Standing Up for Environmental Justice

BY ANGEL GARCIA

Nearly a decade after community members first took a stand against the California Department of Pesticide Regulation (DPR) for its handling of the cancer-causing fumigant 1,3-Dichloropropene (1,3-D), the fight has returned to the courts.

On Feb. 2, Central Coast residents Rocio Ortiz and Ana Barrera—together with Californians for Pesticide Reform and the Pesticide Action and Agroecology Network—filed a lawsuit challenging the DPR’s latest regulations on 1,3-D (nearly a decade after community members sued the DPR for its handling of 1,3-D).

The new lawsuit alleges that the “DPR’s newly adopted rules violate key requirements of the Administrative Procedure Act (APA) by failing to provide clarity and consistency. Additionally, the regulations in question allow public exposure to dangerous levels of pesticide emissions—levels known to harm human health—in direct violation of the California Food and Agricultural Code.”

This legal action comes almost a decade after the landmark 2017 case Vasquez et al. v. Department of Pesticide Regulation. The lawsuit is in response to the DPR issuing two conflicting regulations.

The first regulation, which took effect in 2024, was designed to safeguard people living near pesticide applications—referred to as residential bystanders. It set a regulatory target air level at a lenient 0.56 parts per billion (ppb) per day over a 70-year lifetime.

On Jan. 1, 2026, another rule came into effect for those who work near these applications—occupational bystanders—setting a stricter threshold of 0.21 ppb averaged over a standard workweek across four decades.

Each regulation applies different target air concentration levels to essentially the same population: people who live and work in close proximity to fields where 1,3-D is applied. This patchwork approach has created confusion and uncertainty among the very communities these rules are meant to protect.

What State Cancer Experts Say  

In 2022, the state’s expert cancer risk assessment branch—the Office of Environmental Health Hazard Assessment (OEHHA)—set a No Significant Risk Level (NSRL) for lifetime cancer risk from 1,3-D at just 0.04 ppb, a threshold far more protective than any previous standard set by the DPR.

Yet, despite accepting OEHHA’s NSRL on paper, the DPR’s occupational bystander regulation allows much higher exposures by assuming that farmworkers encounter this chemical only during traditional work hours—40 hours a week over a span of 40 years. This assumption ignores the reality that many farmworkers also live near agricultural fields and are exposed to harmful emissions around the clock.

The new lawsuit highlights that such regulations fail to protect public health because they overlook exposure outside working hours.

Moreover, the DPR’s rule assumes that all farmwork happens from 8 a.m. to 4 p.m.—when emissions are at their lowest point. In truth, most farmworkers begin their day before sunrise when emissions can be significantly higher.

Even more troubling is that one regulation permits residential bystanders—including children and families—to be exposed to levels acknowledged elsewhere as cancer-causing for workers.

The heart of the lawsuit lies not only in the DPR’s failure to adequately protect public health but also in its violation of the consistency requirement set forth by the Administrative Procedures Act.

The current contradictory regulations lack the legally required clarity, especially as they do not include any provisions to warn workers about nearby 1,3-D use. That omission leaves farmworkers vulnerable and uninformed about potential dangers lurking in their workplaces.

This marks the fourth time that community members and advocates have gone to court over the DPR’s handling of 1,3-D. The current lawsuit seeks to “invalidate both inconsistent regulations and compel [the] DPR to adopt one clear, consistent, and health-protective rule that finally brings California into compliance with its own laws.”

What is 1,3-D?

1,3-D is a highly toxic soil fumigant primarily utilized to control nematodes and other soil-dwelling pests. It is applied either by direct injection into the soil or through specialized drip tubes. Once introduced into the ground, it volatilizes into a gas—a property that allows it to spread beyond the initially treated fields and potentially affect surrounding areas.

Due to its hazardous nature, the DPR has classified 1,3-D as a toxic air contaminant and officially recognizes it as a human carcinogen. Scientific studies have linked exposure to 1,3-D to increased risk of cancer and other serious health effects. This risk is particularly concerning for people living, working or attending school near fields where this fumigant is used.

Communities most impacted by exposure to 1,3-D are often rural, low-income areas with predominantly Latino populations.

Legal Timeline

In 2017, farmworkers and community members filed Vasquez et al. v. Department of Pesticide Regulation, arguing that the DPR had failed to adequately regulate 1,3-D. The plaintiffs contended that the DPR’s use of an “underground regulation” bypassed required public processes and transparency.

In 2018, the trial court ruled in favor of the plaintiffs, finding that the DPR had indeed violated state law by adopting regulations without public input. When the DPR, joined by manufacturer Dow, appealed this decision in 2021, the appellate court affirmed the lower court’s ruling: The DPR’s regulatory actions regarding 1,3-D were unlawful.

In 2022, the OEHHA established an NSRL for 1,3-D at just 0.04 ppb. However, in response to ongoing litigation and court orders requiring compliance with proper procedures and risk assessments for both residential and occupational bystanders, the DPR developed new regulations—though not without controversy.

In early 2023, the DPR released a regulation for residential bystanders using a target air level set at 0.56 ppb—14 times higher than the OEHHA’s recommended NSRL—prompting renewed legal challenges from plaintiffs who argued this did not satisfy previous court directives.

The courts again intervened later that year and ordered the DPR to create an additional regulation specifically addressing occupational exposure risks. This process was mandated to be conducted collaboratively with the OEHHA.

Today, two separate regulations are in effect: one for residential bystanders at a threshold of 0.56 ppb and another for occupational bystanders at a lower threshold of 0.21 ppb during work hours. These conflicting standards have led community members and advocacy organizations to file yet another lawsuit against the DPR in pursuit of consistent protection measures under both the Administrative Procedure Act and the California Food and Agricultural Code.

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Angel Garcia is co-director of Californians for Pesticide Reform.