Paul E. Helliker Director |
Governor |
|
Secretary for Environmental Protection |
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Paul E. Helliker Director |
Governor |
|
Secretary for Environmental Protection |
April 17, 2001
Fairfax Town Council
142 Bolinas Road
Fairfax, California 94930
Dear Mayor Ghiringhelli, Vice Mayor Brandborg, and Council Members Caldararo, Egger, and Tremaine:
This letter constitutes notice under section 11501.1 of the Food and Agricultural Code (FAC) that the Director of the California Department of Pesticide Regulation (DPR) has determined that the Town of Fairfax's pesticide ordinance, Ordinance No. 686, is preempted by subdivision (a) of section 11501.1. The Fairfax Town Council adopted the ordinance on March 5. 2001. A copy of the ordinance is enclosed.
Subdivision (a) o f section 11501.1 provides that Divisions 6 and 7 of the FAC are of statewide concern and occupy the whole field of regulation regarding the registration, sale, transportation or use of pesticides to the exclusion of all local regulation. It also provides that an ordinance or regulation of " local government, including action by a county board of supervisors or a city council, may not prohibit or in any way attempt to regulate any matter relating to the registration, sale transportation, or use of pesticides. Subdivision (a) provides that such ordinances, laws, or regulations are void and of no force or effect.
With certain limited exceptions, the Fairfax pesticide ordinance prohibits the use of pesticides on Fairfax parks and buildings owned and maintained by the Town of Fairfax. As drafted, the pesticide use prohibition could also be applied to open space parcels and public rights of way, watch may not be owned and maintained by the Town of Fairfax. Those could include open, privately owned farm parcels; private vacant lots; undeveloped or partially developed private parcels, and public rights of way of railroads, utilities, and county and state roads or highways. DPR has no objections to the Town of Fairfax not using pesticides on its own properties, or the town's own public rights of way, however that decision should be made by policy or town council resolution, not by an ordinance that is preempted by FAC section 11501.1.
Further, within certain exceptions, the ordinance requires persons to notify neighbors at least 48 hours before pesticides are applied on private property within 150 feet of the neighbors' property. The person wanting to apply the pesticide on his or her private property must post a pesticide alert sign or notice in a conspicuous place on the front of the property where the pesticide application will occur. That person also, by mail or hand, must deliver, 48 hours in advance of the pesticide application, a written notice, approved by the Town of Fairfax, to each separate residential unit witching 150 feet of the posted private property.
The notice must include the address and approximate location of the pesticide application, date and estimated time of use, the type of pesticide being used, and a toll-free number for information regarding the pesticide product and potential impacts. The posted notice must remain posted for 48 hours after the pesticide has been applied.
The requirements to post private property where pesticides will be used and to mail or deliver notification neighboring residential properties before pesticides arc applied to the private property, clearly are matters relating to the use of pesticides. The ordinance requires pesticide users to do something relating to the use of pesticides they plan to apply to their private property, or plan to have a business apply to their private property, before the pesticide can be applied. The requirements not only entail physically posting the property and mailing/delivering notice to other persons, but also entail planning the pesticide applications in advance. The private property owner/occupant could no longer decide to spontaneously apply a pesticide at his or her convenience.
The DPR Director has authority to adopt regulations concerning matters relating to the use of pesticides, and those regulations are in. Title 3 of the California Code of Regulations (3 CCR). Some of those regulations require notification relating to the use of pesticides. For example, the State's regulations have notification requirements relating to the use of the pesticides methyl bromide and chloropicrin for field fumigation. Those regulations are in an article entitled "Use Requirements." The State's regulations also have notification requirements relating to the use of
pesticides that are toxic to bees.
The State's pesticide regulations define pesticide rise in 3 CCR section 6000. Under that definition, pesticide use includes "any pesticide related activity including (a) Pre-application activities, including ...(3) Making necessary preparations for the application, including responsibilities related to notification.... Therefore, pesticide use includes the "pesticide related activity" of notification.
Under FAC section 11501.1, I am required to maintain an action for declaratory relief to have a local preempted pesticide ordinance or regulation declared void and of no force or effect, and also to bring an action to enjoin enforcement of the ordinance or regulation, if the adopting entity does not repeal its ordinance or regulation. Therefore, I am requesting the Fairfax Town Council to repeal its pesticide ordinance, Ordinance No. 686, within 60 days of the date of this notice, and inform me of its decision. If the Council does not repeal the ordinance within the time specified, I will request the Office of the Attorney General to commence the actions for declaratory relief and injunction.
If you have any questions, please feel free to call me.
Sincerely,
Paul F. Helliker
Director
(916) 445-4000
Enclosure
cc- Mr. Stacy Carlsen, Marin County Agricultural Comissioner
Mr. Daniel Merkley, DPR Agricultural Commissioner Liaison
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