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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 James V. Aidala

 

On April 9, 2015, the California Department of Pesticide Regulation (DPR) held the first of a planned series of workshops intended to help DPR develop “regulation concepts” for possible notifications prior to field fumigations.  The presentations and video from that workshop are now available on DPR’s website.

 

DPR’s presentation at the workshop focused on the background that it believes supports the consideration of a notification requirement, and on current methyl bromide notification regulations and fumigant labeling requirements that it believes potentially could be used as a foundation to assist in the development of a rulemaking concept for soil-applied field fumigants. 

 

In addition, DPR considered whether the concept can be reconciled with the current label requirements as emergency preparedness and response requirements, or maintained as a separate “right-to-know” requirement.  DPR recommended expanding notification to all field fumigations, including applications of chloropicrin, 1,3-dichloropropene, methyl bromide, or pesticides that generate methyl isothiocyanate.

 

This potential regulatory development is of significant interest to pesticide registrants in general.  The application of a right-to-know model to pesticide applications, pursuant to which growers and applicators would have to notify those in a defined proximity to the planned pesticide application, would have far-reaching ramifications.  DPR’s further development of this potential regulation should be monitored closely.

 

Of note are similar notification schemes reportedly under consideration by the U.S. Environmental Protection Agency (EPA) as part of its pollinator protection proposals.  EPA staff has spoken of how one essential component of any pollinator protection program will be some kind of notification scheme for beekeepers, or at least commercial beekeepers, who have hives in the vicinity of the use area for certain pesticides.  As that issue evolves, it will invite comparison with EPA’s position on other requirements for mandatory notification, where generally EPA has not supported blanket federal requirements for notification of nearby pesticide applications.  This development in the pollinator area could lead to reconsideration at the federal level regarding broader advance notification requirements for specified pesticide applications. 


 

By Lisa M. Campbell

The California Department of Pesticide Regulation (DPR) recently issued its Progress Report 2012-2014, which highlights DPR’s view of achievements under the leadership of Director Brian Leahy. Among the achievements noted are the following; others are also discussed in the report.

• Restricting sales of Second Generation Anticoagulant Rodenticides (SCAR). This action is described as having been “the catalyst for a national change, as the manufacturer agreed with U.S. EPA to phase out these products after DPR’s action.”

• Implementing surface water regulations for pyrethroids. This action is described as “an aggressive preventative measure for environmental protection starting at the first point of pesticide applications.”

• Committing more than $3 million in research for alternatives to field fumigants since 2012 and “reducing risks to the public from field fumigations,” as well as “protecting workers and the public from structural fumigations.”

• Efforts to reduce pesticide use in schools and child care centers.

• Collecting air monitoring data, regulating volatile organic compounds, as well as a number of other actions addressing environmental monitoring.

• Efforts to reevaluate neonicotinoids.

The Progress Report highlights and achievements reflect well many DPR priorities and the direction DPR is continuing to forge on a number of issues, some of which are subject to significant controversy.

 


 

On August 7, 2014, the U.S. Environmental Protection Agency (EPA) announced that it has consolidated information on soil fumigants and placed it on a new “user-friendly” website. In an e-mail announcing the launch of its new Soil Fumigant Toolbox, EPA noted that the site is intended to reduce exposure to agricultural workers and the public. The website includes information on soil fumigants, buffer zones, and information targeted for communities, certified applicators of soil fumigants, and state and Tribal environmental agencies. EPA’s soil fumigant website is available online.