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

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 Amendm ent Regarding Pesticide Emissions in the San Joaquin Valley Nonattainment A rea

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 provid ing 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, biote chnology providers, and agricultural retailers in California, Arizona and Hawaii.

In reviewing the DPR proposal and the many document s, WPHA has the following concerns that will be expanded upon below:

• The expedited timeline for implementation of the re gulations, particularly in light of the
recent correction in the estimated Pesticide Invent ory.

• The permanence of the selection of regulated chemic als 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 ass essing VOC emissions and for serving as a criterion for regulating pesticides.

• Economic impact on growers, dealers, and County Agr icultural Commissioners

Proposed timeline for adoption of regulations are n o longer necessary The objective of the non-fumigant pesticide VOC reg ulations 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 sin gle largest cause of this increase was the
use of an emulsifiable concentrate of an insecticid e that is not on the list of active ingredients to4460 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 restric tions 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 fr om 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 tr igger 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 regulation s that are fair to all registrants and will not negatively impact the availability of products to g rowers.

Lack of means to list or delist list products WPHA is concerned that the proposed amendment to th e 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 thr ee 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 signific ant contributors to the inventory. This means that once an AI has been listed, precautionary requ irements like Pesticide Control Advisers (PCAs) providing written recommendations, and distr ibution 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 mechani sm to delist an AI that is no longer a top
contributor.

Limited availability of exceptions Given the permanent nature of the regulations and t he inability to remove products from regulation even after they are no longer significan t contributors to the VOC inventory, the proposed regulations should provide greater flexibi lity in granting exceptions to meet the needs of California agriculture. The 1.3 tpd reduction i n the corrected 2010 VOC inventory (from 16.8 tpd to only 15.5 tpd) provides greater room for exc eptions 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 formul ation that would be effective for use by growers. Examples would be the listing of oxyfluorfen and th e application rate for gibberellins. Research being conducted by Dr. Brad Hansen with the Univers ity 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. Additi onally, there is concern that the current limitation on gibberellins of 8 grams or less activ e ingredient per acre will negatively affect the cultural practices of certain commodities. WPHA re commends 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 ex ception for use of that AI either DPR can make a scientifically sound determination for listi ng, 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 r egulated 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 ma y 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 o f 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 v aluable pest management tools.

• The test method temperature of 115 o C (240 o F) is not reflective of even the harshest central valley conditions. Further is does not acc ount 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 sh allow vessel, unreflective of actual field conditions of soil or foliar applied pesticid es. 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 calcu lation of the pesticide VOC inventory. CA Notice 2005-03 required registrants to provide T GA data for currently registered products and CA Notice 2005-07 required registrants to provi de 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 discussi ons 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 econo mic impact directly affecting businesses, including the ability of California bus inesses to compete with businesses in other

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

impact on representative private persons or busines ses. ” DPR estimates the impact on nearly 17,000 producers in the SJV ozone NAA, and requirin g use of low-VOC instead of high-VOC products would increase agricultural production cos ts 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 increas e 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 V OC 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 rec ommendations.

• Requiring Dealers to provide written notice to purc hasers 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 b e 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 a gency or program ” , however there will be increase cost to County Ag Commissioners who wil l have to manage the system.

The proposed regulations will have an adverse econo mic impact on California agriculture, disproportionate to the rest of the country. Growe rs in Central Valley will be disadvantaged relative to growers in other CA counties, growers i n other states, and globally.

WPHA Proposed Alternative Regulatory Process
Unless DPR receives guidance from US-EPA for a mech anism for delisting AI ’ s, the selection of just the top four inventory contributors is inequit able, particularly given the permanence of the regulation and the lack of a process to remove acti ve ingredients or establish additional exceptions. Rather than single out individual acti ve ingredients in a permanent regulation, WPHA recommends DPR should establish in regulation performance-based criteria that would
qualify potential contributors of concern. Identif ication or “ listing ” of AI ’ s would be through executive order of the Director as advised by DPR s taff, so DPR has flexibility to in effect list or delist products. However, establishing an analytic al performance-criteria rather than identifying

AI ’ s would allow DPR to focus on current high-use form ulations without permanently having those formulations included in regulation. This ma y also allow DPR greater flexibility to take
into account exceptions needed by growers and curre nt 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 developm ent of a tiered mechanism to implement the regulation. This would provide a means to regu late, if necessary, only those molecules that are the significant contributors, and offer the fle xibility to revise the list of regulated products
consistent with their contributions. This would al so 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 re tailers, 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 imp lementation 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 reg ulations 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 furth er how our recommendations can be implemented in regulation, and suggest regulatory l anguage 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 Monit oring Branch, DPR

Randal Segawa, Environmental Program Manager, Environmental Monitoring Branch, DPR.