BILL ANALYSIS Ķ SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: SB 1246 ----------------------------------------------------------------- |Author: |Nguyen | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |4/5/2016 |Hearing |4/20/2016 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- 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 SB 1246 (Nguyen) Page 2 of ? 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 SB 1246 (Nguyen) Page 3 of ? 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 SB 1246 (Nguyen) Page 4 of ? 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 SB 1246 (Nguyen) Page 5 of ? 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. SB 1246 (Nguyen) Page 6 of ? 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 SB 1246 (Nguyen) Page 7 of ? 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 SB 1246 (Nguyen) Page 8 of ? 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 SB 1246 (Nguyen) Page 9 of ? 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 SB 1246 (Nguyen) Page 10 of ? 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 --