## C **OMMENTS** in response to 

### P**ROPOSED** 

### O **ZONE** 

### S **TATE** 

### I **MPLEMENTATION** 

### P**LAN** 

### A**MENDMENT**



### R**EGARDING** 

### P**ESTICIDE** 

### E **MISSIONS**

**IN THE** 

### S **AN** 

### J **OAQUIN** 

### V**ALLEY** 

### N **ONATTAINMENT** 

### A**REA**

submitted to the 

### C **ALIFORNIA** 

### D **EPARTMENT** 

### of **P ESTICIDE**  

### R**EGULATION** by 

### D **OW** 

### A**GRO** 

### S **CIENCES** 

### LLC Indianapolis, Indiana June 7, 2012**T ABLE**  **of C**  **ONTENTS** Page

i I. I NTRODUCTION ................................ ................................ ................................ ................ 1 II. SUMMARY OF THE PROPOSED REGULATION ................................ ................................ .. 2 III. LEGAL B ASIS F OR O BJECTIONS ................................ ................................ ........................ 9 IV. O BJECTIONS TO THE PROPOSED REGULATION ................................ ............................. 10 A. CORRECTION OF AN E RROR I N THE D EPARTMENT’ S ANNUAL E MISSIONS REPORT SHOWS THAT THE PROPOSED REGULATION IS NOT NECESSARY TO A CHIEVE COMPLIANCE WITH THE SIP ........................... 11 B. THE REMAINING D ATA THAT DPR RELIED UPON TO SUPPORT THE PROPOSED REGULATION ARE F LAWED ................................ ..................... 13 C. THE D ESIGNATION OF NONFUMIGANT PRODUCTS F OR RESTRICTIONS AND PROHIBITIONS B ECAUSE THEY CONTAIN THE REGULATED A CTIVE I NGREDIENTS IS ARBITRARY AND CAPRICIOUS AND IS NOT SUPPORTED BY THE RECORD ................................ ... 17 D. THE E CONOMIC AND ALTERNATIVES ANALYSES THAT DPR RELIED ON ARE F LAWED ................................ ................................ ................... 24 V. ALTERNATIVES TO THE PROPOSED RULE ................................ ................................ ...... 32 VI. CONCLUSION ................................ ................................ ................................ .................. 341

**I. I**  **NTRODUCTION** On April 20, 2012, the California Department of Pesticide Regulation (“DPR”) published a Notice of Proposed Regulatory Action (the “Notice”) related to “Volatile Organic Compounds in the San Joaquin Valley Ozone Nonattainment Area” (“Regulation No. 12
-001” ). DPR also released its rulemaking file on April 20, 2012, and solicited comments on the proposed regulation due no later than June 7, 2012
. A public hearing was held on June 6, 2012, at 6:00pm in Tulare, California. In the following comments, Dow AgroSciences, LLC (“ DAS” ) identifies numerous reasons why the proposed regulation is flawed and should not be adopted in its current form. If the rule is adopted nonetheless, then it should be amended to take into account alternatives, amendments, and possible exceptions, including an exception for in
-season use of emulsifiable concentrate formulations of oxyfluorfen on tree nuts, grapes, and citrus . DAS further requests that DPR consider excluding oxyfluorfen from this proposed regulation altogether. As an initial matter, the conclusion expressed in DPR’s May 17, 20 12, e-mail memorandum, indicating that its previous calculations showing that the hypothetical VOC emissions in the San Joaquin Valley ozone nonattainment area (“NAA”) from bifenthrin were mistaken, means that DPR’s stated goal in support of this proposed regulation is less compelling, and that the means by which DPR intended to reduce emissions by two tons per day are not nearly as necessary . B ecause of the bifenthrin data error, the decrease in the amount of VOC emission reductions that are necessary to satisfy DPR’ s goal provides leeway for including an exemption for the critical May
through
-October post-emergent use of emulsifiable concentrate formulations of oxyfluorfen on tree nuts, grapes, and citrus, or perhaps even an exclusion of oxyfluorfen from the proposed regulation more generally. DAS also believe s the VOC emissions data that serve as the basis for the proposed rule are flawed. First, because the proposed regulation is not based on measurements of actual emissions, but rather on hypothetical emis sions figures derived from the Thermogravimetric Analysis method, they overestimate emissions in the field
. Second, the emissions data that DPR uses for its proposed rule are stale because they are based on use reporting published no more recently than 2010. Further, despite its stated reasons, the selection of nonfumigant products containing abamectin, chlorpyrifos, gibberellins, and oxyfluorfen, is arbitrary and capricious. The regulation of VOC emissions is the true purpose of the proposed regulation, but in its current form, the proposed regulation only addresses the fact that a product containing a specified active ingredient is a high contributor to VOC emissions presently (or was, in 2010). This does not necessarily mean that it will be a high contributor forever. Yet the proposed regulation has no provisions to allow for it to change with changing use conditions. Without provisions to remove products from2

regulation as they cease to be a significant contribution to VOC emissions, to add other pr oducts as they become high contributors, or the ability of DPR to grant critical use exceptions outside the FIFRA framework which is ill
-suited to this purpose, the selection of just these four active ingredients for regulation is unlikely to achieve its intended effect, would have a negative impact on growers in some instances, and disincentivizes registrants not subject to the proposed regulation from ever reformulating their products to reduce overall VOC emissions
. Finally, the economic and alternatives analyses that DPR considered and relied upon evaluating economic effects of the proposed regulation were flawed, thus undermining DPR’s entire analysis in support of the proposed regulation. As demonstrated below, DPR’ s conclusions are not supported with respect to some of the regulated products or the crops on which those products are to be used. In particular, low
-VOC alternatives for some products (especially oxyfluorfen) are more costly due to differences in application rates and are not equally effective in all of their applications. In its comments below, DAS expands on these points and urges DPR to consider its request for an exception for in
-season use of emulsifiable concentrate formulations of oxyfluorfen on tree nuts, grapes, and citrus, or an exemption of oxyfluorfen from the proposed regulation altogether. **II. S**  **UMMARY O**  **F T** **HE P** **ROPOSED R** **EGULATION** If promulgated in its present form, the proposed regulation would make a series of changes to Title 3 of the California Code of Regulations (“CCR”) , with the net effect of eliminating some potential restrictions on VOC emissions that currently apply to fumigant products used in the San Joaquin Valley NAA and replacing them with restrictions and prohibitions on the use of nonfumigant products containing four active ingredients
– abamectin, chlorpyrifos, gibberellins, and oxyfluorfen (the “Regulated Active Ingredients” 1 )
– on certain crops in the San Joaquin Valley NAA from May 1 through October 31 if the VOC emission limit under the State Implementation Plan (“ SIP” ) for compliance with the federal Clean Air Act is triggered. The proposed regulation would also require a written recommendation from a licensed pest control advisor (“ PCA” ) when purchasing and using certain products containing the Regulated Active Ingredients, and require pest control dealers to provide VOC information to the purchasers of certain products containing the Regulated Active Ingredients
.

1 For brevity and ease of reference, we use the terms “Regulated Active Ingredients” and “Four Active Ingredients” to refer to abamectin, chlorpyrifos, gibberellins, and oxyfluorfen, the active ingredients subject to Regulation No. 12
-001.3

A description of the proposed changes to Title 3 of the CCR appears below
. For brevity, we have attempted to summarize
. Where necessary to convey the more critical or complicated provisions, we have provided the text in full. **Section 6452.2** , presently entitled **“ Fumigant**  **Volatile Organic**  **Compound Emission Limits,**  **”** would be re
-titled as “ Volatile Organic Compound Emission Limits .” The regulation would be amended to remove the restrictions on VOC emissions that currently apply in the San Joaquin Valley NAA
. The restrictions would be replaced by the prohibitions and restrictions on certain nonfumigant pesticide products that contain the Regulated Active Ingredients, imposed by the regulations described below. **Section 6452.2(f)** 
. The regulation amend s Section 6452.2 to add a new provision
. The text of said new provision appears below: For the San Joaquin Valley ozone nonattainment areas, if the difference between emissions in the most recent emissions inventory report and the 6,700,000 pound (18.1 tons per day) benchmark for this is five percent or less of the benchmark or exceeds this benchmark for during the May 1 through October 31 time period, the provisions of section 6884 shall apply. In effect, this new provision would establish 17.2 tons of VOC emissions per day as the “ trigger” for new restrictions that would apply to nonfumigant pesticides containing the Regulated Active Ingredients under a new regulation in Title 3, to be promulgated as Section 6884
. The provisions of newly promulgated Section 6884 will take effect if VOC emissions in the San Joaquin Valley NAA reach a level within five percent of the limit established under the SIP benchmark during the period from May 1 through October 31. **Section 6558** , entitled **“ Recommendation**  **for Use**  **of Nonfumigants**  **in the**  **San Joaquin**  **Valley Ozone**  **Nonattainment Area,**  **”** would be promulgated as a new regulation
. This regulation would require a PCA who write s any recommendations for high
-VOC products to retain those recommendations for at least two years . The provision further would prohibit a PCA who is asked to write a recommendation for use of nonfumigant products containing the Regulated Active Ingredients from doing so unless such a recommendation complies with the new regulation at Section 6884. **Sec tion**  **6557**, entitled **“ Sales**  **of Nonfumigants**  **for Use**  **in the**  **San Joaquin**  **Valley Ozone**  **Nonattainment Area,**  **”** also would be promulgated as a new regulation
. The regulation would impose a new requirement on licensed pest control dealers who sell nonfumigant products containing the F our Active Ingredients to provide certain information in writing to purchasers of such products in the San Joaquin Valley NAA, and to keep records to demonstrate that such information was provided
. The information would consist of a written warning to the pest control dealer that products designated as high
-VOC nonfumi gant products that contain the F our Active Ingredients are subject to certain use restrictions between May 1 and October 31 when4

used in the San Joaquin Valley NAA to tre at certain crops, and are subject to certain use prohibitions under the new regulation at Section 6884. **Section 6880** , entitled **“ Criteria**  **to Designate**  **Low -**  **Volatile Organic**  **Compound (VOC)**  **or High** **- VOC**  **Nonfumigant Pesticide**  **Products, ”**  would be promulgated as a new regulation
. This provision would designate certain products containing the F our Active Ingredients as “ low
-VOC” or “ high
-VOC” based on their “ emission potential, ” which appears in a table that is part of the regulation. The complete text of this provision appears below: The Director shall designate in the Annual VOC Emissions Inventory Report all nonfumigant products with agricultural uses containing the following active ingredients as low
-VOC if the product has less than or equal to the product VOC emission potential listed below
. All other products with active or inactive registrations shall be designated as high
-VOC. **P RODUCT**  **P RIMARY** 

**A CTIVE**  **I NGREDIENT**  ***** **P RODUCT**  **VOC E**  **MISSION P** **OTENTIAL (Percent)**  Abamectin 35 Chlorpyrifos 25 Gibberellins 25 Oxyfluorfen 15 *If a product contains more than one active ingredient, the primary active ingredient is the one present at the highest percentage in a product
. These criteria do not apply to products that contain an active ingredient listed above, but not as the primary active ingredient, including products with one or more active ingredients present at the same percentage. Significantly, this provision does not disclose how an active ingredient can be removed from this proposed regulation or, alternatively, how any other active ingredients can be added to the rule for regulatory purposes . Presumably, the regulation does not provide for either event . In essence, the effect of this provision, absent the articulation of a criterion for de signating products as high or low
-VOC, is to designate products that contain the Four Active Ingredients exclusively and permanently as the target for controlling VOC emissions from nonfumigant pesticides in the San Joaquin Valley NAA
. This proposed section makes its inflexible determination regardless of whether VOC emissions in the San Joaquin Valley NAA are reduced so that controls are no longer necessary; whether contributions from these products to VOC emissions are reduced; or whether contributions from other, unregulated products should later equal or exceed the VOC emissions of these products.5

**Section 6881**  , entitled **“ Annual**  **Volatile Organic**  **Compound Emissions**  **Report, ”**  follows next in this progression, renumbered from the regulation presently codified at Section 6452.4
. This provision would be amended to require DPR to establish prohibitions on “ high
-VOC” nonfumigant products, and to publish certain lists in the Department’ s annual emissions inventory report that would designate certain nonfumigant products as “ low
-VOC” products, designate other nonfumigant products as “ high
-VOC” products, and establish a special list that would identify as “ low
-VOC” certain agricultural use pr oducts that contain the Four Active Ingredients as their “ primary active ingredient. ” The complete text of this regulation, as amended, appears below
. The new provisions appear in italics. (a) The Director shall issue an annual emissions inventory report for the Sacramento Metro, San Joaquin Valley, South Coast, Southeast Desert, and Ventura ozone nonattainment areas
. The emissions inventory report must: (1) report the total agricultural and structural (fumigant and nonfumigant) pesticide volatile organic compound (VOC) emissions for the previous years . Nonfumigant pesticide product emissions will be the summation of the pounds of each pesticide product used multiplied by the VOC content (emission potential) for the specific product
. Fumigant product emissions will be the summation of the pounds of each pesticide product used multiplied by the emission potential for that specific product and VOC emission rating for the application method, as specified in (4); (2) evaluate compliance with the total pounds of agricultural and structural VOC emissions specified in sections 6452.2; (3) establish fumigant emissions limits pursuant to section 6452.2 for the upcoming year; (4) establish an emission rating for each field fumigation method described in sections 6446.1, 6447.3, 6448.1, 6449.1, 6450.1, 6450.2, 6451.1, or 6452
. The emission rating will be expressed as a percentage of the amount of fumigant applied
. The Director shall base the emission rating upon available scientific data documenting the VOC emissions; (5) establish prohibitions on high

- VOC nonfumigant products pursuant to section 6452.2(f), and if applicable, determine if prohibitions pursuant to section 6884(c) remain in effect; (6) establish a list of the nonfumigant products that are designated as low

- VOC pursuant to section 6880; (7) establish a list of the actively registered nonfumigant products that are designated as high

- VOC pursuant to section 6880. (b) A draft emissions report shall be made available to the public for comment . A 45
- day public comment period will be provided to allow for submission of written6 statements or arguments to the Director for review before finalizing the Annual Volatile Organic Compound Emissions Inventory Report
. The emissions report will be posted on the Department’ s Web site. (c) Low
- VOC agricultural use products registered after the release of the Annual VOC Emissions Inventory Report and contain abamectin, chlorpyrifos, gibberellins, or oxyfluorfen as the primary active ingredient, will be listed in a supplem ental report and posted on the Department ’s Web site . The products designated as low

- VOC will be based upon the criteria established in section 6880. As in the case of the new Section 6880, described above, this section does not include criteria to indicate how a product or active ingredient can be removed from the list or how a product or active ingredient can be added to the regulation once it goes into effect. **Section 6883** , entitled “ **Pest Control**  **Adviser Recommendation**  **Requirements in**  **the San**  **Joaquin Valley**  **Ozone Nonattainment**  **Area, ”**  is another new provision
. This regulation would require a licensed pest control operator to obtain a written recommendation from a PCA before applying a high
-VOC nonfumigant product specified in Section 6881 to certain crops (alfalfa, almonds, citrus, cotton, grapes, pistachios, and walnuts) between May 1 and October 31, and require any PCA who writes such a recommendation to keep it on file for at least two years after the application. The complete text of this new regulation follows
. Because this is a new provision, it appears in italics: In the San Joaquin Valley ozone nonattainment area, the operator of the property shall not apply a high

-volatile organic compound nonfumigant product specified in section 6881 during May 1 through October 31 to one of the following crops unless they obtain the written recommendation of a licensed agricultural pest control adviser: alfalfa, almond, citrus, cotton, grape, pistachio, and walnut
. The operator of the property shall retain the written recommendation for at least two years after the application occurs. This section demands that an operator and PCA absorb the added administrative costs of obtaining a recommendation and retaining the recommendation for an additional time period. **Section 6884** , entitled **“ San**  **Joaquin Valley**  **Ozone Nonattainment**  **Area Use**  **Prohibitions, ”**  is a new provision, and is the centerpiece of the proposed regulation
. In three subsections, the regulation (a) prohibits the use of nonfumigant “ high
-VOC” products that contain the F our Active Ingredients; (b) establishes certain exemptions from that prohibition; and (c) establishes a duration for the prohibitions. The complete text of this new regulation appears below
. Again, because this regulation is new, the entire text appears in italics.7 Pursuant to section 6452.2(f), the following shall apply to agricultural uses of high

-volatile organic compound (VOC) products specified in the Annual VOC Emissions Inventory Report required in section 6881 containing abamec tin, chlorpyrifos, gibberellins, or oxyfluorfen as the primary active ingredient in the San Joaquin Valley ozone nonattainment area during the May 1 through October 31 time period. (a) No person may apply a nonfumigant product that has been designated as a high

VOC pursuant to section 6880 and as specified in the Annual VOC Emissions Inventory Report required by section 6881 on the following crops: alfalfa, almond, citrus, cotton, grape, pistachio, and walnut
. If the product is not listed as a low

- VOC, it cannot be used. (b) Notwithstanding (a), the following exceptions for use of high

- VOC products are permitted: (1) Use of chlorpyrifos products to control aphids on cotton. (2) Use of gibberellins products when applied an application rate of eight grams of active ingredient per acre or less. (3) Uses for which the U.S. Environmental Protection Agency has issued an emergency exemption from registration under Section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act. (4) Uses registered as a Special Local Need under Section 24(c) of the Federal Insecticide, Fungicide, and Rodenticide Act. (5) Applications made by or under the direction of the U.S
. Department of Agriculture, the California Department of Food and Agriculture, or county agricultural commissioner to control, suppress or eradicate pests. (6) Applications using precision spray technology meeting the criteria of the California Office of the Natural Resources Conservation Service ’s Environmental Quality Incentives Program. (c) If prohibitions for high

- VOC nonfumigant products are in effect pursuant to section 6452.2(f), those prohibitions must remain in effect until the hypothetical VOC emissions shown in the Annual VOC Emissions Inventory Report comply with the limit specified in section 6452.2(f) for at least two consecutive years . The hypothetical VOC emissions during a year of prohibitions shall be calculated for each active ingredient used on each crop specified in section 6884 . The hypothetical emissions shall be calculated by assuming the relative mixture of high and low

- VOC products used in the current year of prohibitions would have been the same as in the most recent year without prohibitions
. The VOC emissions are then calculated using that product mixture for the amount of active ingredient used in the current year.8 The following formula represents how the hypothetical VOC emissions described above would be calculated for each pesticide

- crop combination:

The total hypothetical VOC emissions will be the summation of the hypothetical emissions for each pesticide

- crop combination, plus the actual VOC emissions for the remaining pesticides and crops not listed in section 6880. This section thus would prohibit the application of “ a nonfumigant product” containing any of the Regulated Active Ingredients to alfalfa, almond, citrus, cotton, grape, pistachio, and walnut crops during the May 1 through October 31 time period, if the product “ has been designated as a high
-VOC pursuant to section 6880 and as specified in the Annual VOC Emissions Inventory Report required by section 6881, ” unless the application were to fall within one of five exceptions designated at subsection (b)
. The prohibitions against the use of these products will stay in effect, at a minimum, unless and until hypothetical emissions for all of the regulated products fall beneath the SIP trigger of 17
. 2 tons per day for two consecutive years. Although DPR indicates that the availability of low
-VOC alternatives for these products will minimize the impact of the prohibition2, the efficacy and practicality of some of these low
-VOC “ alternatives ” is unsupported by data
. Section 6884 is one of the key provisions in the proposed regulation, and it has many defects, identified below and discussed more fully in the next section of these comments . First, the basis for some of these exceptions and the criteria that were applied in fashioning them is not clear from the record
. Similarly, neither the Initial Statement of Reasons (“ ISOR” ) published with this proposed regulation, nor the proposed regulation itself indicate how agricultural commodity producers who may have critical needs for the regulated products may obtain similar exceptions, or what criteria the Department would apply in evaluating requests for exemptions from those who need them
. In this regard, we believe the regulation should provide the Director of DPR the discretion to grant exemptions or exceptions for products whose special uses or application methods may control or reduce emissions below acceptable levels, when a critical use is demonstrated as being necessary, or in the absence of proven efficacious and economical low
-VOC alternatives. **Section 6886** , entitled “ **Dealer Responsibilities**  **for the**  **San Joaquin**  **Valley Ozone**  **Nonattainment Area** 

**,”** is another new provision. This regulation will place new

2 DPR’s Initial Statement of Reasons (“ISOR”) at 3. Hyp othet ic

al em is sion

s for a pest ic id e

- crop co mbinat ion lis ted in sect ion 6884 du ring Ma y - Oct for th

e yea r of proh ibit ions ( Emis sion s for th e pest icid e

- crop combin ation du ring Ma y

- Oc t for th e mo st cu rrent ye

ar witho

ut proh ibit ions) ( Po unds active ingred ient for th e crop du ring Ma y

- Oct for th

e yea r of proh

ibit ions)
Poun ds ac tive ingred ient for th

e crop du ring Ma y

- Oct for th e mo st cu rrent yea r without proh ibit ions 

# = x9

responsibilities on licensed pest control dealers to provide certain information to purchaser regarding the designated “high
-VOC” nonfumigant products. The text of this new provision appears, again in italics, below: Each licensed pest control dealer of a high

-volatile organic compound (VOC) nonfumigant product specified in the Annual VOC Emissions Inventory Report, shall provide VOC information, in writing, to the purchaser at time of purchase or delivery pursuant section 6577 if the sale is made to or for the operator of the property with an operator identification number issued by a county agricultural commissioner in the San Joaquin Valley ozone nonattainment area. The proposed regulation additionally would require any licensed pest control dealer selling a high
-VOC product with agricultural uses to provide specified VOC information when the sale is made to or for the operator of the property in the San Joaquin Valley NAA. This provision appears to shift the costs of permitting and recordkeeping activities from the Department or other public officials to pest control dealers, who will be expected to absorb the additional costs. **III. L**  **EGAL B**  **A SIS**  **F OR**  **O BJECTIONS**  The requirements for adopting, amending, or repealing regulations are established under the California Administrative Procedure Act (“ CAPA” or “the Act” )
. See Gov. Code § 11340 et seq . The Act requires DPR to follow the procedures set forth in Government Code sections 11346 through 11348, which include public notice; publication of a proposed rule’s complete text with a statement of reasons; an opportunity for comment; written responses to all comments received; the opportunity to request a hearing; consideration of all relevant submissions; and submission of the regulatory file to the Office of Administrative Law for review and approval
. Any regulation or amendment to a regulation not promulgated in compliance with these procedures is void and has no effect
. Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 559. Even where an agency follows these procedures, a regulation adopted pursuant to statutory authority is not valid or effective unless it is (1) “ consistent and not in conflict with the statute ” and (2) “ reasonably necessary to effectuate the purpose of the statute .” Gov. Code § 11342.2. The first criterion requires judicial construction of the claimed source of the agency’ s rulemaking authority to determine whether the regulation is “ consistent and not in conflict” with that authority
. As to the second criterion, when assessing whether the regulation is “ reasonably necessary” to effectuate the purpose of the statute, a reviewing court must determine whether the agency’ s action is arbitrary, capricious, lacking in evidentiary support, or contrary to procedures provided by law including the requirements of an accurate accounting of the effects on small businesses and the economic impact of the regulation as a whole
. Santa Cruz v. State Bd. of Forestry (1998) 64 Cal .App .4th 826, 835
. Re garding10

the economic impact requirement, DPR must provide in the record any “ facts, evidence, documents, testimony, or other evidence” upon which it relies for its initial determination and must base its evaluation on facts and not speculation
. California Ass ’n. of Medical Products Suppliers v. Maxwell

-Jolly (2011) 199 Cal.App.4th 286. A regulation will be declared invalid where there is : (1) a s ubstantial failure to comply with rulemaking provisions under the CAPA, Gov. Code § 11350(a); (2) a lack of substantial evidence to support a determination that the regulation is reasonably necessary to effectuate the purpose of the provision of law being implemented, Gov. Code § 11350(b)(1); or (3) a lack of substantial evidence to support an agency’ s declaration that the regulation will not have a significant adverse economic impact on business enterprises for purposes of section 11346.5(a)(8) , Gov. Code § 11350(b)(2). **IV. O**  **BJECTIONS T**  **O T** **HE P** **ROPOSED R** **EGULATION** The proposed regulation, as the ISOR indicates, is an effort to carry out the SIP to achieve and maintain compliance with ambient air quality standards for ozone, as required under the federal Clean Air Act, by reducing emissions of VOCs from pesticide products. 3 Yet, the regulation addresses VOC emissions only indirectly, and imposes restrictions and prohibitions instead on the use of products that contain the F our Active Ingredients, paying too little heed to the beneficial purpose to which those products are put, the need for and availability of alternative products, and the economic costs associated with alternatives. Because the proposed regulation is so narrowly targeted, i.e., because other products (including alternatives to the regulated products) with high emission potentials will be completely free from regulation, the rule likely will not achieve its long
-term intended effect but rather will impose hardships selectively upon producers of just a few nonfumigant products, without establishing principles that will result in consistent, sustainable reductions in VOC emissions. In selecting products to regulate, DPR indicates that it identified four different concerns – active ingredients, product emission potential limits, crops, and exemptions

– and attempted to reach a balance. 4 DAS believe s that the results are flawed
. By selecting products on the basis of their active ingredients, on the premises that products that contain these active ingredients are among the most used nonfumigant products and release the greatest amounts of VOC emissions, DPR has concentrated on the nonfumigant products which are among the most necessary and valuable tools for growers in the San Joaquin Valley NAA.

3 Id . at 2. 4 Id . at 3.11

 In evaluating the limits for emission potential, the Department has acted arbitrarily.  In evaluating the economic effects of the rule in producing affected products, i.e. , in evaluating alternatives, DPR has acted on information that is demonstrably incorrect.  The exemptions written into the regulation are too narrow, too few, and too static, and the regulation itself does not provide DPR with the necessary discretion to achieve its intended purpose. In short, the proposed regulation is founded on a narrow approach that targets only a few products
. While the rule may result in immediate reductions from products containing these four active ingredients, it is likely to result in a simultaneous increase in emissions from products that remain unregulated
. The net reduction is therefore questionable, even in the short term, and the long
-term results are even less clear
. **A. C**  **ORRECTION O**  **F A** **N E**  **RROR I**  **N T** **HE D**  **EPARTMENT ’**  **S A** **NNUAL E**  **MISSIONS R** **EPORT S**  **HOWS T** **HAT T** **HE P** **ROPOSED R** **EGULATION I**  **S N**  **OT N**  **ECESSARY T**  **O A** **CHIEVE C**  **OMPLIANCE W** **ITH T** **HE S**  **IP** On May 17, 20 12, DPR issued a one-page e-mail memorandum to the regulated community, indicating that a fundamental data point underlying the asserted need for the proposed regulation is incorrect. DPR’s previous calculations, showing that the hypothetical VOC emissions in the San Joaquin Valley NAA was in danger of exceeding the triggers imposed under the SIP were mistaken. Total VOC emissions for 2010 were not 16.8 tons per day, but rather were 15.5 tons per day, resulting in a 24% reduction in VOC emissions from 1990, rather than an 18% reduction as previously c alculated. 5 The source of the miscalculation was a mistake in a calculation for the hypothetical VOC emissions from use of nonfumigant products containing the active ingredient bifenthrin. F or reasons explained in the memorandum, the Department previously had calculated that products containing bifenthrin were the second
-highest contributor to VOC emissions in the San Joaquin Valley NAA during the period from May through October 2010. 6 With the calculations corrected, hypothetical VOC emissions from products containing bifenthrin dropped from 1.55 tons per day to .24 tons per day, and total VOC emissions from pesticides dropped from 16.8 tons per day

5 E
-mail memorandum from DPR to “Interested Parties,” dated May 17, 2012. 6 Yet, curiously, DPR had not selected products containing bifenthrin for regulation under the proposed regulation.12

to 15.5 tons per day. As noted above, reductions from the 1990 baseline changed from 18% to 24%. 7 The importance of this correction cannot be overstated
. As the Department’ s announcement explains, the “ goal in the pesticide element of the SIP is at least a 12% reduction from 1990, equivalent to emissions no greater than 18.1 tons per day. ” 8 With a reduction to 15.5 tons per day, equivalent to 24%, it is difficult to conclude from the data in the rulemaking record that VOC emissions from pesticide products are in danger of exceeding those allowed under the SIP
. If the reduction in VOC emissions that the rulemaking needs to achieve is a decrease of two tons per day, 9 then the discovery that VOC emissions were overstated by 1.31 tons per day means that a reduction of two tons per day is no longer as necessary, and that the justification for the methods by which DPR intended to reduce those emissions is not as compelling. By the logic that caused DPR to believe it was necessary to achieve a reduction of two tons per day, a reduction of only .69 tons per day should be sufficient
. This reduction in the amount of the decrease that is necessary to satisfy DPR’ s goals thus provides newly
-found leeway for the Department to include an exemption for the critical May
-through
-October post-emergent application of emulsifiable concentrate formulations of oxyfluorfen on tree nuts, grapes, and citrus, or to exclude oxyfluorfen from the proposed regulation altogether. Similarly, one of the principal reasons for the proposed regulation was the perceived increase of VOC emissions to 16.8 tons per day in the 2010 VOC emissions inventory, compared to 13.77 tons per day in the 2009 inventory, and the concern that emissions could exceed the 17.2 tons per day trigger, thus requiring restrictions on fumigant use . The 2010 inventory showed that total VOC emissions were within 0.4 tons per day of the trigger, and 93% of the target imposed under the SIP
. With the VOC emissions from bifenthrin products now corrected, total VOC emissions are now 1.7 tons per day below the trigger and only 85% of the SIP target . Thus, the c oncern that precipitated the proposed regulation itself has been satisfied. With those fundamental issues addressed, DPR has the latitude to withdraw its Notice and abandon the proposed regulation
. According to the announcement, however, DPR does not intend to do so . Rather, DPR indicates that the “ change will cause no revision to DPR’ s proposed regulations for VOC emissions from nonfumigant pesticides. ” 10 DAS requests DPR to reconsider that decision, for the reasons above
. In

7 E
-mail memorandum from DPR to “Interested Parties,” dated May 17, 2012. 8 Id. 9 ISOR at 4. 10 E
-mail memorandum from DPR to “Interested Parties,” dated May 17, 2012.13

the event DPR does not withdraw the Notice, the Department should continue to consider the comments below. **B. T** **HE R** **EMAINING D**  **ATA T** **HAT DPR**  **R ELIED**  **U PON**  **T O**  **S UPPORT**  **T HE**  **P ROPOSED**  **R EGULATION**  **A RE**  **F LAWED**  Putting aside the issue regarding the bifenthrin data, DAS believe s the VOC emissions data that serve as the basis for the proposed rule are flawed. As a result, it is not clear that the proposed regulation is necessary to effectuate the purpose of the statute or, if it is necessary, whether the evidence in the rulemaking record is adequate to warrant the restrictions and prohibitions that the regulation would impose. 11 The proposal is not based on measurements of actual emissions. Rather, the asserted need for the rule is based on hypothetical emissions figures derived from the amounts of certain products used in the San Joaquin Valley NAA according to Pesticide Use Reports (“PURs”) maintained by DPR and their “emissions potential.” 12 Even assuming that the figures taken from the inventory are accurate, there are several reasons why the emissions calculations derived from them do not support the prohibitions and restrictions. **Data from studies conducted using the TGA method do not support the proposed rule** 
. First, the emission potential s referred to above rely unduly on laboratory analysis referred to as the Thermogravimetric Analysis (“ TGA” ) method
. The TGA data are screening tools, used in the laboratory to evaluate relative emissions of different products by applying the same forces on all products and assuming identic al conditions of use for all products tested
. The TGA method does not take into account actual use conditions, and is not an accurate predictor of emissions in the field. 13 To illustrate, the TGA method requires a laboratory analyst to place samples of each pesticide tested on a shallow glass substrate, then to heat the substrate to 115 oC (240 oF), and then to measure emissions with analytical equipment, using nitrogen to

11 F or brevity and ease of reference, we use the terms “prohibitions,” “restrictions,” and “prohibitions and restrictions” interchangeably herein, unless the context shows otherwise. Similarly, we use the terms “regulation,” “proposed regulation,” “rule,” and “proposed rule” to refer to Regulation No. 12
-001. 12 See ISOR at 2
-9; see also, proposed Section 6884(c), which provides a formula for calculating “hypothetical emissions.” 13 See, e.g., Emission Factor Documentation for AP
-42. Section 9.2.2. Pesticide App lication. Final Report. MRI Project No. 4601
-08. September 1994, Paragraph 2.3.1 Nature of the Pesticide and Formulation, “The rate of evaporation of a pesticide is determined primarily by its vapor pressure, which in turn is usually increased by temperature and decreased by adsorption to the soil surface to which the pesticide is applied. The rate of evaporation can also be decreased if the pesticide dissolves in the oils or waxes of vegetation.”14

purge the VOCs. 14, 15 DPR then uses the following equation to estimate VOC emissions: E stimated VOC emissions = (Emission Potential of the product) x (pounds of pesticide product applied). These calculations, based on emissions in the laboratory under test conditions, overestimate emissions in the field, because they do not simulate conditions in the field and fail to account for atmospheric availability
. A glass substrate obviously differs from the porous or semi
-porous substrates to which a product actually is applied
. Applications to plant and soil surfaces result in absorption and adsorption so that VOCs and other ingredients in the products are not available to be emitted into the air
. Similarly, the temperature to which the substrate and product is heated exceeds the temperature at any realistic site where the product might be applied
. The high temperature also fails to account for formulation changes by many registrants in the 1990s to select low vapor pressure/high flash point solvents
. All three of these factors thus cause emissions to be overestimated, at far greater rates than the application of a product to a plant or soil surface at normal ambient temperatures under normal atmospheric conditions. Dissatisfaction with the TGA method for estimating actual emissions has been a source of controversy for many years . The Western Plant Health Association (“ WPHA” ) submitted formal comments to DPR on this issue in early 2007
. In response, DPR developed an April 19, 2007, memorandum which included a “ technical and scientific review” of the DPR comments . In the context of the proposed regulation, that memorandum includes important information. 16 In defense of using the DPR method for comparative purposes, DPR conceded that “ TGA is a standardized reproducible method for determining product EP’ s, and so provides the ability to accurately assess relative changes in the VOC inventory from year to year. ” 17 The Department concede d, however, that use of TGA data is likely to overestimate actual emissions:

. . . DPR has always acknowledged that TGA
-based EPs may overestimate the absolute value of emissions under certain circumstances
. For example, some portion of a soil

14 Estimation of Volatile Emission Potential of Liquid Pesticides by Thermogravimetry, California DPR, April 27, 1994. 15 Estimation of Volatile Emission Potential of Liquid Pesticides by Thermogravimetry, California DPR, February 9, 2005. 16 Memorandum from F. Spurlock, Ph.D, DPR Research Scientist, to R. Segawa, DPR Agricultural Program Supervisor, dated April 19, 2007 (“Spurlock Memorandum”). 17 Spurlock Memorandum at 2.15 incorporated pesticide product may mineralize prior to volatilization
. Consequently, TGA
-based EPs may yield conservative estimates of actual emissions in certain cases. 18 The Dep artment went on to explain that “ DPR is planning to adjust emission rates in certain cases to account for field conditions, ” and provided examples of formulae that the agency was considering for that purpose. 19 There is no indication, however, that those methods have been adopted, or that the “ hypothetical” emissions data on which the asserted need for the proposed regulation have been adjusted
. Indeed, the formula at proposed Section 6884(c) above, by which the proposed regulation will be implemented, doe s not adjust hypothetical emissions for field conditions. For all of these reasons, the emissions data on which DPR is relying as the basis for the regulation, based on TGA data, do not provide adequate support for the rule
. On analysis, the data do not provide a sound basis for determining whether the emission levels in the San Joaquin Valley NAA have been or will be triggered. 20 **The e** **missions f** 

**igures that**  **DPR p** **roposes to**  **u se**  **to d** **etermine w**  **hether VOC**  **t riggers**  **h ave**  **b een**  **r eached**  **a re**  **n ot**  **t imely** 
. The Notice was issued on March 15, 2012
. If the regulation is adopted, the restrictions and potential prohibitions on the use of nonfumigant products will take effect for the period beginning on May 1, 2013
. Yet, the use data on which the proposed restrictions and prohibitions are based, rely on PURs containing data no more recent than 2010. Thus, when the use restrictions and prohibitions under the regulation take effect, the use data (and estimates of hypothetical emissions) would be more than three years old. The restrictions and prohibitions will not take into account any changes in use patterns or emissions for 2011, or for 2012. In other words, the data that comprised the basis for the selection of products containing the Four Active Ingredients for regulation, and may (or may not) have supported the regulation at the time it was conceived, will be stale by the time the regulation is promulgated and takes effect. In this context, it is appropriate to examine the effect of proposed Section 6884(c), which “describes the criterion and method to end the prohibitions, if high
-VOC prohibitions are triggered pursuant to section 6452.2(f).” 21 Under that provision, “ those prohibitions must remain in effect until the hypothetical VOC emissions shown in the

18 Id. at 2
-3. 19 Id . at 3. 20 For similar reasons, the emission potential of the nonfumigant pesticide products that DPR has chosen to regulate und er the rule (as well as those the Department has chosen not to regulate) are not reliable. This point is addressed further, infra
. 21 ISOR at 10.16

Annual VOC Emissions Inventory Report **comply with**  **the limit**  **specified in**  **section 6452.2(f) for at least two consecutive years.**  ” 22 To illustrate, assume that the prohibitions: (1) take effect in 2013 (which no longer seems to be justified, based on the correction in the 2010 data for the bifenthrin error); and (2) are effective in causing an immediate reduction in hypothetical VOC emissions, bringing the emissions beneath the Section 6452.2(f) VOC triggers during the first year. In that scenario, the earliest the prohibitions could be lifted would be 2015. 23 At that point, the data that formed the basis of the prohibition would be at least five years old, and (for reasons above) may not have justified the prohibitions in the first instance. We recognize, of course, that the use of products containing the Regulated Active Ingredients in the San Joaquin Valley NAA has been greater than the use of products containing other active ingredients for a significant period of time
. Nevertheless, the timeliness of the data that form the basis of the prohibitions in the rule remains significant, for a number of reasons. First, VOC emissions from products containing the Regulated Active Ingredients may decrease significantly in 2012, even in the absence of prohibitions, due to voluntary use by growers of low
-VOC formulations that various registrants have developed, in anticipation of the need for California to reduce VOC emissions under the SIP
. If that occurs, then use data for 2012 should be evaluated in determining whether prohibitions are appropriate in 2013. Second, under the logic of the proposed regulation, even if prohibitions are deemed appropriate for 2013, the 2012 use data should be considered in determining whether the prohibitions should be lifted for 2014 (rather than for 2015 season, due to the lag in compiling and publishing the use data), if VOC emissions in the San Joaquin Valley NAA decrease below the Section 6452.2(f) triggers in 2013 and 2014. These time lags, which are built into the regulation, may be exacerbated even further by delays in the publication of DPR’ s VOC emissions inventory reports . The most recent report, published in March 2012, covered emissions data for 2010
. The next most recent report, covering emissions for 2009, was published in April 2011
. The report from the prior year, covering emissions for 2008, was published in April 2010
. From this pattern, it appears that emissions inventory reports cannot be compiled and

22 Proposed Section 6884(c) (emphasis added). 23 See ISOR at 10 . The passage in the ISOR that explains the effect of Section 6452.(f) posits a slightly different example, wherein the prohibitions do not go into effect until 2014 and the earliest the prohibitions could be lifted would be 2016. The duration of the prohibitions in this example is the same as demonstrated above, but the time lag is even worse: the data that formed the basis of the prohibitions in DPR’s example would then be six years old, rather than five.17

published early enough to address the previous year’ s emissions, and further cannot be published less than three to four months into the second year following the year addressed by the report, too late into the use year to result in relief from prohibitions for the use year . The likely time lag, therefore, between the completion of a use year and the publication of use and emission data that may form the basis for prohibitions, is likely to be a minimum of three years, not two. It clearly is not good policy to base ongoing regulatory decisions regarding prohibitions on the use of these products, which are vital to agriculture, on data that are (and always will be) four to five years old at the time that prohibitions are imposed or lifted
. If this regulation is to be adopted, it should be amended so that decisions will be based on more recent use and emissions data
. The publication schedule for reports that will be used as the basis for those rolling decisions also should be adjusted, for the same reasons. Finally, the Department should consider the potential effect of its miscalculations of emissions from products containing bifenthrin
. Had the regulation taken effect before that error was discovered, any consequent mistakes in designating products for regulation (or from maintaining prohibitions in place for an extended period based on that error) would have been exacerbated by the Department’ s reliance on stale data as the basis for the rule
. While it is conceivable that such an error might have been corrected by granting an exemption or by amending the regulation, the time and effort that would required to accomplish that, even through an emergency regulation, are considerable, and it is more likely that regulatory inertia would have frustrated any attempts to overcome the error, resulting in unnecessary limitations on the availability of a valuable agricultural tool. **C. T** **HE D**  **ESIGNATION O**  **F N**  **ONFUMIGANT P** **RODUCTS F** **OR R** **ESTRICTIONS A** **ND P** **ROHIBITIONS B**  **ECAUSE T** **HEY C**  **ONTAIN T** **HE R** **EGULATED A** **CTIVE I**  **NGREDIENTS I**  **S A** **RBITRARY A** **ND C**  **APRICIOUS A** **ND I**  **S N**  **OT S**  **UPPORTED B**  **Y T** **HE R** **ECORD** In the comments below, we raise several objections to the selection of products for restrictions and prohibitions on the ground that they contain one of the F our Active Ingredients
. We recognize that DPR is not regulating these active ingredients, per se, but rather has selected products containing these active ingredients on the assertion that they currently are the greatest contributors to VOC emissions in the San Joaquin Valley NAA
. That observation, however, only restates the problem, substituting the name of the active ingredient, rather than some other label, as the trigger for VOC emissions. Obviously, it is not the active ingredients that cause the emissions, but the other ingredients in the products and the conditions under which the products are used. These factors, and others, may change, and yet the proposed regulation has no provisions to allow for change
. Without provisions to remove products from regulation18

as they cease to contribute to VOC emissions, and to add other products as they become high contributors, the selection of just these four active ingredients for regulation is arbitrary, and is unlikely to achieve its intended effect. Before addressing these objections, we must p oint out again that the announcement on May 17, 201 2, of miscalculations for VOC emissions from products containing bifenthrin renders this rulemaking and the selection of any products for regulation suspect, on levels both procedural and substantive
. On the procedural level, the Department needs to correct all of the data that are affected by the previous miscalculations, publish the new data, and initiate a new rulemaking. 24 On a substantive level, it is clear that the selection of products containing the F our Active Ingredients was data
- driven, based on (1) total VOC emissions from pesticide products; and (2) relative contributions from different products
. In the absence of accurate data, the data on both of these factors are inaccurate and incomplete, and it is difficult to find support for the regulation in the record
. **The Department** **’ s**  **approach in**  **selecting products**  **for regulation**  **on the**  **basis of**  **their active**  **ingredients, rather**  **than their**  **VOC emissions,**  **is inappropriate** 
. The manner in which the proposed regulation designates products for regulation by their active ingredients is fundamentally flawed
. Instead of regulating the most widely used, and therefore, the most needed active ingredients, the Department should consider identifying products by their VOC content or emission potential alone or set clear and uniform standards for VOC emissions
. Indeed, that appears to be what DPR set out to do earlier, when it began its initiative to comply with the pesticide element of the SIP
. DPR’ s change of course – culminating in restrictions and prohibitions that apply exclusively to products that contain the Four Active Ingredients
– now threatens to impose hardships selectively on the producers and users of these products, in a manner that likely will not be effective. This initiative began with the issuance of a Notice to Begin Reevaluation of Certain Agricultural and Commercial
-Use Pesticide Products, issued on February 16, 2005
. Although captioned as a “ reevaluation, ” the Notice essentially was a data call
-in, by which DPR required registrants to submit TGA data for all liquid products actively registered as of August 30, 2004, for which DPR did not currently have a TGA
-based emission potential on file that were registered for use on agricultural or commercial structural use sites. 25 The purpose of this requirement, according to the Notice, was to

24 See Gov. Code § § 11346
-11348; Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th at 559
. 25 DPR Notice to Begin Reevaluation of Certain Agricultural and Commercial
-Use Pesticide Products, February 16, 2005
. This requirement applied to fumigant products, as well as nonfumigant products. A s exceptions, DPR did not require TGA data for products applied in amounts of ten pounds or less, for spray adjuvants, or for products containing seven active ingredients (1,3
- dichloropropene, chloropicrin, metam sodium, methyl bromide, metam potassium, sodium chlorate, and sodium hypochlorite), the VOC emissions potential for which was already known.19

“ allow DPR to accurately assess the volatility potential of each currently registered liquid formulation agricultural and commercial
-use pesticide product. ” 26 As background, DPR explained that the agency “ only ha[d] TGA data for approximately 30
-40 percent of currently registered agricultural and commercial structural usepesticides, ” so that “ DPR’ s current calculations of total VOC emissions from pesticide products may be inaccurate .” These “ data [are] necessary to reduce the uncertainty in total VOC emissions from pesticide products .” In the absence of TGA data, DPR was using default values, in order to calculate total VOC emissions. 27 The Department issued a subsequent notice, Notice of Decision to Begin Reevaluation of Certain Pesticide Products, on May 31, 2005
. This Notice applied to “ all agricultural and commercial structural
-use pesticide products that [were] formulated as liquids and actively registered with DPR as of April 30, 2005, that had a TGA value of greater than 20%. ” 28 The Department explained that the “ list of pesticides products included in this reevaluation differs somewhat from the list of products included in the previous VOC data call
-in reevaluation (California Notice 05
-03, dated February 16, 2005). 29 The goal of the earlier reevaluation was to obtain data emissions
. . . . The goal of this reevaluation is to reduce VOC emissions
. . . . ” 30 More specifically, the purpose was to “ **reduce the**  **VOC emission**  **potential of**  **the pesticide**  **products include** **d in**  **this reevaluation**  **to 20%**  **or less**  .” The Department thus required all registrants of products described above to comply with one of the following three options: (1) Submit a written commitment to reformulate the pesticide product to a VOC emission level of 20 percent or less, .
. . (2) Submit a request for an exemption, .
. . or (3) Submit a detailed explanation as to why the pesticide product cannot be reformulated, including why reformulation is not

26 Id
. 27 Id. 28 DPR’s Notice of Decision to Begin Reevaluation of Certain Pesticide Products, May 31, 2005 . The Notice also exempted most fumigant products, on the rationale that fumigant products likely could not be reformulated to reduce their VOC emission potential; all products containing the active ingredients sodium chlorate, sodium hypochlorite, sulfuryl fluoride, because they contain no or negligible amounts of organic compounds; products used in amounts less than 100 pounds; products containing the active ingredients fenamiphos or molinate, because they were being phased out; spray adjuvants; and technical products. 29 Id
. 30 Id.20 chemically feasible or proof that reformulation woul d be contrary to VOC reduction and pe st management goals. 31 The initiative stayed on this course until February 11, 2010, when the Department sent a letter to registrants announcing a “ New Direction for DPR’ s VOC Reformulation Reevaluation .” In this Notice, DPR abandoned its initiative to impose VOC limits on all products, and announced instead its intention to impose requirements on products containing **seven active**  **ingredients** : abamectin, chlorpyrifos, dimethoate, gibberellins, oxyfluorfen, permethrin, and trifluralin. 32 The Notice informed registrants of products that contained other active ingredients that they no longer would be required to do anything to reduce VOC emissions to comply with the SIP. 33 Registrants of nonfumigant products containing any of the seven active ingredients named above continued to be required to reformulate their liquid products to achieve an emissions potential of less than 20%. That requirement remained in place until April 20, 2012, when the Department began the process of promulgating Regulation No. 12
-001, the proposed regulation that is the subject of these objections
. As noted above, the Department now has placed the entire burden of compliance upon the producers and users of products containing just four active ingredients
. If promulgated in its present form, for producers and customers of nonfumigant products containing all other active ingredients, there will be no VOC requirements at all. **The selection**  **of only**  **F our**  **A ctive**  **I ngredients,**  **excluding any**  **regulation on**  **any others**  **, is inappropriate**
. Even assuming that active ingredients present a valid criterion for selecting the products to regulate, it is inappropriate to select products that contain only four active ingredients for restrictions
. Acc ording to the ISOR, DPR selected products containing these active ingredients because they are used in volumes sufficient that a reduction in their use would result in significant reductions in VOC emissions
. Yet, the ISOR also indicates that VOC emissions from products containing any one of the these active ingredients alone, even the most heavily used, are not so great as to be considered a significant source of VOC emissions in the San Joaquin Valley NAA, taking into account all other sources . D ata fro m the Department regarding other products indicates that the active ingredients the Department has chosen not to regulate have products with high
-VOC emission potentials that contribute to the pesticide VOC inventory. M oreover, some of those products with high
-VOC emission potential **do** have alternative low
-VOC formulations available and registered in California, which was one of the criteria for selection of the Four Active Ingredients.

31 Id. 32 DPR’s New Direction for DPR’s VOC Reformulation Reevaluation, February 11, 2010. 33 Id . at 2.21

From a broader perspective, therefore, the decision to target products containing the Four Active Ingredients (to the exclusion of others) is not a rational basis on which to regulate
. Although it may be administratively convenient, it is not equitable for the producers of these products or, more importantly, for the State and its economy, and the agricultural producers who purchase and use these products
. If DPR intends that there should be no exceptions to the proposed rule other than those in the proposed text of the regulation, it should consider an alternative approach that would allow for exceptions in the event of imp ortant agricultural pest uses. If such critical uses were to arise, and the target pest and application site for one or more were within the scope of the registration for one or more of the regulated pro ducts, then the regulation should allow for an application for a critical use exception on these grounds. In its current state, the text of the proposed regulation does not include a mechanism to address emergencies, or to grant exemptions, such as for critical uses. We acknowledge that the regulation does allow for the use of products under Sections 18 and 24(c) of FIFRA, and we infer from this that the Department intends to allow for Sections 18 and 24(c) exemptions where the use of a product not registered under FIFRA Section 3 might be prohibited under the proposed regulation. These processes are not appropriate, however, to address emergencies or critical uses where a product is already registered under Section 3, and the only obstacle to using the pr oduct is this proposed regulation
. Moreover, an application under Section 18 or 24(c) would be unduly burdensome where the only issue for a prohibited product is its VOC emission potential under the proposed rule. We suggest instead that this section of the regulation be redrafted to include a mechanism to address emergencies and exemptions that would include criteria that are appropriate to this rule. A significant reason that products containing the regulated active ingredients have collectively higher VOC emissions than other nonfumigant products is not because they contain higher VOC levels, but because they are used in greater amounts than products containing unregulated active ingredients
. This greater use is because of the greater need. F or example, abamectin is critical to the production of tree nuts and citrus; chlorpyrifos is critical to tree nuts, citrus, alfalfa, and grapes; gibberellins are critical to citrus and cotton; and oxyfluorfen to tree nuts, grapes, and citrus
. The cumulative value of these crops to California’ s agricultural economy alone in 2010 was over $ 6 billion
. 34 Thus, by restricting the use of products that contain these four active ingredients alone, DPR is not restricting the use of the least valuable crop protection products in the agricultural economy, but the **most** valuable tools, and is leaving the use of **all**

34 See California Department of Food & Agriculture; http://www.nass.usda.gov/Statistics_by_State/California/Publications/California_Ag_Statistics/2010c as-frt.pdf
.22

remaining products unrestricted, irrespective of their relative value to their customers and to the agricultural economy as a whole. **By limiting**  **the scope**  **of the**  **rule to**  **only four**  **active ingredients,**  **DPR has**  **denied itself**  **the flexibility**  **necessary to**  **gran t**  **exemptions to**  **meet the**  **needs of**  **the agricultural**  **economy** . If DPR plans not to regulate all nonfumigant products for VOC emissions, the Department could make an equally compelling argument for regulating products whose active ingredients comprise the top seven in VOC emissions, or the top five, or even the top two given the revision in the bifenthrin data. As indicated above, the products that contain any one of the top seven active ingredients are not a significant source of VOC emissions in the San Joaquin Valley NAA; in that context, none of the active ingredients presents a more compelling choice in its own right than any other and, restricting the focus to VOC emissions alone, regulating any combination of products that would achieve the necessary emissions is as logical as regulating the four that DPR has chosen. If the Department pursues this current approach, it should regulate enough active ingredients to anticipate necessary exceptions for the active ingredients that are regulated. The greater anticipated decrease in emissions would present DPR with greater flexibility in granting exemptions from the prohibitions, in order to meet changing needs of growers and the collective agricultural economy
. Section 6884(b), for example, could be amended in either of three ways . First, the Department could add additional subsections to this provision, providing for additional exemptions for additional products in their uses on additional crops . Second, similarly to the prior proposal, DPR could add additional subsections that would provide for exemptions for products that are applied under conditions so as to minimize VOC emissions
. Third, DPR could add an entire new subsection to Section 6884, allowing the Director to grant exemptions upon application by the companies that produce regulated products, agricultural producers, or university research and extension specialists, and in accordance with criteria set forth in the new section, or at the discretion of the Director. **The regulation**  **does not**  **impose rest**  **rictions or**  **prohibitions on**  **products whose**  **manufacturers failed**  **to submit**  **TGA data,**  **or who**  **failed in**  **good faith**  **to reformulate**  **their products**  **to reduce**  **VOC emissions** 
. As noted above, this regulatory proposal follows a nine
-year process of data call
-ins and reevaluation, by which DPR attempted to require or encourage registrants to generate TGA data, in order that DPR could estimate VOC emissions from nonfumigant products on a more uniform basis, and thus regulate the products more effectively
. The pestici de VOC inventory still contains many products that rely on default values rather than the requested TGA method numbers. Similarly, DPR encouraged producers of high
-VOC emulsifiable concentrates to reformulate them as low
-VOC aqueous formulations
. The principal registrants for products containing the active ingredients regulated under the proposed rule **did** submit TGA data
. At significant cost, most of these companies also developed new low
-VOC formulations
. Ironically, DPR has nonetheless selected their products for23

regulation
. It would be equitable for DPR to impose the prohibitions and restrictions under the new regulation on any company that **did not**  submit TGA data, or **did not**  develop a low
-VOC formulation. **The regulation**  **does not**  **include a**  **mechanism to**  **add products**  **with other**  **active ingredients**  **if VOC**  **emissions from**  **those products**  **increase**
. As noted in Section II above, summarizing the proposed rule, Sections 6577, 6880, 6881 , and 6884, direct the restrictions and prohibitions imposed under the propo sed regulation exclusively at products that contain the Regulated Active Ingredients, by name . Yet, none of these provisions includes a mechanism for adding other active ingredients to the universe of regulated active ingredients, even if VOC emissions (relative or absolute) from products with other active ingredients increase. The absence of such a mechanism, or any criteria to bring products containing other active ingredients within the scope of the regulation, raises questions whether the rule will have any significant beneficial effect, or whether any effect is likely to be temporary at best
. As discussed further below, the rule leaves open the very likely possibility that growers who lose access to products containing the regulated active ingredients will choose to use unregulated high
-VOC alternatives, rather than low
-VOC substitutes. **The regulation**  **does not**  **include a**  **mechanism to**  **remove products**  **with these**  **active ingredients**  **from the**  **scope of**  **the regulation**  **if VOC**  **emissions from**  **these products**  **dec rease**  . Conversely to the comment above, the fact that none of these provisions establishes a mechanism or any criteria for removing products from the scope of the regulation means that products containing the F our Active Ingredients will remain subject to regulation forever
. Yet, the VOC levels in the San Joaquin Valley NAA, and the contribution to those levels from nonfumigant products, are likely to change
. Indeed, that is the intended result of the regulation
– to encourage, if not compel, users of hi gh
-VOC formulations of products that contain the Regulated Active Ingredients to use other products
. As discussed above, these nonfumigant products are among the most valuable to agriculture
. Changes in use patterns may have the effect of depriving growers of these products when they need them the most, as growing conditions change, without any flexibility for adjustments in growers’ needs, even if conditions of use and levels of VOC emissions in the San Joaquin Valley NAA change and these products cease to be a source of significant VOC emissions. **In the**  **absence of**  **provisions to**  **remove or**  **add active**  **ingredients from**  **the universe**  **of products**  **that are**  **regulated, the**  **proposed regulation**  **is not**  **likely to**  **achieve its**  **intended effect**
. The intended effect of the proposed regulation, as noted above, is to cause users of products containing high
-VOC formulations of products containing the Regulated Active Ingredients to switch to other products
. Because the alternatives to those products include high
-VOC formulations of products containing other active ingredients that will remain unregulated, it is likely that customers will choose those24

products
. If they do, then there will be no significant reduction in the total VOC emissions in the San Joaquin Valley NAA; rather the only change will be to the source of those emissions
. In other words, as VOC emissions from products containing one active ingredient diminish, VOC emissions (relative and absolute) from products containing other active ingredients will increase
. The consequence of this product substitution is likely to have the regulatory effect popularly referred to as “Whac
-aM ole TM ”, meaning that the source of these VOCs will change from products now regulated under this proposal to the products that are left unregulated, with no significant or sustained decrease in VOC emissions over time
. Thus, unless provisions establishing a mechanism to add and remove active ingredients from the scope of the rule are included, the proposed regulation is not likely to achieve its intended effect. **In the**  **absence of**  **provisions to**  **remove or**  **add active**  **ingredients from**  **the universe**  **of products**  **that are**  **regulated, the**  **proposed regulation**  **removes any**  **incentive for**  **other registrants**  **to reformulate**  **to lower**  **VOC formulations**  **of prod** **ucts** . As discussed above, DPR’ s initial reevaluation in 2005 applied to **all** high
-VOC liquid formulations
. However, DPR scaled back its focus to only seven active ingredients in 2010
. Now, in 2012, DPR has further reduced its proposed regulation to only four active ingredients
. Because of the rigidity of the proposed regulation, DPR is prevented from adding or subtracting active ingredients from the regulatory scheme
. Now that the sole responsibility for VOC emissions reduction falls on the Regulated Active Ingredients, other registrants have no incentive to reformulate their high
-VOC emitting products to lower VOC emitting alternatives. **D. T** **HE E**  **CONOMIC A** **ND A**  **LTERNATIVES A** **N ALYSES**  **T HAT**  **DPR R**  **ELIED O**  **N A** **RE F** **LAWED** The ISOR and the rulemaking record indicate that DPR considered and relied upon a number of economic and alternatives analyses, conducted at least in part by other State agencies, evaluating economic effects of the prop osed regulation
. These analyses include an evaluation of the products whose use would be restricted and prohibited under the regulation and the low
-VOC products thought to be available as alternatives to the regulated products, conducted for seven crops on which the regulated products are used most prominently by the University of California Cooperative Extension (“ UC Extension Report”, “UC Report”, or “Report” ). 35 Based in part on that information, the California Air Resources Board conducted an economic analysis of the proposed regulations (“ ARB Report” ). 36

35 See Emulsifiable Concentrate Alternatives Analysis which was completed by the University of California Cooperative Extension in March 2011 , and revised in March 2012
. The seven crops are alfalfa, almond, citrus, cotton, grapes, pistachios, and walnuts. 36 Economic Analysis of Proposed Regulations and Amendments to Reduce Volatile Organic Compound Emissions. C alifornia Environmental Protection Agency, Agency
-wide Economic Studies25

The ISOR does not indicate precisely how DPR analyzed or relied on these documents, or whether the Department simply adopted them wholesale as part of its rationale to support the proposed regulation
. Nevertheless, these documents appear to be the bases for the following agency conclusions:  “ The proposed regulations will not have a significant adverse economic impact upon business. ” 37  “ The proposed action would restrict the use of some products if the emission limit is triggered
. . . , but chemical pest management will shift to other products to accomplish the same pest management purpose. ” 38  “ The additional cost faced by producers should not significantly affect their operations or have a significant adverse economic impact on the sector. ” 39 Thus, the ISOR seems to be saying that producers in the San Joaquin Valley NAA and the State’ s agricultural economy will not suffer an adverse economic impact from the proposed rule, because alternative low
-VOC products are available that are equally efficacious, that will not cause adverse effects to health or the environment, and that the costs of switching to these alternative products is not significant. Because these conclusions in the ISOR are so general, they do not lend themselves to a precise or itemized response . It is clear from the underlying documents, however, that DPR’ s conclusions are not supported with respect to some of the regulated products or the crops on which those products are to be used
. In particular, the Department’ s economic and alternative s analyses with respect to oxyfluorfen products are flawed
. Thus, by way of example, and with respect to oxyfluorfen products at least, we demonstrate the following below.  **Low -**  **VOC alternatives**  **for some**  **pro ducts**  **are more**  **costly, due**  **to differences**  **in application**  **rates** . The various cost analyses for oxyfluorfen products are premised on an assumption that DAS’ low
-VOC oxyfluorfen product, GoalTender® herbicide40, may be used interchangeably with the high
-VOC product, Goal® 2XL
Section, Air Resources Board. Memorandum from Tom Rosen
-Molina to Linda Irokawa
-Otani, DPR Regulations Coordinator, March 9, 2012. 37 ISOR at 11. 38 ISOR at 12. 39 Id. 40 GoalTender® herbicide is a registered trademark of Dow AgroSciences, LLC.26 herbicide
. 41 PUR data demonstrate that growers in the San Joaquin Valley NAA are applying GoalTender at the upper range of the approved use rates during the May through October time period, so that the treatment cost per acre is effectively two times that for Goal 2XL. We cannot say, on the basis of the economic analyses in the rulemaking report, whether miscalculations of this nature are common to those for products with all of the Four Active Ingredients. For oxyfluorfen, however, the cost of switching from Goal 2XL to GoalTender may be understated by half.  **Low -**  **VOC alternatives**  **for some**  **products are**  **not equally**  **effective in all of their applications** 
. Similarly, while GoalTender is effective for the uses on its label, its effectiveness is not the same as that of Goal 2XL in all of its uses or against all target weeds
. The UC Report makes some note of differences in effectiveness of these two products in pre-emergent and post-emergent applications and in controlling some weeds, and suggests, for example, the need to apply additional products as “ kickers ” to GoalTender to achieve the same level of control as Goal 2XL. These analyses also appear to under
-estimate the costs of applying the “ kicker” products. **The UC**  **Extension Report**  **is f**  **lawed**
. The UC Extension Report was conducted in 2011, and then revised and updated in 201 2. The Report contains many analytical flaws that undermine whatever conclusions that the ARB, and then DPR, could draw from it. At the outset, it is worth noting that the fundamental premise of the UC analysis was that the proposed regulation’s purpose is “ to regulate products with emission potentials of greater than 20%. ” 42 In its present form, however, Section 6880 sets VOC cut-offs for the Regulated Active Ingredients at different levels, as discussed above, with VOC emissions potentials ranging from 35% for products containing abamectin to 15% for products containing oxyfluorfen
. Thus, it is difficult to conclude that the UC Extension Report supports the rule, as it was premised on a 20% emission potential threshold rate
. **The UC**  **Extension Report**  **e rrs**  **in i** **ts a**  **nalysis of**  **a lternatives**  **for m**  **any c** **rops** . Analysis of the UC Report also shows errors in application rates, use patterns, and other basic assumptions
. The flaws are illustrated below in the analysis of the alternatives for oxyfluorfen for the treatment of almonds, walnuts, and grapes
.

41 Goal® 2XL herbicide is a registered trademark of Dow AgroSciences, LLC. 42 UC Report at 25.27

**Almonds**
. The analysis of alternatives available for the treatment of almonds notes that VOC
-based solvents in Goal 2XL and other emulsifiable concentrate formulations of oxyfluorfen may increase activity compared to GoalTender and other low
-VOC formulations “ although this has not been thoroughly evaluated in almonds. ” 43 To the contrary, this issue has been thoroughly evaluated in the field by growers and PCAs since the fall of 2004, when GoalTender was first registered for use in California
. Significant efforts have been made to encourage growers and PCAs to switch from Goal 2XL to GoalTender, and the feedback is clear that Goal 2XL performs better than GoalTender for in
-season post-emergent broadleaf weed control in perennial crops. PUR data confirm that growers overwhelmingly choose Goal 2XL over GoalTender, particularly because of its effectiveness against weeds such as malva. 44 Related to this point, the UC Report concludes that GoalTender is equally efficacious as Goal 2XL in controlling weeds related to almond and walnut crops . This conclusion is only partially correct, and the difference is important here
. The UC Rep ort was based on data from applications that took place from November through February. 45 During these months, Goal 2XL and GoalTender may be used interchangeably as pre-emergent herbicides
. But this is outside the May through October period when restrictions and prohibitions will be in effect under the regulations, so the comparison is irrelevant. The analysis regarding almonds also is calculated on the assumption that the application rate for GoalTender is equivalent to the application rate for Goal 2XL
. As indicated above, that assumption appears to be incorrect
. The 2010 PUR data from several counties in the San Joaquin Valley NAA indicate that GoalTender is being used at approximately two times the rate of Goal 2XL
. 46 A higher application rate, obviously, results in proportionately higher costs. A similar issue arises with respect to control of different weeds
. The UC Report states that two substitutes for Goal 2XL, GoalTender and Princep Caliber 90, are 80% and 70% as effective as Goal 2XL, respectively. 47 These levels of control are unacceptable compared to the control provided by Goal 2XL. In short, GoalTender

43 Id
. 44 2010 PUR Data on Oxyfluorfen use in Fresno, Stanisla us, and Merced Counties
. 45 UC Report at 32 (Table 2); 33 (Table 4). 46 For example, in Fresno County during May through October in 2010, the average application rate for Goal 2XL was 0.288 pounds per acre, whereas the application rate for GoalTender was 0.701 pounds per acre. 46 The data for Stanislaus County (0.155 pounds per acre for Goal 2XL and 0.318 pounds per acre for GoalTender) and Merced County (0.146 pounds per acre for Goal 2XL versus 0.202 pounds per acre for GoalTender) show a similar variance. 47 UC Report at 33 (Table 4).28

used for post-emergent control during the May to October time period is neither economically feasible nor equally as effective as Goal 2XL. **Walnuts**
. The analysis on walnuts has similar shortcomings
. First, the use patterns described are from harvest to February 15. 48 As in the case of almonds, this is the period for pre-emergent application, and is outside the period proposed for restrictions and prohibitions under the regulations
. Second, the 99% rating in the UC Report for GoalTender as compared to Goal 2XL for walnuts refers to pre-emergent activity
– not post-emergent activity, which is the critical use period for oxyfluorfen on walnuts. 49 Further as to walnuts, products identified as possible alternatives for controlling weeds like fleabane and willowherb, which are not on the oxyfluorfen label and which oxyfluorfen is not designed to control, are irrelevant. 50 Nor does the UC Report cite any data to support conclusions that substitutes have been studied in California for these uses, would not cause economic hardship to growers, or are effective on weeds that oxyfluorfen controls. 51 **Grapes**
. Similar to the analysis on almonds and walnuts, the grapes portion of the UC Report has comparable shortcomings
. For example, the use patterns described in the narrative are from “ harvest up to February 15 ” while Table 2 in the grape section lists December through February as the time period for data collection. 52 This time period is again the pre-emergent residual market for Goal 2XL and GoalTender that is outside the VOC window of May through October
. The analysis’ description use of “ one time in the fall or winter months for annual weed control in vineyard rows” 53 is not the use pattern that contributes to VOC emissions
. Pre
-emergent uses of GoalTender during the dormant season are as effective as Goal 2XL
. Like the case with almonds and walnuts, it is only for the post-emergent uses during the summer months that GoalTender is not as effective as Goal 2XL
. During this post-emergent time period

48 Id . at 161 (Table 2); 167 (Table 10). 49 Id . at 167 (Table 10). 50 Id . at 157. 51 The Report on alternatives to walnuts cites 3 studies. Cheetham, 2007, discusses alternatives to controlling glyphosate
-resistant horseweed and hairy fleabane, but neither Goal 2XL nor GoalTender are registered for use on hairy fleabane. Shrestha and Hembre, 2006, discuss es developing resistance of horseweed and hairy fleabane to various herbicides, but no mention is made of GoalTender. Finally, Lanini and Roncoroni, 1999, discuss es the efficacy of glyphosate and sulfosate on field bindweed, but Goal 2XL and GoalTender are not registered for use on field bindweed, sulfosate is no longer registered in California, and glyphosate require s additional herbicides to be effective
. 52 UC Report at 114; 119 (Table 2). 53 Id. at 114.29

it is critical for grape growers to be able to control weeds such as purslane, annual morninglory, sowthistle, small marestail, and malva. Another flaw with the UC Report section on grapes relates to Tables 2 and 7
. These tables describe Goal 2XL and GoalTender use periods as either December to February or October to February. 54 Again, these are not the months for which these products are being restricted
. Likewise, the greater than 99% percent control for GoalTender relative to Goal 2XL statistic in Table 7 refers to pre-emergent activity, and not post-emergent activity. 55 Additionally, the economic analyses in Tables 7 thro ugh 9 are conducted on fall through winter uses, at pre
-emergent rates, and are not applicable for the mid
-summer post-emergent use most critical for oxyfluorfen use on grapes. 56 The March 2012 revision to the UC Report avoids the errors of the 2011 analysi s by focusing on in
- season summertime uses. This revision recognizes that “the low
emission formulation of oxyfluorfen is not as effective as a post-emergence herbicide.” A conclusion is presented that the addition of low
-emission post-emergence herbicides would achieve the same efficacy but would increase the cost to growers. There are very few data, if any, to support that conclusion, however. Further, the cost comparisons still rely on the assumption of equivalent application rates for Goal 2XL and G oalTender. As discussed above, Goal 2XL is used at half the active ingredient per acre as GoalTender, and therefore presents only half the cost indicated in the economic assessments. A dditionally, some of the alternative products recommended require the addition of adjuvants, which increase their costs and are very expensive even without the need for adjuvants. Some of the products also have important gaps in weed spectra, supply issues, or have received little field experience by growers or university researchers. **The UC**  **Extension Report**  **e rrs**  **in i** **ts i** **dentification of**  **m any**  **p roducts**  **a s**  **s ubstitutes**  **for the**  **“h igh** **- VOC**  **” p** **roducts**
. The UC Report is based on erroneous data, and in some instances, draws conclusions in the absence of supporting scientific data
. When the underlying assumptions are corrected, the UC Report actually demonstrates that there are no economically feasible and equally efficacious alternatives to high
-VOC formulations of oxyfluorfen, like Goal 2XL, for use on post-emergent weeds on almond and walnut crops. **Goal 2XL** 
. As mentioned above, this is a foundational product for post-emergent weed control in perennial crops from May through October, particularly controlling malva, a weed known to be problematic in almond s and walnuts. Goal 2XL is the product of choice because it controls malva at a reasonable cost . In fact, the University

54 Id . at 119 (Table 2); 122 (Table 7). 55 Id . at 122 (Table 7). 56 Id. at 122
-123 (Tables 7
-9).30

of California Integrated Pest Management (“ UC IPM” ) program stated that “ [l] ittle mallow is
. . . sometimes not effectively controlled with pre-emergent herbicides
. High rates of oxyfluorfen (Goal) can provide acceptable control
. Once established, little mallow [can be] difficult to control mechanically or with post-emergent herbicides
. Plants
. . . are easiest to control with a tank
-mix application of oxyfluorfen plus glyphosate. ” 57 The average use rate for Goal 2XL on perennial crops, in the two -pound
-pergallon emulsifiable concentrate formulation is 16 fluid ounces per acre (0.125 gallons per acre or 0.25 pounds active ingredient per acre)
. The average c ost at this rate is $10.00 per acre, rather than $19.41 per acre as cited in the UC Report
. With the cost of Goal 2XL at virtually half of what the Report estimates it to be, the cost to growers switching from Goal 2XL likely would be double the DPR estimate. **GoalTender**
. This product is equivalent to Goal 2XL for pre-emergent weed control, but lacks the consistent burndown properties on post-emergent weeds that Goal 2XL provides
. DAS has made considerable efforts to identify tank mix adjuvants, penetrants, and surfactants to improve the post-emergent activity of GoalTender
. No adjuvants have been found which perform reliably in mid
-summer post-emergent applications
. The average use rate on perennial crops of the four
-pounds
-per-gallon flowable formulation of GoalTender is also 16 fluid ounces per acre (0.125 gallons per acre)
. However, because this is a four
-pound
-active
-ingredient formulation, the use rate is 0.5 pounds active ingredient per acre, resulting in an application cost of $20.00 per acre, twice that of Goal 2XL
. **Glyphosate**
. This active ingredient is identified in the Report as an alternative or tank mix option for use with GoalTender
. This suggestion, however, overlooks the already existing practice of including glyphosate as a tank mix for treatment on residual post-emergent herbicides at 11
-12 fluid ounces per acre
. As a standalone post
-emergent product, glyphosate is used at over three quarts per acre, which raises the cost for the combination to almost $18.00 per acre, twice the cost when Goal 2XL is used alone
. Further, there are well
- documented cases of glyphosate
-resistant weeds throughout the San Joaquin Valley NAA. **Paraquat**
. While paraquat is approximately the same price per acre as Goal 2XL, its use requires a non
-ionic surfactant or crop oil concentrate, which increases the cost to growers . In addition, paraquat must be applied with hooded sprayers to prevent crop damage to trees or adjacent off
-target crops . Finally, paraquat is a restricted use pesticide
. **Carfentrazone**
. This active ingredient is a pigment inhibitor, which turns susceptible vegetation white
. Due to the high risk of crop and off
-target injury, shielded

57 http://www.ipm.ucdavis.edu/PMG/r3700211.html31

sprayers must be used when this product is applied
. As explained by UC IPM, carfentrazone is effective only on smaller weeds. 58 The estimated cost in the UC Report for carfentrazone more likely is for the original formulation, an emulsifiable concentrate, because the low
-VOC formulations are more costly
. Dealer surveys indicate that the cost to growers is actually $10 per acre higher than represented in the UC Report
. Combined with the lower cost of Goal 2XL, this results in a 50% increase over Goal 2XL, instead of the 25% lower price indicated in the UC Report
. If used as a tank
-mixed “ kicker, ” the use of carfentrazone would result in another $5 million in increased costs to almond growers . Finally, carfentrazone must be tank
-mixed with several adjuvants to enhance control under dry conditions
. This adds further to the cost of the product as an alternative to Goal 2XL
. **Glufosinate**
. This alternative is simply very expensive
. The UC Report indicates $16.40 as the cost per acre
. The actual cost is closer to $45 per acre
. This results in a cost to almond growers $8 million higher than represented in the UC Report
. Although glufosinate is registered in California, its availability has been limited due to supply issues. **Pyraflufen -** **ethyl**
. This herbicide is proposed as an alternative but it is a relatively new product on the market with limited university or grower experience for use in perennial crops in California
. The Report indicates it is less expensive than Goal 2XL, but with the corrected cost of Goal 2XL, as explained earlier, Goal 2XL is actually the less expensive product. **Saflufenacil**
. This active ingredient is also relatively new and untested in the California market
. It was used for the first time in 2011 for summer post-emergent applications
. The Report indicates that s aflufenacil is similar in price to Goal 2XL, but considering the correct cost of Goal 2XL, this product is actually twice as expensive
. Saflufenacil also requires the addition of adjuvants, adding another $5
-10 per acre per application
. These additional costs are not reflected in the UC Report. **The ARB**  **Report is**  **f lawed** 
. The ARB Report indicates on its face that the economic analysis conducted by the ARB was based in substantial part on the UC Report
. Without parsing each of the economic conclusions in the ARB Report, it follows that the many erroneous data and conclusions in the UC Report flow through to the ARB’ s economic analysis
. For this reason, we believe the ARB Report does not support the proposed regulation
. If the Department plans to continue in promulgating the proposed regulations, then the UC Extension Report should be revaluated and revised first
. Then the ARB Report should be revised to reflect changes in the UC Report
. Only then should the rulemaking proceed.

58 Id
.32

**V. A** **LTERNATIVES T**  **O T** **HE P** **ROPOSED R** **ULE** As indicated above, DAS believe s that the proposed regulations should not be adopted in their present form
. Having stated objections to the proposed regulations, DAS also would like to suggest alternatives. Many of the suggestions below are the converse of the objections. Some are free
-standing, however, and could be considered as alternatives to the approach that is embodied in the regulations. If DPR concludes that the rule should be adopted, then DAS proposes modifying the regulations in the manner described by these suggestions. **DPR should**  **contemplate an**  **approach that**  **is active** **- ingredient**  **neutral**
. As an alternative to the proposed regulation, DPR should consider a regulation that imposes restrictions and prohibitions on the use of products that contributed the most to the VOC emission load in the preceding year
. This alternative regulation would also have a provision to add products whose contribution to VOC emissions increases and remove products who se contribution to VOC emissions decreases
. By only regulating those products that significantly contribute to VOC emissions in areas of concern, and allowing for the products regulated under the rule to change with the evolving needs of the agricultural community (and at the Director’ s discretion), DPR would be implementing a more targeted approach to VOC emission reduction
. Flexibility of products regulated and adaptability to changing VOC emission conditions would provide DPR with a more practical, efficacious regulatory framework. **DPR should**  **consider the**  **option of**  **extending the**  **number of**  **regulated active**  **ingredients to**  **more than**  **just four** 
. While we continue to question whether active ingredient is an appropriate characteristic to identify these products for regulation, the number of these active ingredients is indicative of the number of products that DPR has overlooked while imposing restrictions on just these four
. As indicated above, no one active ingredient presents a more compelling choice to be regulated in its own right than any other, and regulating any combination of active ingredients that would achieve the necessary emissions reduction is as logical as regulating the four that DPR has chosen in its proposed regulation
. Further, expanding the list could enlarge the volume of the anticipated decrease in VOC emissions presenting DPR with greater flexibility in granting exemptions from the prohibitions, in order to meet changing needs of growers and the collective agricultural economy. **DPR shoul** **d consider**  **imposing restrictions**  **and prohibitions**  **first on**  **products whose**  **manufacturers did**  **not submit**  **TGA data** 
. As described above, in February 2005, DPR commenced a reevaluation of certain liquid formulation agricultural and commercial structural
-use pe sticide products for which it did not have TGA data
. The basis for this reevaluation articulated by DPR was its concern about VOC emissions from agricultural and commercial structural
-use pesticide products, and DPR’ s commitment to reduce these emissions required by the implementation of the California33

SIP under the federal Clean Air Act. 59 According to DPR, because the majority of registrants had not submitted TGA data for new products, it was forced to use a default emission potential value based on the median TGA value for each formulation category in order to calculate total VOC emissions . It is our position that DPR still lacks TGA data for many nonfumigant pesticide products and is still using default median numbers for its calculations. DAS and many other registrants submitted TGA data in response DPR’ s request in 2005, and in order to provide an accurate accounting of total VOC emissions from products, DPR must use the actual TGA number associated with a product and not the default median being used by DPR to calculate VOC emission contributions from some products
. Because DPR has no way to know the actual VOC emissions from a product using a default median TGA number, perhaps DPR should propose a regulation that imposes restrictions and prohibitions first on products whose manufacturers did not submit TGA data to begin with
. This alternative solves two problems: (1) DPR will receive a more complete set of TGA data with which total VOC emissions can be more accurately estimated; and (2) registrants will not be able to avoid regulation simply by failing to respond to DPR’ s request for accurate TGA data
. Put another way, it seems inequitable that registrants who complied with DPR’ s request in 2005 are now being regulated while those who ignored DPR’ s TGA data call
-in have suffered no negative consequences. **DPR should consider exemptio ns for high** **- VOC products whose emissions can be**  **controlled or mitigated in their application .**  VOC emissions from many of the products whose use will be prohibited or restricted under the proposed regulation can be controlled by methods such as low
-pressure ground application, incorporation in soil, application directly to water, and chemigation
. These methods are examples of application techniques which could result in lower VOC emissions than normal spray application methods, and are certainly lower than VOC emission rates calculated using the TGA method detailed above
. If DPR is to approve this proposed regulation, notwithstanding the objections above, it should establish exemptions or amend the proposed regulation to allow for the application of these products by these low
emission methods. **DPR should**  **consider a**  **two -**  **tier approach**  **to the**  **regulation of**  **VOC emissions**  **from nonfumigant**  **pesticide products** 
. In considering alternative regulations, DPR may wish to consider a two -tiered approach, where no regulatory actions or restrictions

59 In fact, to implement the 1994 SIP, DPR used TGA data to determine the VOC content of each pesticide product, and in conjunction with data from DPR’s pesticide use-reporting system calculated estimated annual VOC emission totals for each pesticide product. In order to obtain TGA data on each pesticide, DPR placed all pesticides formulated as liquids into reevaluation in 1994 and all solid formulations into reevaluation in 1995. See DPR Notice to Begin Reevaluation of Certain Agricultural and Commercial
-Use Pesticide Products, February 16, 2005
.34

would occur if the pesticide inventory was below 90% of the SIP goal. Tier I regulations would take effect only if the VOC inventory were to exceed 90% of the SIP goal (or greater than 16.3 tons of VOC emissions per day). At this level, the top contributors to pesticide VOCs, based on the most recent annual pesticide inventory report, would be identified and treated as high
-VOC products, with a requirement for a written recommendation by a PCA. Dealers would have to provide written information on VOC emissions from these products, and the recordkeeping provisions of the current proposed regulation would be in effect. Tier II would be triggered if the VOC inventory were to exceed 95% of the SIP goal (or greater than 17.2 tons of VOC emissions per day). Then, use of the products designated as high
-VOC products in Tier I would be prohibited during the May through October time period. This would provide a mechanism to regulate pesticides only when they exceed the Tier I trigger, and the flexibility to determine which pesticides currently warrant regulation based on most recent contributions to the voc inventory. **VI. C**  **ONCLUSION** DAS does not believe the proposed rule would achieve its stated purpose of reducing VOC emissions from nonfumigant pesticides in the San Joaquin Valley NAA. The proposed regulation lacks flexibility to add or subtract active ingredients from the regulated list, and should include more discretion for DPR to grant use exemptions for critical needs. The UC Report and ARB Report analyzing the impacts of the proposed rule, and therefore, the data on which DPR based this proposed rule are flawed. Finally, given the correction issued by DPR regarding the bifenthrin use data, the necessity of subjecting the Four Regulated Ingredients to this proposed regulation is jeopardized. DPR has the authority and regulatory latitude to grant an exception for in
season use of emulsifiable concentrate formulations of oxyfluorfen on tree nuts, grapes, and citrus
. In fact, because of the importance of this active ingredient to a significant portion of the California agricultural community, and the demonstrated lack of adequately efficacious and economically viable alternatives, DAS urges DPR to consider excluding oxyfluorfen from this proposed regulation altogether.