Watch pesticide application regulations
By J. Kenneth Gorman
Lombardo and Gilles
The application of chemicals to control crop-destroying
organisms has been a mainstay of agriculture in the United States
and worldwide for much of the 20th century. Advances in technology
have allowed farmers to kill or control organisms that attack and
destroy crops, resulting in greater yields, higher quality and
cheaper foods.
Watch pesticide application regulations
By J. Kenneth Gorman
Lombardo and Gilles
The application of chemicals to control crop-destroying organisms has been a mainstay of agriculture in the United States and worldwide for much of the 20th century. Advances in technology have allowed farmers to kill or control organisms that attack and destroy crops, resulting in greater yields, higher quality and cheaper foods.
Pesticide use has environmental and economic consequences. Thus, governments at the local, state, national, and even international levels have established laws, regulations, and protocols concerning pesticide use and application. These controls range from banning certain chemicals; limiting the production of others; restricting the concentration of chemicals or the time, place and manner of application; and establishing regulatory, licensing and enforcement provisions.
In the United States, the Environmental Protection Agency is the federal agency charged with pesticide regulation. All chemicals manufactured, imported or used for pesticide or fumigant purposes must receive FDA approval. The FDA also has on-going programs evaluating and monitoring pesticides and the development of alternative chemicals and applications. The EPA has local, regional and national offices as well as enforcement divisions.
At the state level, the ultimate authority on pesticide regulation and application is the Department of Pesticide Regulation (“DPR”). DPR is an offshoot of the state EPA. DPR is tasked with statewide oversight of pesticide regulation. It has its own director, regional offices, and inspection and enforcement staff. DPR has the authority to inspect any and all sites where restricted-use pesticides (RUPs) are being applied or stored, and has the authority to review and approve, disapprove or modify permits for the application of RUPs.
The regulatory scheme empowers the County Agricultural Commissioners (CAC) in every county in California to implement and enforce pesticide regulation within their county boundaries. The statutes give the CAC some latitude by allowing them to adopt and adjust permit application conditions according to the local conditions. CAC cannot approve permits that violate the statutory protections, but they have discretion to impose conditions that are more restrictive than the state minimums if local conditions require.
As with the EPA, the DPR is constantly researching alternatives for pesticides as well as alternative application procedures. This allows DPR to modify its regulations without a need for an act of Legislature or the Courts.
This is how the system works on a practical level:
A farmer who wishes to apply a restricted-use pesticide must file a notice of intent with the local county Agriculture Commissioner. This requires the farmer to provide a detailed description of the proposed application including the chemicals to be applied, the amounts, the concentrations, the areas, methods, and dates of application and several other factors. All applications must be performed by a licensed pesticide applicator.
The Notice of Intent is a public record. The CAC reviews the application and grants, denies, or modifies it via a permit. Any person can object to the granting of a permit. In the event of an objection, the CAC is required to hold a public hearing and establish a record of that public hearing, then issue a written decision on the appeal explaining the commissioner’s findings and decision.
If a party to the CAC appeal disagrees with the decision, that decision is reviewed administratively by the Department of Pesticide Regulation. This is not a full-blown trial, but the DPR receives the entire record of the permitting process including the Notice of Intent, the record received by the CAC, including a transcript of the hearing, as well as any written documents, and the technical information about the chemical(s). DPR then issues a written decision affirming, denying, or modifying the CAC decision.
This administrative procedure for the processing and approval or disapproval of pesticide application is done to balance the interests of the farmers, neighbors, environment and consumers. Absent unusual circumstances, the process should take a few weeks at most. As with other legislatively mandated administrative procedures, the purpose is to have persons with expertise in the field making the decisions rather than the Legislature, and to have an efficient system so that farmers can plan and plant efficiently, and concerned citizens can have their grievances addressed quickly.
Accordingly, the court’s review of an application permit is very limited. Per the State Food and Agriculture Code, when a party to the DPR decision appeals it to court, the court may only consider whether the DPR abused its discretion and whether the permit complied with the labeling requirements on the chemicals. The court’s decision may only be based on the administrative record (the documents before the county agriculture commissioner and the DPR), consideration of additional information is improper, just as it is in any other type of administrative review.
The California Code of Civil Procedure states that an “abuse of discretion” is shown only if the court concludes that, based on the evidence in the administrative record, there was no substantial evidence supporting the decision of the DPR.
Typically a challenge to the appellate decision of DPR is done by an application for temporary restraining order and preliminary injunction. This is because normal time for litigation is prohibitive. Even a request for a temporary restraining order can have damaging effects on the farmer, as the delay in application can set off crucial timing of the planned application. There is usually a short period of time between the granting of a temporary restraining order (which just maintains the status quo for a little while) and a preliminary injunction. As a practical matter, the court’s determination as to whether or not to grant the preliminary injunction will, in most cases, determine whether or not the application goes forward. That is because it usually takes at least two to three months to get to the next stage – a hearing on the application for a permanent injunction, and by that time the fumigation has been completed or it is too late to proceed.
This column is the work product of Lombardo & Gilles, LLP, which has offices in Hollister and Salinas. J. Kenneth Gorman is head of the Litigation Department at Lombardo & Gilles, LLP, specializing in construction defects, real estate and land use litigation and business litigation. He can be reached at 888-757-2444 or [email protected]. Mail your questions to Jeff Gilles, It’s the Law, c/o The Pinnacle, 380 San Benito St., Hollister, CA 95023 or contact Jeff at 888-757-2444 or [email protected].
