BILL ANALYSIS �
AB 1176
Page 1
Date of Hearing: May 4, 2011
ASSEMBLY COMMITTEE ON AGRICULTURE
Cathleen Galgiani, Chair
AB 1176 (Williams) - As Amended: May 2, 2011
ENVIRONMENTAL SAFETY (5-3)
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|Ayes:|Wieckowski, Campos, | | |
| |Davis, Feuer, Bonnie | | |
| |Lowenthal | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
|Nays:|Miller, Morrell, Valadao | | |
| | | | |
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SUBJECT : Pesticides: toxic air contaminants.
SUMMARY : This bill requires the Director (director) of the
Department of Pesticide Regulation (DPR), to complete at least
one report per year on the health impacts of a pesticide which
may be determined to be a Toxic Air Contaminant (TAC); requires
at least two pesticides per year go through the TAC determination
process; and, makes technical and conforming changes.
Specifically, this bill :
1)Changes the reference from the Department of Health Services
(DHS) to the Office of Environmental Health Hazard Assessment
(OEHHA).
2)Adds to the director's priority mandate to include "data
requests" in addition to evaluation and regulation of
substances.
3)Requires the director to complete at least one report per year
on the health impacts (risk assessment) of a pesticide which
may be determined to be a TAC.
4)Requires, upon determination that a product is a TAC, a written
report, including all findings by consulting agencies, be made
available to the public.
5)Requires the director to adopt, for two TAC pesticides
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annually, control measures, after determining that control
measures are required for a product and for pesticides
identified as a TAC, in accordance with state and federal code,
adding OEHHA to the consultation process, giving priority to
those pesticides for which a need for control measures has been
determined and based upon the pesticide's:
a) Risk of harm to the public health;
b) The amount or potential amount of emissions it has in any
community or statewide;
c) The manner and quality of its usage in any community or
statewide; and,
d) The ambient concentration it has in any community or
statewide.
6)Deletes from these requirements the option for the director to
not adopt control measures, when the California Air Resources
Board (CARB) and OEHHA concur in writing, for pesticides that
have no need for control measures to protect human health from
airborne emission.
7)Requires the director to adopt by regulation control measures,
notwithstanding any timelines established in the Administrative
Procedures Act (APA) for the adoption of regulations.
EXISTING LAW establishes OEHHA, pursuant to Governor Wilson's
Reorganization Plan Number 1 (GRP-1) of 1991, as a separate
agency that provides independent health risk assessments to
support CARB, Department of Toxic Substance Control, DPR, and
California Department of Public Health, standards and control
measures for air, water, soil, and product contaminants. Under
GRP-1, OEHHA assumed statutory responsibilities previously held
by DHS. Pursuant to these statutory mandates, OEHHA reviews and
makes findings relative to CDPR's health assessment for pesticide
TACs, and conducts the health risk assessment for non-pesticide
TACs regulated by the California Air Resources Board. The
statutes also provides for OEHHA to have joint responsibility
with DPR in developing pesticide worker safety regulations,
operating under a memorandum of understanding. Further, the
GRP-1
placed OEHHA in charge of Proposition 65.
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DPR is responsible for all pesticides used in California;
requires all pesticides to be registered, approved and determines
how they are used; provides for enforcement for registration or
misuse; and, authorizes that additional request for data and
studies be made on any registered product, any time.
TAC statute establishes a procedure for the director to identify,
evaluate, and provide mitigation factors for pesticides that
qualify as a TAC and establishes federally identified hazardous
air pollutants (HAZ-TAC), as state identified TACs. Defines TACs
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. Requires the
director, in consultation with OEHHA and CARB, to evaluate health
effects of pesticides that may or are emitted in the ambient air
of California and to determine which ones qualify as TACs.
Requires the director, upon the request of ARB, to include a
pesticide in the TAC evaluation process, and establishes a
process for the evaluation requiring the inclusion of all
available scientific data, and requires the documentation of
airborne emissions levels. Permits the director to request, or
any person to submit, information on any substance which may be
under review, and provides a criteria for the handling of trade
secrets. Requires the director to give priority in evaluation
and control measures based upon factors related to risk of harm
to the public, amount or potential amount of emissions, manner of
usage, persistence in the air, and ambient concentrations in a
community.
TAC statue requires, upon completion of the evaluation, that a
report is prepared, in consultation with specified agencies,
including the health effects of the pesticide, assessing the
availability of and quality of data on health effects available
for potency, mode of action, and other relevant biological
factors of the pesticide. Report shall also contain estimated
exposure levels and when no threshold is available, a range of
risk to humans resulting from current or anticipated exposure,
and include findings of OEHHA, and is to be made available to the
public. This report is to be reviewed by SRP in order to confirm
that its information is based upon scientific procedures and
methods that support the data, conclusions and assessments within
the report. SRP is to submit written findings within 45 days of
receiving the report but may petition for an extension. If the
report is found to be seriously deficient by SRP, it is returned
to DPR and they have 30 days to revise and resubmit report to SRP
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before development of emission control measures. Within 10 days
of receipt of the report from the SRP, DPR has to prepare a
hearing notice and proposed regulations, including the proposed
determination if the pesticide qualifies as a TAC, in accordance
with regulatory law. The director is required to determine, in
consultation with OEHHA, CARB, and local air management entities,
the degree of control measures for each TAC pesticide. The
public may provide written information in making the
determination on control measures.
TAC statute requires, upon the determination that control
measures are needed, that the director, in consultation with
agricultural commissioners and local air control entities in
affected counties, is required to develop control measures
designed to reduce emissions sufficiently so that the source will
not expose the public to levels which may cause or contribute to
significant health effects. If no safe threshold is established,
the control measures are required to be designed to adequately
prevent the endangerment of the public by best application
control technologies, which may include, but not be limited to,
the following: label amendments; applicator training;
restrictions on use patterns or locations; changes in application
procedures; reclassification as a restricted material; and,
cancellation of product. The director is required to adopt,
after a public hearing held in accordance with the APA,
regulations for control measures, as described above, or through
any other techniques that have been determined to satisfy the
protection requirements.
TAC statue permits any person to petition DPR to review any TAC
determination, by specifying specific additional scientific
evidence regarding health effects of a pesticide that was not
available when the original determination was made or other
evidence that would justify a revision of the original
determination.
The SRP is charged with providing technical peer review of the
risk assessment reports of substances proposed for identification
as TACs and HAZ-TACs by the CARB, OEHHA and DPR, and the review
of guidelines prepared by OEHHA. In carrying out this
responsibility, SRP reviews the exposure and health assessment
reports and underlying scientific data on which the reports are
based, which are prepared by ARB, DPR, and OEHHA, pursuant to
Health and Safety Code and Food and Agricultural Code. These
reports are prepared for the purpose of determining whether a
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substance or pesticide should be identified as a toxic air
contaminant, or as guidelines to be used in preparing health risk
assessments. SRP meets on an as needed basis; from 2000 to 2010,
it has averaged 3.6 meetings per year.
FISCAL EFFECT : Legislative Counsel has keyed this bill fiscal.
COMMENTS : The TAC process is complex and layered; it involves
identifying "all" existing scientific information, the
determination if that information is relevant and done using good
scientific procedures, and if not requiring additional studies to
be completed. It is also a time consuming process, requiring
research studies be done, which may be only possible during the
seasonality of the pesticide use, which if not completed
properly, may be required to be done again, the following year.
This is also a very critical issue to health of Californians, to
ensure that they are not exposed to emissions from pesticides
that could cause adverse health effects.
DPR, in consultation with OEHHA and CARB, prioritized pesticides
needing TAC review determinations, giving priority based upon the
following factors: related to the risk of harm to the public;
amount or potential amount of emissions; manner of usage;
persistence in the air; and, ambient concentrations in a
community. Currently, there are 37 listed HAZ-TACs in
regulation, with three having risk management control measures in
place; two by DPR and one by CARB. There are nine listed
HAZ-TACs that do not need risk management control measures
because they are inactive. Five are under risk assessment
review, and have seven others listed as "High Priority," but were
not listed in the top ten by the DPR, OEHHA and CARB working
group. Under state statute, DPR has evaluated and determined
eight pesticides as TACs. Control measures are completed on one,
two others are going through the risk management process, three
are in process of having their registration cancelled, one has no
risk management due to low usage and another is inactive.
Additionally, DPR has five non-HAZ-TAC pesticides in risk
assessment review as potential TACs.
The TAC process is in addition to the existing risk assessment
and risk management responsibilities that DPR does for new
pesticide registrations or label changes, or additional data
requests the director may make on registered pesticides.
According to the author, the current law is not functioning as
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intended, most notably regarding fumigants, and stating that
after three decades only seven pesticides have been listed as
TACs out of over 900 registered products, with only one breakdown
product as a TAC. Several of these pesticides are responsible
for large numbers of illnesses and limited or no mitigation has
been proposed on them. By comparison, he states that CARB has
listed 22 non-pesticide pollutants as TACS and implemented
mitigation measures for over 100 non-pesticide EPA-listed
HAZ-TACs. Further, repeated requests from non-governmental
organizations has not led to improvement in the pace of review of
pesticides as TAC candidates. This has led to non-profit
organizations establishing air monitoring, in which it was
discovered some pesticides are being detected at levels that
exceed levels of health concerns, as per CARB studies.
The intent of this bill is to require DPR to apply the TAC
process to a minimum of one pesticide per year and to require the
establishment of control measures on at least two TAC pesticides
each year. The origins for this bill come from a court decision
that stated the current statute does not mandate DPR to complete
TAC assessments and mitigations within a particular time frame.
Opponents claim that there are many sounds reasons that the
preparation of the health report on a pesticide may need longer
than a year to complete. The discovery that extra studies need
to be conducted or additional data is required from the
manufacturer dealing with worker safety or environmental
protections. They object to adding OEHHA into an advisory role
for the development of control measures, stating that OEHHA
scientist have no expertise in development of control measures
and this inclusion is contrary to this administration's efforts
to streamline regulation. Additionally, they state that there is
no need to clarify what additional data requests DPR is required
to give priority to and that the regulatory process should comply
with the APA, not ignore its imposed timelines.
The committee may wish to consider if mandating DPR to complete a
specific number of TAC health evaluation reports on pesticides
and to adopt control measures on a specific number of pesticides
annually is good policy? To ensure the TAC reports are done with
valid science and that control factors are appropriate could take
longer than 12 months for either. This becomes a workload issue
for DPR and other entities in their efforts to accomplish these
mandates. Additionally, to adopt two risk management regulations
annually may create a problem in the long run. While currently,
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there are several risk assessments reports completed or in the
works that could allow for multiple risk management regulations
to take place, it is possible, based upon this bill's
requirements, that the risk assessment activities might not keep
pace with the risk management regulatory requirements, causing
DPR to be in violation with this statute in the future. The
committee may wish to consider qualifying the two risk management
actions per year as being applicable to the completed risk
assessments or health evaluation reports, that have been
determined that a pesticide is a TAC or HAZ-TAC.
The committee may wish to consider if requiring DPR to prioritize
their efforts in addressing TACs is of state importance.
Considering that California is the number one agricultural
producing state in the nation and one of the largest in
populations, and that the population has expanded into historic
rural regions in greater numbers over the last decade, the
potential for pesticide exposure is greater. Adverse health
impacts from pesticides can be a public risk, even if limited in
the scope of their overall use in California; they need to be
addressed by the best control practices available.
The committee may wish to consider if it is appropriate policy to
expand the duties of OEHHA to consult on the development of
control factors. By expanding OEHHA's responsibilities, a new
burden is placed on their workload which could cause delays in
their performance of existing reviews, possibly even in delaying
the reviews of the health reports required by DPR which the
author is attempting to address by this legislation.
This bill contains "notwithstanding" language which exempts DPR
from using the APA process in the adoption of control measures.
This process requires specific public meetings and timelines for
the adoption, deletion or amendments to regulations. The
committee may wish to consider if it is appropriate for DPR to
have the authority to bypass the APA in adopting TAC control
measures.
BACKGROUND : With the enactment of California's Toxic Air
Contaminant Act (Assembly Bill 1807, Tanner, Chapter 1047,
Statutes of 1983; amended by Tanner, Chapter 1380, Statutes of
1984), the Legislature created the statutory framework for the
evaluation and control of chemicals as toxic air contaminants
(TACs). The statute defines TACs as air pollutants that may
cause or contribute to increases in serious illness or death, or
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that may pose a present or potential hazard to human health.
Included in the definition are substances listed as Hazardous Air
Pollutants (HAPs) under section 7412 of Title 42 of the United
States Code. The Department of Pesticide Regulation (DPR) is
responsible for the evaluation of pesticides as TACs.
In general, the law focuses on the evaluation and control of
pesticides in ambient community air. In implementing the law, DPR
must: 1) conduct a review of the physical properties,
environmental fate and human health effects of the candidate
pesticide; 2) determine the levels of human exposure in the
environment; and 3) estimate the potential human health risk from
those exposures. The law requires DPR to list in regulation
those pesticides that meet the criteria to be TACs. DPR must then
determine the appropriate degree of control measures for the
pesticide. DPR may conduct compliance monitoring to assure that
users adhere to the control measures as appropriate.
DPR's TAC Program consists of two phases: risk assessment
(evaluation and identification) and risk management (control).
The program's first phase involves an extensive evaluation of the
candidate pesticide to assess the potential adverse health
effects and to estimate levels of exposure associated with its
use. As part of this evaluation, ARB conducts monitoring studies
to measure the air concentrations of pesticides. Typical
pesticide applications (and thus exposures) differ from exposures
to other types of air pollutants, such as automobile exhaust.
Therefore, different strategies must be used to monitor levels of
pesticides in ambient air. Because most of California's
pesticide applications normally occur in agricultural areas and
are seasonal in nature, CARB conducts the monitoring studies to
collect data during the worst-case situation-in the areas of high
use during the season of peak use-instead of collecting samples
throughout the State. This "worst-case" information can then be
used to determine the ambient exposures of those people living
near places where pesticides are used.
In general, for each candidate pesticide, two types of studies
are conducted; CARB collects samples in ambient community air and
in air near an application. For ambient community air
measurements, CARB collects samples at three to five locations
(usually schools or other public buildings) in communities near
agricultural areas expected to receive applications of the
pesticide being monitored. Samples of 24 hours in duration are
collected for four days per week for four or more consecutive
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weeks. For application-site monitoring (e.g. sampling before and
after a specific application), samples are collected immediately
before, during and for approximately 72 hours following a
pesticide application. Samples are normally collected less than
50 feet from the treated area and represent the short-term peak
air concentrations (acute exposure).
Continuing the evaluation, for each pesticide the law requires
the preparation of a report that includes: an assessment of
exposure (PDF, 123 kb) of the public to ambient concentrations of
the pesticide; a risk assessment (PDF, 123 kb), which includes
data on health effects, including potency, mode of action, and
other biological factors; an overview of the environmental fate
and use of the pesticide; and the results of air monitoring
studies conducted in California to measure the levels of the
candidate pesticide present in ambient air. The report is
reviewed by OEHHA and ARB, and is made available for public
review. Based on the results of these reviews, the draft report
is revised as appropriate. The draft undergoes a rigorous peer
review for scientific soundness by SRP of experts representing a
range of scientific disciplines. Based on the results of this
comprehensive evaluation, the Director determines whether the
candidate is a TAC. If the Director determines the pesticide
meets the criteria to be a TAC, DPR declares the pesticide a TAC
in regulation, and adds it to the TAC list.
Once a candidate pesticide has been declared a TAC, it enters
phase two of the program -- the mitigation, or control, phase.
In the mitigation phase, DPR investigates the need for, and
appropriate degree of, control for the TAC. If reductions in
exposure are needed, DPR must develop control measures to reduce
emissions to levels that adequately protect public health. DPR
must use the best practicable control techniques available, which
may include, but are not limited to: 1) product label amendments;
2) applicator training; 3) restrictions on use patterns or
locations; 4) changes in application procedures; 5)
reclassification of the pesticide as a restricted material; or 6)
product cancellation. In developing control measures, the law
requires DPR to coordinate with the agricultural commissioners,
air pollution control districts, and air quality management
districts in the counties where the pesticide is used. Control
measures may be implemented by several methods, including
regulatory actions, local permit conditions, and product
cancellation, to name a few.
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Risk assessment is a process designed to answer questions about
how toxic a chemical is, what exposure results from its various
uses, what is the probability that use will cause harm, and how
to characterize that risk. Toxicity is an inherent property of
all substances. All chemical substances can produce adverse
health effects at some level of exposure. In this context, risk
is the likelihood that an adverse health effect will result from
an exposure (or exposures) to a particular amount (dose) of a
chemical. Therefore, risk is a function of both toxicity and
exposure.
Risk management is the evaluation and selection of mitigation
options. Risk managers use risk assessment as an important tool
to determine the acceptability of a level of exposure and then
reduce exposures to that level. Unlike risk assessment, risk
management is not based solely on scientific considerations,
since it also involves social, economic, and legal considerations
to make regulatory and policy decisions. DPR considers these
factors in analyzing the possible regulatory responses to
potential health hazards. The process is necessarily subjective
in that it requires value judgments on the acceptability of risks
and the reasonableness of control measures. However, the bottom
line is simple; DPR will not allow a chemical to be used unless
it can be used safely.
The process of risk assessment is separate from risk management.
Risk assessment often drives risk management, but risk management
cannot and does not drive risk assessment at DPR. Risk
assessment and risk management options are developed by separate
DPR branches and are described in separate formal documents.
REGISTERED SUPPORT / OPPOSITION :
Support
California Rural Legal Assistance
Foundation (Sponsor)
Breast Cancer Fund
California Pan-Ethnic Health Network
Californians for Pesticide Reform
Center for Environmental Health
Center on Race, Poverty and the Environment
Central Coast Alliance United for a
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Sustainable Economy
Clean Water Action
Coalition for Clean Air
Consumer Federation of California
Dolores Huerta Foundation
Ecology Center
El Comite para el Bienestar de Earlimart
Environmental Working Group
Fresno Metro Ministry
Having Our Say Coalition
Mothers of Marin Against The Spray
Organizati�n en California de L�deres
Campesinas, Inc.
Pesticide Watch
Pesticide Action Network
San Francisco Baykeeper
Sierra Club California
W.E. WATCH
Opposition
California Association of Wheat Growers
California Bean Shippers Association
California Chamber of Commerce
California Citrus Mutual
California Cotton Ginners and Hullers
California Farm Bureau Federation
California Grain and Feed Association
California Grape and tree Fruit League
California Seed Association
California State Floral Association
California Pear Growers Association
California Women for Agriculture
Consumer Specialty Products Association
Nisei Farmers League
Western Agricultural Processors Association
Western Plant Health
Western Growers
Analysis Prepared by : Jim Collin / AGRI. / (916) 319-2084
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