BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTION AGEN
OFFICE OF CIVIL RIGHTS

I6 $--?9-t??
Angelita C., by herself and on behalf of
Thalia C., age 10; Jorge G., by himselfand on
behalf of Jorge G., Jr., age 6; Maria G., by
herself and on behalfof David G., age 14;
Margarita M., by herself and on behalf of
Aurelio A., age 11; Emiliano P., by himself
and on behalf of Albertina P. age 11, and
Gadiela P., age 10; Bemabe S., by himself
and on behalf of Cesar S., age 8 and Lucila
S., age 13,
Complainants,

;
i
;
!
i

v.

i

California Department of Pesticide
Regulation,

;

Respondent.

COMPLAINT UNDER TITLE VI
OF THE CIVIL RIGHTS ACT OF
1964,42 U.S.C. 52000d AND
40 C.F.R. Part 7

;
1

I. INTRODiJCTION
This is a complaint under Title VI of the Civil Rights Act of 1964 and the US.
Environmental Protection Agency’s implementing regulations by children and the parents of
children who attend the California schools most exposed to methyl bromide, alleging ongoing
discrimination in the permitting of this extremely acutely toxic Category I pesticide and all
pesticides in California. This complaint names as respondent the California Department of Pesticide
Regulation (“DPR”), which is responsible for permitting methyl bromide and other highly toxic
pesticides for agricultural use in California. DPR, a recipient of financial assistance from the
United States Environmental Protection Agency (“U.S. EPA”), most recently took action to permit
the use of methyl bromide and other pesticides on January 5,1999.

 Angelita C., d aL v. California Department of P&hide Regulation
Filed June 30, 1999
Page 2

The agricuhural use of pesticides in California has a disproportionate impact on people of
color, primarily Latinos. To demonstrate this disproportionate impact, this complaint focuses on
methyl bromide, due to its particularly deadly characteristics, as an example of overall use of and
exposure to highly toxic pesticides in the state.
School children of color in California suffer a much greater risk of exposure to the deadly
agricuhural chemical methyl bromide than their white counterparts. Schools which have over
35,000 pounds of methyl bromide applied annuahy within a 1.5 mile radius have a student
population that averages 82 percent students of color. In contrast, the average non-white student
population for all California schools is 60 percent.’ Moreover, the disproportionate risk is part of a
larger pattern. In California, the amount of methyl bromide applied within a 1.5 mile radius of a
school is positively correlated with the school’s non-white population: the more methyl bromide
applied in proximity to a school, the more likely that the school will have a greater non-white
student population.
DPR is responsible for this clear discriminatory pattern of methyl bromide application
because it allows usage at extremely high levels despite methyl bromide’s high toxicity, because it
fails to fully consider the impact on schoolchildren, and because it fails to implement readily
available less discriminatory and less dangerous alternatives.
Methyl bromide is classified by the U.S. EPA as a Category I Acute Systemic Poison, the
most deadly category of substances. lethal at less than 50 mg per 1 kg of body weight? Methyl
bromide is lethal at an air concentration of 0.063 mg methyl bromide per titer of air breathed for 1.5

‘In this complaint, we use the terms “people of color” and “non-white” interchangeably, to
refer to African Americans, Latinos, Asian Americans and Native Americans.
2According to the standard LD50 test. Liebman, James, Rising Toxic Tide: Pesticide Use in
California 1991-1995 ( Pesticide Action Network and Californians for Pesticide Reform, 1997).
at 8 (hereafter Liebman, Rising Toxic Tide).

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Filed June 30, 1999
Page3

minutes.3 Assuming a breathing rate of 11.6 liters per minute for a 21.7 kg child, methyl bromide is
lethal at a level of 0.5 mg/kg body weight.’
Methyl bromide is toxic primarily to the central nervous system and also damages the lungs,
kidneys, eyes and skin. Mild symptoms of inhalation of methyl bromide may include headache,
dizziness, nausea, and chest and abdominal pain. More severe symptoms include lung swelling;
congestion; hemorrhaging of the brain, heart, and spleen; and severe kidney damage. Death may
occur within one to thirty hours, usually from respiratory failure. Chronic exposure, consisting of
lower doses over a period of months or years, can cause dizziness, vision and hearing disturbance,
depression, confusion, and hallucinations. If exposure is severe, lung swelling and bronchial
pneumonia may also OCCLU.~ At least 470 cases of illnesses and 19 deaths from methyl bromide
poisoning have been reported in since 1982.6
Methyl bromide is used more than any other pesticide in California. A colorless and
odorless gas, methyl bromide kills most living organisms in soil, agricultural products, and
buildings where it is applied. In 1995, 17.6 million pounds were applied, accounting for almost a
quarter (24.2%) of all pesticides used in California;’ in 1996, the most recent year for which figures
are available, 16.6 million pounds of methyl bromide were used in California. Of the total amount
applied, 81 percent was used to treat soil in unplanted fields, 12 percent to treat nursery soil, 3

3According to the standard LD50 test. Meister Publishing Company, I998 Farm Chemicals
Handbook. Volume 84, at C257.
‘United States Environmental Protection Agency, Exposure Fucfors Handbook (Office of
Research and Development 1997), USEPA 600/P-95/002Fa.
5Exteasion Toxicology Network (EXTOXNET) Profile for Methyl Bromide, Revised 9/93,
web site: http://ace.orst.edulinfolextoxnet.
6Kennedy, James, “EPA Still Favors Methyl Bromide Phaseout by 2001 Deadline, Official
Tells Hearing,” Bureau ofNational Affairs, 29 Environment Reporter 356 (June 12.1998);
Pesticide Action Network (PAN) North America Regional Center, “Pesticide Fact Sheet: Methyl
Bromide Use in California” (1998).
‘Based on calculations from data contained in Liebman, Rising Toxic Tide, at 29.

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percent for structural fumigation, and 4 percent for post-harvest commodity fumigation and other
uses.’ When used to meat soil, it is normally injected into the soil at a rate of 200 to 400 pounds per
acre to a depth of about one foot; the treated soil is oflea covered with a plastic tarp to enhance
pesticidal effectiveness?
Among pesticides classified as Category I acute toxins, methyl bromide is unique in the
extent of its use. While there were 47 other Category I pesticides used in California in 1995, the
amount of methyl bromide used was 50 percent greater than alI other pesticides combined.”
California uses more methyl bromide than any other state, accounting for almost a third of all
methyl bromide use in the United States and about 10 percent of methyl bromide use worldwide.”
Strawbeny growers are the greatest users of methyl bromide in California, accounting for almost a
quarter of the statewide consumption.‘2
In its permitting process, DPR has failed to consider and account for the extent to which
high methyl bromide use occurs near residential areas and schoolsn At one school, attended by

*Department of Pesticide Regulation, Consumer Fact Sheet: About Methyl Bromide, web site:
http://www.cdpr.ca.gov/docs/factshts/methbro.htm.
%PR, “Methyl Bromide Suggested Soil Injection Fumigation Permit Conditions” (revised
October 16, 1998 (ENF-042)), at 19.
‘@Based on calculations 6om data contained in Liebman, Rising Toxic Tide, at 29.
“California EPA web page: www.calepa.cahwnet.gov/epadocsJmethyl.txt, U.S. EPA web
page: http://www.epa.gov/spdpublc/mbr/mbrqa.html.
‘*Environmental Working Group (EWG), Methyl Bromide Use Near Cali/ornia Schools 1995
(1998) at 6. Web site: http://www.ewg.org/ (hereafter EWG, Methyl Bromide Use Near
California Schools.)
“Throughout this complaint, data regarding the amount of methyl bromide used within 1.5
miles of California schools is taken t?om the 1998 EWG study Methyl Bromide Use Near
Cali/ornia Schools, supra note 11. EWG’s analysis is based on 1995 pesticide use reporting
(“PUR”) data collected by the DPR and school location information from the California
Department of Education. As explained by EWG, “The PUR data is plotted geographically in
roughly l-mile sections. Our analysis located elementary, middle, and high schools within these
sections and calculated the amount of methyl bromide use reported in the sections that were

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Page 5

476 students, over 70,000 pounds of methyl bromide were used within a 1.5 mile radius in 1995
alone.” One hundred percent of this spraying occurred from mid-August through late May, when
schools are generally in session. At 10 public schools, attended by 7,753 students, at least 50,000
pounds of methyl bromide were used within a 1.5 mile radius. More than 75 percent of this
spraying occurred t?om mid-August through late May. In 1995, at least 25,000 pounds of methyl
bromide were used within a 1.5 mile radius of 39 schools, attended by 28,753 students. Children in
communities bearing the most impact from methyl bromide may be exposed at school and at home.
These same children also commonly face increased risk of exposure from other pesticides
registered and permitted by DPR.
Non-white children bear the disproportionate share of the heavy use of methyl bromide in
close proximity to California public schools. Where over 70,000 pounds of methyl bromide were
used within 1.5 miles, 88 percent of the students were non-white. Where over 35,000 pounds were
used within 1.5 miles, 82 percent were non-white. At the 39 schools where over 25,000 pounds of
methyl bromide were used, 79 percent of the student population was non-white.”
The actions of DPR must be considered in light of other existing adverse environmental
impacts on communities of color. Studies done by U.S. EPA, other government agencies and nongovernmental organizations clearly show that people of color bear a significantly disproportionate
share of the country’s environmental risks and dangers, including those created by the use of
pesticides in agriculture. Other significant hazards include hazardous waste facilities, air pollution,
lead poisoning, groundwater contamination, and rat bites.16

entirely located within 1.5 miles of that school in 1995.” The analysis is conservative, as PUR
sections that fell partly within a 1.5 mile distance were excluded. Further, although it cannot be
specified precisely, it is likely that at least one-third of the usage occurs within a 0.5 mile
distance of the schools.
“EWG, Methyl Bromide Use Near California Schools 1995, at 9.
“Racial classification data available for 96.1% students,
TJnited States Environmental Protection Agency, Environmental Equity: Reducing Riskfor
All Communities, Vol. 1, EPA 230-R-008, at 12 (June 1992); Luke W. Cole, Empowerment as
the Means to Environmental Protection: The Needfor Environmental Poverty Law, 19

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Filed June 30.1999
Page 6

The Clinton Administration has pledged its support to efforts to combat and eradicate
environmental racism. Executive Order 12,898 on Environmental Justice requires all federal
agencies to conduct and administer all programs, policies and activities “that substantially affect
public health or the environment in a manner that ensures that these programs, policies, and
activities do not have the effect of excluding persons... from participation in, denying persons... the
benefits of, or subjecting persons... to discrimination under, such programs, policies, and
activities.“” President Clinton has also instructed EPA to take action to protect children from
environmental hazards. In Executive Order 13,045, President Clinton ordered the EPA to ensure
that all environmental programs are adequate to protect infants and children, who may be more
susceptible to environmearal toxins than adults.
This complaint is being filed with the U.S. EPA. The DPR is the recipient of substantial
federal assistance from the U.S. EPA. Thus, the discriminatory practices of this public agency are
subject to Title VI of the Civil Rights Act of 1964.” Title VI prohibits discrimination on the basis
of race, color, or national origin by any program or activity receiving federal financial assistance.
EPA regulations prohibit recipients from making decisions which have the effect of subjecting
individuals to discrimination because of their race, color, or national origin.‘9
To break this pattern of discrimination, EPA should require the DPR to ban the use of
methyl bromide and require the use of less toxic pest control measures in its place. Alternatively,
EPA should require DPR to greatly expand its buffer zones, increase dramatically its enforcement
of existing laws and regulations and to otherwise change the permitting process such that
predominantly non-white schools and communities are no longer subject to a disproportionate

ECOLOGY L.Q. 619,622-28 (1992).
“Executive Order 12898 of Feb. 11,1994: Federal Actions to Address Environmental Justice
in Minority Populations and Low-Income Populations Section 2-2,59 Fed. Reg, 7629,7630-31
(Feb. 16, 1994).
is42 U.S.C. Section 2000d.
I940 C.F.R. Section 7.35(b).

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Page 7

burden from methyl bromide permitting. EPA should impose these measures as a condition for
DPR’s continued receipt of federal fmancial assistance.
This complaint is organized into four main sections. Section II sets out the parties to this
complaint. Section III sets forth the argument, showing that DPR has violated Title VI in its
permitting of methyl bromide and other pesticides. Section IV contains the remedies that
complainants seek and discusses less discriminatory alternatives that are available to DPR.

II. PARTIES
A.

Complainants
The complainants are children and parents of children at six schools, including elementary,

middle and high schools. All schools attended by the child complainants are located within a 1 S
mile radius of the spraying of at least 35,000 pounds of methyl bromide anr~ually.~~ Because of
well-founded and historically realized fears of retaliation fium agricultural interests in their home
communities, each of the complainants is identified by his or her first oame and only the first letter
of his or her last name. Complainants arc willing to file their full names under seal with the U.S.
EPA if necessary.
1.

Children and parents of Rio Plaza Elementary School

Bemabe S. is a resident of Oxnard, California, and the father of Cesar S., age eight, who is a
student at Rio Plaza Elementary School. Rio Plaza Elementary School is located in an
unincorporated area near the city of Oxnard in Ventura County. Rio Plaza has an enrollment of 476
students, 88 percent of whom are non-white. In 1995, at least 79,517 pounds of methyl bromide
were applied within a 1.5 mile radius of the school, conferring on Rio Plaza the unfortunate
distinction of being the school bearing the greatest impact of methyl bromide application in
California.

2.

Children and parents of Rio Mesa High School

Maria G. is a resident of Oxnard and the mother of David G., age 14, who is a student at
Rio Mesa High School. Bemabe S. is a resident of Oxnard, California, and the father of Lucila S.,
age 13, who is a student at Rio Mesa High School. Rio Mesa High is located in an unincorporated

“‘Based on 1995 DPR data.

 Angelita C., ei aL v. California Depatimml of Pesticide Reguladon
Filed June 30. 1999
Page a

area near the city of Oxnard in Ventura County. It has ao enrollment of 2,169 students, 75 percent
of whom are non-white. At least 67,492 pounds of methyl bromide are applied annually within a

I .5 mile radius of the school.
3.

Children and parents of Pajaro Middle School

Margarita M. is a resident of Pajaro and the mother of Aurelio A., age 11, who is a student
at Pajaro Middle School. Pajaro Middle School is located in the city of Pajaro in Monterey County.
It has an enrollment of 524 students, 94 percent of whom are non-white. At least 67,354 pounds of
methyl bromide are applied annually within a 1.5 mile radius of the school.

4.

Children and parents of Barton Elementary School

Emiliano P. is a resident of Salinas and the father of Albertina P., age 11, and Gadiela P,
age 10, who are students at Barton Elementary School. Barton Elementary School is located in the
city of Sahnas in Monterey County. It has an enrolbnent of 1,025 students, 98 percent of whom are
non-white. At least 59,725 pounds of methyl bromide are applied annually within a 1.5 mile radius
of the school.
5.

Children and parents of Macquiddy Elementary School

Jorge G. is a resident of Watsonville and father of Jorge G., Jr., age six, who is a student at
Macquiddy Elementary School. Macquiddy Elementary School is located in Watsonville in Santa
Crtrz County. It has an enrollment of 850 students, 90 percent of whom are non-white. At least
47,506 pounds of methyl bromide are applied annually within a 1.5 mile radius of the school.
6.

Children and parents of Ohlone Elementary School

Angelita C. is a resident of Pajaro and mother of Thalia C., age 10, who attends Ohlone
Elementary School. Ohlone Elementary School is located in Pajaro in Monterey County. It has an
enrollment of 518 students, 96 percent of whom are non-white. At least 36,198 pounds of methyl
bromide are applied armually within a 1.5 mile radius of the school.

B.

Respondent
Respondent California Department of Pesticide Regulation (“DPR”) is a department of the

State of California Environmental Protection Agency and is responsible for regulating the use of
methyl bromide pursuant to the California Food and Agriculture Code and the California Code of
Regulations. DPR is a recipient of federal fmancial assistance from EPA, including but not limited

 AngJita C., et al Y. California Depanment of Pesticide Regulahbn

Filed June 30.1999
Page.9
to the following grants in the last three fiscal years: EPA grant #009155960 for $748,548 for
Pesticide Compliance Monitoring and Program Development, grant #009335960 for $233,407 for
the Pesticide Certification Program, grant #999440010 for $75,000 for the Pesticide Integrated
Environmental Border Project, grant #999442010 for $991,360 for Pesticide Regulatory Education
Program, grant #009155970 for $894,210 for Pesticide Compliance Monitoring, grant #999642010
for $75,000 for the Pesticide Outreach Project, and grant #009155980 for $1,029,337 for the
Consolidated Pesticide program. DPR takes actions with respect to pesticides generally, and
methyl bromide specifically, on a regular basis. Its most recent action on methyl bromide was a
January 5,1999 ‘Wotice of Proposed Decision to Renew Registration of Pesticides,” attached as
Exhibit A, which covered methyl bromide.
Ill. ARGUMENT
Title VI of the Civil Right Act of 1964 provides:
No person in the United States shah, on the ground of race, color, or national origin,
be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving federal financial assistance.”
DPR has violated Title VI, as implemented by EPA regulations, by cotiistently permitting
methyl bromide use although such use has a demonstrably disproportionate impact on school
children of color in California. DPR’s permitting the use of methyl bromide is exacerbated by its
failure to require adequate protective “buffer zones” and its continued failure to adequately enforce
pesticide laws in California, both of which contribute to the disproportionate impact of methyl
bromide on students of color.
EPA must ensure that recipients of EPA financial assistance are not subjecting people to
discrimination. In particular, EPA’s Title VI regulations provide that an EPA aid recipient “shall
not use criteria or methods of administering its program which have the effect of subjecting
individuals to discrimination because of their race, color, national origin, or sex.22

2’42 U.S.C. Section 2000d.
2240 C.F.R. Section 7.35(b).

 Angelita C., er al Y. Cali/ornia Department of Pesticide Regulation
Filed June 30, 1999
Page 10

DPR is subject to the nondisc rimination requirements of Title VI because it is a recipient of
federal funds tiom EPA used for programs including pesticide compliance monitoring,
certification, education and outreach.” DPR has primary authority under the Federal Insecticide
Fungicide and Rodenticide Act (FIFRA) for pesticide permitting programs, and thus has approval
authority over all registrations and permitting of pesticides in Califomia.24

A.

DPR is responsible for permitting methyl bromide.
DPR holds primary responsibility in the permitting of methyl bromide in the state of

California Most recently, DPR renewed the registration for methyl bromide by issuing its ” 1999
Public Report Relating to Renewal of Registrations of Pesticides,” accompanied by its “Notice of
Proposed Decision to Renew Registration of Pesticides,” issued on January 5, 1999 (Exhibit A).
This is an annual blanket renewal of pesticide registrations which, for the 1999 calendar year,

% the Civil Rights Restoration Act of 1987, Congress defined “program or activity” clearly
and broadly, in relevant part, as:
[A]11 of the operations of -(1)

(A) a department, agency, special purpose district, or other instrumentality of a
State or of a local government; or
(B) the entity of such State or local government that distributes such [federal]
assistance and each such deparnnent or agency (and each other State or local
government entity) to which the assistance is extended, in the case of assistance to
a State or local government; . . .

42 U.S.C. Section 2000d4a. See Association of Mexican American Educators v. State of
California, 836 F. Supp. 1534,1534-44 (N.D. Cal. 1993).
In fiscal year 1996, DPR received S 1,548,3 15 in EPA grants for pesticide compliance
monitoring and program development, a pesticide certification program, a pesticide integrated
environmental border project, and a pesticide regulatory education program. In fiscal year 1997,
DPR received $969,210 in EPA grants for pesticide compliance monitoring and a pesticide
outreach project. In fiscal year 1998, DPR received $1,029,337 in EPA grants for consolidated
pesticide programs.
247 U.S.C.A. Section 136.

 Angelita C.. et al v. California Department of Pesticide Regulation
Filed June 30.1999
Page I1

covered approximately 12,000 pesticides including methyl bromide. This action of DPR with
respect to methyl bromide occurred within 180 days of the present complaint.
While 55 county agricultural commissioners (“CACs”) carry out enforcement activities
locally, DPR is the ultimate decision-maker in matters of methyl bromide permitting; for example,
permit challenges are appealed to DPR for final review.= The CACs issue annual permits to
individual growers and pest control operators according to the permit conditions specified by DPR.
DPR sets out the permit conditions to be followed by tbe CACs in the 400-page Methyl Bromide
Suggested Soil Injection Fumigation Permit Conditions (“Suggested Permit Conditions”). DPR

thus has the authority to prohibit application of methyl bromide within 1.5 miles of a school.
DPR directs and supervises the CACs in matters of methyl bromide permitting. Division 6
of the California Food & Agriculture Code states that the director of DPR, and the commissioner of
each county under the direction and supervision of the director, is responsible for enforcing the
laws and regulations governing the licensing and permitting of pesticide use.26 Describing its
duties, DPR states that it is “responsible, under existing state laws and delegations of authority by
the U.S. EPA for registering all pesticides prior to sale for use in California, as well as regulating
and controlling the use of pesticides.“27

2sCalifomia Food and Agriculture Code, $14009; see also California Code of Regulations,
Title 3, $6442.
26California Food and Agriculture Code, Division 6, § 11501.5. In 1988, California’s state
legislature enacted Food & Agriculture Code 5 1408 1. This law required the adoption of
regulations to govern methyl bromide by April 1,1989. DPR never adopted regulations. In July
1998 - almost 10 years later - a coalition of environmental organizations sued DPR for its failure
to adopt the required regulations. Friends of the Eurrh. er al. Y. California Department of
Pesricide Regulafion, San Francisco Superior Court No. 996187.
2’DPR, “Pesticide Use Reporting: An Overview of California’s Unique Full Reporting
System” (June 1995), web site: httu:Nwww.cdor.ca.eov/docs/dordocs/userntn~uurhtm.htm.

 Angelitu 6, et al v. California Department of Pestkide Regulation
Filed June 30. 1999
Page 12

DPR states that to use restricted materials, farmers or pest control businesses must be
licensed or certificated by DPR as well as obtain a permit from their local CAC.2’ In January 1973,
methyl bromide was classified as a restricted material in California for all pesticide uses.29 Thus,
every user of methyl bromide in California must be licensed or certificated by DPR, without such
licensing, no user can legally apply the pesticide.
DPR has taken many actions in the last several years which illustrate its extensive
involvement in matters of methyl bromide permitting. ln 1992, DPR conducted an interim risk
characterization for methyl bromide, and DPR is currently completing a final risk characterization.
In 1992, based on the interim risk characterization, DPR decreased the acceptable 24-hour human
exposure limit from 5 parts per million @pm) to 210 parts per billion (ppb) (equivalent to 0.21
ppm).‘0
DPR’s Information Systems Branch developed the computer application programs for
issuing annual permits, and prepares annual Pesticide Use Reports using the data from these
permits. DPR assigns full-time staff for the ongoing maintenance of the county computer
systems.”
On January 1, 1994, DPR issued “Suggested Permit Conditions” which unposed new permit
conditions for methyl bromide use in field fumigations, including equipment modifications and
restrictions on work hours, reductions in application rates, limits on acreage treated, and

‘rDepartment of Pesticide Regulation, “Consumer Fact Sheet: About Methyl Bromide”, web
site: http://www.cdpr.ca.gov/docs/factshts/methbro.htm.
29Department of Pesticide Regulation, Review of Restrictions on rhe Use of Methyl Bromide: (I
Report to the Legislafure, at 3 (November 1996) (hereafter DPR, Review of Restrictions.)
‘ODPR, Review of Resfricfions, at 2.
“DPR, Pesticide Use Reporting: An Overview of California’s Unique Full Reporting System
(June 1995). web site: http://www.cdpr.ca.gov/docs/dprdocs/userptng/purhtm.htm.

 Angelitu C., et aL v. CaIifornia Depottment of Pestibide Regulation
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Page 13

establishment of buffer zones.32 In theory, this 400-page document must be followed by all CACs.
“Suggested Permit Conditions” has been updated a number of times since its initial publication.
From December 1996 through February 1997, DPR conducted monitoring studies to
validate the effectiveness of its restrictions on methyl bromide field fumigations. The results
showed that the buffer zones were unprotective, and in November 1997, DPR updated “Suggested
Permit Conditions” to increase the minim um required buffer zone tirn 30 feet to between 100 feet
and 300 feet depending on the application rate, the application type, and the number of acres
*ated.” DPR subsequently back-pedaled, reducing the minimum worker buffer zone to 30 feet
and decreasing the buffer zone to 50 feet for parcels of up to five acres where methyl bromide is
applied at rates up to 235 pounds/acre.”
Although individual counties serve as the local enforcement agents of the DPR, because
DPR itself establishes the permit conditions for methyl bromide it is ultimately responsible for the
impacts of methyl bromide used under those conditions.

B.

Schools within 1.5 miles of tields treated with methyl bromide should be considered to
be within a “zone of impact,” given methyl bromide’s extreme toxicity, the elevated
susceptibility of children, and controversy over what standard and distance from
exposure is protective of health.
To determine the impact of methyl bromide use, one need consider the toxicity of the

pesticide, its method and location of application, its potential to drift from site of application, and
its health effects, particularly on children. Consideration of all of these factors leads us to use a 1.5
mile radius fiorn fields treated with methyl bromide as the “zone of impact” of the pesticide’s use.35

32Califomia Environmental Protection Agency, “Questions and Answers on Methyl Bromide”
in Cal/EPA Access, Library: CALEPA, Library File Name: METHYL.FS, web site:
http:Nwww.calepa.cahwnet.gov/epadocs/methyl.txt.
“Letter &om DPR to County Agricultural Commissioners, November 26, 1997.
y4Letter from DPR to County Agricultural Commissioners, October 16, 1998 (ENF-042).
3sMethyl bromide has had effects at demonstrably longer distances, but for purposes of this
complaint we will only consider impact to those who attend school within 1.5 miles of methyl

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Filed June 30, 1999
Page 14

Methyl bromide is a Category I Acute Systemic Poison, the most dangerous and deadly
class of toxic chemicals. The adverse health effects of methyl bromide exposure are well
documented. While no studies have directly addressed methyl bromide’s effects on children,
children are considered particularly susceptible to exposure and health impacts fiorn exposure to
neurotoxic and teratogenic pesticides and many other toxic substances.‘6
Methyl bromide is applied as a gas, and thus naturally off-gasses and drifts from fumigated
fields into the surrounding community. Pesticide drift is an uncontrollable and inevitable aspect of
pesticide use on agricultural fields, especially when a gaseous fumigant like methyl bromide is
used. Off-gassing and drift is governed by wind speed, wind direction, and other environmental
conditions. The major route of exposure to methyl bromide is inhalation.”
Most of the methyl bromide applied in soil fumigations drifts off the treated fields. As
reported by EPA, between 50 and 95 percent of the methyl bromide applied enters the atmosphere
in drift after application. 3* A U S. Department of Agriculture study estimates total emission losses
of between 56 and 68 percent of original amount applied, where methyl bromide is applied at a rate
of 250 Ibs./acre, a depth of 1 foot, and covered with a high-density polyethylene @lDPE) tarp for 2
to 5 days.39 These conditions are standard for use of methyl bromide on California fields, and the
results indicate that thousands of pounds of methyl bromide are off-gassing each fumigation season,

1.

Exposure to methyl bromide has acute, sub-chronic and chronic health
impacts.

bromide application.
‘%ee National Research Council, Pesticides in the Diets of Infants and Children (1993).
“Brodberg, Robert K., ef al., Department of Pesticide Regulation, Worker Health and Safety
Branch, Draft Report: Esrimation of Exposure of Persons in California IO Pesticide Products
Conraining Methyl Bromide (June 1992) (hereafter Brodberg ef al., 1992).
‘*EPA web page http://www.epa.gov/spdpublc/mbr/mbrqa.html.
“9T.S. Department of Agriculture, Methyl Bromide Alternatives, Vol. 4, No. 2, April 1998.

 Angelita C., ei aL v. California Depariment of Pesticide Regulation
Filed June 30.1999
Page 15

Exposure to methyl bromide by inhalation has serious acute, sub-chronic and chronic health
impactsa The acute effects of methyl bromide exposure include headaches, drowsiness, lethargy,
nausea, vomiting, dizziness, blurred vision, twitching and convulsions, seizures, psychosis and
death. Many of these effects may persist a&r a single poisoning incident4’ The known effects of
repeated sub-lethal or chronic exposure include damage to the brain, peripheral nervous system,
respiratory system, kidneys, liver, eyes, nose, throat, lungs and skin. Methyl bromide is also a
“direct acting mutagen” that is toxic to DNA!’ Methyl bromide also causes “treatment related,”
“biologically significant” developmental birth defects including the absence of gall bladders, fused
srernebrue (spine), and decreased fetal weight.4’
At least 19 people have died f?om exposure to methyl bromide since 1982, and hundreds
more have been sickened or poisoned. During the past decade, thousands of people have been
evacuated because of methyl bromide accidents, including 1200 in Fresno in 1987 and 1599 in
Fresno in 1984. In 1996, a day care center in Ventura relocated after neighbors complained of

“‘Acute exposure is generally defined as exposure to a chemical for less than 24 hours (and by
the federal Agency for Toxic Substances and Disease Registry (ATSDR) as exposure for 14 days
or less). Sub-chronic exposure is defined as exposure over 1 to 3 months. (Intermediate, or subchronic exposure is defined by ASTDR as exposure for 15 days to 365 days.) For simplicity and
as a health conservative approach, in this document we define sub-chronic exposure as including
exposure greater than 24 hours and less than 3 months. Chronic exposure is defined as exposure
over an extended period of time, 3 months or more. See. e.g., Curtis D. Klaassen, Casaret and
Doull’s Toxicology: The Basic Science of Poisons (McGraw Hill, 5” Edition 1996); Agency for
Toxic Substances and Disease Registry, Minimal Risk Levels for Hazardous Substances (1996).
“Department of Pesticide Regulation, Methyl Bromide, Prepared for the Developmental and
Reproductive Toxicant Identification Committee for Consideration of Methyl Bromide as a
Developmental Toxicant under Proposition 65 (March 1994) (hereafter DPR, Consideration of
Methyl Bromide as a Developmental Toxicant); Hazard Evaluation System and Information
Service (HESIS); California Department of Health Services, Methyl Bromide Fucf Sheet (May
1990); Brodberg, et al., 1992.
42DPR, Consideration of Methyl Bromide as a Developmental Toxicant.
“DPR, Consideration of Methyl Bromide as a Developmental Toxicant.

 Angelita C., el aL v. California Department of Pesticide Regulation
Filed June 30.1999
Page 16

illnesses 6om methyl bromide use in a nearby strawberry field.” In 1997, about 265 Amesti
Elementary School children in WatsonviUe stayed home from school in September as a precaution
after the strawberry farm across the street was sprayed with methyl bromide.”
2.

Children are likely to be more susceptible to the harmful impacts of pesticides,
and DPR has recognized this possibility as evidenced in its concern over the use
of pesticides in California schools.

Children may be especially vulnerable to pesticides because of both greater exposure to
pesticides and greater physiological susceptibility. On a body-weight basis, children consume more
food and water and breathe more air than adults. The skin surface of a child per unit of body weight
is greater than that of an adult. In addition, the normal respiratory volume of a child is greater than
that of a resting adult.”
In 1993, the National Academy of Science (“NAY) issued a report documenting that
children are uniquely vuhrerable to pesticides, and that government standards for residues in food
do not adequately protect children.” Available human and experimental data suggest that children
are more vulnerable than adults to the neurotoxic effects of pesticides. According to the NAS,
concern about children’s exposure to pesticides is valid because “exposure to neurotoxic
compounds at levels believed to be safe for adults could result in permanent loss of brain function if
it occurred during the prenatal and early childhood period of brain development.“‘*

“Pesticide Action Network North America Regional Center, Pesticide Fact Sheet “Methyl
Bromide Use in California” (1998) (hereat-ler PAN, Pesticide Fact Sheet).
“PAN, Pesticide Fact Sheet. Amesti is 82 percent students of color.
“Lawtie Mott, Natural Resources Defense Council, Our Children at Risk: The 5 Worsf
Environmental 77rreafs to Their Health, at 52 (November 1997); Farmworker Justice Fund, “Ten
Commitments to Protect Farmworker Children from Pesticide Exposure” (October 1998).
“National Research Council, Pesticides in the Diet ofInfants ond Children, Washington D.C.:
National Academy Press, 1993, (hereafter NRC, Pesticides in the Diet of Infanfs and Children).
‘WRC, Pesticides in the Diet of Infants and Children, at 61.

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Page 17

The NAS recommended the inclusion of a IO-fold safety factor to account for children’s
increased susceptibility and potential for exposure to pesticides.@ Significantly, Congress adopted
the NAS recommendation in the Food Quality Protection Act of 1996 (“FQPA”)“’ and directed
EPA to use an additional lo-fold safety factor to protect infants and children unless EPA
determines that a different margin will be safe.5’ Slrnilarly, by Executive Order 13,045, President
Clinton has ordered the EPA to regulate environmental hazards in a manner which is adequately
protective of infants and children.
In toxicological studies of methyl bromide, neurobehavioral effects were seen at the lowest
dose tested in mice, leading DPR scientists to state that the “goal for human exposure would be in
the range of the limits of detection for methyl bromide.“” Exposure to substances which cause
neurobehavioral effects is particularly detrimental to children because it can interfere with cognitive
and motor development.
The DPR has acknowledged that schools are “sensitive” areas, but has not given adequate
attention to the use of pesticides near schools. In its official documents, the DPR states that the use
of methyl bromide around schools is of “special concern.” It notes that some CACs have imposed
additional restrictions and states that “DPR recommended recently to the CACs that they require
stticter controls of methyl bromide use around schools to provide an extra measure of protection.
In addition, DPR has instructed the commissioners not to consider backyards and schoolyards to be

“John Wargo, Our Children’s Toxic Legaq: How Science and the Law Fail IO Prorect Us
from Pesticides (New Haven: Yale University Press, 1996). at 262.
“Pub. L. No. 104-170 110 Stat. 1489.
“U S Environmental Protection Agency, 1996 Food Quality Protection Act Implementation
Plan, March 1997, at 12.
52Memorandum f?om Gary Patterson, DPR Medical Toxicology Branch, to Rob Oshima,
Assistant Director, regarding “Methyl Bromide Chronic Dog Study” (January 12,1995), attached
as Exhibit B.

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Page 18
part of a buffer mne.“rr This “recommendation” and minimal alteration in the calculation of buffer
zones is not an adequate response, however, given the magnitude and severity of the problem.
Notably, DPR has given considerably more attention to the relatively limited use of
pesticides by California schools themselves than to the extensive agricultural use of pesticides in
the neighborhood of California schools. Noting that “[tlhere has been increasing public concern
regarding the potential for exposure of children to pesticides in school,” in 1994 DPR sent each of
the state’s 1,064 school districts a booklet to help schools set up an integrated pest management
(IPM) program to reduce reliance on toxic chemical pesticides.” In 1996, DPR reported on its twoyear survey of the state’s school districts about their pest management practices, policies, and
programs. 55 In December 1997, DPR announced plans to expand IPM outreach to schools,
supported by $100,000 in special timds from the legislature.r6
DPR’s minimal attention to the issue of agricultural pesticide use near schools indicates a
willfttl disregard of the potential dangers associated with the high volumes of toxic pesticide use.5’

I’DPR, Review of Restrictions, at 11.
r4DPR, Release No. 94-12, “Cal/EPA’s Department of Pesticide Regulation Supports IF’M Use
in Schools” (4/20/94), web site: http://www.cdpr.ca.gov/docs/archives/pressrl~1994/94-12.htrn
%mmons, Sewell E., Timothy E. Tidwell, and Terrell A. Barry, Overview of Pest
Management, Policies, Programs, and Practices in Selected California Public School Districts,
DPR Pest Management Analysis and Planning Program, (March 1996).
r6DPR press release, “Department of Pesticide Regulation Opposes Bureaucracy to Dictate
School Pesticide Policy” (l/7/98), web site: http://www.ca.gov/docs/pressrls/calpirg.htm.
57DPR’s disregard of the potential dangers of high volumes of toxic pesticide use will lead to
greater negative impact in the coming years due to the pressures of population growth in the
state. Many school districts in California agricultural areas are faced with an immediate need to
construct new schools due to an increasing student population juxtaposed with a state mandate of
class size reduction. These agricultural communities typically have high percentages of Latin0
residents. Lack of other affordable land has led to the frequent siting of new schools on
agricultural land directly adjacent to existing agricultural operations. For example, in Ventura
County, many of the new schools which the Oxnard Elementary School District has built or is
planning to build are on agricultural land. The problems associated with the current agricultural
practices in regards to the use of pesticides near schools will continue to affect the students,

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Filed June 30.1999
Page 19

While DPR may have recognized the importance of maintaining a pesticide-free, healthy school
environment, it has failed to address one of the most important parts of the problem: the drift of a
deadly, neurotoxic gaseous pesticide into the school environment.
3.

There is great controversy over what level of methyl bromide exposure can be
considered “safe,” particularly for children.

DPR’s 24-hour standard of 210 ppb is significantly less protective than many other
standards that have been suggested or adopted by other agencies, including recommendations made
by DPR’s own scientists. As a result, this standard cannot be relied upon to determine whether a
health impact is present.
a.

The 210 ppb safety standard used by DPR is not protective of human
health.

DPR’s 24-hour standard of 210 ppb is outdated. Set in 1992, the standard has not been
revised despite more recent studies accepted as valid by DPR itself which indicate adverse health
effects at even lower levels of exposure to methyl bromide. In two January 1995 memoranda,
toxicologists &om the Medical Toxicology Branch of the DPR concluded,
There is currently enough information to conduct a risk assessment on methyl
bromide that would include acute, sub-chronic, and chronic exposure. The
assessment of chronic effects would be driven by nasal degeneration and behavioral
effects. If a margin of safety of 100 is applied to these effect levels the goals for
human exposure would be in the range of the limits of detection for methyl
bromide.‘*

primarily Latino, attending these new schools. See, e.g., Kate Folmar, “Many Oppose New
School Planned for Farm Site,” Los Angeles Times (Ventura County Section)(February 15, 1999)
at Bl; Kate Folmar, “Under SOAR, Farmland May Sprout Schools,” Los Angeles Times
(Ventura County Section)(March 14, 1999), at Bl; Anna German, “Duarte Picked as Oxnard’s
Schools Chief,” Los Angeles Times (Ventura County Section)(April2, 1999) at B3.
s8Memorandum t?om Joyce Gee, DPR Medical Toxicology Branch to Gary Patterson,
regarding “Methyl Bromide: Dog Inhalation Study” (January 10,1995), attached as Exhibit C.
See ulso Memorandum from Gary Patterson, DPR Medical Toxicology Branch, to Rob Oshima,
Assistant Director, regarding “Methyl Bromide Chronic Dog Study” (January 12, 1995), attached
as Exhibit B.

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of Pesiicide

Regulation

Recent air monitoring studies conducted by DPR have utilized a detection limit of 5 ppb.”
h.

In 1992, DPR’s own scientists suggested a standard of 60 ppb to protect
children.

In 1992, DPR’s own scientists recommended lowering the 24-hour methyl bromide safety
standard to 60 ppb, more than three tunes more protective than the current standard, to protect
children fkom permanent nervous system and brain damage that might be caused by sub-chronic
exposure to methyl bromide. This recommendation was not adopted by the agency, and the current
methyl bromide safety standards contain no special protection for children.M While this 60 ppb
level was set with sub-chronic exposure after re-entry into fumigated structures in mind, children
attending schools bearing heavy methyl bromide impact from field fumigation can also be exposed
sub-chronically to the pesticide over a number of weeks each spray season.
DPR acknowledges that its 210 ppb level was “calculated based on potential adult
exposure.” DPR also stated that this safety standard would protect children,6’ despite the fact that
in many other cases of exposure to toxics it is widely accepted that levels protective of children
must be lower than those protective of adults.
DPR does not follow the 1993 NAS recommendation, now incorporated into federal law
through the FQPA; to include a 1 O-fold safety factor to account for children’s increased

“See e.g., DPR, Monitoting Methyl Bromide Fumigations During Winfer Months (July 1997).
MMemorandum from Lori 0. Lim, DPR Staff Toxicologist, to Larry Nelson, Chief, with
subject “Methyl Bromide- Prehminary risk assessment for inhalation exposure in structural
fumigations” (February 11,1992). A margin of safety of 100 is widely used when setting human
exposure limits based on animal studies: a lo-fold margin is required for interspecies differences
and an additional lo-fold safety factors is used for intraspecies differences. To adequately
protect infants and children, however, the National Research Council report Pesticides in rhe
Diet of Infants and Children recommends adding an additional lo-fold safety factor, and thus,
using a margin of safety of 1,000.
6’DPR, “Consumer Fact Sheet: Correcting some Misconceptions About Methyl Bromide Use
in California” (October 1997), web site: http://www.cdpr.ca.gov/docs/factshts/methmis.htm
(hereafter DPR, “Correcting Some Misconceptions”).

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Ptwkide Regulation

susceptibility and potential for exposure to pesticides.g DPR explains that it set its level as follows:
“The dose which did not cause any effect in animal studies [the NOAEL16’ was lowered IO-fold to
account for differences between animals and humans, and another IO-fold to account for
individuals who may be more sensitive to methyl bromide due to various factors.“”
Historically, EPA has divided the NOAEL by one hundred to account for the fact that
humans may be more sensitive than test animals and that some humans may be especially sensitive.
The FQPA, however, directs EPA to use an additional IO-fold safety factor to protect infants and
children unless EPA determines that a different margin will be safe!’ The FQPA applies to all
pesticides used on food crops, including methyl bromide. Despite the FQPA, DPR has not
incorporated this safety factor to protect children into its standard.
C.

DPR recently drafted a seasonal screening level of 26.3 ppb for methyl
bromide.

In January 1999, DPR published a draft seasonal screening level of 104 ug/m3 (=26.3 ppb)
for methyl bromide. DPR represents this as an “air concentration health protective for all
individuals including sensitive populations,” using a six-year-old child’s breathing rate and body
weight in its caJcuJation.66 However, DPR has failed to use this 26.3 ppb level for setting buffer
zones or in any other regulatory measure,

6zJohn Wargo, Our Children’s Toxic Legacy: How Science and the Law Fail to Protect Us
from Pesticides, New Haven: Yale University Press, 1996, at 262.
This level is referred to as the No Observed Adverse Effect Level, or NOAEL.
-DPR, “Correcting some Misconceptions.”
6sU.S. Environmental Protection Agency, 1996 Food Quality Profection Act Implementation
Plan, March 1997, at 12.
MMemorandum 6om Paul H. Gosselin, DPR to Lompoc Interagency Workgroup, regarding
Lompoc Exposure Data (January 12,1999).

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Page 22

d.

EPA’s Reference Concentration for methyl bromide is 1 ppb.

EPA’s Reference Concentration (“RfC”) is ,005 mg/m3, which is equivalent to 1.26 ppb.
The RfC is the level at which the “EPA estimates that inhalation of this concentration or less, over a
lifetime, would not likely result in the occurrence of chronic no-cancer effects.” EPA states that the
“RfC is not a direct estimator of risk but rather a reference point to gauge potential effects,
Exceedence of the RfC does not imply that an adverse health effect would necessarily occur. As
the amount and frequency of exposures exceeding the RtT increases, the probability of adverse
health effects also increases.“67
e.

The target level for methyl bromide under Proposition 65 is 21 ppb.

Under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition
65) the state’s main toxics law, the warning level for methyl bromide exposure is 21 ppb. This
standard was set by California Environmental Protection Agency’s Office of Environmental Health
Hazard Assessment (“OEHHA”). Proposition 65 requires a 1 OOO-fold margin of safety, but as
currently implemented applies only to methyl bromide when used in stmcturaJ fumigations.
California thus has a double standard -- when methyl bromide is used in indoor fumigation, the
warning standard of 2 1 ppb is 10 times more protective than the exposure standard for agricuhural
use, 2 10 ppb.
The State of California considered making all uses of methyl bromide subject to
Proposition 65, but ultimately only the use of methyl bromide in stmcturaJ fumigations was
included. Methyl bromide was added to the Proposition 65 list of reproductive toxicants on January
1,1993. On January 1, 1994, the use of methyl bromide as a structural fumigant became subject to
Proposition 65 warning requirements. Despite DPR’s research into the size of the warning zone
that would be required for agriculturai applications, agricuhuraJ usage never became subject to
Proposition 65.@

67U S Environmental Protection Agency, Office of Air Quality Planning and Standards,
Unified Air Toxics Website, “Methyl Bromide”, web site:
http://www.epa.gov/tuatwl/hlthef/methylbr.htmJ.
68The listing of methyl bromide as a reproductive toxicant for structural uses but not for
agricultural uses is scientifically indefensible as the same chemical is used for both situations.

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f.

of

Pesticide Rquladon

The Agency for Toxic Substances and Disease Registry has established
a Minimum Risk Level of 50 pph.

The Agency for Toxic Substances and Disease Registry (“ATSDR”), an agency of the U.S.
Deparnnent of Health and Human Services, has established an acute inhalation Minimum Risk
Level (“MRL”) of 50 ppb for exposure periods of 1 to I4 days, and a chronic inhalation MRL of 5
ppb for periods of 365 days and longer. MRLs are used by regulators to determine whether a
hazardous waste site may pose a risk to public health.@
The agency says the h4RL is set “below levels that might cause adverse health effects in the
people most sensitive.” If levels exceeding the MRL are detected coming from a Super-fund site,
regulators may order a study of the risk to the public, including air monitoring and health surveys.
While ATSDR states “exposure to a level above the MRL does not mean adverse effects will
occur,” the agency endorses a conservative approach to setting exposure levels, “consistent witi the
public health principle of prevention.“”
g.

DPR has not established a chronic or sub-chronic exposure safety level
despite the potential for chronic exposure among farm workers, nearby
residents, and school children.

DPR’s 2 10 ppb standard is an acute exposure level, inappropriate to the type of sub-chronic
and chronic exposure suffered by school children, residents, and farm workers in communities
where large quantities of methyl bromide are routinely applied, year after year. The standard is
premised on an isolated, seldom-occurring, single field fumigation event, rather than multiple
methyl bromide applications occurring throughout the season or year in a given neighborhood or
community and contimdng from year to year. A protective su!~-&onic exposure safety standard
would be significantly lower than the acute standard. DPR has stated that “DPR scientists typically
estimate different exposure levels based on various potential exposure scenarios. Lower exposure
See Liebman, Rising Toxic Tide, at 7.
“Agency for Toxic Substances and Disease Registry, Division of Toxicology, Minimum Risk
Levels for Hazardous Substances. December 1997, web site:
http://atsdr!.atsdr.cdc.gov:808O/mrls:hnn!
‘OId.

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Page 24
target levels were calculated for longer-term exposures of 1 to 2 weeks, several hours per day.“” A
chronic standard could be applicable to pesticide workers, as well as a sub-chronic standard
applicable to the residents and schoolchildren who live and attend school within close proximity to
many fields being sprayed consecutively throughout the year.
4.

The distance of 1.5 miles provides a reasonable indicator of the zone of impact.

The amount of usage in proximity to California schools serves as a reasonable proxy for
impact. Further, the distance of 1.5 miles is a reasonable distance within which to calculate methyl
bromide usage, and thus serves to define a “zone of impact.” (Given the controversy and
uncertainty over the level of exposure to methyl bromide that can be considered “safe,” DPR’s own
relatively unprotective standard of 2 10 ppb cannot be relied upon to determine the presence of
health impacts. Almost every other agency to evaluate methyl bromide, i?om the U.S. EPA to the
Agency for Toxic Substances and Disease Registry, and even DPR’s own scientists, has set the safe
level far below 210 ppb.)
Because DPR’s buffer zones for agricultural applications are based on an unprotective safety
standard, they do not serve as an accurate indicator of the area of impact. Rather, the area of impact
is suggested by the results of air dispersion models to determine methyl bromide risks under
California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (‘Proposition 65”)R and the
California Air Toxic Hot Spot Information and Assessment Act of 1987 (“Air Toxic Hot Spot
Act”).TJ Ironically, DPR itself determined that a warning zone of up to four miles would be
necessary under Proposition 65 ifthe use of methyl bromide in agricuhure had been made subject to
this state law.” Additionally, modeling conducted to comply with the Air Toxic Hot Spot Act

“DPR, “Correcting Some Misconceptions.”
‘*Cal. Health & Safety Code, Chapter 6.6, $5 25249.5 - 25249.13.
“Cal. Health & Safety Code $5 44300 - 44384 (West Supp 1995).
74DPR set the waming zone for typical suawbeny fumigation conditions at 0.25 to 1 .O mile.
However, DPR used flawed methodology in modeling the Proposition 65 warning zones, in
which atmospheric stability was assumed as neutral rather than highly stable and windspeed was
assumed to be 3 mph rather than the 1 mph speed recommended by the California Air Resources

 Angelita C., et d v. Cahfornia Deporrment of Ptstkide Regtdatiw~
Filed June 30,1999
Page 25

predicted unacceptable levels of methyl bromide at a school two miles away t?om a fumigation
facility.
a.

DPR’s buffer zone distance is not protective of human health.

Based on its safety standard of 210 ppb, the DPR developed the concept of the “buffer
zone” to require a certain distance between fields treated with methyl bromide and nearby homes
and other occupied structures. DPR’s buffer zones have been repeatedly called into question and
monitoring studies conducted by DPR and the Environmental Working Group (“EWG”) have
consistently shown that the buffer zone model is flawed. Children in schools and day care centers
have been subject to exposure as a result.
In November 1996, after EWG monitoring found excessive levels of methyl bromide in the
backyard of a Ventura County daycare center, DPR conceded that buffer zones could no longer
include backyards or schoolyards.
A study conducted by EWG in October 1997, revealing peak levels among the highest
measured by EWG in almost two years of methyl bromide monitoring in California, clearly
illustrates the inadequacy of DPR’s buffer zones. In order to monitor methyl bromide drift t?om a
fumigated strawberry field next to Salsipuedes Elementary School in Watsonville, EWG placed
monitoring equipment on private property bordering the school, located 250 to 300 feet from the
fumigated field. This distance was over eight times further away !?om the field than the thenmandated 30-foot buffer zone required by DPR. Using 24-hour averages, EWG’s monitors
detected 2,115 ppb of methyl bromide in the first 24 hours, and 585 ppb for the second 24 hours.‘r

Board. DPR, Information Sheet discussing size of warning zone, “Prop. 65 - Safe Use
Determination for Methyl Bromide” (November 30.1993); Memorandum of Genevieve
Shiroma, Toxic Air Contaminant Branch, California Air Resources Board, to John Saunders,
Environmental Monitoring and Pest Management Branch, DPR, regarding “Comments on Draft
DPR Methyl Bromide Buffer Zone Analysis” (January 23, 1993). Since these warning zones
were proposed, DPR has more than tripled the buffer zone for fumigations similar to the typical
strawberry fumigations discussed here, f?om 30 feet to 100 feet; thus, the 0.25 to 1 .O mile
warning zones would reasonably be expected to be at least 1.5 miles, even for small acreages.
‘5EWG, “High Levels of Methyl Bromide Discovered Near Elementary School” (November
1997), web page: http://www.ewg.org/pubmome/reports/salsipuede~s~sipuedes.h~l. See also
EWG, “Air Monitoring Detects High Levels of Methyl Bromide Near Ekrnentary School in

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Pesticide Regthtim

The level detected during the tirst 24 hours was more than 10 times DPR’s safety standard of 210
ppb over 24 hours; the level in the second 24 hours was 2.5 times the safety standard - measured
from a distance 220 to 270 feet further away than the exposure buffer zone mandated by DPR.
DPR’s buffer zones were established by computer modeling using flawed parameters
combined with limited data of questionable quality t%om experimental field monitoring. The
Industrial Source Complex-Short Term (“ISCST”) Model was used by DPR in the early 1990s to
predict air concentrations. However, DPR used the model incorrectly, by failing to use an adequate
set of weather data (rather than using several years of actual measurements of wind speed, stability
and other weather data, DPR instead used theoretical wind speed and stability later determined to
be erroneous). DPR also failed to adequately consider the use of methyl bromide on multiple farms
in a small area. In fact, DPR erroneously assumed that summer conditions provided the worst-case
scenario for methyl bromide emissions from treated fields. A January 1993 California Air
Resources Board memorandum highly critical of DPR’s methods was made public in 1997. The
memo concludes, ‘without the appropriate meteorological data for each site, we do not believe the
approach used by DPR is based upon sound scientific principles.“76
In the winter of 1996-97, DPR finally conducted a winter monitoring project that resulted in
finding exceedances of DPR’s standards at four of six locations, and for three of the four
application methods examined. In its July 1997 report on the study, DPR stated “[h]igher air
concentrations may occur during winter months due to more stable atmospheric conditions.“‘” In
November 1997, DPR increased its wintertime buffer zones from a minimum of 30 feet to a
minimum of 100 to 300 feet depending on the application rate, type, and number of acres
fumigated, then back-pedaled, allowing 50 foot buffer zones on parcels of five acres or less at

Watsonville” (November 17, 1997); EWG, “California Study Admits Methyl Bromide Safety
Standard Inadequate” (July 24, 1997).
76Memorandum of Genevieve Shiroma, Toxic Air Contaminant Branch, California Air
Resources Board, to John Saunders, Environmental Monitoring and Pest Management Branch,
DPR, regarding “Comments on Draft DPR Methyl Bromide Buffer Zone Analysis” (January 23,
1993).
“DPR, Monitoring Methyl Bromide Fumigations During Winter Months (July 1997). at 1.

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of Peshbide Regulation

typical strawberry application rates. DPR subsequently reduced the worker buffer zone back to 30
feet.
DPR’s buffer zones have also been set and checked using charcoal tube samples. DPR now
acknowledges that measurements of methyl bromide concentrations using charcoal tubes are almost
30 percent lower than more accurate SUMMA cannister measurements.7* Thus, measurements of
methyl bromide concentrations made with charcoal tubes are known to be about 30 percent less
than actual air levels of the pesticide; a charcoal tube measurement of 210 ppb may actually be
more than 270 ppb.
DPR’s models, based on faulty assumptions and unsound science, have consistently failed to
accurately predict the degree of methyl bromide drift. As stated by EWG, “[hlighly variable weather
conditions - particularly prevalent along the California coast - make any given use of methyl
bromide akin to playing Russian roulette with wind; temperature, and hurnidity.“‘r Thus, DPR’s 30
to 50 foot buffer zone are far too small, particularly around schools.
b.

The Proposition 65 warning zone for agricultural applications of methyl
bromide would extend up to 4 miles.

When methyl bromide use in agriculture was considered for regulation under Proposition
65, a warning zone of up to 4 miles was considered necessary. This indicates further controversy
and uncertainty around the distance required to ensure safety, and supports the use of the distance of
1.5 miles as a reasonable estimate of the zone of impact on the schools attended by the
complainants.
In November 1993, DPR drafted a Safe Use Determination for Methyl Bromide setting
the appropriate radius of the “warning zone” for methyl bromide use in soil fumigation at
agricuhural sites. Employing the warning safety standard of 21 ppb over 24-hours of exposure,
the size of the warning zone was computed using field monitoring data in conjunction with the

‘*Heinz W. Bierrnann and Terrell Barry, “Evaluation of Charcoal Tube and SUMMA
Csnnister Recoveries for Methyl Bromide Air Sampling” (DPR 1999), at 1.
‘%WG, “Air Monitoring Detects High Levels of Methyl Bromide Near Elementary School in
Watsonville” (November 17, 1997).

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Page 28

DPR’s computer model (again, with less weather data than appropriate). Depending on the
application rate, from 250 to 450 Ibs./acre, and the size of the area treated in a 4-&y period, from
1 to 80 acres, the required warning zone ranged from 0.25 miles to 4 miles. For example, a soil
application in which 20 acres are treated at the standard rate of 250 Ibs./acre would require a
warning zone of 1.5 miles.80
C.

A risk assessment completed in 1993 for emissions from methyl
bromide fumigation facility showed unacceptable health risks at a
school 2 miles away from the facility.

An assessment of risks posed by a methyl bromide fumigation facility was conducted in
1993 to ensure compliance with the Air Toxic Hot Spot Act. The health risks t?om methyl bromide
emissions at the San Diego Unified Port District’s Tenth Avenue Marine Terminal Methyl Bromide
Fumigation Facility (the “Port facility”) were character&d for two schools, one about one mile
away, the other about two miles away. At the tune, the Port facility was permitted to apply a
maximum of 40,000 pounds of methyl bromide annually. The assessment, made using EPA and
state-approved air dispersion models, indicated unacceptable risks for both schools. Notably, the
school farther away was at greater risk from methyl bromide emissions than the closer school.*’
This study clearly indicates the potential for similarly unacceptable risks from fields where more
than 40,000 pounds of methyl bromide are used annually at distances from schools of 1.5 miles and
less.
Under California law, people living near methyl bromide fumigation facilities such as the
Port facility receive more protection from methyl bromide emissions than people living near fields

*%PR, Information Sheet Discussing Size of Warning Zone (November 30, 1993) at 5.
“As discussed in Environmental Working Group (EWG), “Regulatory Double Standard in
California” (February 9, 1996), web site:
http://www.ewg.org/pub/home/reports/?vlBCalifornia/CARegs.htrnl (hereafter EWG,
“Regulatory Double Standard”), citing San Diego Port Risk Assessment 1993, Draft and Final
Risk Assessments done for San Diego Unified Port District’s Tenth Avenue Marine Terminal
Methyl Bromide Fumigation Facility pursuant to lawsuits Environmental Health Coalition v.
S.D. County Air Pollution Control Authority, San Diego Unified School Districl v. Harbor
Fumigation Faciliry.

 Angelito C., et aL v. California Deportment
Filed June 30,1999
Page 29

of

Pesticide Regulath

that are also treated with methyl bromide. Fumigation facilities are regulated as point sources under
the Air Toxic Hot Spot Act. As a result of the 1993 risk assessment, the Port facility installed
methyl bromide recapture equipment and took other measures to mitigate emissions. There are no
similar remedies imposed for agricuhural applications even though there are many California
schools (and thousands of homes) within two miles of agricultural operations that use as much or
more methyl bromide as the Port facility.82
Further, modeling conducted to comply with the Air Toxic Hot Spot Act predicted
unacceptable levels of methyl bromide at a school two miles away from a fumigation facility
permitted to use a maximum of 40,000 pounds of methyl bromide annually. Greater amounts of
methyl bromide are used in agricultural operations which are in closer proximity (within 1.5 miles)
to five of the six California schools attended by the children filing this complaint. Given the
uncertainty surrounding the appropriate safety standard and the need to ensure the safety of
children, the distance of 1.5 miles provides a reasonable estimate of the zone of impact.
B.

Of children most exposed to methyl bromide at school, a disproportionate number are
non-white.
The EPA Interim Guidance For Investigating Title VI Adminislrotive Complaints

Challenging Permits (“Interim Guidance”) sets out five steps for determining disparate impact.
These include (1) identifying the affected population; (2) determining the demographics of the
affected population; (3) determining the universe of facilities and total affected population; (4)
conducting a disparate impact analysis; and (5) determining the significance of the disparity. These
five steps, as addressed below, show that significant disparate impact on non-white school children
is present in the permitting of methyl bromide use in California
1.

The affected population is those students in the schools with the most methyl
bromide sprayed within a 1.5 mile radius.

For the purposes of this complaint, we define the “affected population” as those students

attending schools located within 1.5 miles of more than 35,000 pounds of methyl bromide
application annually. A total of 15,548 students attend 21 California public schools which are

8’EWG,

“Regulatory Double Standard.”

 Angelito C., et al Y. California Deportment of Pesticide Regulation
Filed June 30.1999
Page 30

located within 1.5 miles of fields where over 35,000 pounds of methyl bromide are applied in a
year; all six compkinant families have children attending one of the 21 such schools. The Interim
Guidance states, “proximity to a facility will often be a reasonable indicator of where impacts are
concentrated. Accordingly, where more precise information is not available, OCR [Office of Civil
Rights] will generally use proximity to a facility to identify adversely affected populations.“” In the
present case more precise information is not available and, for the reasons discussed above, the
distance of 1.5 miles is a reasonable indicator of impact.
Table 1 identifies the schools, their enrollment, and the amount of methyl bromide applied

in 1995 within a 1.5 mile radius of the school. These students ate considered to be the affected
population for the purpose of the present complaint. Given that up to 68 percent of the methyl
bromide applied to agricultural fields is known to be released from a treated site in the form of offgassing, from 23,000 to 54,000 pounds of methyl bromide may annually enter the air within 1.5
miles of the schools which these students attend. They may be exposed when at school and also
when being transported between their homes and their school in the morning and afternoon. Many
also reside in the 1.5 mile zone of impact.

“Interim Guidance

at 9.

 Angelita C., et aL v. California Department of Pesthide Regulation
Filed June 30.1999
Page 31

TABLE 1:
California Public Schools Within 1.5 Miles of
the Application of 35,000 Pounds of Methyl Bromide, 1995

Percent
non-Awl0

Methyl bromide
use within
mile. 1995

School

cjly

Rio Plaza Elementary

0XTUl-d

Vennm

476

88%

79,5 I7

Rio Mesa High

Oxnard

Ventura

2,169

75%

61,492

Pajam Middle

Pajarro

Monterey

524

94%

67,354

Solano

279

25%

59,988

Suisun Valley Elemen!ay Suisun

Enmllment

Frank Paul Elementary

saliiar

Monterey

881

97%

59,725

Barton Elementary

SalbIaS

Moaterey

1,025

98%

59,725

Mt. Tom High (Cont.)

Salinas

Monterey

327

80%

59.725

Rio Linda Elementary

Oxnard

V.SltW3

496

73%

55,569

Santa Rita Elementary

SZSlinac.

Monterey

807

80%

50,667

Gavilan View Middle

Salinas

Monterey

169

68%

50,667

Alisal High

Sihl~

Monterey

1,910

97%

49,410

La loya Elementary

SalbI.XS

Monterey

750

64%

47,702

Renaissance High (Cont.) La Selva Beach

Santa cru

235

77%

47,565

Macquiddy (T.S.) Elemen. Wasonville

Sam cl-u

850

90%

47,506

Salsipuedes Elementary

Watsonville

Santa cm2

707

88%

42,579

TunnelI Elementary

Sam Maria

Santa Barbara

713

54%

40,425

Rio Del Valle Elementary Oxnard

Ventura

560

81%

39,525

Rio Real Elementary

Oxnard

Venhm

659

92%

39,525

Union Elementary

Visalia

Tulare

369

79%

38,980

Ohlone Elementary

Pajaro

Monterev

518

96%

36.198

Fresno

524

54%

35.581

Total

15.548

82%

Greal Western Elementary Reedley

Source: Envimnmcnlal Working Gmup, Methyl Bromide Use Near Calfirnia Schools, 1995 (1998).

 Angelita C., et aL v. CaIfornia Department of Pestkide Regtdath
Filed June 30.1999
Page 32

Table 2 shows the time of year that methyl bromide is sprayed within a 1.5 mile radius of
nine of the ten public schools with over 50,000 pounds applied annually (data liom the 10’ was not
available). Over 75% of the methyl bromide is sprayed from mid-August through late May, when
California schools are likely to be in session. Further, the methyl bromide used near each school is
sprayed over the course of several months of the year at various farms. As such, students may be
exposed to at least low levels throughout several months of the year, constituting a chronic or subchronic exposure. DPR’s acute standard is not adequately protective for chronic or sub-chronic
exposure.
TABLE 2:
Amount of Methyl Bromide Sprayed During
the School Year, for California Public Schools Within 1.5 Miles of
the Application of 50,000 Pounds of Methyl Bromide, 1995

August 16
toMay
DOund.5~
(in

June I to
August 15
(Dounds)

Total
(Dounds)

Rio Plaza Elementary

79,517

Rio Mesa High

53,920

13,572

67,492

Pajaro Middle

52,320

15,035

67,354

Frank Paul Elementay

28,517

31,208

59,125

Barton Elementary

28,517

31,208

59,725

Mt. Tom Hi8h (Cont.)

28.5 17

31208

59,725

Rio Linda Elementary

31,205

24,364

55.569

Santa Rita Elementary

47,179

3,488

50,667

Gavilan View Middle

m

3.488

5Q6J

Total

536,680

169,814

706,494

Total percentage

16%

24%

100%

79,517

Source: Envimnmmtd Working Group. Methyl Bromide Use Near Ca/i/ornio .Schoo/s, 1995 (1998).

 Angelita C.. et aL v. California Department

of

Pesticide Regulation

Filed June 30, 1999
Page 33

Additionally, it is very likely that the affected population includes students who attend
schools where the amount of methyl bromide used witbin a 1.5 mile radius is less than 35,000
pounds. For the purpose of this complaint, however, we choose 35,000 pounds as a threshold and
as a rough estimation of those at greatest risk of methyl bromide poisoning among California school
children.
2.

The affected population is disproportionately non-white.

The students at California public schools with over 35,000 pounds of annual methyl
bromide use within a 1.5 mile radius are 82 percent nonwhitea (see Table I). Of the 2 1 public
schools in this category, seven have a non-white population of over 90 percent; five have a nonwhite population between 80 and 90 percent; four have a non-white population between 70 and 80
percent; two have a non-white population of between 60 and 70 percent; and only three (14% of the
most heavily burdened schools) have a non-white population of less than 60 percent. For
comparison, the statewide average is 59 percent students of color.
Table 3 illustrates that at lower levels of impact, non-whites are also disproportionately
affected. Schools which are within a 1.5 mile radius of fields where over 25,000 pounds of methyl
bromide are applied have an average non-white student population of 80 percent. The amount of
methyl bromide sprayed within a 1.5 mile radius correlates positively with the percentage of nonwhite students in the nearby California public school. As the amount of methyl bromide applied
rises, so does the non-white student population in the school.

“Based on the 98.2% of students for whom racial composition data was available. There are
also three private schools in California which are within a 1.5 miles radius of 50,000 pounds of
methyl bromide annual use; because racial composition data was not available for these schools
they are not included in this complaint.

 Angelira C.. et aL v. California Depnnmeni of Pesticide Regulaiion
Filed June 30. 1999
Page 34

TABLE 3:
Correlation of Methyl Bromide Use with
Non-white Student Population in California Schools

Methyl bromide use
within 1.5 miles
in oounds (=)

Total
Total
No. of Number of
-Schools SNdents-

No. Students
With racial
hlfomlation

No. of
Students
Non-white

% Students
WI Racial
Information

% of
Students
Non-white

(All schools)

9 , 6 8 9 5,741,850

5,324, I46

3.167.105

93%

59%

10,000

107

73,220

7 1,842

47,032

98%

65%

15,000

80

53,866

52,670

36,907

98%

70%

20,000

56

38,174

36,978

27,433

97%

74%

25,000

39

28.753

27,623

22,106

96%

80%

30,000

29

18.218

17,497

14,552

96%

83%

40,000

21

13,639

12,918

10,530

95%

77%

50,000

13

7,948

7,753

6,246

98%

79%

60,000

3

3,169

3,169

2,527

100%

80%

70,000

I

476

476

419

100%

88%

Source- Environmental Working Gmup. unpublished data.

3.

The children at California schools who are within a 1.5 mile radius of
agricultural operations using over 35,000 pounds of methyl bromide also tend
to be within a 1.5 mile radius of the usage of other highly toxic pesticides.

Children who attend schools within a 1.5 mile radius of agricultural use of over 35,000
pounds of methyl bromide use are often also in the closest proximity to the greatest agricultural
usage of pesticides overall. Moreover, as residents of communities of color, many of these same
children are exposed to elevated levels of air pollution generally. The Interim Guiaiwce states,

 Angelita C., ei aL Y. California Deparlmenl of Pesticide Reguhion
Filed June 30.1999
Page 35

[P]ermits that satisfy the base public health and environmental protections contemplated
under EPA’s programs nonetheless bear the potential for discriminatory effects where
residual pollution and other cognizable impacts are distributed disproportionately to
communities with particular racial or ethnic characteristics.”
The use of methyl bromide in proximity to predominantly non-white California schools compounds
a preexisting burden being shouldered by children at these schools - the use of many other highly
toxic pesticides in close proximity to these educational institutions. As such, the cumulative burden
on non-white children is disproportionate when compared with that of white school children. The
permitting of methyl bromide is thus part of a broader pattern in which the agricuhural use of many
highly toxic pesticides, with accompanying adverse health and safety consequences, is permitted in
communities with particular racial or ethnic characteristics.
The schools located in closest proximity to the greatest amount of methyl bromide use are
also in closest proximity to the greatest amount of total agricuhural pesticide use.& Table 4 shows
the quantity and state rank for the ten California public schools with the greatest annual methyl
bromide use within a 1.5 mile radius of each school, as well as the quantity and state rank for
overall agricultural pesticide use within 1.5 miles. It is evident that the children in these schools are
at high risk of exposure not only to methyl bromide, but also to other highly toxic pesticides
permitted by DPR. Eight of the ten public schools most exposed to methyl bromide ranked among
the ten schools most exposed to oil pesticides in California (another was 12” -most exposed). The
students at these schools bear the greatest burden of California agriculture’s chemical dependency,
and DPR’s failure to protect California’s schoolchildren in its pesticide permitting program.*’

851nferim

Guidance at lo- 11

86Environmental Working Group, @risk: California Schools Most Exposed co Pesticides, web
site: http://www.ewg.org@risk (1997).
r’Many of these children live near the schools and the fields in question, ensuring that they
face exposure to methyl bromide for longer, and more often, than other California students.

 Angelita C., ei aL v. California Department of P&hide Regulrrrion
Filed June 30, 1999
Page 36

TABLE 4:
Comparison of State Rankings for Highest Methyl Bromide Use and
Highest Oveiall Pesticide Use for the 10 California Public Schools Within
1.5 Miles of the Greatest Application of Methyl Bromide, 1995

Methyl bromide Methyl
use within
Bromide
mile. 1995
Rank

Total pesticide
use within 1.5
mile. 1995

Rio Plaza Elementary

79,517

1

120.86-l

1

Rio Mesa High

67,492

2

104.799

3

Pajaro Middle

67,354

3

I Il.730

2

Suisun Valley Elementary 59,988

4

64,867

24

Frank Paul Elementary

59,725

5

91,168

5

Barton Elcmcntary

59,725

5

91.168

5

Mt. Tore High (Cont.)

59,725

5

91,168

5

Rio Linda Elementary

55,569

8

80,119

12

Santa Rita Elementary

50,667

9

100,683

4

Gavilan View Middle

50,667

9

86,073

IO

Total
Pesticide
Rank

Source: Envimnmcnral Working Group. Merhyl Bromi& USC New Ca/i/orniu Schook 1995 (19%); Envimnmcntal Working Group.
@isk: California Schools Man Exposed to Pesticides (1997).

The usage of methyl bromide and other highly toxic pesticides in large quantities in
proximity to schools attended by students of color represents a burden in addition to others already
borne by these students. A recent study found that residents of communities of color in California
have a
to a

54

percent chance

of breathing unsafe levels of airborne

toxic particles aad gases, compared

I9 percent chance in predominantly white communities. Thus, residents of communities of

color are nearly three times more likely to breath dangerous levels of air pollution.**

8*Environmental Working Group, “People of Color in California Breath the Most Heavily
Polluted Air” (6/l l/97).

 Attgelita C., et aL Y. California Dcpanment of Pesticide Regulation
Filed June 30. 1999
Page 37
4.

There is a disparate impact on school children of color as a result of DPR’s
permitting of methyl bromide.

In 1995, the student population in California schools averaged 59.5 percent non-white. The
schools within a 1.5 mile radius of 35,000 pounds of annual methyl bromide use had a student
population that was 82 percent non-white.
5.

The disparity is significant.

As detailed in section C.4, the population of California school children most exposed to
methyl bromide is 38percenf more people of color than the overall student population. This
disparity is signifG3nt.
D.

The pattern in methyl bromide exposure is found with,other pesticides, which
disproportionately affects people of color in California.
Unfortunately, as shown in Table 4, above, the example of methyl bromide is not

anomalous, but is in fact replicated in the use of most other highly toxic pesticides in California.
DPR’s policies disproportionately expose people of color to pesticides in California Pesticides
kequently drift offsite one-half mile or more from their target. Even under ideal conditions, a study
found that only about half of the pesticides applied aerially reach their target area.” In general,
applications by aircraft result in five times more drift than most forms of ground spray. Over 46
million pounds of pesticides were sprayed by aircraft in California in 1995. Significant pesticide
drift also occurs when pesticides, like methyl bromide, are applied in a gaseous state, release a gas
upon contact with water as metam sodium does, or are applied by airblast sprayer (commonly used
in orchards).
Many pesticide-related illnesses are caused by drift. From 1991-95, approximately 44
percent of all reported agricultural pesticide-related illnesses in California were caused by the drift
of pesticides onto people in adjacent communities, roads or fields.
In the period 1991-95, the number of pounds of pesticides used in California increased 31
percent, from 161 million to 2 I2 million pounds. During that time period, use of cancer-causing

*9D. Pimentel & L. Levintin, “Pesticides: amounts applied and amounts reaching pests,” 36
Bioscience 90 (1986).

 Angelita C., et aL v. CaLfomia Depatiment of Pesthide Regulation
Filed June 30. 1999
Page 38

pesticides more than doubled, rising 129 percent. Use of nerve toxins increased by 52%.
Monitoring under the Toxic Air Contar&ant Program in California detected at least nine pesticides
at distance of half a mile or more from their point of use. Nearly 30 million pounds of these nine
pesticides were used in California in 1995.
Dangerous pesticides of high acute and chronic toxicity have drifted offsite and been
detected in communities near their application sites. These include:
l

Metam sodium, a known carcinogen and reproductive toxin, of which 15,274,166 pounds

were used in California in 1995, was detected at two Kern County schools among other sitesgO The
schools, Vineland Elementary and Mountain View School, are 94.7 and 93.0 percent students of
color, respectively?’ Metam sodium releases the toxic gases methyl isothiocyanate (MITC),
hydrogen sulfide and carbon disulfide upon contact with water. MITC is known to aggravate
asthma and cause the respiratory illness Reactive Airways Disorder Syndrome @ADS).” On May
19,1999, Cuyama Elementary School in northern Santa Barbara County was evacuated when
scores of students and statT became ill due to offgassing tium an application of metam sodium to a
field adjacent to the school, the student body of which is 67.1 percent students of color.
l

Azinophos methyl, a Toxicity Category 1 organophosphate, of which 434,009s pounds

used in 1995, was found in two schools, also in Kern Co~nty:~ Pond School (56.8 percent students
of color) and Browning Road School (99.5 percent students of color).
The disproportionate impact of pesticide use on people of color in California is exacerbated
by occupational patterns. Periods of high pesticide usage often correspond to periods of intense

W.S. Kollman, Summary ofAssembly Bill 180713219 Pesticide Air Moniforing Results
Conducted by ARB 1986-95 (1995). DPR publication EH 95-10.
9’All demographic &ta for schools in the section is from the California Department of
Education website.
92J.E. Cone, et al., “Persistent Respiratory Effects after a Metam Sodium Pesticide Spill,” 106
Chest 500 (August 1994).
93W.S. Kollman, Summaly of Assembly Bill 180713219 Pesticide Air Moniioring Results
Conducted by ARB 1986-95 (1995). DPR publication EH 95-10.

 Angelita C., et aL v. California Deponment of Pesticide Regtdation
Filed June 30,1999
Page 39

agricuhural production when farmworkers and their families, approximately 80% of whom are
Latino, migrate to agricuhural areas to cultivate or harvest crops. While the adults are in the fields,
their children live and play in adjacent farm labor camps or attend schools which are near the fields.
Because of inadequate regulation of aerial and other application methods, Latin0 children, many the
children of farmworkers, are put at great risk due to the drift of pesticides onto their homes or
schools. As a recent study found, “children living in fanning areas or whose parents work in
agricuhure are exposed to pesticides to a greater degree, and from more sources than other
children.‘”
Because they live in close proximity to areas of heavy agricukural use, farmworker children
have often been exposed to pesticides which drift from nearby fields onto outdoor play areas and
end up in household dust. For example, a study in Washington State tested soil from outdoor play
areas and dust from indoor play areas of 26 farming families, 22 farmworker families and 11 nonagricuhural families, each of which had at least one child less than seven years old.9s An analysis
was performed to detect the presence and concentration of four organophosphate insecticides:
azinphos-methyl, phosmeb chlorpyrifos and ethyl parathion. Residues found in household dust and
soil were almost exclusively due to agricultural use, rather than home use. One or more of the four
pesticides was found in 58% of the soil samples outside the homes of agricuhural families as
compared to 18% of non-agricultural homes. Household dust in 100% of the homes of farm
children had at least one of the four target pesticides and all four target pesticides were found in
62% of these households. By comparison, only 9% of non-agriculttmd homes had all four
pesticides. Concentrations of pesticides were also higher in farm households as compared to nonfarm households.
Exposure to pesticides through drift can also lead to serious adverse health effects. A
Minnesota study found that families living in regions of high agricultural pesticide use had a

94Gina Solomon, Trouble on the Farm: Growing Up With Pesticides in Agricultural
Communities (1998), at ix.
9JN J. Simcox er al., “Pesticides in Household Dust and Soil: Exposure Pathways for Children
of A~cultural Families,” 103 Environmental Health Perspectives 1126 (1995).

 Angelita C.. et aL Y. California Department of Pmieide Regtdadon
Filed June 30.1999
Page 40

significantly higher rate of birth defects than did urban dwellers and nearly as high a rate as did
pesticide applicators.%
Thus, the disproportionate impact of methyl bromide use detailed in this complaint is part
of a statewide pattern of the disproportionate impact of all pesticide use permitted by DPR.
I V . REMEDIES
EPA regulations authorire EPA to use any means author&d by law to obtain compliance
with Title VI. 40 C.F.R Section 7.13.0(a). The regulations also require any recipient of EPA
assistance that has previously discriminated to take afErmative action to remedy the effects of the
discrimination. 40 C.F.R. 7,35(a)(7). In order to provide effective remedies for the patterns of
discrimination set forth in this Complaint, EPA should require that methyl bromide be banned and
less toxic alternatives employed in its place. Further, EPA should require that all Category 1 toxic
pesticides be banned from use witbin five miles of California schools.
There are alternatives to the present usage of methyl bromide that are less discriminatory.
The EPA has published three volumes of case studies presenting alternatives to methyl bromide?’
In response to the question “Are there alternatives to methyl bromide?” EPA states:
Yes. . ..There is no one alternative for all of the uses of methyl bromide, but there are
several pest control tools which can manage the pests currently controlled with methyl
bromide?’
A professor of plant pathology at Auburn University, Rodrigo Rodriguez-Kabana, recently
reported to a House Agriculture Subcommittee that “there is no single crop that cannot be produced
successfully without methyl bromide.” He stated that alternatives are known to work, but are

“V. Garry, et al., “Pesticide Appliers, Biocides, and Birth Defects in Rural Minnesota,” 104
Environmental Health Perspectives 394 (1996).
“U.S. Environmental Protection Agency, Office of Air and Radiation, Alternatives to Methyl
Bromide: Ten Case Studies, Volume One (July 1995). Volume Two (December 1996). and
Volume Three (September 1997).
98U.S. Environmental Protection Agency, Methyl Bromide Home Page,
http://www.epa.gov/spdpublc/mbr/mbrqa.html.
_-

 Angeiita C., et al V. California Depanmerrt of Pesticide Regulation
Filed June 30, 1999
Page 41

considered “inconvenient compared with methyl brom.ide.“99
If EPA chooses not to require that methyl bromide be banned, DPR should be required to
impose changes in the permitting procedures of methyl bromide such that predominantly non-white
schools and communities are no longer subject to a disproportionate burden of exposure to this
deadly pesticide. If the use of methyl bromide is to be continued in California fields, DPR must be
forced to enact and enforce regulations that truly protect California children. Changes would
include much larger buffer zones based on a target exposure level more protective than 210 ppb, a
buffer zone that is designed specifically to protect children tiom adverse chronic health impacts and
to protect those children exposed on a sub-chronic level throughout the fumigation season. In
addition, permitting of methyl bromide should be conducted with attention to the permitting of
other highly toxic pesticides and the total presence and combined health impacts of other pesticides
and other environmental contaminants present in and near non-white communities and schools.
Similar remedies should be explored for DPR’s other actions in permitting pesticides that
have a disproportionate impact on people of color in Cahfornia, including but not limited to metam
sodium and 1,3 dichloropropene (Telone II) and extremely high toxicity organophosphates. Such
remedies could include banning the most toxic pesticides, and prohibiting or requiring reduced use
of the most acutely and chronically toxic pesticides on fields close to human habitation, schools and
work sites.
V. CONCLUSION
As this complaint makes clear, the students of California who experience a greater potential
for exposure to methyl bromide are overwhelmingly students of color. At the 2 I public schools in
closest proximity to the most intensive methyl bromide use, 82 percent of students are non-white.
This clearly discriminatory impact is a direct result of DPR’s methyl bromide permitting actions, in
violation of Title VI as implemented by EPA regulations, DPR receives federal funding horn EPA
and is thus subject to Title VI.
DPR most recently took action on methyl bromide on January 5,1999, and this complaint is

99James Kennedy, “EPA Still Favors Methyl Bromide Phaseout by 2001 Deadline, Official
Tells Hearing,” Bureau ofNational Affairs, 29 Environment Reporter356 (June 12.1998).

 Attgelita C, a aL Y. Califomt’a Department of Pesihide Regtdath
Filed June 30, 1999
Page 42

timely. We look forward to an active, collaborative investigation by EPA, and we stand ready to
provide EPA with complete documentation of all claims made in this complaint, as well as firrther
evidence of discrimination by the agencies involved. Please notify us promptly of the schedule for
EPA’s investigations. We request that you direct all written responses to all of the advocates listed
below.
Date:

Lesley K. Barnhorn
Center on Race, Poverty & the Environment
63 1 Howard Street, Suite 330
San Francisco, CA 94105
4151495-8990
Santos Gomez
Cesar Hemandez
Eileen McCarthy
California Rural Legal Assistance, Inc.
P.O. Box 1561
Gxnard, CA 932054
805-486-I 068
Michael Meuter
Dalila Guzman
California Rural Legal Assistance, Inc.
3 Williams Road
SaIinas, CA 93905
831-757-5221
Anne Katten
California Rural Legal Assistance Foundation
2424 K Street, Is Floor
Sacramento, CA 95816
916144617904
Shelley Davis
Farmworker Justice Fund, Inc.
1111 l9”StreefNW,SuitelOOO
Washington, DC 20036

 _

Notice of Proposed Decision t

I
1-1

4

mew Regilration of Pesticides

Page I of 3

Department of Pesticide Regulation
James W. Wells. Director
830 K Street - Sacramento. California 95814-3510 - www.cdpr.ca.gov

Winston H.
Hickox

California Notice 99-2

-secretaly for
Protection

Gray Davis
Governor

POST UNTIL February 12, 1999

NOTICE OF PROPOSED DECISION
TO RENEW REGISTRATION OF PESTICIDES
The Director of the Department of Pesticide Regulation (DPR), pursuant to Title 3,
California Code of Regulations (CCR) section 6253, herein notices the proposed
decision to renew the registration for rl- - calendar year 1999 of those pesticide
products registered in 1998. In reaching the proposed decision to renew
registrations, the Director of DPR presents the following findings:
I. Food and Agricultural Code (FAC) section 12812 sets the annual fee for each
pesticide product submitted for.registration at two hundred dollars ($200);
2. FAC section 128 17 requires that the registration of every pesticide expire on
December 3 I of each calendar year, except when renewal is applied for within one
calendar month thereafter;
3. FAC section 12819 provides for penalty fees should an application for renewal of
registration not be made within one calendar month after expiration of registration.
Such penalties shall not exceed 50 percent of the original amount due;
4. FAC section 12819 also provides that the penalties shall not be collected for
renewals of registration if no business was done during the period of
nonregistration;
5. CCR section 62 15 requires the Director to renew the registrations of pesticide
products within 60 days after receiving an accurate and complete application for
renewal, except when the Director, after hearing, has canceled the registration, or
taken action to refuse to register the product;
6. DPR notices proposed decisions pertaining to registrations for 30 days to provide
for public comment before final decisions are made. DPR submits notices of final
registration decisions to the Secretary for Resources to be posted for 30 days;
7. The provisions of CCR section 6220 provide individuals and organizations with
an opportunity to submit information indicating possible adverse effects from the
use of a pesticide to DPR at any time;
8. DPR posts notices of proposed reevaluations for 30 days to provide for public
comment. DPR submits notices of final reevaluation decisions to the Secretary for
Resources to be posted for 30 days. DPR prepares and makes available to the public
semiannual reports on pesticide products reevaluated, under reevaluation, or for
which factual information has been received. For products that were not reevaluated
in 1998, are not under reevaluation, and are not under consideration for

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Notice of Proposed Decision t Tenew Registration of Pesticides

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reevaluation, the Director has determined that sufficient information has not been
received necessitating reevaluation pursuant to CCR sections 6220 and 622 1. DPR
is currently conducting risk assessments of certain pesticides, including methyl
bromide, pursuant to the Birth Defect Prevention Act and the Pesticide
Contamination Prevention Act. A risk assessment is more comprehensive than a
reevaluation under CCR section 6220 and 6221;
9. DPR consults with state agencies that have legal jurisdiction over resources that
may be affected by the use of pesticides in a timely manner on both registrations
and reevaluations. DPR consults with these agencies both directly and during
regularly scheduled meetings of DPR’s Pesticide RegiZration and Evaluation
Committee;
10. FAC section 12825.5 requires that registrants submit adverse effects disclosures
to DPR any time they have factual or scientific evidence of any adverse effect or
risk to human health, livestock, crops, or the enviromnent that has not been
previously submitted to DPR. The information mandated on adverse effects by the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) section 4(a)(2) is
included in this requirement. Upon application for renewal of registration, the
registrant must certify under penalty of pejury to the accuracy and completeness of
all information submitted. Failure to report adverse effects may result in
cancellation of the pesticide product as allowed by FAC section 12825 (g)
Pesticides proposed for registration renewal pursuant to this notice can be found in a
DPR database on the Internet at http://www.cdpr.ca.gov/docs/labeVlabelque.htm
There are approximately 11,000 registered pesticides in this database. A current
listing of California-registered pesticide products can also be downloaded From the
same Internet address.
DPR registers additional products throughout the year. Notices of registration
decisions on these pesticide products are posted for public comment for 30 days
prior to registration. These Notices of Proposed and Final Decisions can be found on
the Internet at http://www.cdpr.ca.gov/docs/nod/nodmenu.htrn.
Other databases that may be accessed via DPR’s Internet site
(http://www.cdpr.ca.gov/dprdatabase.htm) include:
Chemical Ingredient Queries - searches can be made by common, technical,
synonym? or trade name; or by chemical abstracts service numbers. Additional
queries yield products, registrants, etc.
Product/Label Database Queries - searches of this database may be made by
Company Name/Number or Product Name/Number. In addition, multlple variable
queries on a number of different criteria, yield specific product matches. DPR
updates these databases nightly.
Section 18 Emergency Exemptions - Copies of current California FIFRA section
18 Emergency Exemptions are also available via a database query.
U.S. Environmental Protection Agency (U.S. EPA) Office of Pesticide
Programs (OPP) Databases - include DPR’s implementation of U.S. EPA’s OPP
chemical dictionary and product databases.
As required by CCR section 6254, DPR prepares a public report entitled “Public
Report Relating to Renewal of Pesticide Registrations.” Upon written request, DPR

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will send individuals and organizations 2 copy of the public report, free of charge,
Requests for the Public Report Relating to Renewal of Pesticide Registrations and
comments on this proposed decision should be mailed to:
Mr. Van Cheney
Depattment of Pesticide Regulation
Pesticide Registration Branch
830 K Street, 9th St.-L/L
Sacramento, California 95814-3510

original signed by Barry Cortez
Barry Cortez, Chief Pesticide Registration Branch
(916) 445-4377

January 5, 1999
D a t e

California Environmental Protection Agency

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qemorandum’
Ron Oshina,
Assistant Director

Dar

January 17, 3995

p’ye S a c r a m e n t o

Department of Pesticide Regulalion
sub,.<,

Gary Pattersoh Acting Supervising Toxicologist
hledicai Toxicolog Branch

hIethyl Bromide Chronic Dog Study
There is currently enough information to conduct a risk assessment on methyl bromide that would
include acute, subchronic, and chronic exposure. The assessment of chronic effects would be
’
driven by nasaI cell degeneration and behavioral effecrr
The e4rlmatednoobserved
If
a
margin
of
safety
of
100
is applied to these effect levels, the
for these effects are quite low.
goals for human exposure would be in the range of the limits of detection for methyl bromide.
The chronic neurototicic; of methyl bromide has not been adequately charactetied. It is still the
position of the LT.. I’:aJ Totiuolog; 3raxh thar a d:~ chronic inhalation s’.~!y can lx cond~:::ec!
However, short-term pilot dog inhalatton studies recently submitted by the registrant indicate that
the dose levels for such a study would be quite low, with no observed effect levels probably in the
range of the values currentiy being considered for the risk assessment, and the exposire goals
would also fall in the range of the limits of detection. If these no-observed-effect-levels do not
change and a margin of safety of 100 is used, it is un.likeIy that the results of a dog chronic
inhalation study would change the outcome of the risk assessment. Under these conditions, a dog
chronic inhalation study would not be needed for re_datory purposes.
It should also be noted that the effects seen in the short-term pilot dog inhalation studies indicate
relatively low no-obsemed-adverse-effect-levels. Ifthis information is appropriate for use in the
risk assessment, margins of safety less than 100 could result for some short-term exposure
scenarios.

 -

' .Sta'.e of California

M e m o r a n d u m
TO

:

Gary Patterson, Acting Supervising Toxicologist
Medical Toxicology Branch

Dale
Pkl

:

January 10. 1995

: Sacramento
Telephone: 324-3465

From-n

:

Subirrl

:

Department al Pesticide Regulation
Methyl Bromide:

YJ~y~e Gee, Senior Toxicologist
Medical Toxicology Branch

Dog Inhalation Study

A meeting Was held January 9. 1995. in the Medical Toxicology Branch to

discuss the requirement for a dog chronic study by the inhalation route with
methyl bromide. present were 5 members of the staff. Below are the results
of the discussion.
At the present time, chronic effects are based on estimated no effect levels
(ENELs).
The low doses in the rat oncogenicity study and the mouse NTP
oncogenicity study are judged to be lowest observed effect levels (LOELs) and
an adC?d facto:‘ of 10 is used to estimate the ENEL. The c;l;; :c,in;s are nasa:
epithelial degeneration/hyperplasia for the rat study and neurobehavioral
effects for the mouse. The data for both of these endpoints can be used in a
risk assessment. According to the memorandum from Lori Lim to Keith Pfeifer,
dated December 1. 1994. (see attachment) these values are as follows:
Rat:
Mouse:

LOEL = 3 ppm, ENEL = 0.3 ppm (nasal pathology)
LOEL =

10 ppm. ENEL = 1 ppm (neurobehavioral effects)

The chronic neurotoxicity of methyl bromide has not been adequately
characterized.
The recently submitted and reviewed data with the dog suggests
such a chronic study can be conducted but at relatively low dose levels. The
data also suggest that the no observed effect level (NOEL) could be in the
range of the ENELs.
If the generally utilized margin of safety (MOS) of 100 were applied to the
EL from the dog study, as well as to the above ENELs from rat and mouse,
then the regulatory goals would be similar and in the area of the current
limits of +tpction for methyl bromide./ rhis suggests that, even though the
og study would better characterlze the chronic neurotoxicity of methyl
",I--;:",;, the outcome of the risk assessment would not be significantly
. If, however, a smaller MOS is to be utilized for the EHELs, if
additional studies or data indicate that the NOELs for nasal
degeneration/hyperplasia and neurobehavior are higher than the ENELs, or if
the limits of detection are lowered, then the results of the dog chronic
inhalation study could drive the risk assessment and the study would be
required.
cc:

S"R"AYE

r, 1

K.
J.
5.
L.
R.

Pfeifer
Schreider
Rinkus
Lim
Oshima, Assistant Director

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