1 TEXT OF MODIFIED REGULATIONS

Current wording is indi cated by regular type. Proposed deletions are indicated by strikeout. Proposed additions are indicated by underline. New proposed deletions are indicated by italics and strikeout

. New proposed additions are indicated by bold double underline

.

DIVISION 6. PESTICIDES AND PEST CONTROL OPERATIONS

CHAPTER 2. PESTICIDES

SUBCHAPTER 4. RESTRICTED MATERIALS

ARTICLE 4. FIELD FUMIGAT ION USE REQUIREMENTS

Amend section 6452 to read:

6452. Reduced Volatile Organic Compound Emissions Field Fumigation Methods. (a) For the Sacramento Metro and South Coas t ozone nonattainment areas, the Director may approve use of a field fumigation met hod not described in sections 6447.3, 6448.1, 6449.1, 6450.1, 6450.2, and 6451.1 if the request is accompanied by scientific data documenting the volatile organic compound (VOC) emissions. Th e emission rating specified in section 6452.4 6881 or the maximum emission rate (emission rating multiplied by the maximum application rate) must be no greater than any one of the methods for the same fumigant described in sections 6447.3, 6448.1, 6449.1, 6450.1, 6450.2, and 6451.1. (b) For the San Joaquin Valley, Southeast Dese rt, and Ventura ozone nonattainment areas, upon written request, the Director may approve use of a field fumigation method either not described or excluded from use in sections 6447.3, 6448.1, 6449.1, 6450.1, 6450.2, or 6451.1 if the request meets the following criteria: (1) The request is accompanied by scientif ic data documenting the VOC emissions; (A) The emission rating, as specified in section 6452.4 6881 , is no greater than any one of the methods for the same fumigant allowed for use in the San Joaquin Valley, Southeast Desert, and

Ventura ozone nonattainment areas as specified in sections 6447.3, 6448.1, 6449.1, 6450.1, 6450.2, or 6451.1, or (B) The maximum emission rate (emission rating multiplied by the maximum application rate) is no greater than any one of the methods for the same fumigant allo wed for use in the San Joaquin Valley, Southeast Desert , and Ventura ozone nonattainm ent areas as specified in sections 6447.3, 6448.1, 6449.1, 6450.1, 6450.2, or 6451.1.

(c) Criteria the Director sha ll consider includes whether: (1) the data and information provided are sufficient to estimate emissions; (2) the results are valid as indicated by the quality control data; and (3) the conditions studied represen t agricultural fields fumigated. (d) The Director shall publish a notice of interim approval for a field fumigation method on the Department’s Web site. The inte rim approval expires three years after the date of approval.

NOTE: Authority cited: Sections 11456, 12976, 14005, and 14102, Food and Agricultural Code. Reference: Sections 11501, 14006, and 14102.2 Amend section 6452.2 to read:

6452.2 Fumigant Volatile Organic Compound Emission Limits.

(a) The Director shall establish field fumi gant volatile organic compound (VOC) emission limits in the Annual Volatile Organic Compound Emissions Inventory Report issued pursuant to section 6452.4 for the Sacramento Metro, South Coast, Southeast Desert, and Ventura ozone

nonattainment areas where the difference between emissions in the most recent inventory report and the benchmarks for that area is five per cent or less of the benchmarks or exceeds the benchmarks listed below during the Ma y 1 through October 31 time period:

Ozone Nonattainment Area Total Agricultural and St ructural VOC Emissions Inventory Benchmarks from May 1 to October 31 Sacramento Metro 820,000 lbs. (2.2 tons/day average) San Joaquin Valley 6,700,000 lbs. (18.1 tons/day average) South Coast 3,200,000 lbs. (8.7 tons/day average) Southeast Desert 340,000 lbs. (0.92 tons/day average)

Ventura in 2011 1,200,000 lbs. (3.3 tons/day average)

Ventura in 2012 and later 1,100,000 lbs. (3.0 tons/day average)

(1) Notwithstanding (a), iIf a VOC emission limit is in effect pursuant to (a) that limit must

remain in effect until the commissioner doe s not condition permits to include a fumigant emission allowance specified in (c)(1) or (d)(1), and does not deny any perm it or notice of intent specified in (c)(2) or (d)(2) in order to co mply with the fumigant emission limit for two consecutive years.

(b) The Director shall calculate the field fu migant VOC emission limits specified in (a) by subtracting the nonfumigant pestic ide VOC emissions from the total agricultural and structural VOC emissions inventory benchmarks. Nonfumig ant pesticide product emissions will be the summation of the pounds of each pesticide pr oduct used multiplied by the VOC content (emission potential) for the specific product.

(c) For the Ventura ozone nonattainment area, the commissioner shall ensure that the fumigant limits specified in (a) are not exceeded during the May 1 through October 31 time period using one or more of the following methods for field soil fumigations:

(1) Condition permit to include fumigant emission allowances. (2) Deny any permit or notice of intent that woul d cause the fumigant limit to be exceeded. (3) Condition permit to prohibit or require any of th e methods allowed by sections 6447.3(a), 6448(c), 6449.1(b), 6450.1(d), or 6452 during th e May 1 through October 31 time period.

(d) For ozone nonattainment areas other than Ventur a, the Director shall se lect one or more of the following methods to ensure the fumigant li mits specified in (a) are not exceeded during the May 1 through October 31 time period:

(1) The Director establishes a fumigant emission allowance for each permittee, based on information provided the commissioners within the ozone nonattainme nt area. The total allowances in each ozone nonattainment area must not exceed the fumigant limit established for that area. Commissioners shall issue permits or amend existing permits to comply with the fumigant emission allowance(s) established by the Director. Commissi oners shall deny any notice of intent that does not comply with the permittees’ fumigant emission allowances.3 (2) Commissioners deny any permit or notice of intent that would cause the fumigant limit to

be exceeded.

(3) Commissioners condition permits to prohib it or require any of the methods allowed by sections 6447.3(a), 6448(c), 6449.1(b), 6450.1(d), or 6452 during the May 1 through October 31 time period.

(e) No person may apply a field fumigant dur ing the May 1 through October 31 time period in an ozone nonattainment area for which a fumigant emission limit has been established pursuant to this section (a), unle ss their restricted material permit incl udes conditions specified in (c) or (d), or notice of intent is approved in writing. (f) For the San Joaquin Valley ozone nonattainmen t area, 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 area is five percent or le ss of the benchmark or exceeds this benchmark during the May 1 through Octobe r 31 time period, the provisions of section 6884 shall apply.

NOTE: Authority cited: S ections 11456, 12976, 14005, and 14102, Food and Agricultural Code. Reference: Sections 11501, 14006, and 14102, Food and Agricultural Code.

CHAPTER 3. PEST CONTROL OPERATIONS

SUBCHAPTER 1. LICENSING

ARTICLE 5. AGRICULTURAL PEST CONTROL ADVISER LICENSES

Adopt section 6558 to read:

6558. Recommendation for Use of Nonfumigants in the San Joaquin Valley Ozone

Nonattainment Area. If a licensed agricultural pest contro l adviser is asked to provide s a written recommendation pursuant to section 6883, the A licensed pest control adviser shall not recommend a use in violation with the provision in section 6884. If a licensed agricultural pest control adviser recommends the use of a high-volatile organic compound nonfumigant product implementing an exception under section 6884 (b), the exception must be identified. A pest

control adviser must retain a recommendati on for a high-volatile or ganic compound product for at least two years.

NOTE: Authority cited: Sections 11456, 12976, and 14102, Food and Agricultural Code. Reference: Sections 11501, 12003, and 14102, Food and Agricultural Code.

ARTICLE 6. PEST CONT ROL DEALER LICENSES

Adopt section 6577 to read:

6577. Sales of Nonfumigants for Use in the San Joaquin Valley Ozone Nonattainment

Area.

(a) When sale s of a high-volatile organic com pound (VOC) nonfumigant product with agricultural uses, spec ified in the Annual Volatile Organic Compound Emissions Inventory4 Report required in section 6881, is made to or fo r the operator of the property with an operator identification number issued by a county agricu ltural commissioner in the San Joaquin Valley ozone nonattainment area, the licensed pest co ntrol dealer shall pr ovide the following VOC information, in writing, at time of purchase or delivery: High-volatile organic compound nonfumiga nt products containing abamectin, chlorpyrifos, gibberellins, oroxyfluorfen as a primary activ e ingredient are subject to additional use restrictions during May 1 through October 31 when used in the San Joaquin Valley ozone nonattainment area on the followi ng crops: alfalfa, almond, citrus, cotton, grape, pistachio, and walnut. Use prohibit ions that may apply are found in Title 3, California Code of Regulations, section 6884. The operator of the property must obtain a written recommendation of a licensed pest cont rol adviser prior to use on these crops during this time period. (b) In addition to the requirements in section 6562, each licensed pest control dealer shall

indicate on the invoice that the requirement in (a) was met information required in (a) was provided

.

NOTE: Authority cited: Secti ons 11456 and 12111, Food and Agricultural Code. Reference: Section 11501, Food and Agricultural Code.

CHAPTER 4. ENVIRONMENTAL PROTECTION

SUBCHAPTER 2. AIR

ARTICLE 2. VOLATILE ORGANIC COMPOUNDS

Renumber section 6890 to 6864:

6890 6864. Criteria for Identifying Pestic ides as Toxic Air Contaminants.

A pesticide shall be identified as a toxic air cont aminant if its concentrations in ambient air are greater than the following levels (for the purposes of this secti on, a threshold is defined as the dose of a chemical below which no adverse effect occurs):

(a) For pesticides which have thresholds for advers e health effects, this level shall be ten-fold

below the air concentration which has been de termined by the Director to be adequately protective of human health.

(b) For pesticides which do not ha ve thresholds for adverse health effects, this level shall be equivalent to the air concentration which would resu lt in a ten-fold lower risk than that which has been determined by the Director to be a negligible risk.

NOTE: Authority cited: Secti on 11456, Food and Agricultural Code. Reference: Sections 14021 and 14023, Food and Agricultural Code.5 Adopt section 6880 to read:

6880. Criteria to Designate Low-Volatile Organic Compound (VOC) or High-VOC Nonfumigant Pesticide Products.

(a) The Director shall designate in the Annual VOC Emissions Inventory Report all nonfumigant products with agricultural uses containing the following primary active ingredients as low-VOC if the product has less than or equal to the produc t VOC emission potential listed below. All other products containing the primary active ingredients below with active or inactive registrations shall be designated as high-VOC.

Product Primary Active Ingredient* Product VOC Emission Potential (percent by weight )

Abamectin 35 Chlorpyrifos 25

Gibberellins 25 Oxyfluorfen 15 *If a product contains more than one active ingred ient, 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 ingred ient, including products with one or more active ingredient s present at the same percentage.

NOTE: Authority cited: Sections 11456, 12976, and 14102, Food and Agricultural Code.

Reference: Sections 11501 and 14102, Food and Agricultural Code.

Renumber section 6452.4 to 6881 and amend to read:

6452.4. 6881. Annual Volatile Organic Comp ound Emissions Inventory Report.

(a) The Director shall issue an annual emissions inventory report for the Sacramento Metro, San Joaquin Valley, South Coast, Southeast Dese rt, and Ventura ozone nonattainment areas. The emissions inventory report must:

(1) report the total agricultural and structural (fumigant and nonfumigan t) pesticide volatile organic compound (VOC) emissions for the prev ious years. Nonfumig ant 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 pr oduct used multiplied by the emission potential for that specific product and VOC emission rating for the application method, as specified in (54);

(2) evaluate compliance with the total pounds of agricultural and stru ctural VOC emissions specified in section 6452.2;

(3) establish fumigant emissions limits pursu ant to section 6452.2 for the upcoming year; (4) establish an emission rating for each fiel d 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 appl ied. The Director shall base the emission rating upon available scientific data documenting the VOC emissions.;6 (5) establish prohibitions on high-VOC nonfumigant products pur suant to section 6452.2(f), and if applicable, determine if prohibitions pursuant to sect ion 6884(c) remain in effect; (6) establish a list of the nonfumigant products th at are designated as low-VOC pursuant to section 6880;

(7) establish a list of the actively registered nonfumigant pr oducts that are designated as highVOC pursuant to section 6880.

(b) A draft emissions report shall be made av ailable to the public for comment. A 45-day public comment period will be provided to allow for submission of written statements or arguments to the Director for review before finalizing the Annual Vola tile Organic Compound Emissions Inventory Report. The emissions report wi ll be posted on the Department's Web site.

(c) Low-VOC agricultural use products regist ered after the releas e 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 designate d as low-VOC will be based upon the criteria

established in section 6880.

NOTE: Authority cited: S ections 11456, 12976, 14005, and 14102, Food and Agricultural Code.

Reference: Sections 11501 and 14102, Food and Agricultural Code.

Adopt section 6883 to read:

6883. Pest Control Adviser Recommendation Requirements in the San Joaquin Valley

Ozone Nonattainment Area.

In the San Joaquin Valley ozone nonattainment area, the operator of the property shall not apply a high-volatile organic compound nonfumig ant product specified in section 6881 during May 1 through October 31 to one of the follo wing crops unless they obtain the written recommendation of a licensed agricultural pest control adviser: alfalf a, 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.

NOTE: Authority cited: Sections 11456, 12976, and 14102, Food and Agricultural Code. Reference: Sections 11501, 12003, and 14102, Food and Agricultural Code.

Adopt section 6884 to read:

6884. San Joaquin Valley Ozone Nonattain ment Area Use Prohibitions.

Pursuant to section 6452.2(f), the following sha ll apply to agricultural uses of high-volatile organic compound (VOC) products specified in the Annual VOC Emissions Inventory Report required in section 6881 containing abamectin, chlo rpyrifos, 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 produc t that has been designated as a high-VOC pursuant to section 6880 and as specified in the Annual VOC Emissions Inventory Report7 required by section 6881 on the fo llowing crops: alfalfa, almond, ci trus, 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 at an application rate of eight 16 grams of active ingredient per acre or less.

(3) Use of oxyfluorfen products when a pplied at an application rate of 0.125 ( 1⁄8 ) pounds of active ingredient per acre or less.

(3 4 ) 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 5 ) Uses registered as a Special Local Need un der Section 24(c) of th e Federal Insecticide, Fungicide, and Rodenticide Act.

(5 6 ) Applications made by or under the direction of the U.S. Department of Agriculture, the California Department of Food and Agriculture, or county agricultural co mmissioner to control, suppress or eradicate pests.

(6 7 ) 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 effe ct until the hypothetica l 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. Th e hypothetical VOC emissions during a year of prohibitions shall be calculated for each active ingr edient used on each crop specified in section 6884. The hypothetical emissions sh all 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 i ngredient used in the current year.

The following formula represents how the hypothe tical VOC emissions described above would be calculated for each pesticide-crop combination:

Hypothetical emissions

for a pesticide-crop

combination listed in section 6884 during May-Oct for the year of prohibitions = (Emissions for the pesticide-crop combination during May-Oct for the most current year without prohibitions) x (Pounds active ingredient for the crop during May-Oct for the year of prohibitions)

Pounds active ingredient for the crop during May-Oct for the most current year without prohibitions

The total hypothetical VOC emissions will be th e summation of the hypothetical emissions for each pesticide-crop combination, pl us the actual VOC emissions for the remaining pesticides and crops not listed in section 6880.

(d)The Director can remove an active ing redient listed designated as a high-VOC in

section 6880 based on a determination that th e removal will not affect the ability to meet
the pesticide VOC benchmark specified in section 6452.2(f). The Director may propose
removal through the rulemaking process. The Director's determination shall be based on
the decrease in its use and emissions, and that the decrease is caused by factors that are8 likely to persist.

(e) The Director can remove a crop in subsect ion (a) based on a determination that the removal will not affect the ability to m eet the pesticide VOC compound benchmark specified in section 6452.2(f). The Director may remove the crop through the rulemaking process. The Director's determination to remov e a crop shall be based on the decrease in use and emissions from products specified in section 6880, and that the decrease is caused by factors that are likely to persist.

(f) Using the Annual VOC Emissions Inventor y Report process described below, the Director can add an interim exception to subsect ion (b). The exception must be based on a

determination that the addition of a specific exception to the limitation(s) in subsection (a) will not affect the ability to meet the pe sticide VOC compound be nchmark specified in section 6452.2(f). The Director's determination to allow an exception shall be based on an acceptable study that shows a greater amount (po unds per acre) of an active ingredient of a low-VOC product must be applied to achieve the same efficacy as a high-VOC product. The criteria for an acceptable stud y are specified in section 6195.

(1) The Director shall publish the proposed exception in the draft emissions report specified in section 6881(b). A 45-day public co mment period will be provided to allow for

submission of written statemen ts or arguments to the Direct or for review before finalizing the Annual VOC Emissions Inventory Report. Th e emissions report will be posted on the Department's Web site. The interim exception expires three years from the date of the Annual VOC Emissions Inventory Report.

NOTE: Authority cited: Sections 11456, 12976, and 14102, Food and Agricultural Code.

Reference: Sections 11501 and 14102, Food and Agricultural Code.

Adopt section 6886 to read:

6886

. Dealer Responsibilities for the San Joa quin Valley Ozone Nonattainment Area.

Each licensed pest control dealer of a high-volatile organic co mpound (VOC) nonfumigant product specified in the Annual VOC Emissi ons 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.

NOTE: Authority cited: Sections 11456 and 12111, Food and Agricultural Code. Reference: Section 11501, F ood and Agricultural Code.