A judge orders California’s pesticide regulator to redraw guidelines around the cancer

Staff Writer

Ohlone Elementary School in North Monterey County is host to one of the California Department of Pesticide Regulation’s air monitors, which detect pesticide concentrations.

A court battle rages on over California’s regulation of the cancer-causing pesticide 1,3-dichloropropene, or 1,3-D – with a superior court judge ruling that the state must revise its rules to provide greater protection to farmworkers exposed to the pesticide.

On March 9, Alameda County Superior Court Judge Evelio Grillo ordered that the California Department of Pesticide Regulation has until September to propose new regulations protecting both residents and farmworkers from the potential risks of 1,3-D. Manufactured by Dow Chemical under the brand name Telone, 1,3-D is a pre-planting soil fumigant that, despite being banned in 34 countries, is the third-most heavily applied pesticide in California, and frequently used in berry fields across Monterey County.

At issue is that DPR’s previously proposed 1,3-D regulations were “designed to protect only ‘non-occupational/residential bystanders,’ and are not designed to protect occupational bystanders” like farmworkers, according to the court order. Those guidelines would have permitted 1,3-D exposure levels 14 times the “No Significant Risk Level” determined by the California’s Office of Environmental Health Hazard Assessment (OEHHA), which implements the state’s Proposition 65 chemical regulations.

DPR is required by law to work with OEHHA on pesticide regulations that affect workers; both agencies operate under the California Environmental Protection Agency. According to Jane Sellen, co-director of Californians for Pesticide Reform, which is a plaintiff in the lawsuit, DPR attempted to “[get] around this by developing a regulation that specifically excludes occupational bystanders, so farmworkers are not included in the regulation.”

Sellen points out the influence on DPR’s process by agro-industrial companies like Dow, which is an intervenor and appellant in the lawsuit on behalf of DPR, and notes that the agency gets a majority of its revenue through taxes imposed on pesticide sales. Under that dynamic, she claims, “It becomes clear why [DPR is] so interested in maintaining a blockbuster fumigant like 1,3-D – it literally funds them.”

DPR monitors air levels of 1,3-D at locations near farming communities across the state, one of which is at Ohlone Elementary School in Royal Oaks, near Las Lomas. That monitoring station has recorded annual 1,3-D air concentrations above OEHHA’s guidance, but below DPR’s, every year from 2012 to 2021, the most recent year on record.

Monterey County Agricultural Commissioner Juan Hidalgo says the county follows DPR’s guidelines on 1,3-D, citing the agency’s own research and studies on pesticide exposure.

“I understand there are concerns when you have two different agencies giving you different data, but I think it’s up to DPR to decide,” Hidalgo says.

Sellen says it is possible that DPR appeals the court ruling. A DPR spokesperson says the agency “is currently evaluating [the court order] to determine next steps.” Representatives for Dow declined comment.

Staff Writer

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