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Californians for Pesticide Reform v. California Dep't of Pesticide Regulation

May 17, 2010

CALIFORNIANS FOR PESTICIDE REFORM ET AL., PLAINTIFFS AND APPELLANTS,
v.
CALIFORNIA DEPARTMENT OF PESTICIDE REGULATION ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Sacramento County, Gail D. Ohanesian, Judge. Affirmed. (Super. Ct. No. 05CS00052).

The opinion of the court was delivered by: Raye, J.

CERTIFIED FOR PUBLICATION

In an effort to evaluate and control potentially hazardous air pollutants, the California Legislature enacted the Toxic Air Contaminants Act (Act), which labels such pollutants "toxic air contaminants" and imposes responsibilities for their identification and control. Under the Act, defendant California Department of Pesticide Regulation (Department) is assigned responsibility for assessing the risks of pesticides and determining whether a pesticide should be listed as a toxic air contaminant. The Department is also responsible for determining the need for and adopting measures necessary to control the pesticides that are determined to be toxic air contaminants.*fn1

Plaintiff Californians for Pesticide Reform (Reform) challenges the Department's policy of prioritizing pesticides for risk assessment. Reform filed a petition for writ of mandate and complaint for declaratory relief requesting the court to set aside the Department's risk assessment process. The trial court denied the petition.

Reform appeals, contending the Department's process is contrary to the Act, the Department has failed to implement the Act, the process is an underground regulation, and the trial court erred in denying Reform's request for judicial notice. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

With the passage of the Act (Health & Saf. Code, § 39650 et seq.; see also Food & Agr. Code, § 14021 et seq.), the Legislature for the first time provided for the regulation of all airborne toxins, including pesticides that theretofore had not been subject to a comprehensive regulatory scheme. "Toxic air contaminant" (TAC) is the term used to describe the substances that are the Act's regulatory focus. A TAC is defined as an "air pollutant which may cause or contribute to an increase in mortality or in serious illness, or which may pose a present or potential hazard to human health." (Health & Saf. Code, § 39655, subd. (a); see Food & Agr. Code, § 14021, subd. (b).)*fn2 The California Air Resources Board (Board) is vested with responsibility for implementing the Act's requirements pertaining to nonpesticide TAC's. The Act vests authority over pesticide TAC's in the Department. (Health & Saf. Code, § 39655, subd. (a).)

Subdivision (a) of section 14022 requires the Department, "[i]n consultation with the Office of Environmental Health Hazard Assessment [(Office)] and the... Board, [to] evaluate the health effects of pesticides which may be or are emitted into the ambient air of California and which may be determined to be a toxic air contaminant which poses a present or potential hazard to human health." There are hundreds of pesticides, and the list of pesticides that fall within the broad category described by subdivision (a) is quite long. In light of the extended amount of time required to perform an evaluation, the order in which pesticides are selected for evaluation assumes great importance.

The Act requires the Director of Pesticide Regulation (director) to evaluate a pesticide upon request of the Board. (§ 14022, subd. (a).)*fn3 Section 14021, subdivision (b) of the Act also specifies that pesticides identified as hazardous air pollutants pursuant to section 7512 of title 42 of the United States Code shall be identified by the director as TAC's, although the parties express divergent views on the Department's obligation to develop control measures for the pesticides (referred to as "HAP-TAC's") included on the list of TAC's by virtue of this provision.

The Act offers only general guidance as to the order in which pesticides shall be evaluated. Subdivision (e) of section 14022 states: "The director shall give priority to the evaluation and regulation of substances based on factors related to the risk of harm to public health, amount or potential amount of emissions, manner of usage of the pesticide in California, persistence in the atmosphere, and ambient concentrations in the community." As hereafter discussed, much of the dispute between Reform and the Department concerns this section.

In evaluating a pesticide, the director is required to consider all available scientific data.*fn4 Upon the director's request, the Board is required to document the level of airborne emissions and the Office must provide an assessment of related health effects. (§ 14022, subd. (c).) The Board and Office are the primary sources of information used in evaluating pesticides. In addition, subdivision (d) of section 14022 allows the director to request information from any person on any substance under evaluation and provides protection for information that may constitute trade secrets. Subdivision (b) of section 14022 requires the director to evaluate the pesticide within 90 days after receiving scientific data from the Office and the Board, but permits extension of the deadline under specific circumstances.

After completion of the evaluation under section 14022, the director, in consultation with the Office, prepares a report "on the health effects of the pesticide which may be determined to be a toxic air contaminant which poses a present or potential hazard to human health due to airborne emission from its use." (§ 14023, subd. (a).) The content of the report is prescribed by statute.*fn5 The report must include the Office's findings and be made available to the public. (Ibid.)

The report is formally reviewed by a scientific review panel (Panel) established pursuant to Health and Safety Code section 39670, which must submit its written findings to the director within 45 days after receiving the report. (Food & Agr. Code, § 14023, subd. (b).)

Subdivision (c) of section 14023 provides that if the Panel determines the health effects report is seriously deficient, the report will be returned to the director for revision. The director will resubmit the report, within 30 days following receipt of the Panel's determination, to the Panel prior to development of emission control measures.

Within 10 working days of receiving the Panel's findings, the director shall prepare a hearing notice and proposed regulation that includes the proposed determination as to whether a pesticide is a TAC. After the hearing, the director shall list, by regulation, pesticides determined to be TAC's. (§ 14023, subd. (d).)

Finally, the director, in consultation with the Board, the Office, and air pollution control or air quality management districts in the affected counties, shall determine the need for and appropriate degree of control measures for each pesticide listed as a TAC. (§ 14023, subd. (e).) The control measures are to be adopted as regulations. (§ 14024.)

Compliance Efforts

The Act was first enacted in 1983. Since its inception, only a handful of pesticides have undergone the full review process outlined in sections 14022 and 14023. Over the years, in an effort to comply with subdivision (e) of section 14022, requiring the director to set priorities in the evaluation and regulation of potential TAC's, the Department has developed several priority lists. From the initial list of 14 pesticides in 1987, lists subsequently developed in 1989 and 1996 included as many as 134 pesticides. A 2002 draft prioritization was discussed but aborted because of budget cuts.

In September of 2004 the Department initiated a new prioritization process that took into account budget cuts and the Department's multiple risk assessment responsibilities.*fn6 Previous risk assessments evaluated all potential exposure routes for a single active ingredient and resulted in the generation of multiple documents for a given ingredient. The new process would result in a single risk assessment document for each active ingredient that considered all potential sources of exposure. A working group of scientists from various agencies, including the Office and the Board, was formed to develop and maintain a list of about 10 active ingredients prioritized for risk assessment initiation. The prioritization of 10 ingredients was chosen because it was greater than the number of new risk assessments that could be initiated in a two- or three-year period and would provide a sufficient pool of active ingredients. The process will be conducted annually in order to maintain a pool of about 10 ingredients. After risk assessment of an active ingredient is initiated, the ingredient is removed from the priority list and another ingredient is added.

The new prioritization process identified nine active ingredients for risk assessment initiation in 2004/2005. The Pesticide Registration Evaluation Committee (Committee) provided commentary on the list and included the commentary in a public notice that outlined the prioritization process, the data on the individual chemicals, and the list. Following release of the public notice, which invited comment, the Department received a series of comments which it responded to in another public notice. The public notice also finalized the list of nine active ingredients, which contains five active ingredients for which ambient air concerns played a major role in prioritization.

The Department's prioritization process thus begins with an initial evaluation of pesticide active ingredients as possible TAC's. This preliminary evaluation is designed to produce a priority list of ingredients. While the Department acknowledges its duty to ultimately assess all pesticides that "may be determined to be a toxic air contaminant which poses a present or potential hazard to human health" (§ 14022, subd. (a)), it has assigned its highest priority to the review of pesticide ingredients that are likely to be listed as TAC's. A risk assessment is then conducted on the ingredients placed by the Department on the priority list. Following the risk assessment, a report with appropriate findings is prepared pursuant to section 14023, subdivision (a) for review by the public and the Panel. The Panel's findings then serve as the basis for a rulemaking that can lead to a regulation determining the pesticide to be a TAC.

Thereafter, the Department must determine the need for control measures and develop control measures as appropriate. (§ 14023, subd. (e).)

In 2005 the Department presented to the Panel an evaluation of the fumigant sulfuryl fluoride. The evaluation considered all potential sources of exposure, including ambient air exposures. The Panel accepted the new format. Also in 2005 the Department presented to the Committee a risk assessment of methidathion, the first step in sending the document to the Panel. The Department also released the assessment for public comment.

The Lawsuit

Reform filed a petition for writ of mandate and complaint for declaratory relief in which it asked the trial court to set aside the Department's new risk assessment process and to order the Department to comply with the Act.

Following oral argument, the trial court denied the petition. The court rejected Reform's contention that the Department unlawfully substituted its own prioritization process in place of the process mandated by the Act. The court reasoned the Department's new process was merely a method of prioritizing the order in which potential TAC's would be subjected to the evaluation process established under the Act. The court found the factors employed by the Department in establishing priorities for evaluation "not so different" from those promulgated under the Act.

The court also rejected Reform's argument that the prioritization process is contrary to the Act's requirement that all potential TAC's be subject to review. According to the court: "The statute does not give a specific time line for review of potential toxic air contaminants. Some prioritization in review is essential. The statutes and the documents submitted to the court demonstrate that this is a complicated process necessarily involving scientific expertise and research. Considering that plaintiffs/petitioners identified 133 potential TACs, it is not possible to subject each of them to this review at the same time." The court found the prioritization process neither unreasonable nor contrary to law.

The court concluded that the prioritization process did not violate the Act or eliminate review by the Panel. The court noted that Panel review occurs later in the process for pesticides that come up for review on the prioritization list. In addition, the court determined that the Act did not explicitly require a cumulative impacts analysis.

The court dismissed Reform's claim that the prioritization process contributed to further delay in assessing possible TAC's. The court noted the process might be slow, but it did not represent a complete failure to comply with the law justifying court intervention. Finally, the court denied Reform's request that the prioritization process be struck down as an underground regulation.

Reform filed a timely notice ...


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