BILL ANALYSIS
AB 835
Page 1
Date of Hearing: April 15, 2009
ASSEMBLY COMMITTEE ON AGRICULTURE
Cathleen Galgiani, Chair
AB 835 (Monning) - As Amended: April 13, 2009
SUBJECT : Pesticides: volatile organic compounds emissions.
SUMMARY : Makes legislative findings and declarations regarding
fumigants and pesticides, their impacts, costs and damages,
Department of Pesticide Regulation (DPR) failure, the
independence of State [California] Air Resources Board (CARB);
establishes a public hearing process for CARB dealing with
emission data, changes the pesticide disclosure requirements and
emission inventory baseline; and, requires removal of
reclassified products from the baseline. Specifically, this
bill :
1)Makes legislative findings and declarations as follows:
a) Toxics in pesticides poisons communities and include
probable carcinogens and reproductive toxins; fumigants
pose significant health risks to rural communities due to
drift and to farm workers; and, many fumigants and other
pesticides emit volatile organic compounds (VOCs) which are
low level ozone and fine particulate matter (PM2.5)
precursors;
b) An unacceptable number of California air basins, where
fumigants and other pesticides are used, violate state and
federal ambient air quality standards, and failure to meet
the 1997 federal ozone National Ambient Air Quality
Standard and the 2008 federal PM2.5 National Ambient Air
Quality Standard, cost San Joaquin Valley residents $5.7
billion in measurable health costs;
c) Ozone damages vegetation, causes crop loss, poses a
significant threat to agriculture; a 1994 CARB estimates
reduction of the average ozone levels to 0.04ppm would save
producers and consumers $490 million per year;
d) The DPR is responsible for VOC emission reductions and
has failed to adopt regulations to achieve such reductions.
e) CARB has demonstrated independence, democratic processes
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and fulfilled its legal duty to ensure the state's
implantation plan's goals and commitments are met;
f) The public's right to information related to pesticide
use, ingredients and VOC emissions outweigh the pesticide
registrants' interest in maintaining use and ingredient
secrecy.
2)Requires, no later than July 1, 2010 and annually thereafter,
CARB to update, in a public hearing, the commercial,
structural and agricultural VOC emissions inventory developed
by DPR with the most current available emissions data.
3)Requires CARB, in cooperation with DPR, to disclose active and
inert ingredients of all pesticide products registered for use
in the state, including this information in the annual
emission inventories. Prohibits any claim of confidential
business or proprietary information assertions preventing such
disclosure.
4)Requires CARB, in calculating the emissions inventory, to use
the same methodologies used for calculating the 1990 baseline
inventory for all subsequent inventories, and except for the
1990 inventory, to use the 1991 pesticide use data to
calculate the 1990 baseline inventory.
5)Requires CARB to remove from all annual emission inventories,
any pesticide product or ingredient emissions associated to
that product or ingredient, that the US Environmental
Protection Agency (EPA) reclassifies from a VOC to an exempt
status.
6)Requires any regulations adopted by CARB, DPR or a product
that is registered with DPR, that reduces an environmental
hazard associated with a pesticide product, shall not lead to
the registration of, or increased use of, any product that is
more toxic than that pesticide product.
EXISITING FEDERAL LAW , under the Federal Clean Air Act (CAA)
requires EPA to promulgate health-based standards for certain
pollutants, including hydrocarbons and nitrogen oxides which
produce ground level ozone. These are known as National Ambient
Air Quality Standards (NAAQS). Each state is required, under
the CAA, to adopt a State Implementation Plan (SIP) to satisfy
the NAAQS requirements and provides for implementation,
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maintenance, and enforcement of the NAAQS. The SIP must be
submitted to EPA for approval to ensure that it meet specified
criteria. The approved SIP becomes controlling and must be
carried out by the state and is enforceable by either the State,
EPA, or via citizen suits. EPA designates areas within states
as "attainment" or "nonattainment" based on whether they meet
the NAAQS for a particular pollutant, such as ozone, or whether
each area "attains" the NAAQS. Ozone nonattainment areas are
further classified as Marginal, Moderate, Serious, Severe or
Extreme, depending on the severity of the ozone pollution
problem.
EXISTING STATE LAW requires CARB to comply with the CAA and
California Clean Air Act of emission inventories in order to
prepare the SIP and to provide enforcement. CARB reviews and
accepts or rejects the pesticide emissions inventory as prepared
by DPR that is collected in accordance with state reporting
requirements and California Code of Regulations requirements
that includes a 45 day comment period for written arguments or
statements before the emissions inventory is finalized and
posted on DPR's web site. California has several designated air
basins or "ozone nonattainment areas" designated as Moderate,
Severe, or Extreme for various NAAQS requirements.
In September 2008, DPR adopted regulations that restrict
fumigant application methods in all nonattainment areas by
various requirements in order to implement an emission limit and
allowance system to achieve the emission reductions required by
the SIP.
DPR has exclusive authority over sales and use of pesticides in
the state. DPR is required to review all scientific data
required for registration in California, is required to register
all pesticides used in California and requires the Office of
Environmental Health Hazard Assessments (OEHHA) to review DPR's
conclusions of the scientific data presented for registration.
Registered products have proprietary protection for their
ingredients composition and formularies and the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA) specifically
prohibits the disclosure of the identity or percentage quantity
of any deliberately added inert ingredient of a pesticide under
the California Public Records Act. Likewise, California law
prohibits the disclosure of trade secrets under the Uniform
Trade Secret Act.
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County Agricultural Commissioners are required to permit certain
chemical applications and to investigate complaints of pesticide
positioning and to investigate incidents of possible pesticide
poisoning, in cooperation with DPR. County Health Officers are
required to receive doctor's reports of pesticide poisoning and
inform OEHHA. All agricultural and commercial pesticide usage
is required to be reported to the commissioners who in turn
report it to DPR.
Court Case : The United States District Court of Eastern
California had a citizen civil action brought before it known as
El Comite Para El Bienestart De Earlimart v. Paul Helliker,
Director, Department of Pesticide Regulation (No. Civ.
S-04-882LKK/KJM). Plaintiffs' action alleges that DPR failed to
adopt and implement regulations by June 15, 1997, as required by
the California SIP and they improperly calculated the 1990
baseline emission inventory in violation of the SIP. The Court
concluded that "although plaintiffs' cause of action on the
second cause of action must be denied, by virtue of the fact
that the defendants calculated the baseline in a manner
inconsistent with the SIP, the plaintiffs' motion for summary
judgment on the first cause of action must be granted." DPR
appealed this case to the United States 9th Circuit Court of
Appeals, who concluded that the District Court had no standing
in this matter and overturned the lower court's actions (case
number?.06-1600). This decision is under appeal by plaintiffs.
FISCAL EFFECT : Unknown. Legislative Counsel has keyed this
bill fiscal.
COMMENTS : VOCs are gases that combine with other substances to
form ground-level ozone or smog. According to DPR publications
on VOCs, there are many sources of VOCs, the major source in
California is vehicle exhaust with pesticides accounting for
approximately 2% statewide, but pesticides are among the top10
sources in several regions. The critical time for smog
occurrence is between May 1 to October 31 each year; that is the
period that the California SIP restricts fumigant applications
and when the total use is capped in areas that are in
nonattainment.
The author states that DPR's estimated VOC emission data is
potentially flawed due to using field studies conducted at lower
temperatures than the high temperatures common during summer
ozone season and several studies done by CARB during the summer
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season were not used. By requiring CARB to hold a public
hearing, the public may dispute the emission inventories
reported by DPR. Additionally, DPR depends on inert composition
data in estimating VOC emissions of many pesticide products;
therefore, transparency would require disclosure of inert usage
on pesticide labels. It also claimed that the confidentiality
requirement is outdated due to modern analytical chemistry
laboratories being able to reverse engineer a pesticide formula.
The author claims the use of the 1991 data would be a more
accurate baseline since 1990 was the first year for pesticide
reporting and the data was flawed due to many reporting and
database administrative problems, such as multiple counting of
the same application. Also occurring in late 1990 was the
suspension of a fumigant which significantly reduced the usage
numbers for 1991, making that year the historic low usage level
of record.
This issue is very complex with many layers of statute,
regulation,and case law having impacts on the processes used and
the decisions made. Some of the proponents of AB 835 were also
involved in the court case which was overturned. This bill
would reverse the appeals court decision and more. As written,
AB 835 makes many claims and accusations, some being opinions
and viewpoints of the sponsors.
The opponents state that the findings "are incomplete and
misleading" and the bill is duplicative. They state that not
all VOCs are toxic air contaminants and that many are naturally
occurring. CARB reports that in two nonattainment areas,
naturally occurring VOCs account for 40% and 50%. They conclude
that AB 835 contains numerous statements in conflict with a
technical and legal issue involving the federal CAA, creates
duplicative reporting that clouds transparency and
accountability, and has no environmental or health benefit.
Further, the opponents object to the recent regulations that DPR
has implemented that began out of compliance with the lawsuit,
which has since been overruled; therefore, the regulations are
not required.
California has the most stringent pesticide registration and use
requirements of any state, requiring licensure for the advising
and application of agricultural and structural pesticides. The
new regulations have created additional training and license
requirement for fumigant applications, making it even stricter
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than required by federal standards.
The bill requires reduced lower toxicity products be used while
prohibiting higher toxicity products from being registered.
While reducing toxicity of products sounds reasonable, it is not
always the best option. Smaller amounts of a more toxic product
may have more efficacious and be less harmful to the environment
than a lower toxicity product that must be used in larger
amounts or multiple applications.
It should be noted that DPR and CARB differ in their
responsibilities for air quality and collection of information,
in that DPR is required to collect inventories on all pesticide
"emissions" while CARB does "ambient" air testing. DPR's
pesticide reporting regulations were adopted, as are all state
regulations, through a public process that included posting of
the proposed regulations, public comment periods and review by
the Office of Administrative Law for compliance with state law.
This annual emission inventory has a 45-day comment period prior
to its finalization and posting, and CARB can currently
challenge or reject the emission inventory prepared by CDP for
the SIP.
DPR's adopted regulations provide controls on application
methods anticipated to achieve the reductions required by the
SIP. Additionally, there are back-up fumigant limits and
allocation systems that occur if the reductions for all
pesticides emissions (fumigant and nonfumigant) are not
achieved.
This bill would affect all registered products, not just
products producing VOCs, in requiring all labels to show inert
ingredients. Disclosure of proprietary information, such as
pesticide ingredients and formularies, are considered trade
secrets and are protected by federal and state law. Currently,
DPR, with OEHHA review, is responsible for all registration,
sales and use of pesticides in California. They establish
requirements for the studies needed for registration and review
to such information prior to any registration. It may not be
possible, due to federal and state law, that detailed scientific
information such as the studies used for registration would be
available as required by this bill.
The requirement of disclosure of all ingredients of a pesticide
product infringes on both federal and state statutes. Federal
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statutes under FIFRA, state statutes under both the Civil Codes'
Public Records Act and under Uniform Trade Secrets Act, shield
pesticide products from disclosure of ingredients and
formularies. All the ingredients and formularies are provided
to US/EPA and DPR for approval and registration. Such
requirements would likely severely limit or stop any new
registration of any new pesticide products, even those referred
to as softer products, in California.
REGISTERED SUPPORT / OPPOSITION :
Support
American Lung Association of California
Breast Cancer Fund
California League of Conservation Voters
California Rural Legal Assistance Foundation
Californians for Pesticide Reform
Carmean Pest Management
Center for Environmental Health
Center on Race, Poverty and the Environment
Coalition for Clean Air
Community Action to Fight Asthma
El Comite para el Bienestar de Earlimart
El Quinto Sol
Fresno Coalition Against the Misuse of Pesticides
Greenaction for Health & Environmental Justice
Healthy Homes Collaborative
Latino Issues Forum Latinos United for Clean Air
National Parks Conservation Association
Natural Resources Defense Council
Organizacion en California de Lideres Campesinas, Inc.
Pesticide Action Network, North America
Pesticide Free Zone, Inc.
Pesticide Watch
Planning and Conservation League
Sierra Club California
Stop the Spray.org
Stop the Spray, East Bay
Worksafe
Opposition
AB 835
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CalChamber
California Agricultural Aircraft Association
California Association of Nurseries and Garden Centers
California Association of Pest Control
California Citrus Mutual
California Cotton Growers Association
California Grape and Tree Fruit League
California Seed Association
California Women for Agriculture
Growers-Shipper Association of Central California
Nisei Farmers League
Trical
Western Growers
Western Plant Health Association
California Farm Bureau Federation
Analysis Prepared by : Jim Collin / AGRI. / (916) 319-2084