By Lisa R. Burchi, James V. Aidala, and Barbara A. Christianson

On November 15, 2022, the California Department of Pesticide Regulation (DPR) made two announcements: an enforcement action relating to 1,3-Dichloropropene (1,3-D) and chloropicrin and an announcement on a proposed rule on additional use restrictions on 1,3-D. These actions may have significant impacts on registrants and growers who use soil fumigants.

Enforcement Action

DPR issued a licensing action against TriCal, a company that performs field fumigations, primarily using chloropicrin and 1,3-D. DPR found that TriCal had numerous violations that resulted in serious illness and injury and dozens of other violations. During a licensing action, DPR can seek civil penalties or seek to revoke or suspend the license of a company that is licensed to do pest control work, sell pesticides, or advise on pest control in California.

DPR states that TriCal has been subject to past enforcement actions dating back to 2014. These past violations include a combined 40 incidents -- four of which were “priority episodes” (i.e., incidents involving serious illness or injury, or an episode involving five or more people). Specifically, TriCal paid over $125,000 in administrative civil penalties to County Agricultural Commissioners and a $44,275 fine to the U.S. Environmental Protection Agency (EPA).

DPR’s press release states that nine episodes were cited in the most recent licensing action, including the following:

• In October 2020, DPR alleged 20 residential bystanders and three members of the Salinas Fire Department experienced symptoms of pesticide exposure from a TriCal misapplication.
• In October 2019, DPR alleged 39 fieldworkers were exposed to 1,3-D and chloropicrin due to TriCal’s misapplication. Thirty-two fieldworkers experienced symptoms of pesticide exposure, and three people sought medical care for their symptoms.
• In October 2018, DPR alleged TriCal misapplied a product containing 1,3-D and chloropicrin and, as a result, 13 residential bystanders experienced symptoms of pesticide exposure.

This licensing action comes as DPR announces proposed regulatory requirements to strengthen use restrictions on 1,3-D to protect public health. In its proposed regulation, DPR 22-005 Health Risk Mitigation and Volatile Organic Compound Emission Reduction for 1,3-Dichloropropene, DPR states its “broad objectives of the proposed regulations are to mitigate the potential 72-hour acute risk and 70-year lifetime cancer risk to non-occupational bystanders from the use of 1,3-D, and to reduce [volatile organic compound] VOC emissions from 1, 3-D field soil fumigations.” This proposal is based in part on a health-protective regulatory target established last year after consultation with state and local agencies. Specifically, the proposed action, if issued in final, would:

1. Allow the use of 1,3-D only for the production of agricultural commodities, effectively prohibiting other uses that are not currently registered;
2. Establish mandatory setbacks (distances from occupied structures where 1,3-D cannot be applied);
3. Set limits on the application rate and acres treated for individual field soil fumigations;
4. Place restrictions on multiple field soil fumigations that do not meet distance or time separation criteria;
5. Limit the allowed methods to apply 1,3-D, including establishing criteria for acceptable types of tarpaulins that can be used;
6. Require an annual report from DPR that includes evaluations of 1,3-D use and air monitoring results; and
7. Require the inclusion of certain information in existing pesticide use records and pesticide use reports.

Comments are due on or before January 18, 2023. DPR will accept written comments that are submitted via U.S. mail and postmarked no later than January 18, 2023. Comments also may be transmitted via e-mail to .(JavaScript must be enabled to view this email address) or by facsimile at 916-324-1491 and must be received no later than 5:00 p.m. (PST) on January 18, 2023.

DPR will conduct a public hearing to accept comments on these amendments. The public hearing is scheduled for January 18, 2023, starting at 9:30 a.m. (PST). The hearing will be in a hybrid format with both a physical location and an option to participate remotely:

Physical Location:

CalEPA Headquarters Building

Byron Sher Auditorium

1001 I Street, 2nd Floor

Sacramento, CA 95814

Remote Location:

Zoom

Webinar ID: 826 1358 3257

Password: 045724

Direct link to join the meeting from a web browser or Zoom client:

https://us02web.zoom.us/j/82613583257?pwd=UGJ0WkxtbFlFYUdrQmJYb3V3QyszUT09

One tap to join from a mobile phone: +16699009128,,82613583257#,,,,*045724#

Or call from a landline: +1-669-900-9128 and enter the Webinar ID and Password (above) when prompted

The hearing also will be accessible via public webcast for persons who would like to watch this hearing without participating. The public webcast can be accessed by visiting the following web address: https://video.calepa.ca.gov/#/

Commentary

These actions add many new restrictions on the use of these pesticides. Growers who rely on these products will have to comply with the new restrictions and hope that they address the state’s concerns or face additional restrictions or even a decision by DPR to not register the pesticides regardless of what EPA’s federal label allows. The state actions may in turn raise new issues for EPA. DPR’s justification for greater controls mentions the possible impact on local communities, which may cause greater focus on environmental justice matters, and the evolution of this issue should be monitored.