Opinion
H036474
10-03-2012
LAURA MIKO et al., Plaintiffs and Appellants, v. MARY-ANN WARMERDAM, as Director etc., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. M85670)
Appellants Laura Miko and Michelle Miko appeal from an amended judgment in favor of respondent Mary-Ann Warmerdam, Director of the Department of Pesticide Regulation (Department). Appellants raise two issues: (1) whether the Department has a mandatory duty to regulate 1,3-dichloropropene (Telone) under Food and Agricultural Code sections 14021 through 14024; and (2) whether the Department has failed to adopt regulations for chloropicrin in a timely manner. We find no error and affirm.
All further statutory references are to the Food and Agricultural Code unless otherwise stated.
I. Procedural Background
In October 2008, appellants Laura Miko and others filed their fourth amended petition for writ of mandate. The petition alleged that the Department had failed to conduct any public health risk assessment of the pesticide Telone or to adopt regulatory controls for its use. The petition also alleged that the Department had failed to determine whether the pesticide chloropicrin was a toxic air contaminant and had failed to adopt adequate control measures for its use. Following a hearing, the trial court issued its intended decision in June 2009. The trial court ordered the Department to develop control measures to reduce emissions for Telone pursuant to section 14024 and to proceed without unreasonable delay to evaluate and regulate chloropicrin pursuant to sections 14022 through 14024. The trial court also ordered a review hearing to determine the Department's progress.
Appellants also filed a complaint that sought monetary damages and injunctive relief against defendants Springfield Farms and Steven Rodoni for conducting illegal fumigations. Appellants have settled their claims against these defendants.
Following the review hearing in August 2010, the trial court issued an order that its August 2009 judgment was to be amended to reflect the finding in Californians for Pesticide Reform v. Department of Pesticide Regulation (2010) 184 Cal.App.4th 887, 905 (California for Pesticide Reform) that a pesticide such as Telone is not subject to evaluation and regulation under section 14024. The order also stated that the court was satisfied with the measures taken by the Department to evaluate and regulate chloropicrin and Telone.
In September 2010, the trial court issued an amended judgment in favor of respondent, vacated the August 2009 judgment and order directing a peremptory writ of mandate, and terminated its jurisdiction. Appellants filed a timely notice of appeal.
II. Discussion
A. Toxic Air Contaminant Act
In 1984, the Legislature provided for the regulation of toxic air contaminants (TAC's) with the passage of the Toxic Air Contaminant Act (Act). (§ 14021; Stats. 1983, ch. 1047, § 2.) The Act created two separate statutory schemes. One set of statutes is administered by the Department and is found in sections 14021 through 14027. The Department is responsible for assessing the risks of pesticides that are TAC's and adopting measures necessary to control them. The other set is administered by the Air Resources Board (Board) and is found in Health and Safety Code sections 39650 through 39674. The Board implements the statutory requirements relating to nonpesticide TAC's.
"Generally, references to the 'director' in the Food and Agriculture Code refer to the Secretary of Food and Agriculture. (Food & Agr. Code, § 50.) In 1991, however, the Department of Pesticide Regulation succeeded to the duties and powers of the Department of Food and Agriculture relating to the regulation of pesticides. (Governor's Reorganization Plan No. 1 of 1991, § 27, eff. July 17, 1991, Deering's Ann. Food & Agr. Code, supra, § 11454.) In the portions of the Code relating to pesticide regulation, the term 'Director' now refers to the director of the Department of Pesticide Regulation. (Food & Agr. Code, § 12500; Governor's Reorganization Plan No. 1 of 1991, § 39, eff. July 17, 1991, Deering's Ann. Food & Agr. Code, supra, § 12752.5.)" (Patterson Flying Service v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 420, fn. 3.)
The issues presented in this appeal involve the interpretation of sections 14021 through 14024. Section 14021, subdivision (b) defines a TAC as "[a]n air pollutant which may cause or contribute to an increase in mortality or an increase in serious illness, or which may pose a present or potential hazard to human health." This subdivision also defines as TAC's "[p]esticides that have been identified as hazardous air pollutants pursuant to Section 7412 of Title 42 of the United States Code . . . ." (§ 14021, subd. (b).) These pesticides are referred to as hazardous air pollutants - toxic air contaminants (HAP-TAC's). Telone is a HAP-TAC. (42 U.S.C. § 7412, subd. (b).) Telone has also been listed as a HAP-TAC in the California Code of Regulations (Cal. Code. Regs., tit. 3, § 6860, subd. (b)).
Section 14022 outlines the process for evaluating whether a pesticide is a TAC. Section 14022, subdivision (a) requires the Department's director, in consultation with specified agencies, to "evaluate the health effects of pesticides which may be or are emitted into the ambient air of California and which may be determined to be a toxic air contaminant which poses a present or potential hazard to human health." The director is also required to evaluate a pesticide upon request of the Board. (§ 14022, subd. (a).) Subdivision (b) of section 14022 requires the director to "complete the evaluation of the pesticide within 90 days after receiving the scientific data specified in subdivision (c) . . . ." This deadline may be extended under certain circumstances. (§ 14022, subd. (b).) Subdivision (c) provides that the director "[i]n conducting this evaluation . . . shall consider all available scientific data," including relevant data from state, federal, and international governmental agencies, "private industry, academic researchers, and public health and environmental organizations." (§ 14022, subd. (c).) If requested by the director, the Board "shall document the level of airborne emissions and the office shall provide an assessment of related health effects of pesticides which may be determined to pose a present or potential hazard . . . ." (§ 14022, subd. (c).) Subdivision (d) requires the provision of information, including trade secrets, upon the director's request. (§ 14022, subd. (d).) Subdivision (e) outlines how the director shall prioritize the evaluation and regulation of pesticides. (§ 14022, subd. (e).)
"Upon completion of the evaluation conducted pursuant to section 14022, the director shall . . . prepare a report on the health effects of the pesticide which may be determined to be a toxic air contaminant which poses a present or potential hazard to human health due to airborne emission from its use." (§ 14023, subd. (a).) Subdivision (a) of section 14023 also specifies the contents of the report. The report is then "formally reviewed by the scientific review panel . . . ." (§ 14023, subd. (b).) If this panel determines the report is "seriously deficient," it is returned to the director for revisions. (§ 14023, subd. (c).) After the scientific review panel makes its findings, the director must conduct a public hearing on "the proposed determination as to whether a pesticide is a toxic air contaminant." (§ 14023, subd. (d).) Subdivision (e) of section 14023 requires the director to determine, "in consultation with [specified agencies], the need for and appropriate degree of control measures for each pesticide listed as a toxic air contaminant pursuant to subdivision (d)."
Section 14024 specifies the manner in which the control measures are to be adopted as regulations.
B. Standard of Review
Since the issues raised by appellants involve statutory interpretation, " '[w]e begin as always "with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent." [Citation.] To discover that intent we first look to the words of the statute, giving them their usual and ordinary meaning. [Citations.] "Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history." [Citation.]' (Trope v. Katz (1995) 11 Cal.4th 274, 280.) [¶] ' "We do not, however, consider the statutory language 'in isolation.' . . . Rather, we look to the 'entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . .' . . . That is, we construe the words in question ' "in context, keeping in mind the nature and obvious purpose of the statute . . . ." . . .' . . . We must harmonize 'the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.' " ' (Authority for California Cities Excess Liability v. City of Los Altos (2006) 136 Cal.App.4th 1207, 1213.)" (Watsonville Pilots Assn. v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1069.) Since the interpretation of a statute is a question of law, we apply the de novo standard of review. (Redevelopment Agency v. County of Los Angeles (1999) 75 Cal.App.4th 68, 74.)
C. Regulation of Telone
Appellants contend that section 14023, subdivision (d) requires that all TAC's, including HAP-TAC's, must be listed in a regulation, and once a pesticide is listed as a TAC under section 14023, subdivision (d), the Department has a mandatory duty to determine appropriate control measures for the HAP-TAC, such as Telone, pursuant to section 14023, subdivision (e) and to adopt those control measures pursuant to section 14024, subdivision (c).
However, appellants' interpretation has failed to view the statutory framework as a whole. Sections 14022, 14023, and 14024 reference and rely on the preceding section. Section 14022 outlines the evaluation process for those pesticides for which no determination has yet been made. HAP-TAC's, such as Telone, are statutorily defined as TAC's, and thus section 14022 does not apply to them. (Californians for Pesticide Reform, supra, 184 Cal.App.4th at p. 904.) Section 14023 applies "[u]pon completion of the evaluation conducted pursuant to Section 14022 . . . ," specifies the contents of the report on the pesticide that has yet to be identified as a TAC (§ 14023, subd. (a)), and mandates the review of this report by a scientific panel (§ 14023, subd. (b)). Section 14023, subdivision (d) then provides that "[w]ithin 10 working days following receipt of the findings of the scientific review panel pursuant to subdivision (b), the director shall prepare a hearing notice and a proposed regulation which shall include the proposed determination as to whether a pesticide is a toxic air contaminant. After conducting a public hearing . . . the director shall list, by regulation, pesticides determined to be toxic air contaminants." Thus, the director is required pursuant to subdivision (d) of section 14023 to "list, by regulation," those pesticides which have undergone the evaluation and review process outlined in sections 14022 and section 14023, not those pesticides, such as Telone, that have already been identified as TAC's in section 14021. Since the director is not required to list Telone by regulation pursuant to section 14023, subdivision (d), section 14023, subdivision (e) is never invoked, and in turn, neither is section 14024, subdivision (c).
Section 14023, subdivision (e) states: "The director shall determine, in consultation with the office, the State Air Resources Board, and the air pollution control districts or air quality management districts in the affected counties, the need for and appropriate degree of control measures for each pesticide listed as a toxic air contaminant pursuant to subdivision (d). Any person may submit written information for consideration by the director in making determinations on control measures."
Section 14024, subdivision (c) states: "After conducting a public hearing . . . , the director shall adopt, by regulation, control measures, including application of best practicable control techniques enumerated in subdivision (b) or any other best applicable control techniques, for those pesticides for which a need has been determined."
Appellants argue that "had the Legislature intended to limit the Section 14023(d) obligation to mean that only TAC pesticides other than HAP-TAC's had to be listed by regulation, different statutory language would have been used. To narrow the scope in this way, Section 14023(d) would have to read something along the lines of '. . . the director shall list, by regulation, pesticides determined by the 14022-14023 process to be toxic air contaminants.' " However, there was no need to include the italicized language. As previously stated, the preceding language in sections 14022 and 14023 refer to the evaluation and review process that does not apply to HAP-TAC's.
Appellants point out that the Department has cited section 14023 as authority for its listing of HAP-TAC's, including Telone, in 3 California Code of Regulations section 6860. However, this does not change our interpretation of the clear language used by the Legislature in the Act. We also note that section 11456 vests the director with the authority to "[a]dopt regulations which are reasonably necessary to carry out provisions of [the Food and Agricultural] code . . . ."
Appellants also contend that section 14024, subdivision (a) requires the Department to adopt control measures to protect the public from exposure to HAP-TAC's.
Section 14024, subdivision (a) states: "For those pesticides for which a need for control measures has been determined pursuant to subdivision (e) of Section 14023 and pursuant to provisions of this code, the director . . . shall develop control measures designed to reduce emissions sufficiently so that the source will not expose the public to the levels of exposure which may cause or contribute to significant adverse health effects."
Appellants argue that the "identification of HAP-TAC's pursuant to Section 14021 is a 'provision of this code' sufficient to trigger Section 14024 obligations for" HAP-TAC's such as Telone. Appellants have ignored the introductory language of subdivision (a) of Section 14024. It states that this section applies to those pesticides "for which a need for control measures has been determined pursuant to subdivision (e) of section 14023, subdivision (d) and pursuant to provisions of this code." The need for control measures for Telone and other HAP-TAC's was not determined under either section 14023 or section 14021. Instead, Telone is defined as a TAC because it was identified as a hazardous air pollutant under federal law. Thus, section 14024 does not apply to Telone. Californians for Pesticide Reform, supra, 184 Cal.App.4th at pp. 904-905, reached the same conclusion, stating that "[t]he HAP-TAC's have been designated TAC's under section 14021; however, nowhere in that statute is it determined that control measures are needed for these TAC's. By its plain language, section 14024 does not apply to HAP-TAC's." Accordingly, we reject appellants' argument.
Since we have concluded that the statutory language of sections 14021 through 14024 is clear and unambiguous, this court need not examine the legislative history to determine the Legislature's intent. (Watsonville Pilots Assn. v. City of Watsonville, supra, 183 Cal.App.4th 1059, 1069.)
Appellants also argue that the exclusion of HAP-TAC's from implementation of control measures pursuant to section 14024 "leads to the absurd result of HAP-TAC's being left completely unregulated and unevaluated by the TAC Act."
Though the Department is not required to develop control measures for Telone and other HAP-TAC's under sections 14021 through 14024, the use of this pesticide is extensively regulated. Restrictions have been placed on the use of Telone under the label requirements mandated by federal and state law. All pesticides sold or distributed in the United States must be registered by the Environmental Protection Agency (EPA) and meet certain label requirements. (7 U.S.C. §§ 136-136y; 40 C.F.R. § 156.10 (2012).) Thus, the labels must provide detailed information about the pesticide, including its uses, its method of application, the frequency and timing of application and the protection for workers. (40 C.F.R. § 156.10 (2012); Cal. Code Regs., tit. 3, §§ 6235-6243.) Those who apply pesticides in California are required to comply with federal label requirements. (§ 12973.) The label for Telone specifies measures to limit exposure to Telone. The use of certain protective equipment, such as goggles and respirators, is required to prevent inhalation of the pesticide during application. Certain application methods are required to ensure that the pesticide is placed far enough below the soil surface. The label also mandates the creation of buffer zones and the use of sealing methods to mitigate the effects on air quality and public health.
In addition, Telone has been designated a restricted material (Cal. Code Regs., tit. 3, § 6400), and restricted materials require special permits for their use, thereby reducing potential harm to public health and the environment. (§§ 14004.5, 14006.5; Cal. Code Regs., tit. 3, §§ 6400, 6412, 6445, 6445.5.) The restricted materials permit for Telone contains numerous conditions that were designed to reduce Telone's adverse effects as a HAP-TAC. The applicator is required to follow the label and all statutes and regulations. All residents near the proposed fumigation site are to be notified at least nine days prior to application of the pesticide, which must commence one hour before sunrise and be completed one hour before sunset. A guard is to be posted on site for 24 hours after an application of the pesticide. The applicator is required to apply a water seal to the tarp at least twice a day, and the tarp repair plan is to be the same as the plan for application of methyl bromide. The permit also mandates application methods, the creation of buffer zones of 100 feet that do not include occupied residences, and establishes the application order for each block. In addition, the permit addresses the township limit necessary to minimize levels of Telone in the atmosphere and to mitigate the potential for chronic exposure.
The Department is also authorized to impose control measures on the use of a pesticide through the registration process. (§ 12824.) All pesticides sold in California must be registered annually with the Department. (§§ 12811, 12817, 12993; Syngenta Crop Protections, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1155 (Syngenta).)In determining whether to register the pesticide, the Department considers its impacts on the environment and public health as well as the accuracy of the product labeling. (§§ 12824, 12825; Syngenta, at pp. 1155-1157.) The Department has imposed control measures for Telone through the registration process. The management plan for Telone, which is a condition for registration of the pesticide, imposes restrictions on use and location of use in California. In 2002, the limit or township cap was increased for those townships where use had been significantly under the cap. The management plan also required Dow AgroSciences, the manufacturer of Telone, to monitor the amount of Telone sold in each township and to report to the Agricultural Commissioner and the Department when the use approached the cap. When the use of Telone in a township approached the cap, permits for its use were not issued.
Appellants concede that there are other control measures that apply to HAP-TAC's. They maintain, however, that these measures do not satisfy the Department's duty under the Act to regulate HAP-TAC's. Noting that the Legislature enacted section 12973, which provides that the use of a pesticide shall not conflict with its label, in 1978, appellants claim the Legislature would not have enacted sections 14021 through 14027 in 1983 if it had been satisfied with the statutory labeling requirements. However, sections 14021 through 14024 outline a process to assess the risks posed by pesticides that are not identified in section 14021 as HAP-TAC's to determine whether they are TAC's and to adopt control measures when necessary. While appellants have envisioned a process in which the Department would consult with other agencies such as air pollution control districts and air quality management districts to develop additional regulations for HAP-TAC's, the unambiguous language used in sections 14021 through 14024 does not support this interpretation.
D. Regulation of Chloropicrin
Appellants next contend that the Department's "excessive delays in regulating Chloropicrin have now reached a point that demands Court action to impose a deadline for compliance."
Section 14081 provides: "The director, after investigation and hearing, shall adopt regulations by April 1, 1989, which govern the use of methyl bromide and chloropicrin as field fumigants."
Appellants note that the Department requested scientific data on chloropicrin in 1987 and began a reevaluation of products containing chloropicrin in 2001. As Californians for Pesticide Reform, supra, 184 Cal.App.4th at p. 901 recognized, "[t]he Act provides no time limits for evaluating pesticides, nor does it state how many pesticides should be evaluated in a given period. Instead, the Act gives the Department discretion to set priorities. Priority setting means that not every pesticide will be evaluated immediately." Thus, appellants do not contend that the Act mandates a deadline for the completion of the process to adopt control measures for chloropicrin. Instead, they contend that the Department has failed to comply with its mandatory duty to enact regulations within a reasonable amount of time.
Though the record does not disclose why it has taken so long to evaluate and regulate chloropicrin, the Department has made progress in the last two years. We first note that the EPA recently required changes to chloropicrin's label to increase protections for agricultural workers as well as people who live or work near fields that are fumigated by this pesticide. Some of these risk mitigation measures appeared on chloropicrin labels by late December 2010 while others were included by late 2011. The risk mitigation measures include buffer zones, posting requirements, protections for agricultural workers, applicator training programs and safety information for handlers, and good agricultural practices. As previously noted, pesticide applicators in California must comply with federal label requirements. (§ 12973.)
Moreover, the Department designated chloropicrin a TAC in January 2011. (Cal. Code Regs., tit. 3, § 6860, subd. (a).) Given this designation and the EPA's label amendments, the Department is currently determining the need for and appropriate degree of control measures under section 14023, subdivision (e). Though the comprehensive risk characterization document on chloropicrin, which includes occupational exposures, was undergoing review and had not been completed, the Department issued a risk management directive on December 31, 2010. At that time, the Department had established a need to develop use restrictions on chloropicrin in connection with exposures to residents and bystanders. Thus, the Department concluded that it would "develop mitigation measures in consultation with the [ ] Board, the air pollution districts, and the county agricultural commissioners, as required by [ ] section 14024(a) to protect public health concerns for residents and bystanders." Based on this record, we conclude that the Department is presently complying with its duty to regulate the use of chloropicrin in a timely manner under sections 14022 through 14024.
The Department also points out there are currently regulations that designate chloropicrin as a restricted material and that specify chloropicrin field fumigation methods within "the Sacramento Metro, San Joaquin Valley, South Coast, Southeast Desert, or Ventura ozone nonattainment areas during the May 1 through October 31 time period." (Cal. Code Regs., tit. 3, §§ 6400, 6449, 6449.1.) There are also regulations governing permit evaluations, the notices of intent, fumigation handling activities, field fumigation licensing requirements, license duration, and general fumigation safe-use requirements. (Cal. Code Regs., tit. 3, §§ 6432, 6434, 6445, 6445.5, 6500, 6780.) However, the Department has not promulgated these regulations pursuant to section 14024.
Appellants argue, however, that the legislative history establishes that the Department has failed to complete the evaluation and regulation process of chloropicrin in a timely manner. They rely on a document that was prepared by the Board for a February 1984 oversight hearing on implementation of Assembly Bill No. 1807. The document indicates that the anticipated time for the completion of the assessment of the health effects of a TAC by the Board would be less than five months. This document provides no support for appellants' position. Health and Safety Code section 39655, subdivision (a) specifies that pesticides that are TAC's are regulated by the Department, not the Board. Thus, the legislative history pertaining to the Board's duties is not relevant.
III. Disposition
The judgment is affirmed.
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Mihara, J.
WE CONCUR: _______________
Bamattre-Manoukian, Acting P. J.
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Duffy, J.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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