By Lisa M. Campbell and Timothy D. Backstrom
On May 11, 2016, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished memorandum decision in an environmental justice case, Garcia v. McCarthy, Case No. 14-15494, that many have been watching closely. The Ninth Circuit affirmed a decision by the U.S. District Court dismissing the Plaintiffs’ Complaint for lack of subject matter jurisdiction. The District Court case involved an effort by the original complainants (parents of Latino school children) to obtain judicial review of a decision by the U.S. Environmental Protection Agency (EPA), to enter into a voluntary compliance agreement with the California Department of Pesticide Regulation (CDPR). The original administrative complaint filed in 1999 alleged that CDPR “authorized the use of methyl bromide and other pesticides in a fashion that had a disproportionately harmful effect on Latino school children in violation of Title VI.” Although EPA made an initial finding of a prima facie violation of Title VI, Plaintiffs asserted that EPA did not inform the complainants of the status of their complaint while the matter was being investigated and did not allow them to participate in settlement negotiations.
In challenging EPA’s settlement with CDPR, Petitioners alleged that EPA acted arbitrarily and capriciously by limiting its investigation to methyl bromide exposure between 1995 and 2001, and by failing to allow for Plaintiffs’ participation in settlement negotiations. The Ninth Circuit followed the Supreme Court enforcement discretion case Heckler v. Cheney, 470 U.S. 821 (1985), finding that EPA’s decision to settle the matter was also committed to EPA discretion by law. The Ninth Circuit stated:
- [Petitioners’ allegations] are entirely untethered to any statutory provision or regulation implementing Title VI. None of the statutes or regulations cited by plaintiffs provide a meaningful standard for defining the limits of EPA’s discretion in investigating a complaint, and none require EPA to permit plaintiffs to participate in EPA’s settlement negotiations. EPA’s plenary authority to either accept, reject, or refer a complaint to another federal agency, 40 C.F.R. § 7.120(d)(1)(i), must necessarily include the lesser power to determine the scope of the investigation in the event the complaint is accepted.
EPA’s original decision finding a prima facie violation of Title VI by CDPR was surprising and concerning to many. The current challenge to EPA’s decision to resolve the complaint through a voluntary settlement with CDPR raised additional environmental justice concerns. Some industry observers were concerned about the possibility that the Ninth Circuit might view EPA’s decision to exclude the complainants from settlement discussions with disfavor. The decision by the Ninth Circuit to affirm the District Court’s dismissal means that EPA will retain substantial discretion to negotiate appropriate settlements, even though it determines a Title VI complaint is meritorious.
By Lisa R. Burchi and Lisa M. Campbell
On December 11, 2015, the California Department of Pesticide Regulation (DPR) issued California Notice 2015-13 that will require each person/company with products made from pesticide impregnated material that are sold into or within California under their own company name to register their product(s) as a pesticide. Examples of pesticide impregnated materials affected by this Notice include apparel (e.g., jackets, shirts, hats, socks, pants, shorts) and non-apparel (e.g., bedding, tents, seat covers, chopping blocks, shower curtains, mouse pads) that make pesticidal claims.
The requirements will be effective November 1, 2016.
DPR currently registers a number of pesticide impregnated textiles bearing pesticidal claims. DPR notes that while these products have been registered either by the manufacturer of the pesticide impregnated material or by the company impregnating the bolts of fabric or clothing, individual companies selling items made from pesticide impregnated textiles were not required to register the materials. Instead, such companies were required only to obtain a pesticide broker’s license from DPR. Under DPR’s new policy, “obtaining a broker’s license will no longer be sufficient for companies selling products under their own company label” (emphasis in original). DPR states it is making this change to “facilitate tracking the use of these products in California and aid in the understanding of potential impacts on water quality and human health.”
With regard to registration requirements for pesticide impregnated products, DPR states that the number of registrations required will depend on several factors, including whether there are different pesticide active ingredients, different percentages of active ingredients, different types of fabrics, and/or different product uses. DPR states that if the product contains the same type and percentage of active ingredient, one registration can be used to cover various types of pesticide impregnated apparel or non-apparel product use categories, but such determination will be made on a case-by-case basis. As an example of products requiring separate registrations, DPR states: “If, for example, a person/company sells apparel impregnated with 0.52% of the active ingredient permethrin and other apparel impregnated with 0.48% of the active ingredient permethrin, two separate apparel registrations will be required because they contain different percentages of active ingredient. The same holds true for a category of non-apparel products.”
This Notice is a significant change in policy, and will impose potentially complicated and costly registration requirements on companies that sell pesticide impregnated material under their own company name but are not necessary familiar with pesticide registration requirements. The number of new registrations that could be required could be substantial considering the number of factors DPR has specified that could trigger separate registrations.
Importantly, DPR clarifies that this Notice is not intended to change its general policy exempting from registration those products that satisfy the requirements to be a treated article. DPR notes that for treated articles, the pesticide, and any related claims, must be related to protection of the article/substance itself. These products are thus distinguishable from pesticide impregnated materials that include pesticidal claims that are not limited to protection of the material.
By Lisa M. Campbell, Susan Hunter Youngren, Ph.D., and James V. Aidala
On August 24, 2015, the U.S. Environmental Protection Agency (EPA) issued a proposal to revise the Certification of Pesticide Applicators rule. EPA is proposing stricter standards for people certified to use “restricted use” pesticides (certified applicators). Restricted use pesticides are not available for purchase by the general public, require special handling, and may only be applied by a certified applicator or someone working under the direct supervision of a certified applicator.
The proposed stricter standards include:
- Certified applicators must be at least 18 years old;
- Those working under the supervision of certified applicators would now need training on using pesticides safely and protecting their families from take-home pesticide exposure;
- Certifications would have to be renewed every 3 years;
- Additional specialized licensing for certain methods of application that can pose greater risks if not conducted properly, such as fumigation and aerial application; and
- Updates to the requirements for States, Tribes, and Federal agencies that administer their own certification programs to incorporate the strengthened standards.
Currently, the majority of certification programs have no renewal requirements. Thus, this requirement will put additional burdens on States and Tribes administering certification programs to not only strengthen their standards under this new proposal but to incorporate a time-keeping process to ensure applicators’ renewals are kept up to date, and sufficient certification programs are available for re-certifying purposes. In addition, for some certification programs, the specialized licensing programs will need to be developed, tested, and instituted.
EPA’s proposal to update certification and training requirements comes along with the parallel effort to revise the worker protection standards (WPS), where a final rule updating those requirements are expected sometime in September. Like the revised WPS, revising the training requirements has been on EPA’s agenda for many years, and this part of the updated requirements for worker protection is expected to be less controversial than some of the changes to the WPS. In particular, since EPA has emphasized the protection of children as part of its pesticide regulatory program, making the minimum age 18 for pesticide applicators is part of that agenda.
EPA encourages public comment on the proposed improvements. Comments on the proposal are due November 23, 2015.
More information about certification for pesticide applicators is available here.
By Lisa M. Campbell and James V. Aidala
On May 8, 2015, in El Comite Para El Bienestar De Earlimart v. EPA, a Panel of the U.S. Court of Appeals for the Ninth Circuit denied a petition for review filed by several groups that the court describes as “community organizations” who challenged the U.S. Environmental Protection Agency’s (EPA) 2012 approval of California State Implementation Plan (SIP) elements under the Clean Air Act (CAA), including its related approval of certain fumigant regulations. This challenge was previously discussed in our blog post "Ninth Circuit to Consider Civil Rights Issue in Review of California SIP".
Of particular interest in the case is the contention before the court that “EPA failed to secure necessary assurances from California that its proposed rules would not violate Title VI of the Civil Rights Act by exposing Latino schoolchildren to a disparate impact from pesticide use.” The court rejected this and other contentions by the community groups.
The court’s findings with regard to the alleged Civil Rights violation state a standard that appears to defer greatly to EPA and its review of the record. More specifically, the court found with regard to the claimed Civil Rights Act violation that “EPA explained that this evidence failed to draw any connection between the proposed rules and a potential disparate impact,” and that EPA “fulfilled its duty to provide a reasoned judgment because its determination was cogently explained and supported by the record.”
By way of background with regard to the Civil Rights Act claim, the petitioners argued that EPA’s determination that California provided assurances that no federal or state law prohibits the SIP approval was arbitrary and capricious because EPA failed to consider evidence claimed to support a violation of Title VI of the Civil Rights Act. This claim rested on an EPA finding of a Title VI violation in connection with an earlier administrative complaint, referred to as the Angelita C. complaint, which was filed with the EPA Office of Civil Rights in 1999. There, Latino parents and schoolchildren alleged that schools with high percentages of Latino children were disparately affected by the California Department of Pesticide Regulation’s (DPR) renewal of the registration for methyl bromide, a fumigant pesticide. EPA concluded in that action that there was support for “a preliminary finding of a prima facie Title VI violation,” and EPA and DPR entered a settlement agreement in 2011.
Petitioner argued that EPA’s findings in Angelita C., and evidence that it claimed to demonstrate that pesticide use had not gone down since EPA completed its original review, supported the claimed Title VI violations that are the subject of the Ninth Circuit petition, and further that EPA did not do enough to determine that California had satisfied its burden to provide assurances of compliance with federal law. The Ninth Circuit decision states in this regard that the petitioner “effectively contends the EPA should have evaluated California’s assurances the same way the EPA would have to deal with a pending Title VI complaint setting forth allegations of a current violation.”
The court states: “El Comite’s argument fails because it misconstrues the EPA’s burden regarding the ‘necessary assurances’ requirement. The EPA has a duty to provide a reasoned judgment as to whether the state has provided ‘necessary assurances,’ but what assurances are ‘necessary’ is left to the EPA’s discretion.” The court further found: “El Comite provided no proof of a current or ongoing violation. It merely provided evidence of the earlier violation, and pointed to continued pesticide use since that time. The EPA explained that this evidence failed to draw any connection between the proposed rules and a potential disparate impact. The EPA fulfilled its duty to provide a reasoned judgment because its determination was cogently explained and supported by the record.”
The decision in this case is of significant interest to many who have been observing the emerging trends regarding environmental justice issues arising in connection with pesticide applications. This concern may grow larger as EPA continues and expands its evaluations of the potential bystander risks from pesticide use, potentially leading to additional restrictions for certain pesticides in the future.
By Lisa M. Campbell and Lisa R. Burchi
On February 27, 2015, the California Department of Pesticide Regulation (DPR) released California Notice 2015-3, entitled Concurrent Submission of Pesticide Products to the Department of Pesticide Regulation and the U.S. Environmental Protection Agency. In this Notice, DPR describes the four types of applications that may be submitted concurrently to DPR and to the U.S. Environmental Protection Agency (EPA), the procedure applicants should follow to request concurrent submission, and how DPR will process such requests.
This notice supersedes California Notice 2005-10, and there are some changes. For example, Notice 2015-3 now includes a process for an applicant to seek concurrent submission when the application is not one of the four specified types for which concurrent submission is permitted. Under this new procedure, the applicant must send a letter requesting approval to the Pesticide Registration Branch Chief before submitting an application to DPR and provide the following: (1) a statement that the product/amendment is not yet federally registered or accepted; (2) a request for concurrent acceptance of the application; and (3) justification with supporting documentation for the concurrent submission request (e.g., no other effective alternatives available for a specific pest problem). In addition, regarding data submissions with an application, DPR now states clearly: “All data and information required by California statutes and regulations, including all data and information submitted to U.S. EPA, must still be submitted with your California registration request.”
By Lisa M. Campbell and Timothy D. Backstrom
On February 12, 2015, the Ninth Circuit Court of Appeals will hear arguments in El Comite Para El Bienestar De Earlimart v. EPA, a case challenging the U.S. Environmental Protection Agency’s (EPA) approval of provisions in a State Implementation Plan (SIP) adopted by California under the Clean Air Act (CAA) that regulate emissions of pesticides (primarily fumigants like methyl bromide) that potentially may contribute to possible exceedances of the National Ambient Air Quality Standard (NAAQS) for ozone. The El Comite case is the latest action in a series of challenges to California’s regulation of emissions of pesticides considered to be volatile organic compounds (VOC) stretching back to 2004. The case will consider substantive issues pertaining to the enforceability of the limits on pesticide VOC emissions in the SIP and the adequacy of those limits to attain compliance with the NAAQS. Of significant interest, it will also include a novel argument that EPA’s conclusion under CAA Section 7410(a)(2)(E) that the SIP did not violate Title VI of the Civil Rights Act is unsupported by the record.
The Plaintiffs will confront a stiff burden in litigating their Civil Rights claim. The Supreme Court has held that Title VI is violated only when actions have a discriminatory impact and such discrimination is intentional. EPA contends that California gave sufficient assurances that the pesticide controls in the SIP do not violate Title VI of the Civil Rights Act, and that it was reasonable for EPA to rely on those assurances when it approved the SIP. The Plaintiffs point to a preliminary finding made in 2011 by the EPA Office of Civil Rights (OCR) concerning the Angelina C. complaint, where OCR determined that emissions of methyl bromide during the years 1995-2001 had a disparate impact on Latino school children. This preliminary finding was later withdrawn following a settlement with California. The Plaintiffs say that given this history, EPA should have required California to provide a more detailed explanation of why its current regulation of pesticide emissions is not violative of Title VI. The Plaintiffs recently attempted to bolster their Title VI argument by asking the Court to take judicial notice of a report on pesticide use near schools issued by the California Environmental Health Tracking program in 2014, but EPA has opposed consideration of this report because it was not part of the administrative record when EPA approved the SIP revisions in 2012.