Pesticide drift bill signed, but few protections offered

Although Senate Bill 391, sponsored by Sen. Dean Florez, D-Shafter, is supposed to help those involved in incidents of pesticide drift, experts say the bill, with its confusing language, is more likely to create uncertainties. The bill makes the person applying pesticide responsible for the cost of uncompensated medical care of nonworkers, if there is a drift occurrence.

The bill was signed by the governor in the final hours of the bill signing session. It takes effect in January.

In a letter to Gov. Arnold Schwarzenegger urging a veto of the legislation, nearly two dozen leading agricultural organizations said the bill is the "perfect example of a good idea gone bad." The coalition told the governor that the bill was thrown together in the last days and hours of the legislative session and that its impact on community agencies and agriculture was not considered in any state policy committees.

The group said, "We have also discussed with the Department of Pesticide Regulation the degree to which the director's existing authority could be effectively clarified and strengthened to bring about swift and fair resolution of illegal applications. We also support improving the communication between ag commissioners and emergency responders in an effort to ensure that persons exposed to pesticides are treated immediately and properly."

Another problem with the legislation, the group said, is a shift in responsibility for funding emergency medical care away from a proposed state-managed revolving fund, putting it instead on applicators, farmers and their insurance carriers.

Under SB 391, DPR's penalty authority will be greatly expanded. And, the bill requires new protocols and expansion of service for first responders in pesticide drift situations‎but no money to pay for it, as required by law.

Between 1998 and 2002, the most recent numbers available from DPR, pesticide drift incidents have been cut nearly in half, dropping from 79 in 1998 to 39 in 2002. The total number of persons exposed to chemicals through drift in 2002, however, has increased to about 280 persons, compared with about 125 in 1998.

"Because there have been incidents of pesticide exposure due to drift in the past, we have been investigating ways to see that a victim's costs of immediate medical treatment are addressed in those situations," said Cynthia Cory, California Farm Bureau Federation director of environmental affairs. "Unfortunately, this bill circumvented that process and introduced elements that may not be in the best interest of our workforce and the public.

"With an incident occurring about every 18 months, pesticide drift exposure isn't an everyday occurrence," she said. "But even one person being accidentally exposed is a concern. The agricultural community strongly supports the goal of creating a process where non-occupational persons inadvertently exposed to pesticides can receive immediate medical treatment for acute illnesses and injuries.

"Unfortunately, SB 391 substantially deviates from this objective," Cory said. "This bill could, in addition to other penalties, make any person, even if they're not found to have violated provisions relating to safe pesticide use, liable for certain costs related to a resulting illness or injury." When he signed the bill, Schwarzenegger acknowledged the risk to agriculture, noting, "I am concerned that the liability provisions in SB 391 may be viewed as overly broad and may lead to the inability for some entities to obtain insurance. These provisions need to be addressed in follow-up legislation to remediate these unintended consequences."

Other components of the bill include:

• A provision that the exposure of each person to pesticide in an incident "shall constitute a separate violation, thereby imposing a state-mandated local program by changing the disposition of it into a crime."
• A requirement that the California Environmental Protection Agency "establish minimum standard protocols for the purposes of amending area plans and require the certified uniform program agency to amend the area plan for emergency response accordingly."

By requiring local agencies to comply with these requirements, this bill would impose a state-mandated local program, but not provide money to pay for it as required by state law.

SB 391 calls for establishing protocols for gaining immediate access to pesticide-specific information, in order to assist emergency medical services personnel. These must be established by Aug. 31, 2005.

And, if needed, it calls for protocols to delineate specific agency responsibilities as well as the process for responding to calls, notifying residents and coordinating evacuation. It also calls for protocols to establish emergency shelter procedures and locations to be used in the event of an evacuation.

In addition, it calls for protocols to access services in all languages known to be spoken in the affected area; protocols to ensure access to health care within 24 hours of the exposure and up to a week after the exposure; and protocols to notify medical providers regarding their eligibility for reimbursement.

Governmental advocate Louie Brown, who specializes in legislative issues important to agriculture, said one of the biggest problems with SB 391 is that it presents unknowns and is going to create additional liability and costs for growers and applicators.

"What we've been told by representatives of the insurance industry is that they'll have to hedge for the unknown," Brown said. "Whenever they hedge, that means they're going to increase insurance premiums.

"So, at a minimum, we expect growers and applicators will see an increase in their liability insurance premiums. I think the impact on an individual's premiums will appear sooner rather than later."

Major incidents have been few and far between, Brown said. "From 1991 to 2001, DPR tells us there were no major incidents. From 2001 to today, there have been some larger incidents that grabbed headlines when pesticides drifted beyond field or orchard boundaries.

"With the approval of SB 391, these incidents are likely to generate additional claims of exposure because there will be money available," Brown said. "It has always been our position that anyone who is inadvertently exposed to pesticide drift should have their medical expenses reimbursed."