy statement were  
             compatible with the pesticide use requirements of the  
             California Department of Agriculture and were intended to  
             serve as conditions for future cooperative agreements between  
             the California Department of Public Health (CDPH) and local  








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             vector control agencies.

             On the recommendation of the State Board of Health, CDPH  
             published a document entitled "Acceptable Pesticides and  
             Their Use by California Mosquito Abatement Districts and  
             Other Official Mosquito Control Agencies."  This document  
             included an "official list of pesticides" to be used for  
             vector control in California and specified how these  
             pesticides were to be used.  Like the State Board of Health,  
             CDPH emphasized the use of preventive measures directed  
             toward the elimination of mosquito sources while also  
             recognizing that the judicious use of pesticides was needed  
             for mosquito control agencies to meet their legal requirement  
             to protect the public from disease-transmitting mosquitoes  
             and other vectors. 

             This document also directed that agencies apply specific  
             principles of pesticide use to protect the health of humans,  
             domestic animals, wildlife, and other non-target organisms.   
             These principles included precision of targeting and timing  
             to ensure pesticide application only to areas actually  
             producing or harboring vectors, and the use of proper  
             formulation and dosage of pesticides to protect public health  
             and minimize non-target effects.

             Concurrent with these publications, state and local public  
             health leaders made convincing arguments to the Department of  
             Agriculture that pesticides used for vector control were  
             critical to protect the public from vector-transmitted  
             diseases and furthermore, that these pesticides posed little  
             or no significant risk to human health or the environment  
             when properly used per the product label at low dosage rates  
             typical of vector control operations.  The Department of  
             Agriculture agreed and amended its regulations to allow local  
             agencies working cooperatively with CDPH to apply pesticides  
             for vector control that were defined as "injurious  
             materials."

             The first "Cooperative Agreement" between CDPH and local  
             vector control agencies was established in 1967.  The purpose  
             of this agreement was to:
             "Provide for the protection of the public health and comfort  
             through a coordinated program of safe, effective, and  
             economical use of pesticides in the control of mosquitoes, by  








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             qualified local governmental mosquito control agencies  
             organized and operated in accordance with provisions of the  
             California Health and Safety Code."

             By signing this cooperative agreement, local vector control  
             agencies ("cooperating agencies") agreed to:
              
             1)    Use those pesticides listed on the CDPH "official list  
                of pesticides" only in the manner specified, 
             2)    Maintain pesticide use reports for review by  
                appropriate governmental agencies, and 
             3)    Ensure that pesticide use did not result in harmful  
                residues on agricultural products. 

             In return, cooperating agencies were authorized to use  
             pesticides listed on the CDPH "official list of pesticides"  
             even though these pesticides may be defined as "injurious  
             materials" by the Department of Agriculture.  Cooperating  
             agencies were also granted significant exemptions from the  
             legal requirements for property owner consent and  
             notification of persons on property to be treated prior to a  
             pesticide application.

             During the first year of the cooperative agreement, 49 local  
             vector control agencies signed this agreement with CDPH  
             (Womeldorf 1976), and by 1969, nearly all local vector  
             control agencies had signed a cooperative agreement.  By  
             1974, the number of cooperating agencies had increased to 73  
             and CDPH included in the cooperative agreement a program to  
             provide for training and certification of pesticide  
             applicators as required by the 1972 amendments to the Federal  
             Insecticide, Fungicide, and Rodenticide Act (FIFRA, as  
             amended)
             (Womeldorf 1976).

             From 1974 through 1991, revisions to the cooperative  
             agreement were coordinated between CDPH (then the Department  
             of Health 1974-77, and Department of Health Services  
             1978-91), the Department of (now) Food and Agriculture  
             (CDFA), the Department of Fish and (now) Wildlife, and  
             cooperating agencies involved in vector control. 

             In 1991, the California Department of Pesticide Regulation  
             (DPR) was formed and all pesticide-related statutory  








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             authority was transferred to DPR from CDFA.  The local  
             enforcement of pesticide use was retained by the County  
             Agricultural Commissioners. 

             To protect the benefits of the cooperative agreement, and in  
             recognition of the shared responsibility of CDPH, DPR, and  
             the County Agricultural Commissioners to protect human  
             health, these three agencies signed a memorandum of  
             understanding (MOU) to address the use of pesticides in  
             vector control.  The current MOU assures that each agency is  
             able to exercise appropriate legal authority to protect  
             public health while eliminating any duplication of effort.   
             Principles of agreement are established in the MOU that  
             identify the roles of the three signatory agencies with  
             respect to pesticide use and reporting, registration of  
             public health pesticides, certification of public health  
             pesticide applicators, and reporting of suspected adverse  
             effects of pesticides on non-target organisms. 

             This MOU essentially shifts some regulatory authority for  
             pesticide use by vector control agencies from DPR to CDPH and  
             serves as the basis for the cooperative agreement between  
             CDPH and vector control agencies.  Changes in Federal and  
             State statutes coupled with changing departmental  
             responsibilities and relationships have resulted in some  
             significant changes from the first cooperative agreement.   
             For example, CDPH no longer publishes an "official list of  
             pesticides" for use in vector control.  Pesticides used for  
             vector control must now be labeled for this use and must be  
             used in accordance with the product labeling.

             REQUIREMENTS LISTED IN THE COOPERATIVE AGREEMENT
             Signatory agencies must agree to:
             1)    Calibrate all application equipment and maintain all  
                calibration records for review by the County Agricultural  
                Commissioner.
             2)    Maintain pesticide application records for at least two  
                years for review by the County Agricultural Commissioner.
             3)    Submit a monthly pesticide use report in an appropriate  
                manner to the County Agricultural Commissioner.
             4)    Report any conspicuous or suspected adverse effects  
                upon humans, domestic animals or other non-target  
                organisms to the County Agricultural Commissioner and  
                CDPH.








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             5)    Require employee certification by CDPH to verify  
                employee competence to use pesticides in vector control  
                operations and ensure employees complete the necessary  
                continuing education requirements to maintain status as a  
                "Certified Vector Control Technician."
             6)    Be inspected by the County Agricultural Commissioner on  
                a regular basis to ensure that the agency is in compliance  
                with state and federal laws and regulations pertaining to  
                the storage and use of pesticides.
             7)    Agencies signatory to the cooperative agreement are  
                reviewed biannually by CDPH to ensure compliance with the  
                requirements listed above.  These requirements meet the  
                legislative intent in providing the many broad exemptions  
                to California laws and regulations provided to vector  
                control agencies and to ensure that all state and federal  
                pesticide use requirements are met.

          1) Climate Change and Vectors.

             Drought and high heat associated with climate change can  
             further lead to public health impacts by facilitating disease  
             spread as the distribution of vectors (e.g. ticks,  
             mosquitoes) carrying pathogens spread into new habitats as  
             regional climates change.  For example, previous research has  
             shown that human outbreaks of Saint Louis encephalitis are  
             correlated with periods of several days when the temperature  
             exceeds 30?C (95?F), as has been the case in previous  
             California epidemics (Githeko et al. 2000). 

             Hot temperatures have also facilitated the spread of West  
             Nile Virus (WNV) by speeding up both the replication of the  
             virus and the development of the mosquito that carries it.   
             Mosquitoes digest blood meals more rapidly at higher  
             temperatures, leading them to feed more often.  This leads to  
             an overall increase in mosquito populations that are biting  
             more often.  The number of WNV cases in California more than  
             doubled in 2014 compared to the previous year. 

             Furthermore, higher temperatures along the coast could  
             increase the risk of West Nile Virus in these areas, which  
             have typically been at low risk.  Somewhat  
             counterintuitively, droughts, which will likely increase with  
             climate change, can also favor mosquito breeding.  Streams  
             that would normally be flowing become a series of stagnant  








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             pools in which mosquitoes breed.

             Tropical diseases, not previously observed in California, have  
             been found in mosquito populations of California, primarily in  
             Southern California.  According to CDPH's website, two  
             invasive (non-native) mosquito species have recently been  
             found in several California counties, and there is a potential  
             for them to spread into other areas of California.  They are  
             named Aedes aegypti (the yellow fever mosquito) and Aedes  
             albopictus (the Asian tiger mosquito).  Unlike most native  
             mosquito species, Aedes aegypti and Aedes albopictus bite  
             during the day.  Both species are small black mosquitoes with  
             white stripes on their back and on their legs.  They can lay  
             eggs in any small artificial or natural container that holds  
             water.  For example, a water bottle cap can serve as habitat  
             for these mosquitos.

             Aedes aegypti and Aedes albopictus have the potential to  
             transmit several serious viruses, including dengue,  
             chikungunya, Zika, and yellow fever.  None of these viruses  
             are currently known to be transmitted within California, but  
             thousands of people are infected with these viruses in other  
             parts of the world, including in Mexico, Central and South  
             America, the Caribbean, and Asia. 


             The presence of Aedes aegypti and Aedes albopictus mosquitoes  
             in California poses a threat that these viruses could spread  
             in California.

            Comments
          
          1) Purpose of Bill.  According to the author, "current state law  
             does not provide for any requirement to notify the general  
             public about pesticide spraying activity over their  
             residential property.  SB 1246 would require pest and  
             mosquito control operators administering pesticides by  
             aircraft over a residential area to notify elected officials  
             and Chambers of Commerce of their planned activity.  This  
             increases public transparency by allow community leaders to  
             use their established media networks to notify their  
             constituents and members as well as respond to any questions  
             or concerns.  Mosquito and Vector Control Districts must work  
             quickly to protect the public health of all Californians, but  








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             property owners and tenants should be afforded the right to  
             know of pesticide activity that occurs over their residence.

          2) Lack of clarity.  The language of this bill is vague, leaving  
             questions on how a vector control district is required to  
             comply with the legislation.  What constitutes notification  
             to the specified entities?  Is an email blast sufficient or  
             is a personal phone call required?  The list is broad and  
             somewhat vague - who exactly are districts contacting?  What  
             qualifies as an "emergency outbreak" or "extenuating  
             circumstances that warrant immediate response"?  How is that  
             measured and qualified?  It could be asserted that all vector  
             control agencies believe that pesticide application to  
             control outbreak of vector-borne diseases is always an  
             "emergency" or "extenuating circumstance that warrants  
             immediate response."
              
          3) To what benefit?  It is unclear what the desired public  
             benefit of this bill is.  As elected officials and other  
             entities (i.e. governmental agencies, school districts,  
             chambers of commerce or similar entities, California State  
             Assembly Members, California State Senators, United States  
             Congressmen, and United States Senators), do not have  
             statutory responsibility, authority or more often than not,  
             expertise to weigh in or influence the use or timing of  
             aerial spraying, what does this bill accomplish for public  
             health, safety and benefit?  Are the desired benefits  
             adequately weighed against the risks associated with delayed  
             action on the part of a vector control agency?  

             In fact, additional statutory obligations on the vector  
             control agencies to notify elected officials, local chambers  
             of commerce and other entities as well as other government  
             agencies in addition to the standing public health and  
             communication protocols used during pesticide application  
             could delay application for days or weeks resulting in the  
             spread of the vector and greater risk to public health, as  
             well as a need to spray a greater geographic area because the  
             delay allowed further spread of the vector.

             It does not appear that this bill is addressing an outcry  
             over poor communication between vector control districts  
             across the state and the elected officials and other  
             governmental and business entities that they serve, but  








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             rather a specific incident in the author's district that may  
             be better addressed on the local level.
            
          SOURCE:                    Author  

           SUPPORT:               

          Todd Spitzer, Orange County Supervisor, Third District  

           OPPOSITION:    
          Alameda County Mosquito Abatement District
          Butte County Mosquito and Vector Control District
          California Manufacturers and Technology Association
          City of Diamond Bar
          City of La Caņada Flintridge Mayor David Spence
          Coachella Valley Mosquito and Vector Control District
          Contra Costa Mosquito and Vector Control District
          Colusa Mosquito Abatement District
          Fresno Westside Mosquito Abatement District
          Glenn County Mosquito and Vector Control District
          Greater Los Angeles County Vector Control District
          Health Officers Association of California (HOAC)
          Kern Mosquito and Vector Control District
          Merced County Mosquito Abatement District
          Mosquito and Vector Control Association of California (MVCAC)
          Sacramento-Yolo Mosquito and Vector Control District
          San Joaquin County Mosquito and Vector Control District  
           San Mateo County Mosquito and Vector Control District
          Sutter-Yuba Mosquito and Vector Control District
          Tehama County Mosquito and Vector Control District
          West Valley Mosquito and Vector Control District
           
           Peggie Howell, Vice-President, Board of Trustees, Contra Costa  
                         County Mosquito and Vector Control District
          1 Individual
            
          ARGUMENTS IN  
          OPPOSITION:    

          The Health Officers Association of California (HOAC) states  
          "this bill would delay vector control responses to potentially  
          life-threatening mosquito-borne diseases."

          HOAC states that "in recent years, due largely in part to the  








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          drought, we have seen invasive species of mosquitoes pose new  
          challenges to the health of our state's residents.  Last year,  
          deaths from West Nile virus in California reached a record high,  
          and with the recent emergence of other invasive mosquito species  
          in our state have the potential to transmit viruses like dengue,  
          yellow fever, chikungunya and Zika, it is critical that we do  
          not impede life-saving efforts, which can include aerial  
          spraying, to control and abate mosquitos.  The decision for a  
          vector control agency to use an aerial spraying application over  
          a residential neighborhood is never taken lightly, but when the  
          decision needs to be made, it is often done on a  
          minute-by-minute basis.  In order to combat the threat of many  
          lethal mosquito-borne diseases, vector control agencies often  
          need to be able to respond in real-time.  Vector control  
          agencies cannot postpone action without the risk of an invasive  
          mosquito population growing to uncomfortable size and traveling  
          to neighboring communities."
                                          
                                      -- END --