August 14, Brian Leahy Director California Department of Pesticide Regulation 1001 I Street Sacramento, CA

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1 August 14, 2014 Brian Leahy Director California Department of Pesticide Regulation 1001 I Street Sacramento, CA Sent via Dear Director Leahy, Last summer, our organizations submitted comments about DPR s proposed mitigation measures to protect bystanders and residents from acute exposures to chloropicrin. Since the close of the comment period last August, significant and relevant new information has been released including the California Department of Public Health s analysis of pesticide use near schools and preliminary 2013 air monitoring data regarding the potential impact of chloropicrin on schoolchildren and other community members. As chloropicrin use has increased while methyl bromide use has decreased, the pattern of racial discrimination against Latino schoolchildren that the U.S. Environmental Protection Agency found associated with methyl bromide use endures now with chloropicrin as a leading concern. We urge DPR to consider the new data, and ensure that the final chloropicrin mitigation measures strongly protect the health of all schoolchildren and all community members. Specifically, we ask that DPR immediately suspend the use of chloropicrin and all other fumigants within ¼ mile of schools, phase out chloropicrin for all uses by 2020, and in the meantime, require strong buffer zones, neighbor notification and air monitoring. Background: Methyl bromide exposure among Latino schoolchildren constitutes racial discrimination In June 1999, Latino parents in Oxnard California and from across the state filed an administrative Title VI complaint with the U.S. Environmental Protection Agency (EPA) on behalf of their minor children alleging that the California Department of Pesticide Regulation (DPR) subjected Latino schoolchildren to harmful and discriminatory exposure to toxic pesticides and fumigants. In 2011, more than a decade after the EPA accepted the complaint, it issued a preliminary finding of racial discrimination. The EPA found that Latino schoolchildren in California suffered disparate adverse effects from exposure to methyl bromide between 1995 and 2001 at levels that exceeded EPA established health thresholds. Despite these unprecedented findings, in August 2011, EPA entered into an informal compliance agreement with DPR to resolve the complaint. In violation of a basic environmental justice tenet of transparency and inclusion, the complainants were not consulted or notified during the negotiation of the agreement they found out the existence and details of the document only when the final agreement was made public. EPA also refused to recognize that after 2001, chloropicrin, 1,3 dichloropropene, and metam sodium started effectively replacing methyl bromide in California. The agreement allowed DPR to continue to conduct activities that EPA s own analysis had determined disparately and adversely affected Latino schoolchildren in violation of federal law. The settlement involved five provisions including conducting continued air monitoring in affected areas and basic

2 outreach efforts to the Latino community. 1 Most significantly, the settlement agreement did not alter the permitting process of methyl bromide or other hazardous agricultural pesticides in California such as chloropicrin, nor did it impose a duty on DPR to achieve the community- wide exposure reduction goals that EPA recommended in its preliminary finding. Ultimately, the settlement fails to protect the complainants and future Latino schoolchildren from disparate adverse impacts from pesticides. A new risk: Chloropicrin use far exceeds methyl bromide use Since Latino parents filed their complaint with the EPA in 1999, use of methyl bromide in Ventura and Monterey Counties has steadily decreased. While methyl bromide use remains considerable despite decreasing availability, there is a clear trend towards replacing it with chloropicrin, 1,3 dichloropropene, and metam sodium. The following graphs illustrate the clear trend of decreased use of methyl bromide and increased use of chloropicrin in Ventura and Monterey counties: Table 1: Use of Chloropicrin and methyl bromide in Ventura County, Table 2: Use of Chloropicrin and Methyl Bromide in Monterey County, Agreement between the California Department of Pesticide Regulation and the United States Environmental Protection Agency 15-16, dated August 24,

3 Since 2004 in Monterey County and 2008 in Ventura County, chloropicrin use has exceeded methyl bromide use. In 2012, chloropicrin use was more than 3.2 times methyl bromide use in Ventura County and more than 8.5 times methyl bromide use in Monterey County. 2 Not only has county- wide use of chloropicrin increased in Ventura and Monterey, but new analysis from the California Department of Public Health reveals that chloropicrin was the most widely used pesticide of public health concern within ¼ mile of schools in both of these counties in In Ventura, over 71,000 pounds of chloropicrin were applied within ¼ mile of the county s schools. In Monterey County, over 53,000 pounds of chloropicrin were applied within ¼ mile of schools. In each county, methyl bromide was the second highest pesticide of public health concern used within ¼ mile of schools: almost 25,000 pounds and over 33,000 pounds, respectively. The DPH report found that Latino schoolchildren were 91% more likely than white students to attend schools that have the highest use of the most hazardous pesticides within ¼ mile of the school. Given the volatility of both chloropicrin and methyl bromide, it can reasonably be expected that Latino children at the most affected schools are exposed to unreasonable levels of pesticides. Recent air monitoring data showing high chloropicrin levels in Salinas underscore the risk of exposure. The 1- day acute screening level for chloropicrin of 491,000 ng/m 3 (73 ppb) is the regulatory level set by DPR management in the Chloropicrin Risk Management Directive. In contrast, the 24 hour acute screening level for children derived by DPR toxicologists in the Toxic Air Contaminant (TAC) report is about 80 fold lower 6,180 ng/m 3 (0.92 ppb). In 2011, the highest 24 hour concentration measured at the Salinas Air Monitoring Network site (3,926 ng/m 3 ) was about 63% of the acute chloropicrin REL for children listed in the TAC report. The seasonal chloropicrin screening level used is the same as the level derived in the TAC report. It is concerning that the Salinas site reached 78.9% of the chloropicrin sub- chronic screening level and 64% of the Acute Screening Level derived in the TAC report because this site is located further from major areas of fumigant use than the main residential areas of Salinas. 3 At the March 2014 meeting of the Pesticide Registration & Evaluation Committee (PREC), DPR stated that higher concentrations of chloropicrin were measured at Air Monitoring Network sites in The highest level measured at the Salinas site was about 600,000 ng/m 3, exceeding considerably the 1 day acute screening level of 491,000 ng/m 3 ; the highest four- week rolling average concentration at the Salinas site was over 3,000 ng/m 3, exceeding the sub- chronic screening level of 2,300 ng/m 3 considerably. 4 Given these data, community and worker exposure in the air to levels of chloropicrin that exceed safety levels set by DPR must be addressed. Furthermore, the dangers of chloropicrin and all fumigant use are highlighted in an October 2012 chloropicrin poisoning incident when 43 farmworkers and four supervisors reported symptoms of itchy, burning, tearing eyes, headaches and nausea. Nineteen people were taken to a physician because of their symptoms. The investigation revealed no tears or holes in the tarps or water puddles in the furrows, and no problems with the actual application; it concluded that higher than expected temperatures and lower than expected wind speeds may have increased the rate of volatilization of chloropicrin. 5 This incident shows that even when required procedure is followed and no violations are 2 Monterey County 2012 pesticide use: chloropicrin: 2,218,421 pounds; methyl bromide: 686,765 pounds. Ventura County 2012 Pesticide Use: chloropicrin: 2,794,699 pounds; methyl bromide: 328,425 pounds. Source: DPR. 3 DPR Air Monitoring Network Results, DPR Update on Pesticide Air Monitoring Network March 21, 2014, PREC presentation (slides 18 to 20) 5 Chloropicrin drift investigation 52- MON- 12 3

4 found, a simple variance in weather from the predicted forecast can result in dozens of people getting poisoned. The exposure risks of chloropicrin are very real. DPR has done nothing to address this alarming trend of chloropicrin use replacing methyl bromide use. Rather than taking seriously its responsibility for the health of California s schoolchildren and communities, DPR has effectively allowed one harmful pesticide to replace another. What is DPR doing to protect California schoolchildren especially Latinos from chloropicrin? Chloropicrin is a potent eye and respiratory irritant and, as demonstrated by the poisoning incident mentioned above, is incredibly difficult to contain even with the use of tarps and water seals. In the past 10 years, over 700 people have been made ill in 22 separate chloropicrin drift incidents, while some individuals developed asthma symptoms. 6 Based on data submitted under the Birth Defect Prevention Act, in 2001 DPR decided to reevaluate registration of chloropicrin indicating that the pesticide has the potential to cause adverse health effects at low doses. This led to DPR listing it as a Toxic Air Contaminant on December 9, On December 31, 2010, DPR issued a risk management directive for chloropicrin. Therein DPR stated its intention to develop mitigation measures for agricultural soil fumigations that will address the acute effects of chloropicrin for residents and bystanders. In May 2013, DPR finally released a draft Mitigation Proposal, with a public comment period open through August Since then, stakeholders have been waiting for the final rules to protect bystanders from exposure. During the public comment period, scientists (including Dr. Dale Hattis), the Californians for Pesticide Reform coalition, and more than 100 environmental health and justice organizations raised concerns about the draft Mitigation Proposal, most importantly that DPR s proposed mitigation measures are insufficiently health protective since they re based on DPR Management s faulty conclusion that the carcinogenicity of chloropicrin is equivocal. The scientists and public interest groups recommended that DPR phase out chloropicrin by 2020, and in the meantime, implement tighter control measures, including: buffer zones that allow no more than the 2.7 ppb exposure limit recommended by the Department s own toxicologists and the Scientific Review Panel, a mandatory and comprehensive neighbor notification program, and development of reliable, real- time air monitoring methods, among other protections. The Department of Public Health report demonstrates that pesticide and fumigant use, especially chloropicrin use, remains racially disparate. 7 DPR continues to violate Title VI of the Civil Rights Act and California Government Code because chloropicrin and other fumigants have replaced methyl bromide and continue to be used, permitted, and regulated in a racially discriminatory manner. Conclusion EPA made a ruling of racial discrimination when considering that Latino schoolchildren were disproportionately exposed to methyl bromide. As the use of methyl bromide went down, chloropicrin use increased significantly. Both federal and state law protects Latino schoolchildren from discriminatory exposure to all pesticides, including but not limited to the heavily applied chloropicrin. The settlement agreement allows DPR to continue to discriminate against Latino children by continuing to allow hazardous application of dangerous pesticides and other fumigants near their schools. 6 DPR CalPIQ Pesticide Illness Query database. 7 California Environmental Health Tracking Program, California Department of Public Health. Agricultural Pesticide Use Near Public Schools in California, p April

5 DPR should immediately suspend the use of chloropicrin and other fumigants within ¼ mile of schools and monitor school exposures to proactively ensure that Latino children do not continue to experience disparate and adverse effects. However, Latino and other children are not only exposed to chloropicrin at school. DPR must also take strong, swift steps to prevent children s and communities exposure to chloropicrin in all locations. Specifically, we ask DPR to phase out chloropicrin for all uses by 2020, and in the meantime, require: Health protective buffer zones, that allow no more than the 2.7 ppb exposure limit recommended by the Department s own toxicologists and the Scientific Review Panel, and are protective for 100% or over 99% of all possible weather scenarios. Written notification, in English and Spanish, to neighbors within ¼ to ½ mile beyond the buffer zone seven days prior to submission of the Notice of Intent DPR must find a reliable test method for monitoring chloropicrin levels at buffer zone borders in the field that don t rely on human exposure as the test method; chloropicrin use should not be allowed to continue unless such a method is developed within one year. Relocating Air Monitoring Network sites and/or expansion of the Air Monitoring Network for chloropicrin and other fumigants to include key locations near schools likely to face the highest exposure, using methodology in the DPH report to identify schools at highest risk. We appreciate your consideration of these recommendations as DPR finalizes the mitigation measures to protect bystanders and residents from acute exposures to chloropicrin. Sincerely, Sarah Aird Californians for Pesticide Reform Madeline Stano Center on Race, Poverty & the Environment Anne Katten California Rural Legal Assistance Foundation Paul Towers Pesticide Action Network Hazel Davalos Central Coast United for a Sustainable Economy Tracey Brieger Californians for Pesticide Reform Cesar Campos Central California Environmental Justice Network Caroline Cox Center for Environmental Health Mark Weller Safe Strawberry Monterey County Working Group cc Matthew Rodriquez, Secretary, California Environmental Protection Agency Gordon Burns, Undersecretary, California Environmental Protection Agency Arsenio Mataka, Assistant Secretary for Environmental Justice and Tribal Affairs, California Environmental Protection Agency Gina Solomon, Deputy Secretary for Science and Health, California Environmental Protection Agency 5