Cal/EPA Faults Fertilizer Regulations by AG Dept

State Net Capitol Journal - California, December 6, 1999, Noel Brinkerhoff
Published December 6, 1999

An effort by one wing of the Davis administration to keep heavy metals out of California's agricultural crops and soil -- which some environmentalists have called inadequate -- has come under criticism from another wing of the administration, it was discovered last week by Capitol Journal.

At issue are regulations being developed by the Calif. Dept. of Food and Agriculture that would allow commercial fertilizers to contain lead, arsenic and cadmium -- all of which can cause serious health problems such as cancer, kidney disease and mental retardation. Throughout this year, environmentalists led by the Calif. Public Interest Research Group and the Environmental Working Group have charged that CDFA's regulatory approach did not go far enough to protect consumers -- a claim now backed by officials in the Calif. Environmental Protection Agency.

In a letter submitted late last week to CDFA Secy. William Lyons, Cal/EPA Secy. Winston Hickox agreed on one thing with his ag counterpart: that the issue of metals in fertilizer "presents a threat to public health, the environment, and the economic vitality of California agribusiness and, therefore, requires proper regulation." But there the agreement ended, as Hickox's letter was followed by a 30-page critique citing numerous problems with CDFA's proposed regulations.

For starters, Cal/EPA officials took issue with the science used by CDFA to create the regulations. Ag officials relied exclusively on an analysis performed during the administration of Republican Gov. Pete Wilson, which has resulted in "proposed regulations that create maximum allowable environmental contamination and exposure rather than preventing and reducing ongoing contamination of our environment," according to the Cal/EPA document.

"As a matter of public policy," Cal/EPA added, "it is not desirable to develop standards that plan for increased environmental contamination when otherwise avoidable."

The Cal/EPA assessment also criticized CDFA's decision to address only lead, arsenic and cadmium in the draft regulations. Environmentalists have said that other dangerous materials have been found in fertilizers, including mercury, which can cause birth defects, and dioxin, which can cause birth defects, cancer and immune system disorders. CDFA's plan to require content labeling of fertilizer bags also came under attack by Cal/EPA, saying the proposed labeling plan was "misleading" and could prove dangerous to consumers unless corrected.

Another problem, which environmentalists have cited, is the regulations would address fertilizer used only for commercial purposes, leaving out products sold for home use. But exempting fertilizer for home gardens could prove harmful, according to a study released two weeks ago by CalPIRG, the Environmental Working Group and Dr. Bill Liebhart of UC Davis that found one brand of fertilizer, Ironite, to have dangerously high levels of heavy metals.

Steve Mauch, an assistant director with CDFA, had no comment on Cal/EPA's assessment of the regulations, saying he had not reviewed them. Mauch did say the department would be reviewing all submitted commentary and may make changes to address substantive concerns raised by interested parties.

A spokesman for the governor echoed CDFA's position, saying Davis could not comment on the issue until all testimony has been examined.

Fertilizer producers, meanwhile, said there is currently nothing wrong with the regulations. "According to the U.S. EPA, CDFA and a long list of interested parties, the proposed regulations for fertilizers in California would provide more than enough protection for consumers and the environment," said Jennifer Lombardi, director of communications for the Calif. Fertilizer Assn. "We're pleased to have proposed regulations that are science- based and protect the public."

Ultimately, the issue may not be resolved at the regulatory level. Last week it was revealed that the Legislature may get involved if a key Democratic lawmaker has her way.

Assm. Hannah-Beth Jackson (D-Santa Barbara), chair of Assembly Environmental Safety and Toxic Materials, wrote to CDFA, urging the department to drop the regulations. "I believe the California Legislature provides a far more effective process for crafting a policy based on sound science," wrote Jackson. "The legislative process might also better address some of the points of dissent which, I am told, have been raised by other agencies, but not fully addressed by CDFA's proposed regulations."

However, if history is any indication, the Legislature may have a tough time resolving the fertilizer issue. In 1998, Sen. Byron Sher (D-Palo Alto), chair of Senate Environmental Quality, tried passing legislation requiring fertilizers to be treated for hazardous waste and to disclose their origins on packaging labels. That effort, SB 1943, died on the Senate floor after the fertilizer industry successfully blocked it. Sher then got language put into the 1998 state budget, which began the regulatory effort.

Initially, CDFA formed a task force composed of industry and environmental representatives to study the problem and draft the regulations. CalPIRG's Jonathan Kaplan, who sat on the task force, said the group ignored his organization's advice to take a zero- tolerance approach on hazardous materials in fertilizer. Instead, Kaplan added, the task force went with a risk-based strategy that focused on finding the highest acceptable level for lead, arsenic and cadmium without adversely affecting public health.

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