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June 7, 2012 

VIA ELECTRONIC-MAIL: dpr12001@cdpr.ca.gov 

Linda Irokawa-Otani, Regulations Coordinator 

California Department of Pesticide Regulation 

1001 I Street, P.O. Box 4015 

Sacramento, CA 95812-4015 

Re: Proposed Ozone State Implementation Plan Amendment Regarding Pesticide 

Emissions in the San Joaquin Valley Nonattainment Area 

Dear Mrs. Irokawa-Otani: 

On behalf of the Western Plant Health Association (WPHA), I would like to thank the 

Department of Pesticide Regulation (DPR) for providing an opportunity to comment on the 

proposed amendment to the State Implementation Plan (SIP) for pesticide emissions in the San 

Joaquin Valley (SJV) Non-Attainment Areas (NAA2). WPHA represents the interests of 

fertilizer and crop protection manufacturers, biotechnology providers, and agricultural retailers in 

California, Arizona and Hawaii. 

In reviewing the DPR proposal and the many documents, WPHA has the following concerns that 

will be expanded upon below: 

• The expedited timeline for implementation of the regulations, particularly in light of the 

recent correction in the estimated Pesticide Inventory.

• The permanence of the selection of regulated chemicals and lack of clear criteria to 

remove chemicals or products from regulation after they are no longer contributing to 

VOC inventory.

• The lack of a process or ability to add additional exceptions to meet the needs of CA 

agriculture.

• The inadequacy of the TGA method for accurately assessing VOC emissions and for 

serving as a criterion for regulating pesticides. 

• Economic impact on growers, dealers, and County Agricultural Commissioners

Proposed timeline for adoption of regulations are no longer necessary

The objective of the non-fumigant pesticide VOC regulations was to prevent the pesticide 

inventory from exceeding the VOC Inventory trigger, thus requiring the implementation of 

further restrictions against soil fumigants. This was triggered by a sudden large increase in the 

estimated inventory between 2009 and 2010. The single largest cause of this increase was the 

use of an emulsifiable concentrate of an insecticide that is not on the list of active ingredients to 
4460 Duckhorn Drive, Suite A, Sacramento, CA 95834 * Phone: 916.574.9744 * Fax: 916.574.9484 * www.healthyplants.org 

be regulated. WPHA appreciates DPR’s concern that an exceedance of emissions of a nonfumigant product would result in unfair use restrictions against fumigant products. However, the 

calculations turned out to greatly overestimate the pounds of product used, and thus 

overestimated the VOC inventory by 1.3 tons per day (tpd). The initial 2010 inventory was 

estimated to be 16.8 tpd, which was only 0.4 tpd from the trigger of 17.2 tpd, and was almost 

93% of the SIP. The revised inventory is now only 15.5 tpd, or 1.7 tpd from the trigger, and only 

85% of the SIP. This is well below the existing trigger of 17.2 tpd that was set at 95% of the 

SIP. With this reduction, WPHA believes that it is appropriate that the timeline for the adoption 

of new regulations be extended to assure regulations that are fair to all registrants and will not 

negatively impact the availability of products to growers. 

Lack of means to list or delist list products

WPHA is concerned that the proposed amendment to the SIP imposes permanent regulations on 

four active ingredients. These active ingredients were chosen because they represent the top four 

contributors to pesticide VOCs, averaged over a three year span from 2008-2010. Given changes 

in agricultural practices and market dynamics it is unlikely that these four active ingredients will 

continue to be the top contributors in perpetuity. There is no mechanism provided to delist those 

active ingredients when they are no longer significant contributors to the inventory. This means 

that once an AI has been listed, precautionary requirements like Pesticide Control Advisers 

(PCAs) providing written recommendations, and distribution of use restriction information by 

retailers will have to take place, regardless if it is really necessary in relation to that active 

ingredient (AI). Since DPR has now determined that pesticide VOC emissions are not at risk of 

triggering an exceedance, WPHA recommends that the timeline for finalizing these regulations 

be delayed to allow DPR time to determine a mechanism to delist an AI that is no longer a top 

contributor. 

Limited availability of exceptions

Given the permanent nature of the regulations and the inability to remove products from 

regulation even after they are no longer significant contributors to the VOC inventory, the 

proposed regulations should provide greater flexibility in granting exceptions to meet the needs 

of California agriculture. The 1.3 tpd reduction in the corrected 2010 VOC inventory (from 16.8 

tpd to only 15.5 tpd) provides greater room for exceptions without increasing the risk of 

exceeding the 17.2 tpd trigger. WPHA believes this is particularly true for AI’s where research 

has yet to determine if there is alternative formulation that would be effective for use by growers. 

Examples would be the listing of oxyfluorfen and the application rate for gibberellins. Research 

being conducted by Dr. Brad Hansen with the University of California has confirmed that the 

efficacy of the low VOC alternative formulation for oxyfluorfen in post-emergent weed control 

is not equal to the higher VOC formulation. Additionally, there is concern that the current 

limitation on gibberellins of 8 grams or less active ingredient per acre will negatively affect the 

cultural practices of certain commodities. WPHA recommends that where there is research 

taking place assessing whether the inclusion or use rate of an AI will have an adverse impact to 

growers and their practices, DPR should grant an exception for use of that AI either DPR can 

make a scientifically sound determination for listing, or until a delisting mechanism has been 

identified by DPR. 
4460 Duckhorn Drive, Suite A, Sacramento, CA 95834 * Phone: 916.574.9744 * Fax: 916.574.9484 * www.healthyplants.org 

WPHA recommends that all recommended exemptions for the four identified AI’s within the 

current regulatory proposal be granted. Additional regulations and restrictions can be added in 

the future. However, as currently proposed, once regulated there is no mechanism to deregulate 

individual AI’s, and the likelihood of an exemption becomes much more difficult or impossible. 

Again, WPHA believes that this should particularly apply to AI’s where research is underway 

specific to the basis of this regulation, so DPR may make a sound scientific decision on the need 

of an exemption and impacts to the grower community if restrictions are implemented. 

TGA Method

WPHA has previously provided feedback on adequacy of the TGA method to accurately access 

VOC emissions of pesticides. TGA is an acceptable Tier I screening method, but is unacceptable 

for regulatory purposes or for restricting use of valuable pest management tools. 

• The test method temperature of 115oC (240oF) is not reflective of even the harshest 

central valley conditions. Further is does not account for formulation changes since 1990 

that resulted in significant shifts from low flash point/high vapor pressure solvents to 

high flash point/low vapor pressure solvents. 

• The TGA method requires sample to be placed on a shallow vessel, unreflective of actual 

field conditions of soil or foliar applied pesticides. Pesticides are applied to porous 

substrates and immediately absorbed or adsorbed and reducing atmospheric availability. 

WPHA has previously provided data and arguments to the Department on the reduced 

volatility of solvents and active ingredients from substrates. 

DPR’s reliance on TGA data is inconsistent in its calculation of the pesticide VOC inventory. 

CA Notice 2005-03 required registrants to provide TGA data for currently registered products 

and CA Notice 2005-07 required registrants to provide TGA data for all new liquid pesticide 

submissions. Nevertheless, the VOC inventory still contains many products that still rely on the 

default value of 39.15% Emissions Potential. 

WPHA would welcome an opportunity to renew discussions with DPR on developing higher tier 

methods for estimating atmospheric availability of pesticide VOCs following application to soil 

or foliage. 

Economic Impact

DPR’s conclusions on economic impact are inconsistent. The Notice of Proposed Regulatory 

Actions (p2) concludes that the actions do affect small businesses, but then states (p5) that

regulations “will not have a significant statewide adverse economic impact directly affecting 

businesses, including the ability of California businesses to compete with businesses in other 

states.” It then further concludes the adoption of this regulation “...will have a significant cost 

impact on representative private persons or businesses.” DPR estimates the impact on nearly 

17,000 producers in the SJV ozone NAA, and requiring use of low-VOC instead of high-VOC 

products would increase agricultural production costs up to $1.58 MM per year. 
4460 Duckhorn Drive, Suite A, Sacramento, CA 95834 * Phone: 916.574.9744 * Fax: 916.574.9484 * www.healthyplants.org 

WPHA believes the proposed regulations will increase costs to businesses and will increase costs 

to County Agricultural Commissioner’s (CAC) and to DPR. Contributing costs include: 

• Requiring PCAs to write a recommendation for high VOC products of the four listed 

active ingredients in perpetuity, increases time and cost for both the PCAs and the

County Agricultural Commissions who receive the recommendations.

• Requiring Dealers to provide written notice to purchasers of the four AI’s increases 

paperwork and costs to businesses.

• Requiring records to be kept for 2 years increases costs and paperwork by operator of the 

property and the PCA.

• If threshold is exceeded and recommendations must be denied, increases time and costs 

to County Agricultural Commissioner’s.

• Audits by DPR will increase resources and costs by the Department, or divert resources 

from other valuable programs.

• The Economic and Fiscal Impact statement (p 4, B.3.) concludes “No fiscal impact exists 

because this regulation does not affect any state agency or program”, however there will 

be increase cost to County Ag Commissioners who will have to manage the system. 

The proposed regulations will have an adverse economic impact on California agriculture, 

disproportionate to the rest of the country. Growers in Central Valley will be disadvantaged 

relative to growers in other CA counties, growers in other states, and globally. 

WPHA Proposed Alternative Regulatory Process

Unless DPR receives guidance from US-EPA for a mechanism for delisting AI’s, the selection of 

just the top four inventory contributors is inequitable, particularly given the permanence of the 

regulation and the lack of a process to remove active ingredients or establish additional 

exceptions. Rather than single out individual active ingredients in a permanent regulation, 

WPHA recommends DPR should establish in regulation performance-based criteria that would 

qualify potential contributors of concern. Identification or “listing” of AI’s would be through 

executive order of the Director as advised by DPR staff, so DPR has flexibility to in effect list or 

delist products. However, establishing an analytical performance-criteria rather than identifying 

AI’s would allow DPR to focus on current high-use formulations without permanently having 

those formulations included in regulation. This may also allow DPR greater flexibility to take 

into account exceptions needed by growers and current research taking place on particular AI’s. 

With the additional time that appears available for developing regulatory language, WPHA 

suggests that DPR may wish to consider the development of a tiered mechanism to implement 

the regulation. This would provide a means to regulate, if necessary, only those molecules that 

are the significant contributors, and offer the flexibility to revise the list of regulated products 

consistent with their contributions. This would also allow more warning time to registrants and 

growers, so reformulations or changes in grower use can take place; thereby limiting adverse 

impacts to growers use needs, increased costs to retailers, or product availability. 
4460 Duckhorn Drive, Suite A, Sacramento, CA 95834 * Phone: 916.574.9744 * Fax: 916.574.9484 * www.healthyplants.org 

In summary, WPHA believes that the timeline for implementation of the proposed non-fumigant 

VOC pesticide regulations is no longer appropriate in relation to the potential of triggering an 

enforcement action on fumigant products by DPR. We believe that a delay in finalizing a 

regulation would allow DPR more time to develop regulations that will provide a better longterm regulatory program that will remain current to AI’s in use, the needs of the grower 

community, and more cost effective to agricultural businesses that will have provide support for 

any regulations implemented. WPHA appreciates the opportunity to comment on the proposed 

non-fumigant VOC pesticide regulations and DPR’s consideration of our recommendations. 

WPHA is prepared to meet with DPR and discuss further how our recommendations can be 

implemented in regulation, and suggest regulatory language for DPRs consideration upon those 

discussions. We look forward to continuing to work with DPR on this process. 

Yours Sincerely, 

Afiqur Khan, Ph.D. 

Director, Environmental & Regulatory Affairs 

cc via email: Brian Leahy, Director, DPR 

 Christopher Reardon, Chief Deputy Director, DPR 

 Charles Andrews, Assistant Director, DPR 

 Dr. Dave Duncan, Chief of the Environmental Monitoring Branch, DPR 

Randal Segawa, Environmental Program Manager, Environmental Monitoring 

Branch, DPR.