April 25, 2019
Teresa Marks, Acting Director
Department of Pesticide Regulation
1001 I Street
Sacramento, CA 95812
Dear Acting Director Marks,
In March, researchers from UCLA Law School published Governance on the Ground: Evaluating the Role of County Agricultural Commissioners in Reducing Toxic Pesticide Exposures[i], an investigation into County Agricultural Commissioner (CAC) practices and their compliance with state laws requiring them to consider alternatives and cumulative exposure before they issue permits for restricted materials.
As you are aware, the report found no CAC currently in compliance with either legal requirement. The Californians for Pesticide Reform coalition takes this system-wide failure very seriously and urges DPR to take steps to ensure that the state and all counties change their practices immediately to comply with their legal obligations to protect communities from toxic pesticide exposure.
Yet the initial response to the report by DPR and the CACs as reported in the media has caused us grave concern. Notably missing is any sense of concern at the pattern of outlaw behavior exposed by the report, or any intention to quickly comply with state law going forward. At the very least, we call on DPR to assert your authority and compel CACs to follow the law governing the issuing of permits for restricted pesticide use.
In the wake of UCLA’s troubling findings, CACs offered an array of excuses to the media for their lawlessness, ranging from, in essence, “I’m not allowed to do it” (Santa Cruz and Kern) and “I don’t know how to do it” (Monterey and Kern) to “I am doing it, I’m just not writing it down” (Fresno).
Two CACs (Santa Cruz and Kern) offered versions of the excuse that they were not allowed by law to suggest alternatives by name. The Kern CAC stated that recommending alternatives could amount to inappropriate product endorsement[ii], while the Santa Cruz CAC added that it’s not his job to recommend specific alternatives by name[iii].
We are frustrated to hear CACs suggest that their legal obligation to consider alternatives amounts to endorsement of one hazardous chemical over another. It is time for CACs to embrace an integrated pest management approach to agricultural pest control that includes an array of tools and methods beyond the application of restricted chemicals. And it is beyond time for DPR to compel them to do so.
Both Kern and Monterey CACs pleaded incompetence regarding consideration of cumulative exposure. The Kern CAC noted that CAC staff “are not educated as pest control advisors” and “are not doctors[iv],” and are therefore not equipped to comply with the law. Monterey CAC agreed, adding “available methodologies for evaluating cumulative impact are limited[v].” And they were joined in this handwashing by DPR, who said in a statement that “the scientific literature and guidance for assessing cumulative effects is still relatively new and has not been fully vetted[vi].” What is not new, however, is the legal requirement for such an assessment, which derives from the California Environmental Quality Act of 1970. We look to DPR for some urgency, not currently evident, to develop assessment methodologies needed to bring the Department into compliance with the almost 50 year old statute requiring them to do so. Previous research by members of the UCLA study team published in 2016 called out the need to develop such methodologies[vii]. Three years later, it is plain DPR has taken no steps in this direction.
Fresno’s new CAC, on the other hand, challenged the research team’s findings, calling them “simply not true.” “There is a system in place that requires pesticide users to consider feasible alternatives, and that system is being followed,” she said. “(The researchers) didn’t ask us really what our processes were, they mostly just requested any written documents of when we discussed a feasible alternative — we are not required to document that, so we don’t[viii].” However, Fresno was one of only two counties (along with Santa Barbara) to be selected for a focused case study for their consideration of both chlorpyrifos alternatives and cumulative impacts, which included in-person interviews of CAC staff and pest control advisors. Since the current Fresno CAC was not in office at the time of the study, one can charitably surmise that she just doesn’t know what the research team did – but it does not escape our notice how quick she is to strike a defensive posture when a more appropriate response might be to acknowledge the need to document compliance going forward.
The Monterey CAC added that there are just so many hazardous applications, it would be too repetitive to follow the law, noting “it’s the same pesticide on the same crop, in the same conditions over and over and over again[ix].” He then told our Monterey Bay pesticide organizer that he had said to the media all he was going to say on the matter, and was moving on to more important things[x]. Needless to say, for our community members, there IS no more important matter than making sure those charged with protecting public health are following the law, no matter how tediously redundant it might seem to the CAC.
We have certain expectations in light of these revelations of system-wide neglect of their legal obligations by the CACs you oversee, and we trust that you will rise to meet them. We urge DPR to:
- Develop comprehensive IPM resources for each pest, prioritizing those typically combatted with restricted pesticides, and compel CACs to demonstrate in writing that alternatives have been evaluated before a permit is granted.
- Adopt and enforce a system for assessing cumulative impact, both prior to registering pesticides at the state level and as a permit condition at the county level.
We request a meeting with you and DPR senior staff to establish steps needed to address these deficiencies in state and local oversight of hazardous pesticide use.
Mark Weller and Sarah Aird
Co-Directors, Californians for Pesticide Reform
[i] Malloy, T. et al. Governance on the Ground: Evaluating the Role of County Agricultural Commissioners in Reducing Toxic Pesticide Exposures. UCLA, 2019. https://law.ucla.edu/centers/environmental-law/emmett-institute-on-climate-change-and-the-environment/publications/governance-on-the-ground/
[ii] “Study presses for more active pesticide review by county ag commissioners,” Bakersfield Californian. 20 March 2019. https://www.bakersfield.com/news/study-presses-for-more-active-pesticide-review-by-county-ag/article_2d46264c-4a71-11e9-a5f4-0bb0f1a893be.html
[iii] “Farmers are supposed to consider safer alternatives to toxic pesticides. UCLA report says that’s not working out well.” KQED Science. 20 March 2019. https://www.kqed.org/science/1939353/farmers-are-supposed-to-consider-safer-alternatives-to-toxic-pesticides-ucla-report-says-thats-not-working-out-well
[iv] Bakersfield Californian, op.cit.
[v] “UCLA pesticides study finds California, counties not doing enough to keep us safe.” Salinas Californian. 20 March 2019. https://www.thecalifornian.com/story/news/2019/03/20/ucla-pesticides-study-finds-california-counties-not-doing-enough/3223011002/
[vi] California’s pesticide regulators are supposed to consider safer alternatives. Many don’t.” Civil Eats. 20 March 2019. https://civileats.com/2019/03/20/californias-pesticide-regulators-are-supposed-to-consider-safer-alternatives-many-dont/
[vii] Zaunbrecher, V., J.D., et al. “Exposure and interaction: The potential health impacts of using multiple pesticides.” UCLA Sustainable Technology and Policy Program. 2016. https://www.pesticideresearch.com/site/wp-content/uploads/2016/02/Exposure_and_Interaction_2016_Web_0.pdf
[viii] “Did Fresno and Tulare Counties violate a pesticide law? A new study suggests so.” The Fresno Bee. 20 March 2019. https://www.fresnobee.com/news/local/article228198579.html
[ix] “Ventura County agricultural workers slam pesticide oversight process in light of new report.” Ventura County Star. 21 March 2019. https://www.vcstar.com/story/money/business/2019/03/21/ag-workers-slam-ventura-countys-pesticide-approval-process/3226219002/
[x] Henry Gonzalez, personal communication. 4 April 2019.