Court Orders Reconsideration of Cancer-Causing Pesticide Regulation

In early March, the Alameda County Superior Court ruled that a proposed regulation fails to protect farmworkers who labor near fumigated fields from harmful levels of exposure to the cancer-causing pesticide 1,3-dichloropropene (1,3-D).

Judge Evelio Grillo gave the California Department of Pesticide Regulation (DPR) six months to propose a new regulation that protects farmworkers and other occupational bystanders.

The DPR was also ordered to continue the current 1,3-D use limit of 136,000 adjusted total pounds per 6ｘ6 mile “township,” which the draft regulation would have eliminated, and to maintain a prohibition on December applications* of this pesticide until the new regulation is finalized and adopted.

At more than 12 million pounds reported use per year, 1,3-D is the third most heavily applied pesticide in California agriculture, used as a pre-plant soil fumigant for berry crops along the Central Coast and for almonds, walnuts, sweet potatoes and other crops in the San Joaquin Valley. 1,3-D is highly volatile, is classified as a Toxic Air Contaminant and a Prop 65 carcinogen, and is banned in 34 countries. It is manufactured by Dow Chemical, an intervenor on the side of the DPR in the case.

“We applaud the court’s ruling striking down DPR’s immoral and unjust draft regulation,” said Angel Garcia, co-director of the Lindsay-based Californians for Pesticide Reform.

“The court has ruled that a draft rule that would have allowed farmworkers to work right next to the edge of treated fields while they are being fumigated was unlawful. We look forward to a new regulation that corrects the profound environmental injustice of failing to protect farmworkers from this highly hazardous and drift-prone chemical.”

Two Agencies, Two Different 1,3-D Cancer Risk Levels

State law mandates that the DPR must involve the Office of Environmental Health Hazard Assessment (OEHHA) as a partner in the development of pesticide regulations that address risks to workers, including both fieldworkers and pesticide handlers. The DPR and the OEHHA are sister offices within the California Environmental Protection Agency (CalEPA), but have reached strikingly different conclusions about the hazards of 1,3-D exposure.

In June 2022, the OEHHA adopted a lifetime cancer risk level for 1,3-D—known as a No Significant Risk Level, or NSRL—of 0.04 parts per billion (ppb), which is 14 times lower than the level (0.56 ppb) that the DPR used for its draft regulation. In comments, Dow Chemical publicly supported the DPR’s target level.

By excluding workers from their draft regulation, the DPR hoped to skirt the law and ignore the recommendations of the OEHHA. A regulation based on the OEHHA’s cancer risk level would be far more health protective.

“OEHHA scientists have already informed Californians what the unsafe level of exposure to cancer-causing 1,3-D is,” said Yanely Martinez, Greenfield City Council member and organizer of Safe Ag Safe Schools. “But DPR completely ignored that, siding with their buddies at Dow Chemical by proposing to allow for 14 times more 1,3-D in the air in Latino farmworker communities like mine.

“We’re glad the judge sent DPR back to the drawing board to listen to OEHHA, because DPR’s proposal was unscientific and racist, as well as illegal.”

Are communities safe from 1,3-D?

The DPR’s pesticide air monitoring network in farmworker communities indicates that, at all nine stations that tested 1,3-D in the air for more than two years, average air concentrations were above the OEHHA’s 0.04 ppb NSRL. Schools have been the sites for five of these air monitor testing stations.

While the air monitors were placed near fields, some of the readings came from applications miles away. A one-day January 2020 spike of 20.8 ppb at Sequoia Elementary in Shafter originated from a 1,3-D application 7.5 miles away, according to the DPR. 1,3-D can drift for miles at harmful levels.

Melissa Dennis, a second grade teacher at the 98% Latino Ohlone Elementary School where one of the pesticide air monitors sits, commented: “My students are worth 14 times less than others in California. That’s what DPR was telling us with its 1,3-D proposed regulation.”

Bianca Lopez, co-founder of the Modesto-based Valley Improvement Projects, says that “the court’s decision is a huge win for farmworkers and puts the agricultural industry on notice that it can no longer go on poisoning workers with harmful chemicals. It’s no mystery why a department like the DPR, which gets 80% of its funding from pesticide sales, would be so determined to preserve the use of a heavily used chemical like 1,3-D.”

Lopez added that the “DPR has shown itself to be more interested in preserving use of this hazardous pesticide than in protecting human health. Now, they must listen to the scientists at OEHHA who have called for far greater protections from this deadly chemical.”

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*Under existing rules, no 1,3-D usage is allowed during December, when atmospheric conditions contribute to higher air concentrations. Under the draft regulation, the December ban would end and would be replaced with more stringent restrictions (not a ban) from November to February as compared to the restrictions from March to October. The reasoning is that the ban in December caused a spike in applications and air concentrations immediately before and after, in November and January. Note that the court ordered the DPR to keep the December prohibition in place until the new regulation is finalized.