PUBLIC HEARING ON PROPOSED REGULATIONS TO REDUCE NONFUMIGANT PESTICIDE EMISSIONS

IN THE SAN JOAQUIN VALLEY STATE OF CALIFORNIA DEPARTMENT OF PESTICIDE REGULATIONS

TULARE COUNTY AGRICULTURAL COMMISSIONER'S OFFICE AUDITORIUM 4437 S LASPINA TULARE CALIFORNIA 93274

WEDNESDAY, JUNE, 2012

6:25 P.M.

TIFFANY C. KRAFT, CSR CERTIFIED SHORTHAND REPORTER LICENSE NUMBER 12277 CALIFORNIA REPORTING, LLC 52 LONGWOOD DRIVE SAN RAFAEL, CA 94901 (415) 457-4417APPEARANCES

DEPARTMENT OF PESTICIDE REGULATION STAFF Ms. Jodi L. Clary, Hearing Officer Mr. Brian R. Leahy, Director Mr. Chris Reardon, Chief Deputy Director Mr. Randall Segawa, Environmental Program Manager

ALSO PRESENT Ms. Teresa DeAnda, Californians for Pesticide Reform Ms. Alyssa Nichols, California Citrus Mutual Mr. Daniel Palla Mr. Chris Valadez, California Grape and Tree Fruit LeagueINDEX PAGE

Public Comment 4

Adjournment 19 Reporter's Certificate 20PROCEEDINGS HEARING OFFICER CLARY: Let's go on the record

now. The rest of the evening is going to be recorded by a court reporter. And this is the formal part of the proposed rulemaking package that must be submitted to the Office of Administrative Law.

Can you hear me okay back there? So I'm going to -- some of what I'm going to say repeats what Randy said and what Brian said, but just very briefly. And the reason for that is we have very specific requirements that we need to put on the record to satisfy the Administrative Procedures Act, and which has certain requirements for every regulation that is submitted by any State agency, at any time, or amendments of regulations.

So for the record, my name is Jodi Clary. I'm Senior Staff Counsel for the Department of Pesticide Regulation. And today, the Director has asked me to act as the Hearing Officer in this regulation rulemaking package.And again, for the record, it is Wednesday, June 6th, 2012. We are in the auditorium of the Tulare County Agricultural Commissioner's Office on 4437 South Laspina Street in Tulare, California.

The hearing is being recorded by California 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25Reporting, reporter, Tiffany Kraft. And we did ask some

Spanish translators to join us today from Carmezi (phonetic) translating. Their names are Gary Avila and Lucina Caden (phonetic).

The Director of the Department of Pesticide Regulations has called this hearing for two reasons tonight. One reason is to receive public comments on a proposed rulemaking action. The hearing is a formal proceeding authorized under the California Administrative Procedures Act.

This hearing also acts as a formal public hearing providing the public an opportunity to comment and obtain information on the proposed regulations that may become part of the SIP plan, SIP plan, that Randy was telling you about, amendment required by the U.S. Environmental Protection Agency.

DPR proposes to: Amend Section 6452, 6452.2 and 6864. Amend Section 6452.4 and renumber it to 6881. Renumber Section 6890 to 6864; And adopt Sections 6558, 6577, 6880, 6883, 6884 and 6886 of Title III of the California Code of Regulations.

The proposed action would require nonfumigant use prohibitions on certain products in the San Joaquin Valley 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25ozone non-attainment area when using products with certain

agricultural uses containing certain active ingredients during the period May 1st through October 31st if the VOC emission limit is triggered.

Also, when purchasing or using certain products containing the four active ingredients that have been discussed tonight, the proposed action would require written recommendation from a licensed pest control advisor and require pest control dealers to provide VOC information to the purchaser.

These proposed regulations were officially noticed on April 20th, 2012. On that date, the Department began a 45-day public comment period. The written comment period will close tomorrow, Thursday, June 7th, 2012, at 5:00 p.m. Oral comments will be accepted until the close of this hearing.

For the record, the materials that serve as background for this hearing are made up of what's called a rulemaking file. The rulemaking file consists of the Notice of the Proposed Action, the Notice of Hearing and proposed text, the Initial Statement of Reasons, the Economic and Fiscal Impacts Statement, the documents referred to as "the documents relied upon," the written comments that have been received in regards to this action, and the transcript of this hearing. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25While this is considered a formal hearing, people

that testify will not be placed under oath. You're not going to be subject to examination or cross-examination.

We have a list of some people that wish to testify. When I call your name, would you come up to the podium. I'm going to ask you to state your first and last name and spell them, please, for the record and for the benefit of the court reporter.

The first name on the list that indicated she wishes to testimony is Alyssa Nichols.

Good evening. MS. NICHOLS: My name is Alyssa Nichols. It's spelled A-l-y-s-s-a. Nichols, N-i-c-h-o-l-s. And I work for California Citrus Mutual. On behalf of CCM, I want to thank you for the opportunity to comment on the proposed SIP plan amendment.

California Citrus Mutual is a voluntary trade association representing the interest of California citrus growers. Over 70 percent of California's $2 billion citrus industry is produced in the San Joaquin Valley nonattainment area. And, therefore, our industry is very much impacted by this amendment.

As currently written, the amendment would require prohibitions of specified nonfumigant products when emission levels reach five percent or below the ozone SIP 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25benchmark of 18.1 tons per day average. This a subjective

and arbitrary trigger that prematurely imposes unnecessary prohibitions when, in fact, the VOC emissions have not met or exceeded the benchmark goal established in the SIP. Restrictions should only be imposed if emission exceed 18.1 tons per day average. We ask that all language referencing a trigger point below 18.1 be removed from the amendment.

One of the nonfumigant active ingredients targeted in the amendment is Gibberellin, a plant growth regulator used by the citrus growers to improve fruit quality and extend the season. Gibberellin is applied consistently and to roughly the same amount of acreage every year. Therefore, in the event the total emissions exceed the benchmark, it is a virtual certainty the cause will not be related to Gibberellin use.

According to the 2010 VOC Emissions Inventory Report, Gibb usage as approximately .7 tons per day from 2007 to 2009 and actually decreased in 2010 when all other emission were up. Through the current reporting system, DPR receives detailed information on the materials used and the commodities on which they are applied. In the event that emission levels each 18.1 tons per day, DPR should use this data to determine which materials and commodities attribute to the emissions spike, rather than 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25imposing blanket restrictions on targeted materials and

commodities.

It is essential that citrus growers have the ability to use a liquid form of Gibberellin when absolutely necessary to obtain a desired result. We recognize Section 6884 does exempt Gibb products when applied in an application rate of 8 grams of active ingredients per acre or less. However, this rate is far too low to be of any benefit the citrus growers. Citrus growers rely upon Gibberellin for the ability to store fruit on the tree. Without Gibb, fruit quality would undoubtedly suffer, end of season would be reduced by up to three months. This is unacceptable in a fresh produce industry such as citrus. We recommend DPR remove the rate restrictions from the exemption for Gibberellin or that additional exemption be added that would allow the use of Gibberellin on citrus.

Another concern I would touch briefly on is the matter in which DPR collects usage data, whether it accurately differentiates between the pounds of active ingredients applied in high VOC formulations versus low VOC formulations. It is imperative that this distinction should be made actively because of the negative consequences of growers of overstating VOC usage. DPR should absolutely implement reporting procedures that 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25accurately differentiate and track high and low VOC usage

where the active ingredient is the same.

Thank you. HEARING OFFICER CLARY: Chris -- it looks like Valadez.MR. VALADEZ: Yes. Thank you. Hi. Good early evening. Chris, C-h-r-i-s. Valadez, V-a-l-a-d-e-z. Here representing the California Grape and Tree Fruit League. We're a nonprofit public policy trade association which represents the fresh table grape industry, both growers and shippers alike, and also deciduous tree fruits.

We are going to provide by close of tomorrow's 5:00 p.m. deadline thorough comments in written form, but tonight, I wanted to focus on a couple of items to which Mr. Segawa's presentation brought up this evening, in addition to some of the exemption language that exist in the proposed form.

The first item of concern for our industry I think most in agriculture in general would be that the current regulation does not account for or easily account for a "what if" scenario. That being, what if any of the listed crops, grapes included, pistachios or walnuts, or any of the four listed AIs. What if positioning changed? What if those AIs are no longer the predominant contributing AIs to pesticide VOC emissions as you're 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25currently discussing. Or crop usage, if conditions changed to which a crop with the specific use of one of the four listed materials, it may be reduced so your future pesticide use report would reflect a reduction. How is it that the current proposed regulation would allow the flexibility to account for fairness? That means if it's no longer part of the top four AI or no longer part of the top seven, how do you rectify that scenario by adjusting it within the current regulatory language? So I think that's one goal or concern with the current regulation the way it's presently constructed.

A second item would be -- and there is at least in our mind there is no immediate solution -- but would be timing of the availability of data. Many growers use electronic means of reporting and realtime on their pesticide use application, whether various software systems. However, the way the analysis currently or -- the way the proposed regulation currently states, you have a regulation which would kick into effect should you reach a trigger point of 17.2 tons per day. That would stay into effect for a period of two years based on two-year old emissions data.

So for -- let's say, for this year, if we were in effect for the 2012 season, that would not be based 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25obviously on real time what we're doing in 2012 or what

was even done in 2011 as a more readily available use pattern from which to track. We're going back to 2010. Events happen. Things change. There are pest pressures. There are weather-related pressures, precipitation, for many materials will definitely dictate what is applied and when it is applied, at what use rates they're applied, all within the permitted label language applications. Yet, we don't seem to have a better way to more quickly identify what is being used within a shorter time frame that would do a couple things.

One, allow DPR to assess data more quickly, to then develop and publish the annual emissions report in a more timely fashion.

And then two, I think would provide you with the intelligence both you desire and I think we would see as being more equitable and fair for ascertaining what is a more current picture before we go forward and say here's a proposed regulation which is going to be in effect for a two-year period. And based on that time lag due to data collection, deficiencies as they presently exist.

A third item would focus on as presently written in the regulation the proposed exemption for Gibberellin for eight grams or less.

I'm inferring from the proposed regulation, the 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25current form, it's changed a couple times. But the

previous form had a rate of five grams of AI per acre or less. That was the permitted amount under the previous exemption. Then DPR issued the proposed regulation, which then had a rate of eight grams, which is what we're currently seeing today.

However, in the development of that eight grams of AI per acre, it seems that came out of recommendations from a U.C. survey that was the exemptions of San Joaquin Valley ozone nonattainment area use restriction survey which captured kind of two -- at least in table grapes -- two main utilities of Gibberellin applications: One being thinning and one being sizing. And it left out the stretch which is the pre-bloom applications.

But looking at the thinning and the sizing, utilities of Gibberellins, it captured what I would contend is at the low end for liquid Gibberellins was at the low end of the use rate scale. And the recommendation that came out of the survey which is listed in the DPR regulatory language is .5 grams of AI per acre up to one for maybe thinning applications and up to 16 grams of AI -- 16 grams of AI per acre. And that was variety-specific, I believe, for ruby seedless, if I'm not mistaken.

I infer based on where some of the previous 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25thought was for five grams now moving it up to eight. It

was kind of maybe an exercise and taking a halfway point. Where, for thinning, you can go down as low as .5 grams of AI per acre, but give it flexibility northward. But for sizing, we don't see where there is really utility. You can get all of the sizing. You can take care of all your sizing needs by going up to 16 grams of AI per acre and you cut it halfway with eight grams.

I don't know if that's true. That's kind of an easy inference based upon the survey, which then led to the eight grams being in the written regulation. Why that's concerning for us is we would contend in the thinning range that .5 up to 16 for many varieties and many applications -- when uses are variety-specific, cultural practices specific, that could work.

But when you start talking about applications for sizing purposes and I think overall use of many farmers/growers Gibberellin programs, when you're talking about development of sugars, colors, maturation, overall size, when you're talking about your stretch rates before you get to thinning and sizing, you're talking about at an initial point effecting the architecture of the bunch so that you have adequate spacing, adequate air flow to reduce the incidences of fungal disease.

So when you pick -- when you select a number of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25eight grams of AI per acre, you really only capture just a

limited scope of utility of Gibberellins. Get back to sizing, you look at the labeled rates, you're starting at 20. You're starting at 20 grams of AI per acre up to I think it's slightly over 120 grams of AI per acre. And again, that's variety specific. You have a variety like Thompson seedless, which is by and large so prevalent and a prevalent table grape grown in our area, they require a pump spray. That's additional Gibberellin applications which farmers would have to employ, which I don't think was initially captured within, one, the survey which was conducted, which seems to focus on thinning and on your sizing; and two, kind of look into the broader universe of table grape varieties and needs.

I know it attempted to look at capturing what are the needs for Ruby seedless what are the needs for Crimson seedless and then putting all the other table grape varieties in the other category. We recognize any time you do survey work, it's difficult. We do our own work. We know it's difficult. However, we think the regulation as currently written, it focused in a limited scope at least as it applies to table grapes, given what we've discussed with our table grape members and we see how the survey was constructed and how the information was used to influence the regulatory language. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25So I think by and large -- also given the

information provided in today's presentation and in previous presentations of where the 2010 emissions picture was previously and where it is today after a correction of emissions from Bifenthrin then and a reduction of emissions of over one ton per day, we think there may be some additional flexibility. We can't say how much. But we do believe there should be some additional flexibility for DPR to look at the current language and at least under the exemption portion take a look at areas given the seven crops and speaking for table grapes and table grapes alone this late afternoon/early evening, or you can add flexibility so you're not significantly hampering, in our case, cultural practices and needs table grape growers do need for use of Gibberellin.

Bottom line for us, the scope of any regulation, the scope of this regulation, we've been working on tracking, monitoring, and commenting on VOC issues from the very beginning. You know, it should strive to be effective in reducing the risk of reaching that 17.2 ton per day trigger limit. We understand that. But it's also more important to focus on enacting a regulation which is absolutely and only absolutely necessary to remain below the trigger. I think any more than that is guesswork. It's more of an exercise of a broad application I think in 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25a very real impacts to trees, especially the table grape

industry.

Like I commented earlier, my formal written comments will be submitted by tomorrow's guideline. I thank you for the opportunity to comment. I especially thank you for traveling into the valley to receive comments.

HEARING OFFICER CLARY: Teresa DeAnda. MS. DE ANDA: Hello. Thanks for coming to the valley. My name Teresa, T-e-r-e-s-a. DeAnda, D-e-A-n-d-a. And I work for Californians for Pesticide Reform. And I'm on other committees and wear other hats. I'm on the Cumulative Health Impact Project, CHIP, CVAQC, Central Valley Air Quality Coalition and I'm the Director for El Comit é para el Bienestar.

So just to start off, our organization and other organizations will be submitting a letter. And I didn't bring a hard copy, but it's probably there already or will get there by tomorrow.

So to start, these regulations should be decided to reduce pesticide VOC emissions by 20 percent. Requiring only 12 percent emission reduction in the valley is an outrage.

The need for reduction in pesticide VOC emissions 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25in the San Joaquin Valley is urgent because valley areas

have heavily polluted non-attainment air and ozone standard here in the valley. This pollution effects the health of my family, friends, and neighbors personally. It makes asthma and other respiratory and heart conditions worse and increases hospital and emergency room visits, school and work absenteeism. And I could go on and on there about these things. But for the sake of time, I won't. The Department of Pesticide Regulation says it will conduct audits of pesticide dealers, pest control advisor, and grower records to enforce the regulation. With budget cuts, how can the Department possibly do enough dealers audits, let alone field inspections to check adequately for illegal uses?

My one point is all pesticide products containing procurithas (phonetic) should be banned to reduce VOC emissions and risk to children's health. Procurithas was banned from household use over ten years ago because of risk to children. Yet, heavy use in agriculture was allowed to continue, while more and more studies have shown that exposure to pregnant women and children to this pesticide is extremely harmful. That's a slap in the face to us, because we live where it's sprayed a lot, and but yet it's bad for homes. So homes can't use it, but yet 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25it's used across the street or near the schools all

surrounding us.

And so the only choice to use nonfumigant pesticide VOC emission is to prohibit use of the most highly nonfumigant pesticide products in the San Joaquin Valley. And then I just wanted to say, I have a lot of respect for agriculture. My father was a farm labor contractor. He's a hard-working Filipino and first generation. And everybody in my town, which is Earlimart, bought their homes -- ones that have homes -- working in the fields and doing all this hard manual labor and working with farmers and for farmers.

But somewhere, it got out of hand, all the pesticide use. And now it's just so polluted here. And I'm not saying it's only pesticide. I know it's not. I know it's the freeway 99, the oil industry. It's other things, also. But I think everybody needs to do their part to reduce the VOC emissions. And the part where I said first other areas are reducing by 20 percent, we're only reducing 12 percent emissions, I don't think that's fair either.

So I just hope you read our letter carefully and take it into consideration. And thank you.

HEARING OFFICER CLARY: That's everybody that is 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25signed up so far. Anybody else that would like to make a comment? MR. PALLA: I have just a question. HEARING OFFICER CLARY: Come up and give us your name, please.

MR. PALLA: Daniel Palla. D-a-n-i-e-l. Palla is P-a-l-l-a.

And my question is on the economic impact report that the EPA performed, can there be more numbers reduced on that? I mean, you guys say it's not significant. But yet, people are -- I believe the economic impact for the price difference I believe they said weren't significant. And is that correct?

HEARING OFFICER CLARY: I don't know actually. ENVIRONMENTAL PROGRAM MANAGER SEGAWA: Yeah. The rulemaking package includes several documents replied upon. And Cal/EPA's complete economic analysis is in there. And in large part, it relied on U.C.'s economic analysis, which also in there as well.

MR. PALLA: Okay. In what way would this effect -- I understand it says some of the stuff in there. I didn't see that it addressed the issue of how much food is produced? Is there going to be less food produced because obviously the thresholds are changed. The price changes a little bit -- obviously, that does effect 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25everybody's bottom line in some way, shape, or form

whether it's realized or not.

And then also if that increased economic threshold on when I do spray or apply pesticides, that obviously decreases the amount of -- that increases the amount of pesticide I receive, therefore decreasing my yield, and therefore producing less food to feed the world. Is that true? Do you believe that to be true?

MR. SEGAWA : If I understood your question correctly, if the economic analysis took into account production, frankly, I don't know. I didn't take a look at the economic analysis in detail myself, so I couldn't say. MR. PALLA: That's one of my concerns, as someone with morals that would like to feed people, clothe people, provide for our growing world, my main concern is that how is this going to affect our ability as farmers? With our main job of feeding people and clothing people, how is that going to effect that part of our job, which I don't think is addressed or appropriate.

HEARING OFFICER CLARY: Thank you. Anybody else? This officially ends the comment period. If there are any changes sufficiently related to the proposed regulation, there will be an additional 15-day notice on the changes. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25All comments relevant to the proposal will be

responded to in writing in the Final Statement of Reasons. And that Final Statement of Reasons will be posted on the Department's website.

I have it's 6:55. Comment period is closed and this hearing is adjourned. We're off the record.

(Whereupon the Department of Pesticide Regulation public hearing adjourned at 6:55 p.m.) 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25CERTIFICATE OF REPORTER I, TIFFANY C. KRAFT, a Certified Shorthand Reporter of the State of California, and Registered Professional Reporter, do hereby certify:

That I am a disinterested person herein; that the foregoing hearing was reported in shorthand by me, Tiffany C. Kraft, a Certified Shorthand Reporter of the State of California, and thereafter transcribed into typewriting.

I further certify that I am not of counsel or attorney for any of the parties to said hearing nor in any way interested in the outcome of said hearing.

IN WITNESS WHEREOF, I have hereunto set my hand this 8th day of June, 2012.

TIFFANY C. KRAFT, CSR, RPR Certified Shorthand Reporter License No. 12277 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25