VENTURA COUNTY (California) STAR

February 1, 2017

Lawsuit targets new pesticide rules

By Kathleen Wilson

A Ventura County farmworker has sued a state agency over new rules for a pesticide heavily used in the strawberry industry.

In the lawsuit filed Tuesday, strawberry harvester Juana Vasquez and two advocacy organizations claimed that the process followed by the Department of Pesticide Regulation violated state law. Pesticide regulators failed to allow for public scrutiny or heed the advice of scientists in another state agency before adopting rules for the pesticide 1,3-Dichloropropene, the suit alleges.

The agency "abused its discretion, acted in excess of its statutory power and authority, and failed to proceed in the manner required by law,"  the 12-page complaint states.

Federal authorities have classified the pesticide a likely carcinogen, although regulators say it can be safely applied with proper precautions.

The department announced the new rules in October after concluding that the target for air concentration could be raised from 0.14 parts per billion to 0.56 parts and still protect human health. The rules set a fixed limit of 136,000 pounds for the annual amount that can be applied in each 36-square-mile township area instead of the flexible cap of 90,250 pounds that had been regularly exceeded.

In a related move, the department suspended a system that had allowed farmers to use allotments saved from previous years. The agency also prohibited applications in December, when weather conditions can elevate the concentrations of the pesticide in the air.

The rules took effect in January.

Citing the pending litigation, a spokeswoman for the Department of Pesticide Regulation said the agency would have little to say on the issues raised in the lawsuit.

"The department believes this lawsuit is without merit and that DPR will prevail in court," spokeswoman Charlotte Fadipe said in an email. "The way this pesticide is used in California allows growers to tackle agricultural pests while remaining protective of public health."

The plaintiffs are seeking a court order requiring the agency to develop regulations based upon the more conservative conclusions of the Office of Environmental Health Hazard Assessment. In a memorandum filed last year, the environmental agency expressed reservations with the new limit.

Chief Deputy Director Allan Hirsch said the agency did not believe the 136,000-pound cap could assure adequate health protection of all residents living in a township. Measurements taken at one spot in the township may not apply to the entire area, he said.

Hirsch said additional consideration should be given to the potential for the increased sensitivity of children to carcinogenic effects and the likelihood that many bystanders exposed to 1,3-D will also be exposed to chloropicrin. Many formulations for 1,3-D contain chloropicrin, which has been shown to cause lung cancer in test animals at a much higher potency than 1,3-D does, he said in the memo.

The 1,3-D pesticide, commonly known by the brand name Telone, is a fumigant that is injected into the soil to sterilize it before a crop is planted. In 2007, the U.S. Environmental Protection Agency classified it as a likely carcinogen, and it is included on California’s Proposition 65 list of chemicals “known to the state to cause cancer.”

The U.S. Environmental Protection Agency does not limit the annual use of the pesticide, Fadipe said.

The plaintiffs are also asking the judge to order that the department's rule-making be conducted with full notice to the public, said Natalia Ospina, an Oxnard-based attorney for California Rural Legal Assistance Inc.

Besides Vasquez, other plaintiffs are Californians for Pesticide Reform and Pesticide Action Network North America.

The suit was filed in Alameda County Superior Court because one of the attorneys is based in Berkeley. The plaintiffs can file in a variety of jurisdictions because the lawsuit is against a state agency, Ospina said.