Majority
Opinion
Within the California Environmental Protection Agency (EPA) there are two departments that play a role in the regulation of the use of pesticides in our state, the Office of Environmental Health Hazard Assessment (OEHHA) and the Department of Pesticide Regulation (DPR). The OEHHA is the risk assessment arm of the EPA and helps establish the scientific basis for the risk management decisions of the EPA’s regulatory departments, such as the DPR. With regard to pesticide safety, OEHHA and DPR have shared responsibility for developing regulations. While OEHHA does not promulgate those regulations, it is responsible for developing and providing DPR with toxicological information relevant to its risk management decisions. Although the primary responsibility to ensure the safe use of pesticides rests with DPR, it is required to consult with OEHHA concerning risk assessment before adopting those regulations. This case concerns the working relationship between these two departments.
This appeal also concerns the extent of the power of DPR to regulate exposure levels for pesticides used for agricultural purposes. In particular, it concerns whether DPR has the power to identify target levels for subchronic exposure[1] to methyl bromide[2] that exceed levels recommended by OEHHA, and whether DPR is required to work with OEHHA to develop regulations relating to pesticides and worker safety, as opposed to developing
1 Subchronic exposure refers to exposure to a substance over a period of weeks or months, in contrast to acute exposure, which is a short, one-time exposure to higher levels of a substance.
2 Methyl bromide is a pesticide commonly used in agriculture. It is a gaseous fumigant used to treat soil before planting vegetable, fruit and nut crops, and also is used by flower and forest nurseries. Methyl bromide can be inhaled or absorbed through the skin, and can produce harmful effects on people. It is, however, a highly effective pesticide, with few alternatives, and at least as of 2003, remained one of the most widely used pesticides in the world. Methyl bromide has been recognized to be an ozone-depleting substance. The United Nations Montreal Protocol therefore scheduled it to be phased out of use by the United States by 2005. The United States, although signing the protocol, continues to allow the use of the substance through critical use exceptions. (Protection of Stratospheric Ozone: Process for Exempting Critical Uses of Methyl Bromide, 70 Fed.Reg. 29494 (May 23, 2005).)
We find DPR is required by statute to work jointly with OEHHA while formulating regulations relating to the safety of persons working with or around methyl bromide. This does not mean OEHHA has regulatory authority, but it does mean OEHHA is responsible for one of the many factors DPR must consider when it formulates the regulations. We find only that in balancing the interests affected by that use, DPR may not itself determine the health effects of subchronic exposure to methyl bromide, but must collaborate jointly with OEHHA in determining that question, and DPR further may not ignore OEHHA or its input until after the regulations have been drafted.
As DPR did not include OEHHA in the process leading to the development of the regulations at issue, and as DPR used its own determination of the health effects of methyl bromide, we find DPR violated its mandatory statutory duties. We therefore uphold the trial court’s ruling directing DPR to develop regulations for methyl bromide field fumigation, jointly and mutually with OEHHA, and make use of the recommendations of OEHHA’s assessment of health risk.
Parties
This appeal is from a judgment on a petition for writ of mandate and complaint for declaratory and injunctive relief. The petitioners are Jorge Fernandez and Guillermo Ruiz, both of whom live with their families in agricultural areas in California in proximity to fields where methyl bromide has been applied, and whose work brings them into contact with soils treated with methyl bromide, and the Environmental Defense Center, a California nonprofit corporation dedicated to the preservation of the environment in California’s south central coast region (hereafter plaintiffs). The petition and complaint was brought against DPR. The California Strawberry Commission and the Alliance of the Methyl Bromide Industry intervened in the proceedings, and have filed their own appellate brief. In addition, amicus curiae briefs have been filed by the California Agricultural Issues Forum, Croplife America and Western Plant Health Association. The interveners and amici curiae essentially support DPR’s position, contending the superior court’s ruling was error. For purposes of this opinion it will be assumed DPR, interveners and amici curiae adopt one another’s arguments, and all will be referred to generally as the arguments of defendants.
Development of DPR’s and OEHHA’s powers to regulate pesticide use
Until 1972, pesticide regulations were more concerned about protecting the consumer than about protecting workers. (Assem. Com. on Environmental Quality, Analysis of Assem. Bill No. 246 (1972 Reg. Sess.) § 1.) In January 1972, Assemblyman Bob Wood introduced Assembly Bill No. 246 (1972 Reg. Sess.) (Assembly Bill 246) to remedy the situation, proposing to add article 10.5, commencing with section 12980, to division 7, chapter 2 of the Food and Agricultural Code (hereafter, article 10.5). Proposed Food and Agricultural Code section 12980[3] provided: “The Legislature hereby finds and declares that it is necessary and desirable to provide for the safe use of pesticides and for safe working conditions for farmworkers, pest control applicators, and other persons handling, transporting, storing, or applying pesticides, or working in and about pesticide-treated areas.” Recognizing both the Department of Public Health and the Department of Agriculture had interests in regulating pesticides, the proposed section provided, further, “the development of regulations relating to pesticides and worker safety should be the joint and mutual responsibility of tile Department of Agriculture and the Department of Public Health.” Section 12981, as proposed, similarly provided, “The State Department of Public Health . . . shall participate in the development of any regulations adopted pursuant to this article. The final decision on matters of public health covered under this article, shall be determined jointly by the Director of Public Health and the director [of Agriculture].” (Assem. Bill 246, as introduced Jan. 27, 1972.)
A few months later, Assembly Bill 246 was amended so that section 12981 no longer provided that the final decision on matters of public health was to be made jointly by the State Department of Public Health and the Department of Agriculture. Instead, it provided, “Such regulations that relate to health effects shall be based upon the recommendations of the Department of Public Health.” (Assem. Bill 246, as amended Apr. 10, 1972.) The staff analysis of the bill, as amended, explained, “While the principal responsibility for adopting the required regulations would be vested with the Department of Agriculture, the bill provides that the Department of Public Health ‘shall participate in the development of any regulations adopted pursuant to this article.’ ” Regulations that relate to health effects “shall be based upon the recommendations of the Department of Public Health.” The Department of Public Health confirmed it had worked with the author and the Department of Agriculture in preparing the bill, explaining, “This bill would require State Department of Public Health input into pesticide regulations relating to worker health. While currently the Department of Agriculture requests our
3 Statutory references are to the Food and Agricultural Code unless otherwise indicated.
The Senate proposed its own bill, Senate Bill No. 21 (1972 Reg. Sess.) (Senate Bill 21), which also sought to create a means of regulating pesticides, but placed ultimate regulatory authority with the Department of Public Health. (Sen. Bill 21, as introduced Jan. 4, 1972.) The Department of Agriculture explained, in supporting Assembly Bill 246 over Senate Bill 21, “The purpose of the bill is to state clearly in the Agricultural Code that regulations concerning the application and use of pesticides as they affect farm worker safety is the responsibility of the Department of Agriculture but any regulation relating to the health and safety of workers is required to be based upon the recommendations of the Department of Public Health, [f] This bill has been extremely controversial and opposed all along by the California Rural Legal Assistance League which contends that the approach in [Senate Bill] 21 is the proper approach which would give pesticide regulatory authority to the Department of Public Health and Public Health officers, [f] The bill is extremely important to clearly define the aforementioned responsibilities in connection with farm worker safety and should be enacted into law.” (Cal. Dept. Agriculture, Enrolled Bill Rep. on Assem. Bill No. 246 (1972 Reg. Sess.) Aug. 1, 1972.) In the end, the Legislature adopted Assembly Bill 246, with the result that article 10.5 was adopted.
The Department of Agriculture later became the Department of Food and Agriculture. The Department of Public Health became the State Department of Health Services. In 1991, the Governor’s Reorganization Plan created the California Environmental Protection Agency, and within it, created both DPR and OEHHA. The Governor transferred the Department of Food and Agriculture’s pesticide regulatory program to DPR, including the responsibilities set forth in article 10.5. (Governor’s Reorganization Plan No. 1 of 1991, eff. July 17, 1991, 4 Stats. 1991 (Reorganization Plan); and see § 11454.) The Governor transferred the Department of Health Service’s “duties and responsibilities relating to hazard identification and risk assessment (i.e., risks from pesticide and chemical residues in food and water [and certain other specified risks])” to OEHHA. (Sen. Com. on Governmental Reorganization, Staff Analysis of Governor’s Reorganization Plan No. 1 of 1991, June 5, 1991, p. 102, f 5; and see Health & Saf. Code, § 59004.)[4]
4 Section 11454.1, added as part of the Reorganization Plan, provides: “[DPR] shall conduct pesticide risk assessment as appropriate to carry out its responsibilities set forth in Section 11454 [transferring to DPR the Department of Food and Agriculture’s responsibilities relating *1223 to the regulation of pesticides], [OEHHA] shall provide scientific peer review of risk assessments conducted by the department as appropriate to carry out its responsibilities set forth in Section 59004 of the Health and Safety Code.” (Reorganization Plan, supra, § 27, p. 17.) Health and Safety Code section 59004 provides, in relevant part, that OEHHA “succeeds to, and is vested with, all the duties, powers, purposes, responsibilities, and jurisdiction of the Health Hazard Assessment Division of the State Department of Health Services relating to assessment of human health risks of chemicals and to toxicological and scientific consultation to programs in the State Department of Health Services and in other state agencies. The functions and responsibilities of the office shall include, but not be limited to, those performed pursuant to the following provisions of law: [][]... [f] (c) Article 10.5 (commencing with Section 12980) . . . .” (Reorganization Plan, supra, § 147, p. 141.)
In the meantime, in 1988, the Legislature enacted sections 14081 and 14082, concerning methyl bromide and chloropicrin, requiring the Department of Food and Agriculture (and now DPR), to adopt regulations governing the use of methyl bromide and chloropicrin as field fumigants.* ***[5]
5 Section 14081 provides, “The director, after investigation and hearing, shall adopt regulations by April 1, 1989, which govern the use of methyl bromide and chloropicrin as field fumigants.” Section 14082 provides, “The director may prescribe the time when, and the conditions under which, methyl bromide and chloropicrin may be used in different areas of the state.”
On October 15, 1999, DPR issued a draft document entitled, “Methyl Bromide Risk Characterization Document for Inhalation Exposure,” which, among other things, proposed target levels for human subchronic exposure levels to methyl bromide. These levels primarily were derived from a 1994 study of subchronic toxicity in dogs: the “Newton study.” In essence, target exposure levels are based on animal experiments under which animals are exposed to a substance—here methyl bromide—at different levels and over different time periods. The effects on the animals are then reported. A NOEL (no observable effect level) refers to a level at which there is no observable effect. A LOEL (lowest observable effect level) refers to the lowest level at which an effect has been observed. The studies are then analyzed to identify a “critical NOEL” for purposes of calculating the acceptable margin of exposure to a specified substance. The identification of a critical NOEL is far from an exact science. Among other things, there can be a lack of consensus as to whether an “observable effect” is an effect related to exposure to the substance in question or an effect caused by something else entirely. In addition, as studies typically are not conducted on human beings and do not cover all possible levels and lengths of exposure, identifying a critical NOEL involves a process of extrapolation, meaning any identification of a critical NOEL necessarily is only a best estimate. It follows that different analysts may derive different critical NOEL’s from the same study and different studies can result in different conclusions as to what the critical NOEL should be.
The Newton study identified a level of 5 parts per million (ppm) to be the lowest level at which adverse effects were observed (i.e., the LOEL).[6] It did not identify a NOEL, but DPR and others, using the Newton study’s LOEL, estimated the appropriate critical NOEL from the study to be 0.5 ppm. DPR then identified target levels for human subchronic exposure to methyl bromide, identifying 1 part methyl bromide per billion (ppb) to be the target level for the general public and 2 ppb to be the target level for adult workers.
On February 14, 2002, after an extensive review process, DPR issued a three-volume “Methyl Bromide Risk Characterization Document [for] Inhalation Exposure” (Risk Characterization Document), which, as relevant, continued to identify target levels for subchronic exposure to methyl bromide of 1 ppb for the general public and 2 ppb for adult workers. DPR also adopted permanent methyl bromide field fumigation regulations, which, after they
6 Sometimes the terms NOAEL or LOAEL are used, referring to “no observable adverse effects level" and “lowest observable adverse effects level.” There appears to be no difference between a NOEL and a NOAEL or a LOEL and a LOAEL.
The regulations were challenged almost immediately by environmental groups and field workers. Two cases, Environmental Defense Center v. Department of Pesticide Regulation (Super. Ct. S.F. City and County, 2002, No. 515270) and Ventura County Agricultural Association v. Department of Pesticide Regulation (Super. Ct. Sacramento County, 2002, No. 01CS00336) were consolidated in the San Francisco County Superior Court, which in April 2002 voided the regulations. The court found section 11454.2, and a 1992 memorandum of agreement between DPR and the Department of Food and Agriculture, required DPR to consult with the Department of Food and Agriculture in enacting the regulations, but DPR had failed to do so.[8] DPR did not appeal that ruling, although it maintains the ruling was erroneous.
In the meantime, another challenge to the regulations was filed in the Monterey County Superior Court (Carrillo v. Department of Pesticide Regulation (Super. Ct. Monterey County, 2002, No. M55400)). The parties to the Monterey proceedings resolved that case by means of a May 14, 2002 settlement under which DPR agreed to repromulgate regulation of methyl bromide, and in so doing, to consider the regulation of subchronic methyl bromide exposure. DPR filed emergency regulations to repeal and readopt the regulations struck down by the San Francisco Superior Court, pending ffirther research and review. The readopted regulations became effective on September 22, 2002, and January 21, 2003.
Development of 2003 Regulations
On February 3, 2003, DPR issued an addendum to volume I of the Risk Characterization Document (the Addendum). By that time, a new study had taken place, the “Schaefer study.” The author of the Schaefer study reported no effects from subchronic exposure to methyl bromide had been observed at a level of 20 ppm. This finding was markedly different from the Newton study’s identification of 5 ppm as the lowest dose at which effects had been observed, which then led to the determination of the critical NOEL of 0.5 ppm. DPR subjected the Schaefer study to scientific reviews conducted by its
7 Section 14081 required DPR to adopt the regulations by April 1, 1989. DPR did not meet that deadline.
8 Section 11454.2, enacted at the same time the Legislature transferred the Department of Agriculture’s general responsibilities over pesticide regulation to DPR, requires DPR to “consult with the Department of Food and Agriculture in any action relating to . . . denial of new active ingredient registrations, suspension or cancellation of pesticide registrations or uses, or other measures adopted to mitigate unacceptable adverse pesticidal effects.”
It is undisputed DPR did not consult OEHHA before it proposed the changes in target levels for subchronic exposure to methyl bromide. OEHHA was not involved in the analysis of the Schaefer study, provided no input into DPR’s analysis, and made no recommendations as to the appropriate target levels for methyl bromide in light of the Schaefer study or the various analyses of the study. After DPR issued the Addendum, and as part of its public notification process, DPR made the Addendum available to OEHHA. DPR also invited OEHHA to a public workshop, explaining DPR’s intention to present a staff analysis “of the significant endpoints for subchronic exposures to methyl bromide.” DPR explained to OEHHA, as it explained to the other persons and organizations notified about the meeting, it would “be soliciting comments on the appropriate regulatory target value we should use in the regulations to address subchronic exposures.” OEHHA responded with a March 11, 2003 letter. By that time, OEHHA had obtained and reviewed the Schaefer study. OEHHA reported neither the Newton study nor the Schaeffer study was perfect, but it could find nothing to suggest the Newton study was unreliable and could identify no scientific basis for giving more weight to the Schaefer study than to the Newton study. OEHHA concluded, “Therefore, for the purposes of risk assessment and mitigation, OEHHA finds that the results of the Newton (1994) study provide sufficient evidence for the most sensitive toxic effect of [methyl bromide] to be used as an end point for subchronic (seasonal) exposures.” DPR’s toxicologists responded to comments, including those of OEHHA, developed during the workshop and related proceedings. They noted some reviewers believed the NOEL should be higher than 5 ppm, while OEHHA continued to recommend a LOEL of 5 ppm, which necessarily implied the NOEL should be even lower. DPR explained its reasons for selecting 5 ppm as the NOEL, and in doing so specifically addressed OEHHA’s comments and concerns.
Superior Court’s Ruling
On December 1, 2004, plaintiffs filed a petition for writ of mandate in the San Francisco Superior Court, attacking the new regulations. As relevant to this appeal, the superior court concluded DPR had failed to fulfill “the statutorily mandated ministerial duty of section 12981 of the Food and [Agricultural] Code when it failed to ‘base’ ” its regulations on subchronic exposure levels on the levels recommended by OEHHA. The court also found DPR failed to fulfill a ministerial duty, mandated by statute, that required it jointly and mutually to develop the regulations, finding DPR “did not work in a unified and shared process with OEHHA in developing the Regulations.” The court reasoned, “Although OEHHA did participate in the development of the Regulations, this participation did not rise to the level of the ‘joint and
9 California Code of Regulations, title 3, former sections 6450, 6450.1, 6450.2, and 6450.3 were renumbered without substantive change as California Code of Regulations, title 3, sections 6447, 6447.1, 6447.2, and 6447.3, respectively, in January 2008. We refer to these code sections by the numbering system in place prior to the 2008 revision, as this is the numbering scheme used in the trial court.
I
Discussion
OEHHA’s Recommendations and Involvement in Developing Regulations
Where, as here, the issues involve questions of statutory interpretation, our task is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 , 977 [ 90 Cal.Rptr.2d 260 , 987 P.2d 727 ].) This task may involve up to three steps. “ ‘[W]e first look to the plain meaning of the statutory language, then to its legislative history and finally to the reasonableness of a proposed construction.’ ” (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076 , 1082 [ 36 Cal.Rptr.3d 650 ]; see id. at p. 1087 (MacIsaac).)
As a general rule, we attempt to give the words of a statute their “plain and commonsense meaning.” (Flannery v. Prentice (2001) 26 Cal.4th 572 , 577 [ 110 Cal.Rptr.2d 809 , 28 P.3d 860 ].) Here, although each party essentially contends there is a “plain meaning” to each of the statutes in question, they do not, unsurprisingly, agree as to exactly what that plain meaning is. Moreover, we do not view the words of a statute in isolation, but construe them in context, keeping in mind the statutory purpose, interpreting legislation reasonably and attempting to give effect to the apparent purpose of the statute. (MacIsaac, supra, 134 Cal.App.4th at p. 1083.)
We also have the advantage of the decision in Western Oil & Gas Assn. v. Air Resources Board (1984) 37 Cal.3d 502 [ 208 Cal.Rptr. 850 , 691 P.2d 606 ] (Western Oil), where the Supreme Court construed the meaning of a provision
The Supreme Court’s point was illustrated further by its reasoning in connection with standards the Board had adopted for sulfur dioxide. The Department of Health Services had determined no report indicated health effects as a result of concentrations at less than 0.10 ppm averaged over a 24-hour period. The Department of Health Services believed it was rational to apply a margin of safety, but could find no scientific basis for applying any particular margin of safety below the level of the 0.10 ppm standard, concluding that an existing air quality standard of 0.04 ppm was reasonable. The Board accepted the Department of Health Services’ determination of no health effects at levels less than 0.10 ppm, but applied its own safety factor, adopting a standard of 0.05 ppm for a 24-hour period. (Western Oil, supra, 37 Cal.3d at p. 515.) The trial court found the Board lacked authority to impose any safety factor, but was obligated to adopt the 0.10 ppm standard outright. (Ibid.) The Supreme Court reversed, finding the Board had followed the Department of Health Services’ recommendations even though it adopted neither the 0.10 ppm standard nor that standard modified by the safety factor suggested by the Department of Health Services. It was enough that the evidence supported the safety factor actually used by the Board. (Id. at p. 516.)
The Supreme Court’s construction of the phrase “based upon the recommendations,” if adopted here, would mean DPR is required by statute to accept OEHHA’s recommendations as to health effects, i.e., OEHHA’s determination that 0.5 ppm methyl bromide is the critical NOEL, and DPR may not use a different critical NOEL for purposes of adopting regulations relating to pesticides and worker safety. In Western Oil, supra, 37 Cal.3d 502 , the Board, after considering the relevant factors, ultimately adopted air standards higher than those recommended by the Department of Health Services. We do not read that case as holding that the Board was prohibited from adopting air standards lower than those recommended by the Department of Health Services, and we do not find DPR here is prohibited from enacting regulations that may result in higher levels of exposure to methyl bromide than the levels recommended by OEHHA. We find only that under Western Oil, DPR would not be required to adopt OEHHA’s recommendations as the target levels for exposure to methyl bromide if a justification exists for the levels DPR actually adopts in regulating the substance as a pesticide.
Generally, where the language of a statute uses terms that have been judicially construed, “ ‘ “the presumption is almost irresistible” ’ that the terms have been used ‘ “in the precise and technical sense which had been placed upon them by the courts.” ’ ” (People v. Lawrence (2000) 24 Cal.4th 219 , 231 [ 99 Cal.Rptr.2d 570 , 6 P.3d 228 ].) The reasoning is that “[t]he Legislature is presumed to be aware of other statutes on the same or analogous subject matter in which the same language is used.” (Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483 , 504 [ 66 Cal.Rptr.2d 304 , 940 P.2d 891 ].) The presumption is less compelling here thah in other cases as Western Oil, supra, 37 Cal.3d 502 , was decided in 1984, well after section 12981 was enacted. Nonetheless, it is not unreasonable to assume the Legislature meant the same thing when it used the same words, so the Supreme Court’s determination of the Legislature’s intent in connection with Health and Safety Code section 39606 has at least some persuasive value. Moreover, the Legislature could have, but did not, change the wording of section 12981 in 1991 when DPR was established and the section was amended accordingly.
In addition, in 1979, the Legislature recognized that the Department of Food and Agriculture had obtained its own medical expertise, but nonetheless rejected an attempt to weaken the role of the Department of Health Services so that its recommendations would be only advisory. As to that attempt, part of Assembly Bill No. 1090 (1979-1980 Reg. Sess.) (Assembly Bill 1090), an analyst for the Assembly Committee on Labor, Employment & Consumer Affairs explained, “When the pesticide worker safety laws were first passed in 1972, the Department of Food and Agriculture did not have a medical or toxicological staff and the Department of Health Services was given joint responsibility for developing regulations because of its experience and expertise in this area. In recent years, [the Department of Food and Agriculture] has added several persons with medical and toxicological knowledge to its Worker Safety Unit. [1] [Assembly Bill] 1090 recognizes that [the Department of Food and Agriculture] has staff with expertise in health matters and proposes that the role of the Department of Health Services in developing worker safety regulations be weakened and that [the Department of Food and Agriculture] become solely responsible for the final content of these regulations.” (Apr. 24 analysis, supra, at pp. 2-3.) In its original form, Assembly Bill 1090 would have deleted from section 12981 any requirement that the Department of Health Services participate in the development of regulations adopted pursuant to article 10.5, and any requirement that regulations relating to health effects be based upon the recommendations of the Department of Health Services. Instead, section 12981, subdivision (f) would read, “The State Department of Health Services shall advise the director concerning the development of any regulations adopted pursuant to this article.” (Legis. Counsel’s Dig., Assem. Bill No. 1090 (1979-1980 Reg.
Legislative committee reports are not conclusive evidence of legislative intent (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491 , 508 [ 247 Cal.Rptr. 362 , 754 P.2d 708 ]), and the Legislature of course may choose to reject proposed legislation for reasons not apparent from the record. Nonetheless, the legislative materials, together with the amendment to Assembly Bill 1090, indicate the Legislature made a conscious choice against reducing the Department of Health Services’ role to that of an advisor to the Department of Food and Agriculture, choosing instead to continue to require pesticide regulations to be the “joint and mutual responsibility” of the two agencies, and to require the Department of Food and Agriculture to adopt the Department of Health Services’ recommendations as to health effects, despite its awareness the Department of Food and Agriculture had gained its own medical expertise.
We find that both the language of sections 12980 and 12981, and the relevant legislative history explained in part by later legislative analysis, support a conclusion the Legislature intended the Department of Health Services, and now OEHHA, to be not just an advisor, but an active participant in developing regulations relating to pesticides and worker safety, and that while DPR is charged with managing the risks of pesticides on worker safety, it is OEHHA and not DPR that is to assess what those risks are.
Defendants cite other statutory provisions, which do confer risk assessment authority on DPR, such as the Tanner Act (Health & Saf. Code, §§ 39650-39674) (Tanner Act),[10] “which established an elaborate process for the [State Air Resources Board] to identify substances as being ‘toxic air contaminants’ and to adopt ‘airborne toxic control measures’ for those contaminants.” (Monterey Bay, supra, 49 Cal.3d at p. 412.) Health and Safety Code section 39655 provides a “toxic air contaminant which is a pesticide shall be regulated in its pesticidal use by [DPR] pursuant to Article 1.5
10 Plaintiffs point out DPR cited section 12981 as authority for the regulations at issue here, but did not cite the Tanner Act, and has never asserted its assessment of health risks was conducted under the act. Plaintiffs also complain defendants did not argue below that the act effectively subsumed article 10.5. Defendants’ theory, however, involves a question of law to be applied to undisputed facts, and therefore may be considered for the first time on appeal. (Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10 , 15-16 [ 1 Cal.Rptr.2d 805 ].)
We do not agree. Sections 12980 and 12981 concern regulations for worker safety. While the Tanner Act’s more general provisions certainly could cover issues of worker safety, the act focuses on the effects of emissions into the ambient air, not the health effects of pesticides on those working in close proximity to them. The statutory scheme can be harmonized by finding OEHHA has risk assessment authority for the health effects of pesticides on those working in close proximity to them, including the subchronic effects of methyl bromide, while DPR has authority to determine the health effects from releasing toxic substances into the ambient air, and for purposes of that determination should consider OEHHA’s recommendations, but is not bound by them. Moreover, defendant’s construction effectively acts as an implied repeal of those provisions of sections 12980 and 12981 conferring special status on OEHHA in connection with pesticide regulation. We would construe the Tanner Act as a repeal of sections 12980 and 12981 only if there were “ ‘no possibility of concurrent operation’ . . . [and] . . . ‘the later provision gives undebatable evidence of an intent to supersede the earlier.’ ” (Monterey Bay, supra, 49 Cal.3d at p. 420, quoting Hays v. Wood (1979) 25 Cal.3d 772 , 784 [ 160 Cal.Rptr. 102 , 603 P.2d 19 ], italics added by the court in Monterey Bay.) We recognize defendants’ arguments as to the difficulty of incorporating different assessments of health effects into different regulations, but difficulty of operation is not the same thing as undebatable evidence of an intent to supersede.
Defendants cite a staff analysis of the Reorganization Plan, conducted by the Senate Committee on Governmental Organization. Paragraph 4 of the analysis recites the plan “would create [DPR] within [the California Environmental Protection Agency] and transfer to DPR the pesticide regulatory program from the State Department of Food and Agriculture .... ‘Risk assessment’ associated with pesticide regulation and use would be within
11 Methyl bromide, like many other pesticides, is a “toxic air contaminant” for purposes of the Tanner Act. (§ 14021, subd. (b); 42 U.S.C. § 7412 (b)(1).)
Defendants point out DPR and OEHHA have acted as if DPR had authority to reject OEHHA’s assessment of the risks of subchronic exposure to methyl bromide. Although an agency’s interpretation of the meaning and effect of a statute is entitled to consideration and respect by the courts (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1 , 7 [ 78 Cal.Rptr.2d 1 , 960 P.2d 1031 ]), its interpretation is simply the agency’s legal opinion, and the deference to which it is entitled depends on the extent to which the agency’s expertise in the area provides it with special familiarity with satellite legal and regulatory issues. (Id. at p. 11; see also id. at pp. 12-15.) Here, there is no evidence either agency had any special expertise or specialized knowledge that would aid in determining the Legislature’s intent in enacting article 10.5. Further, neither agency actually interpreted anything; both simply acted as if OEHHA’s role was more or less limited to that of an advisor, a limitation that exists in other statutes, such as the Tanner Act. Under the circumstances we do not view DPR’s assumption of its own authority or OEHHA’s failure to protest to be evidence of the Legislature’s intent sufficient to overcome the other evidence indicating a contrary legislative intent.
For all of the above reasons, we conclude section 12981 requires DPR, in developing regulations for pesticides and worker safety, to collaborate closely with OEHHA in determining the health risks from exposure to pesticides, including methyl bromide. For similar reasons we also find DPR
12 We of course take no position on the relative duties of DPR and OEHHA with respect to the health risks regulated by other statutes.
II
Regulations as Affecting Worker Safety
The trial court found DPR violated its mandatory statutory duties with respect to the regulations set forth in California Code of Regulations, title 3, sections 6450, subdivision (h); 6450.2, subdivision (a), and 6784, subdivision (b)(2)(C).[13] Defendants concede California Code of Regulations section 6784, subdivision (b)(2)(C) is a worker safety regulation in that it states the conditions under which employees are required to wear respirators or other air-supplying respiratory protection. They contend California Code of Regulations sections 6450, subdivision (h), and 6450.2, subdivision (a), however, were not worker safety regulations and therefore not subject to OEHHA’s involvement and recommendations pursuant to Food and Agricultural Code sections 12980 and 12981.
California Code of Regulations, title 3, section 6450 as a whole clearly applied to worker safety. Its introductory paragraph defined “fumigation-handling activities.” California Code of Regulations, title 3, section 6450, subdivision (a) required the operator to submit a work plan that included a description of any activities within the buffer zones and a description of any workday/work hour limitations and respiratory protections, and subdivision (c) required the commissioner to include buffer zone requirements and work-hour requirements when conditioning a permit. California Code of Regulations, title 3, section 6450, subdivision (h) provided, “[DPR], in coordination with county agricultural commissioners, shall ensure that ambient air concentrations of methyl bromide do not exceed an average daily non-occupational exposure of nine parts per billion in a calendar month.” While California Code of Regulations, title 3, section 6450, subdivision (h) did refer to nonoccupational exposure, and certainly had an impact on the general public, it also had a direct impact on those who worked with and around methyl bromide. We do not read the section as excluding exposure to workers (so that, for example, there would be no need to measure emissions
13 California Code of Regulations section 6450 regulated the fumigation of specified lands. California Code of Regulations section 6450.2 sets standards for creating and maintaining buffer zones around fumigated property. California Code of Regulations section 6784 also regulated field fumigation, and in subdivision (b), sets forth employee protection requirements.
California Code of Regulations, title 3, section 6450.2, subdivision (a) provided, “The commissioner shall approve buffer zone sizes and durations based upon local conditions. ... At no time shall the inner buffer zone be less than 30 feet, and the outer buffer zone be less than 60 feet, or the buffer zone durations be less than 36 hours.” Defendants assert California Code of Regulations, title 3, section 6450.2, subdivision (a) was intended to protect the environment and human health outside of the occupational setting. Again, in the absence of a regulation that alters the buffer zones when the only affected persons are those working in close proximity to methyl bromide, a more accurate description is that the buffer zone requirements in California Code of Regulations, title 3, section 6450.2 applied to protect both nonworkers and workers.
Defendants point out the regulations provide guidance to operators on the use of methyl bromide, arguing that they should not be viewed as regulations affecting worker safety. The reason for regulating the use of methyl bromide is to protect those who may come into contact with it. It follows that the regulations, although directed at operators, are nonetheless governed by sections 12980 and 12981 to the extent they “provide for the safe use of pesticides and for safe working conditions for farmworkers, pest control applicators, and other persons handling, storing, or applying pesticides, or working in and about pesticide-treated areas.” (§ 12980.) We conclude, therefore, that all three regulations fall under sections 12980 and 12981.
in.
Clarity
The trial court also found the regulations to lack clarity. As we have determined the regulations are invalid, we have no reason to address the trial court’s reasoning. We also have no reason to consider whether plaintiffs are entitled to challenge the regulations for lacking clarity or whether the regulations indeed are fatally unclear. We decline to do so.
After reviewing the arguments of the parties, the record and the relevant legislative history, we find the regulations are invalid in that they were not the result of a joint effort by DPR and OEHHA and that they are based on DPR’s own assessment of the health risks resulting from subchronic exposure to methyl bromide.
The judgment is affirmed.
Marchiano, P. J., and Margulies, J., concurred.
Petitions for a rehearing were denied August 11, 2008, and the opinion was modified to read as printed above. The petition of interveners and appellants for review by the Supreme Court was denied October 1, 2008, SI66224. Kennard, J., did not participate therein. Baxter, J., was of the opinion that the petition should be granted.
Cases cited
- Wilcox v. Birtwhistle 21 Cal.4th 973 at 977 p. 1228
- MacIsaac v. Waste Management Collection & Recycling, Inc. 134 Cal.App.4th 1076 at 1082 p. 1228
- Flannery v. Prentice 26 Cal.4th 572 at 577 p. 1228
- Western Oil & Gas Ass'n v. Air Resources Board 37 Cal.3d 502 p. 1228, p. 1230
- People v. Lawrence 24 Cal.4th 219 at 231 p. 1230
- Ventura County Deputy Sheriffs' Ass'n v. Board of Retirement 16 Cal.4th 483 at 504 p. 1230
- Committee of Seven Thousand v. Superior Court 45 Cal.3d 491 at 508 p. 1232
- Goodman v. Williams 107 Cal.App.4th 294 at 300-301 p. 1233
- Collection Bureau of San Jose v. Rumsey 24 Cal.4th 301 at 310 p. 1233
- Manufacturers Life Insurance v. Superior Court 10 Cal.4th 257 at 274 p. 1233
- Western Oil & Gas Ass'n v. Monterey Bay Unified Air Pollution Control District 49 Cal.3d 408 at 419 p. 1233
- Hays v. Wood 25 Cal.3d 772 at 784 p. 1234
- Yamaha Corp. of America v. State Board of Equalization 19 Cal.4th 1 at 7 p. 1235