San Francisco Chronicle
Court finds regulators loosened rules on cancer-causing pesticide
A state appeals court says California pesticide regulators failed to consult with state health officials or anyone else other than the manufacturer, Dow AgroSciences, before setting and then loosening limits on a widely used pesticide and soil fumigant known as 1,3-D that can cause cancer.
Wednesday’s ruling by the First District Court of Appeal in San Francisco requires the state Department of Pesticide Regulation to consult with the state’s Office of Environmental Health Hazard Assessment and accept public comments before determining usage limits for the chemical, 1,3-Dichloropropene.
Although the ruling could lead to lower limits, it does not halt application of the pesticide, now injected into soils by growers of strawberries, carrots, almonds and other crops in much of the San Joaquin Valley and the Central Coast. It is marketed under the brand name Telone.
“This is an important decision, especially for farmworkers and people working and residing near fields in which 1,3-D is applied,” said Michael Freund, a lawyer for the environmental groups that filed the suit. He said officials in 38 of the state’s 58 counties have issued 1,200 agricultural permits for use of the pesticide.
“A strong, health-protective regulation is needed now more than ever given the continuing high use of 1,3-D in California agricultural operations, and the alarmingly high off-site measurement of 1,3-D in rural areas,” said Michael Meuter, an attorney with California Rural Legal Assistance, which also took part in the case. Anne Katten, a pesticide and work safety specialist with the CRLA Foundation, said the state should either ban the chemical or require tarpaulin film coverings on soils to prevent airborne emissions.
The pesticide agency and Dow, which have both maintained that the current standards are safe, did not respond to requests for comment on the ruling. They could seek review in the state Supreme Court.
The pesticide is used to kill nematodes and other bugs in soils. The potential health problems arise from fumes emitted into the air. Short-term exposure can cause coughing and lung irritation, and studies have found links between long-term exposure and cancer.
Based on studies of rats and mice, the U.S. Environmental Protection Agency described the chemical as a likely cause of human cancer in 1988 and reaffirmed that finding several times before withdrawing it last year under the Trump administration. California has classified the pesticide as a carcinogen since 1989 and required warning labels on containers.
The Department of Pesticide Regulation banned sales of the pesticide statewide in 1990 but rescinded that ban in 1995 after an international agreement called for the phaseout of another widely used soil fumigant, methyl bromide. State officials then reached agreement with Dow on annual limits for use of 1,3-D.
The standards, called “township caps,” limited the amount of the pesticide that could be applied in each geographic zone of 36 square miles. Over state health officials’ objections, the pesticide department doubled the previous maximum in 2002 and increased it further in 2017, prompting the lawsuit.
In Wednesday’s ruling, which upheld a 2018 decision by Alameda County Superior Court Judge Winifred Smith, the appeals court said the department’s standards amounted to an “underground regulation” that required a formal rulemaking process with advance notice, consultation and public comment.
Rejecting arguments by Dow and the pesticide agency that the current standard was a product of negotiations that affected only a single manufacturer, the court said the limit “affects not just Dow but all California users of 1,3-D” and any other company that seeks to register the product with the state.
Otherwise, a state agency could avoid formal rule-making by simply “contracting with a regulated party,” Presiding Justice James Humes said in the 3-0 decision.