ELR Citation: ELR 20138
No(s). C052373 (Cal. App. 3d Dist. May 17, 2010)

A California appellate court affirmed a lower court decision dismissing a citizen group's petition challenging a state agency's risk assessment process for pesticides under California's Toxic Air Contaminants Act. Under the policy, those pesticides with known properties that render them most likely to be toxic air contaminants are assigned a higher priority and will be assessed first. The group argued that the process is contrary to the Act. But the factors enumerated in the Toxic Air Contaminants Act are not so different from the agency's new risk assessment policy as to be a violation of the statute. While the process may be slow, it is not a complete failure to comply with the law so as to justify court intervention. Nor does the prioritization policy constitute an underground regulation. Although the policy was intended as a rule of general application and was adopted to implement a statute—factors that point to it being a regulation—it falls under the APA's internal management exception because the rule does not require the individuals or entities affected to do anything they are not already required to do. Moreover, the allocation of the agency's resources should be considered an internal management determination that will ensure the efficiency and enforcement of the agency's statutory duty to evaluate all pesticides. In addition, the agency has not failed to implement the Act, and the lower court did not err in denying the group's request for judicial notice of scientific studies.