Vasquez v. Dep't of Pesticide Regulation
| Decision Date | 08 September 2021 |
| Docket Number | A154922 |
| Citation | 68 Cal.App.5th 672,283 Cal.Rptr.3d 659 |
| Parties | Juana VASQUEZ et al., Plaintiffs and Respondents, v. DEPARTMENT OF PESTICIDE REGULATION, Defendant and Respondent; Dow Agrosciences LLC, Intervener and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Counsel for Intervener and Appellant: Stanley W. Landfair, San Francisco, David R. Simonton, Oakland, Robert S. Schuda, Los Angeles, Jessica L. Duggan, Dentons US; Trenton H. Norris, Sean M. SeLegue, San Francisco, Arnold & Porter Kaye Scholer
Counsel for Plaintiffs and Respondents: Michael Meuter, Stockton, Aaron Voit, Daniel Nesbit, California Rural Legal Assistance; Michael Freund, Berkeley, Michael Freund & Associates
Counsel for Defendant and Respondent: Xavier Becerra and Rob Bonta, Attorneys General, Robert W. Byrne, Senior Assistant Attorney General, Annadel A. Almendras, Supervising Deputy Attorney General, Marc N. Melnick, Tamara T. Zakim, Deputy Attorneys General
Humes, P.J. Defendant Department of Pesticide Regulation (Department) regulates the use of pesticides, including 1,3-Dichloropropene (1,3-D), which is used in agriculture. The only company that produces 1,3-D for use in California is intervener Dow AgroSciences LLC (Dow). As a condition of Dow's continued registration of 1,3-D products, the Department maintains a "township cap program," which sets limits on the amount of the pesticide that may be used each year to reduce cancer
risks to bystanders living and working near areas where 1,3-D is applied.
Juana Vasquez, Californians for Pesticide Reform, and Pesticide Action Network North America (collectively, plaintiffs) filed a petition for a writ of mandate and complaint against the Department, claiming that the township cap program (1) is an underground regulation in violation of the Administrative Procedure Act (APA) ( Gov. Code, § 11340 et seq. ) and (2) fails to incorporate recommendations from the California Office of Environmental Health Hazard Assessment (OEHHA) as required under Food and Agriculture Code 1 sections 12980 and 12981. The trial court granted plaintiffs’ motion for summary judgment and issued a judgment and writ of mandate declaring the township cap program void and directing the Department to engage in formal rulemaking to replace it.
On appeal, Dow contends that the trial court erred by granting summary judgment in favor of plaintiffs and instead should have granted the Department's cross-motion for summary judgment, which Dow joined.2 We agree with plaintiffs that the court correctly determined that the township cap program is an underground regulation. We also agree with the parties that in light of this holding, we need not address whether sections 12980 and 12981 apply to the program in its current form.3 We therefore affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
Division 7, chapter 2 of the Food and Agriculture Code and its implementing regulations in title 3, division 6 of the California Code of Regulations "establish a comprehensive program under which the Department regulates the manufacture, distribution, sale, and use of pesticides."4 ( Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1056, 39 Cal.Rptr.3d 393 ( Californians for Alternatives ).) A pesticide cannot be sold in California unless it is registered with the Department. (§ 12811.) The Department will register a pesticide only if it is federally registered as a pesticide and meets additional state requirements. ( Californians for Alternatives , at pp. 1056–1057, 39 Cal.Rptr.3d 393 ; 7 U.S.C. § 136a, subd. (a) ; § 12815.)
Upon registering a pesticide, the Department may place "[a]ppropriate restrictions ... upon its use including, but not limited to, limitations on quantity, area, and manner of application." (§ 12824.) The Department must then engage in an informal "continuous evaluation" of all registered pesticides to ensure they are safe. (§ 12824; Regs., § 6220; Californians for Alternatives , supra , 136 Cal.App.4th at p. 1058, 39 Cal.Rptr.3d 393.) As part of this evaluation, the Department assesses a pesticide's risk to human health and determines whether mitigation measures, which may include additional conditions of registration, can be adopted. If the risk cannot be mitigated sufficiently, the Department may cancel a registration. (See § 12825.)
The Department also has the option to designate a pesticide as a restricted material. (§ 14004.5.) This designation may be based on, among other criteria, "[d]anger of impairment of public health" and "[h]azards to applicators and farmworkers." (§ 14004.5, subds. (a) & (b).) To use a restricted material, an operator must first obtain a permit from the local county agricultural commissioner (commissioner). (§§ 26, 14006.5; Regs., § 6420.) Thus, "[r]egistration of a restricted material is not in itself a right to use the pesticide, but rather a [D]epartment determination that under appropriate local conditions the commissioner can grant a use permit for the material." (Regs., § 6442, subd. (a).)
When deciding whether to issue a restricted-material permit, a commissioner must "determine if a substantial adverse environmental impact may result from the use of such pesticide." (Regs., § 6432, subd. (a).) If such a risk exists, but there is a "feasible mitigation measure" that would "substantially reduce the adverse impact," the permit must be "conditioned on the utilization of the mitigation measure." (Ibid. ) In making these determinations, a commissioner must rely on his or her knowledge of "local conditions." (Ibid. )
After an operator procures a restricted-material permit from a commissioner, the operator must obtain a written recommendation from a licensed pest control adviser "covering each agricultural use application of a pesticide that requires a permit." (Regs., § 6426; see id. , § 6556.) A commissioner may require the operator to submit a "notice of intent" providing information about the planned pesticide application at least 24 hours before it occurs. (Id. , § 6434, subd. (b).)
Each commissioner is "responsible for local administration" of efforts to enforce pest control requirements, but the Department is (§ 2281.) Under this authority, the Department issues recommended permit conditions for various pesticides designated as restricted materials.
1,3-D is the active ingredient in soil fumigant products that are generally injected into the soil before planting. The pesticide is used to improve growing conditions for a variety of crops in California, including nuts, grapes, and strawberries. It is designated as a restricted material. (Regs., § 6400, subd. (e).) When it is applied, 1,3-D volatizes into the air, and people can be exposed to it through inhalation.
1,3-D has been used in California agriculture for several decades. Dow is the only producer of 1,3-D for use in the state, although several soil-fumigation products containing the chemical are available.
The regulatory controls governing 1,3-D's use in California have arisen in the context of a technical bureaucratic environment, which we take some time to explain. In 1990, after 1,3-D was detected in the air at "levels of concern," the Department prohibited its use. Five years later, 1,3-D was reintroduced as another soil fumigant, methyl bromide, was phased out. Reintroducing 1,3-D was conditioned on "strict control measures, including amended pesticide labels, reduced application rates, buffer zones, lengthened reentry intervals, and Dow control of distribution and use, in close consultation with the ... commissioners."
"Since 1999, the key mechanism that has been used to restrict use" of 1,3-D is the township cap program, which is a condition of registration of Dow's 1,3-D products. As the registrant, Dow is "responsible for tracking, reporting, and ensuring township caps are observed." The condition limits the amount of 1,3-D that can be applied each year in a given 36-square-mile region, or "township." Originally, the township cap was 90,250 adjusted pounds of 1,3-D per year. In 2002, the Department revised the condition so that townships could "bank" unused amounts under the cap for use in future years, permitting increased applications of up to 180,500 adjusted pounds per year. The condition was based on a target air concentration of 1,3-D of no more than .14 parts per billion (ppb), a figure derived from a health risk assessment performed in the late 1990's.
The revisions to the township cap program that are at issue were developed over several months beginning in 2015. In August of that year, after performing an updated health risk assessment of 1,3-D, the Department submitted a draft "Risk Characterization Document" to OEHHA for review and comments. The two state entities disagreed on whether the risk assessment should be based on a "systemic" or "portal of entry" mode of action for cancer
development. The former, which OEHHA advocated, assumes that a chemical will interact with the body systemically, and it results in a lower target air concentration of 1,3-D. The latter, which the Department used, assumes a chemical will interact with the body at the point of entry, and it results in a higher target air concentration of the chemical.
A few months later, in December, the Department issued its final risk characterization document, entitled "1,3-Dichloropropene Risk Characterization Document, Inhalation Exposure
to Workers, Occupational and Residential Bystanders and the General Public" (final risk characterization document). The document, which is almost 300 pages long, addressed "risks arising from inhalation exposure" to both workers...
To continue reading
Request your trial