BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Elaine K. Alquist, Chair
BILL NO: SB 759
S
AUTHOR: Leno
B
AMENDED: April 16, 2009
HEARING DATE: April 22, 2009
7
REFERRAL: Environmental Quality
5
CONSULTANT:
9
Moreno/sh
SUBJECT
Aerial spraying of pesticide: inert ingredients:
information
SUMMARY
Prohibits the aerial spraying of a pesticide within or near
residential or sensitive areas in this state where humans
are likely to become exposed to the pesticide, in the event
of aerial spraying of a pesticide as a result of a state of
emergency declared by the United States Department of
Agriculture (USDA), unless the manufacturer of the
pesticide has previously and voluntarily made the complete
ingredient list, including, but not limited to, all inert
ingredients, available at the Office of Environmental
Health Hazard Assessment (OEHHA).
CHANGES TO EXISTING LAW
Existing federal law:
The Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), requires the registration of pesticides after a
period of data collection to determine the effectiveness
for its intended use, appropriate dosage, and hazards.
Requires registrants to report promptly any new evidence of
adverse effects from pesticide exposure. Authorizes the
Environmental Protection Agency (EPA) to require
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STAFF ANALYSIS OF SENATE BILL SB 759 (Leno) Page 2
registrants to conduct new studies to fill gaps in
scientific understanding to assist risk assessments. As a
result of a special review EPA may conclude that
registration is adequate, needs amendment, or should be
canceled.
Permits the unregistered use of pesticide products in
special circumstances, including "emergency exemptions"
from the provisions of FIFRA granted to federal or state
agencies if there is a virulent outbreak of a disease or
pest that cannot be controlled by registered products.
Defines an "active ingredient" as one that prevents,
destroys, repels or mitigates a pest, or is a plant
regulator, defoliant, desiccant or nitrogen stabilizer.
Requires the active ingredient to be identified by name on
the label together with its percentage by weight.
Defines an "inert ingredient" as any substance (or group of
structurally similar substances if designated by the EPA),
other than an active ingredient, which is intentionally
included in a pesticide product. Requires the total
percentage of inert ingredients to be on the pesticide
product label (does not require inert ingredients to be
identified by name or percentage on the label).
Existing state law:
Authorizes California Department of Food and Agriculture
(CDFA) to create quarantine areas and develop eradication
programs to combat plant diseases and pests. Requires an
environmental assessment on any activity that could have an
adverse impact on native plants or animals.
Requires CDFA or a county agricultural commissioner, prior
to aerial application of a pesticide under an eradication
project in an urban area to hold at least one public forum,
and have DPR and OEHHA to jointly seek a human and
environmental health risk evaluation.
Requires pesticide manufacturers to provide health effects
information to the Department of Pesticide Regulation
(DPR). Requires DPR to protect public health and safety
and the environment from hazards associated with
pesticides.
Requires a physician and surgeon who knows, or has
STAFF ANALYSIS OF SENATE BILL SB 759 (Leno) Page 3
reasonable cause to believe, that a patient is suffering
from pesticide poisoning or any disease or condition caused
by a pesticide to report that fact to the local health
officer by telephone within 24 hours and by a written
report within seven days, as specified. Requires local
health officers to report to DPR, OEHHA, and the Department
of Industrial Relations each case reported
Requires OEHHA to develop and implement, in cooperation
with local health officers and state and local medical
associations, a program of medical education to alert
physicians and other health care professionals to the
symptoms, diagnosis, treatment, and reporting of pesticide
poisoning.
Requires OEHHA to investigate environmental sources of
morbidity and mortality, and the effects of conditions and
circumstances on the public health.
Requires the Department of Public Health (DPH) to maintain
a program of vector biology and control, including but not
limited to providing consultation and assistance to local
vector control agencies in developing and conducting
programs for the prevention and control of vectors,
surveillance of vectors and vector-borne diseases, and
coordinating and conducting emergency vector control, as
required.
This bill:
Prohibits the aerial spraying of a pesticide within or near
residential or sensitive areas in this state where humans
are likely to become exposed to the pesticide, in the event
of aerial spraying of a pesticide as a result of a state of
emergency declared by the USDA, unless the manufacturer of
the pesticide has previously and voluntarily made the
complete ingredient list, including, but not limited to,
all inert ingredients, available at OEHHA.
Requires OEHHA, in the event of aerial spraying of a
pesticide as a result of a state of emergency declared by
the USDA, to provide a complete list of all pesticide
ingredients, including, but not limited to, all inert
ingredients, to local agricultural and health officials in
each county under a state of emergency, including, but not
limited to, county agricultural commissioners, local
emergency rooms, health care providers, health clinics,
STAFF ANALYSIS OF SENATE BILL SB 759 (Leno) Page 4
hospitals, medical associations, school nurses, and
veterinarians.
Requires OEHHA to seek federal reimbursement for all state
costs associated with the emergency as permitted by federal
law.
Makes all provisions severable: if any provision of the
bill or its application is held invalid, that invalidity
cannot affect other provisions or applications that can be
given effect without the invalid provision or application.
FISCAL IMPACT
Unknown.
BACKGROUND AND DISCUSSION
According to the author, Californians in communities that
are exposed to pesticides, especially aerial pesticides,
face a well-documented risk of developing a broad array of
acute and long-term adverse health conditions. The author
states that public health agencies and emergency responders
in these areas must be provided with a complete list of
every chemical contained in aerial pesticides, however
manufacturers shield the ingredients they use from public
disclosure, forcing the first responders to operate in the
dark. Federal regulations only require pesticide
manufacturers to freely disclose those chemicals in their
products that are classified as "active" ingredients, but
the author asserts that manufacturers have succeeded in
narrowing its application to the point where it's become
essentially meaningless. As a result, they routinely
classify the majority of the ingredients in their
pesticides as "inert," which they are not required to
disclose. In some cases, more than 99 percent of the
ingredients in pesticides are designated inert and kept
hidden from the light of day. The author states that the
distinction between active and inert ingredients is
entirely arbitrary: more than 500 ingredients that have
been classified as inert have also been or are currently
used as active ingredients.
Aerial spraying
Aerial sprayings of pesticides in urban areas is commonly
conducted to reduce levels of certain pests or to contain
STAFF ANALYSIS OF SENATE BILL SB 759 (Leno) Page 5
disease-carrying insects. Many different chemicals are
used, and in the past, highly toxic chemicals were sprayed.
The chemical pesticide DDT was widely used in urban aerial
sprays to control urban mosquito, gypsy moths, Japanese
beetle and other insects in the 1940s. By 1972, DDT was
banned from the United States due to widespread resistance
to DDT and evidence that the pesticide was poisoning
wildlife and the environment and was a danger to human
health. According to a fact sheet from the Aroian Lab at
UC San Diego, there are more than 500 species of insects
and mites that are resistant to some form of pesticides. As
a result of the increasing resistance, countries have
started to apply more products, combine pesticides,
increase applications, or substitute with more toxic
replacements.
Active vs. inert ingredients
According to the EPA, the terms "active ingredient" and
"inert ingredient" have been
defined in FIFRA since 1947. An active ingredient is one
that prevents, destroys, repels or mitigates a pest, and
each active ingredient must be identified by name on the
label together with its percentage by weight. An inert
ingredient is simply any ingredient in the product that is
not pesticidally active. Most inert ingredients are not
known to pose health or environmental concerns; however,
the EPA has acknowledged that some inert ingredients are
not benign to human health or the environment. In fact,
the inert ingredients in some products may be more toxic or
pose greater risks than the active ingredient.
Light brown apple moth
According to an article in the San Francisco Chronicle in
February 2008, in late 2007 the USDA provided CDFA with
$74.5 million to commence aerial spraying of a pesticide to
prevent widespread infestation of the light brown apple
moth. The light brown apple moth was detected in the Bay
Area on February 27, 2007, and infestation was said to be a
threat to the agricultural industry. Crops of concern are
mainly stone fruit (peaches, plums, nectarines, cherries
and apricots), apples, pears, grapes, and citrus. The
pesticide used in this case, called Checkmate, reduces the
moth population by interfering with its ability to
reproduce.
Before aerial spraying began, the USDA obtained an
STAFF ANALYSIS OF SENATE BILL SB 759 (Leno) Page 6
"emergency exemption from registration" from the EPA.
Because of that exemption, the spraying program was not
subject to state approval. The Chronicle article reported
that hundreds of people whose homes and yards were sprayed
in Santa Cruz and Monterey Counties from September to
December 2007 filed reports that said the pesticide seemed
to cause coughing, wheezing, muscle aches and headaches,
among other symptoms. In response, DPR, OEHHA, and DPH
issued a statement that acknowledged that eye, skin or
respiratory irritations reported by residents could have
been caused by high applications of Checkmate. The
statement noted that the toxicological information on the
Checkmate product indicates that exposure to high levels of
the applied material would be consistent with many of the
reported symptoms but cautioned that not all health effects
can be predicted and because the general population
includes susceptible people, such as children, the elderly
and those with chronic diseases, we cannot provide a
definitive cause for their symptoms. This year, a lawsuit
against the EPA was filed in the Northern California U.S.
District Court as a result of the spraying. The plaintiffs
in the case contend that the pesticide was improperly
exempted from registration, and that the application caused
widespread harm to public health and the environment.
Other eradication projects
Detection of the West Nile virus (WNV) in Sacramento in
2005 prompted aerial application of pyrethrin, a mosquito
adulticide, over a large urban area. During the spraying,
the local vector control agency recommended that people
close their windows, but stated that no further precautions
were necessary. A Center for Disease Control (CDC) study
of this event found that aerial mosquito abatement is
effective in reducing human illness and potential death
from WNV infection. While there were no widespread reports
of health reactions to the spraying, a subsequent study
released by UC Berkeley noted that a relatively benign
compound contained in the insecticide that was used can mix
with, and increase the toxicity of, existing pesticides in
the environment.
The author recommended that regulators not only consider
the toxicity of individual active ingredients in a product,
but also how ingredients may interact with other chemicals
in the environment.
There are other eradication projects that are being
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conducted within California by other state agencies, some
that may utilize aerial applications of pesticides in urban
areas. These efforts include the Department of Fish and
Game's Pike eradication program and the New Zealand Mud
Snail eradication program, the California Coastal
Conservancy's Spartina eradication project, and various
Department of Transportation vegetative and noxious weed
control programs aimed at roadside application for fire
safety and visibility, and landscaping applications to
prevent invasive weeds.
Prior legislation
SB 556 (Wiggins) Chapter 190, Statutes of 2007, creates,
until January 1, 2010, the Light Brown Apple Moth (LBAM)
Program within CDFA; requires CDFA to annually review the
progress made by each local agency in eradicating LBAM, and
make recommendations, as needed, to improve individual
local agency eradication efforts; requires an annual
legislative report beginning in 2008; requires eradication
activities conducted pursuant to this bill to comply with
all applicable laws, and be conducted in an environmentally
responsible manner
AB 2760 (Leno) of 2008 would have required an environmental
impact report (EIR), or a modification, addendum, or
supplement to an existing EIR, for the aerial application
of a pesticide by CDFA in an urban area for a LBAM
eradication project. AB 2760 was held on suspense in the
Senate Appropriations Committee.
AB 2763 (Laird) Chapter 573, Statutes of 2008, requires
CDFA to develop and maintain a list of invasive animals,
plants, and insects likely to enter California. Requires
CDFA to plan for appropriate responses to these invasive
pests.
AB 2764 (Hancock) of 2008 would have prohibited the
Secretary of Food and Agriculture from approving the
application of a pesticide in an urban area, unless the
Governor proclaims a state of emergency. AB 2764 failed
passage in the Assembly Agriculture Committee.
AB 2765 (Huffman) Chapter 574, Statutes of 2008, requires
CDFA or county agricultural commissioner (commissioner),
prior to aerial application of a pesticide under an
eradication project in an urban area to hold at least one
STAFF ANALYSIS OF SENATE BILL SB 759 (Leno) Page 8
public forum, and have DPR and OEHHA to jointly seek a
human and environmental health risk evaluation.
AB 2892 (Swanson) of 2008 would have required two-thirds
voter approval in an affected urban area prior to aerial
application of pesticides, and requires local elected
officials to conduct that election. AB 2892 failed passage
in the Assembly Agriculture Committee.
ACR 117 (Laird) of 2008 would have memorialized certain
entities involved in the LBAM eradication effort to address
certain issues, requested OEHHA and other applicable state
entities involved in the effort to publish a formalized
plan on health effect monitoring and tracking, and
requested CDFA to explain whether it intends to adopt
certain recommendations relating to testing for health
effects. ACR 117 was held on suspense in the Senate
Appropriations Committee.
SCR 87 (Migden) of 2008 would have requested the CDFA to
impose a moratorium on LBAM aerial spraying until it can
demonstrate that the pheromone compound is safe to humans
and effective at LBAM eradication. SCR 87 failed passage in
the Assembly Agriculture Committee.
Arguments in support
The Center for Environmental Health (CEH), the sponsor of
this bill, writes that the applications of pesticides done
last year as part of the LBAM eradication program showed
that health professionals and concerned residents need
accurate information about the ingredients in products used
in these kinds of programs if health professionals are to
efficiently diagnose and treat any illnesses that occur as
a result of the pesticide application. The CEH asserts
that this bill provides a cost effective, simple mechanism
for making this information available and we are proud to
be a sponsor of the legislation. Worksafe states that
using the term "inert" to describe ingredients is highly
misleading and even dangerous. The Environmental Working
Group supports as much access to pesticide information as
possible, including spraying protocols and ingredients,
which is a good idea for safety and health and is a matter
of fairness. The American Federation of State, County and
Municipal Employees writes that aerial pesticide sprays can
have respiratory, dermal, and potentially neurological
effects and Californians should be provided information
STAFF ANALYSIS OF SENATE BILL SB 759 (Leno) Page 9
considering those effects. The Planning and Conservation
League writes by providing information, we are creating a
more knowledgeable public and a medical community that is
better able to diagnose and treat patients.
COMMENTS
1.Disclosure of ingredients. Currently, all pesticides
(including herbicides and rodenticides) are approved and
registered by the EPA and for use in California by DPR.
All the ingredients and formularies are provided to the
EPA and DPR for use approval and registration. Federal
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. By making the disclosure of
the ingredients voluntary, this bill does not conflict
with these disclosure restrictions.
2.Limited effect. This bill would require disclosure of
pesticide ingredients under limited circumstances,
typically when the spraying is conducted to eradicate a
pest that is threatening agriculture. However, aerial
spraying is conducted in urban areas under other
circumstances where there also exists a potential threat
to public health.
3.Clarifying and technical amendments.
On page 2, beginning on line 13
105207. (a) In the event of aerial spraying of a
pesticide as a result of a state of emergency declared an
emergency exemption from registration pursuant to Section
18 of Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), or a Federal Domestic Quarantine Order issued by
the United States Department of Agriculture, or that
United States Department of Agriculture declares an
Extraordinary Emergency no pesticide shall be used in
aerial application within or near residential or
sensitive are known sensitive sites such as schools,
hospitals, day care centers, senior citizen centers,
residential care homes, and farm labor camps within this
state where humans are likely to become exposed to the
pesticide unless the manufacturer of the pesticide has
previously and voluntarily made the complete ingredient
list, including, but not limited to, all inert
STAFF ANALYSIS OF SENATE BILL SB 759 (Leno) Page 10
ingredients, available to the Office of Environmental
Health Hazard Assessment. For purposes of this section,
"inert ingredient" has the same definition as in FIFRA.
(b) In the event of aerial spraying of a pesticide as
a result of a state of emergency declared an emergency
exemption from registration pursuant to Section 18 of
Federal FIFRA or a Federal Domestic Quarantine Order
issued by the United States Department of Agriculture, or
that United States Department of Agriculture declares an
Extraordinary Emergency , the Director of Environmental
Health Hazard Assessment shall, for each pesticide
authorized for aerial application, provide a complete
list of all ingredients, including, but not limited to,
all inert ingredients, to local agricultural and health
officials in each county under a state of emergency,
including, but not limited to, county agricultural
commissioners, local emergency rooms, health care
providers, health clinics, hospitals, medical
associations, school nurses, and veterinarians.
POSITIONS
Support: Center for Environmental Health (sponsor)
Pesticide Watch
PREVIOUS VERSION
American Federation of State, County and Municipal
Employees
Environmental Working Group
Planning and Conservation League
Sierra Club of California
Worksafe (previous version)
Two individuals
Oppose: None received
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