January 15,2009

Via U.S. Mail andElectronic Mail

Mary-Ann Warmerdam, Director Department of Pesticide Regulation 1001I Street Sacramento, CA 95812

Re: Comments on Proposed Amendments to Section 6452.2 and Proposed Revision to the Pesticide Element ofthe California State Implementation Plan

Dear Ms. Warmerdam:

These comments are submitted on behalf ofthe Center on Race, Poverty and Environment, California Rural Legal Assistance Foundation, Pesticide Action Network North America and the below listed member groups of Californians for Pesticides Reform and additional organizations.

In 1994 and again in 1996,the Department of Pesticide Regulation ("DPR") and the Air Resources Board ("ARB) promised to reduce low-level ozone pollution - also known as "smog" -in Californiaby reducing, inter alia, pesticide-related volatile organic compound ("VOC") emissions. EPA approved these promises into the State Implementation Plan ("SIP") as described in the November 15, 1994 Pesticide Element and the June 13, 1996letter f?om James Boyd to David Howekamp ("Howekamp Letter"). See

### El Comitipara elBienestar deEarlimart v. Warmerdam, 539 F.3d 1062, 1070 (9th Cir. 2008).'

We call on you to honor those promises. There is no basis whatsoever in either the Pesticide Element or in the Howekamp Letter to proceed as your staff have proposed. We therefore call on you to decline to adopt the proposed amendment to section 6452.2 and the proposed State Implementation Plan revision for the reasons set forth below.

I. The Proposed Regulation Violates the State Implementation Plan.

DPR's proposed amendments to section 6452.2 (hereafter "proposed regulation") violate the SIP in three important respects. First, the proposed regulation includes a benchmark for the San Joaquin Valley nonattainment area that oqly reflects a 12% reduction from 1990levels, instead of the 20% reduction from 1990 levels to which DPR and ARB committed in the Howekamp Letter. Second, the proposed regulation seeks to delay imposition of fumigant emission limits until 201 1, which violates the SIP because



## ' This decision is not yet final, as a Petition for Rehearing with a Suggestion for Rehearing en Banc is pending at the Ninth Circuit Court of Appeals. The Plaintiffs-

, Appellees respectfully disagree with the decision.such reductions were to occur by 2005. Third, the proposed regulation violates the SIP because the 1994Pesticide Element commits to year-round reductions, not only reductions duringthe so-called ozone season.

ShouldDPR finalize the proposed regulation under pressure from pesticide users and manufacturers, then members ofthe public will likely file a lawsuit authorized by Congress against DPR in Federal District Court to enforce the terms of the Howekamp Letter. DPR mistakenly believesthe proposed regulation is necessary to mitigate the economic burden on those who use and sell pesticides. DPR's duty is to honor the promises in the SIP and protect public health, not the economic interests of pesticide users and merchants. The public overwhelmingly supports strongmeasures to clean up air pollution in the Valley: 59% of Central Valley residents surveyedby the Public Policy Institute of California supportmore stringent regulation of agricultural air pollution.2

A. 

### The Proposed Regulation Violates the State Implementation Plan because the SIP requires a 20% reduction from 1990 levels by 2005 in the San Joaquin Valley, and DPR proposes a mere 12% reduction.

DPR's Initial Statementof Reasons incorrectly states that the 1994 Ozone SIP requires a 12%reduction from 1990 levels in the San Joaquin Valley, and cites to the preamble of EPA's final rule approving that SIP. ISOR at 2, citing 62 Fed. Reg. 1 150, 1170 (Jan. 8, 1997). The ISOR fails to cite any provision of the SIP itselfthat purports to only require a 12%reduction in the Valley.

Under the Ninth Circuit's decision that vacated the district court order referenced in the ISOR, EPA's preamble has no interpretativevalue when the plain language of the SIP is unambiguous. El Comitepara elBienestar de Earlimart v. Warmerdam, 539 F.3d 1062, 1070(9th Cir. 2008). When the Ninth Circuit held that the "Wells Memorandum"

was not in the SIP, the Ninth Circuit recognized that the Howekamp Letter was in the SIP. Id. at 1071. The Howekamp Letter requested that EPA delete the table "Reductions from 1990Pesticide EmissionsBaselines," stated that the pesticide "commitment is for a 20% reduction from 1990 levelsby 2005 in each SIP area, except [San Diego]," and stated "we only took credit in the attainment year: SJV 1999= 12%, Sac 2005 = 20%' Ven 2005 = 20%' SED 2007 =20%, SC 2010 = 20%." Letter from James Boyd to David Howekamp dated June 13, 1996("Howekamp Letter") at A-2, attached as Exh. 2.

The plain language of the Howekamp Letter, codified as part of the SIP at 40 C.F.R. $ 

### 52.220(~)(236)(i)(A)(l), confers a federally-enforceable commitment upon DPR to achieve a 20% reduction by 2005 in the valley? EPA has recently interpreted the

Public Policy Institute of CaliforniaStatewide Survey: Californiansand the Environment,July 2008 at 11, attached as Exh. 1. 

## 'Indeed, DPR's interpretation of the SIP advanced in this proposed rulemaking directly contradicts DPR's litigation position in the Ninth circuit, where DPR argued that the Howekamp Letter was the operative SIP document and that the Court should not rely onPesticide Element to impose a dual obligation on DPR to achieve the percentage reduction and the tonnage used in the 1994 Ozone SIP'S attainment demonstration for the Valley (13 tons per day in 1994 SIP currency 1999~).

The EPA's proposed and final rules approving the Ventura Pesticide SIPrevision interprets the pesticide commitmentin the 1994 Ozone SIP. See 73 Fed. Reg. 21885, 21886 (Apr. 23,2008); 73 Fed. Reg. 41277,4 1281 (July 18,2008). EPA states that the commitment is to adopt any rules necessary by June 15, 1997 to achieve a percentage reduction in 2005 and a tonnage reduction in the attainment year. 73 Fed. Reg. at 41281 ("our interpretation of the original Pesticide Element commitment 

### as having both a tonnage reduction commitmentin addition to the percent reduction commitment"). EPA then describes the commitment as includingthat June 15, 1997 date to adopt "any regulations necessary." Id.

Under the original Pesticide Element, for the Ventura County nonattainment area (Ventura), the California Department of Pesticide Regulation (DPR) committed to adopt and submit to EPA by June 15, 1997, any regulationsnecessary to reduce VOC emissions from agricultural and structural pesticidesby 20 percent of the 1990base year emissions by 2005.

Id. at 41277. EPA also explained what makes the pesticide strategy enforceable.

Commenters and EPA both agree that the State's SIP commitment (from the 1994 Ozone SIP) with respect to VOC emissions reductions from use of pesticides in Ventura County is defined in terms of percent reduction from base year emissions.The point of disagreementis that EPA states in the proposed rule that the commitment is a two-fold commitment defined in terms of both a percent reduction and atonnage reduction.

Our interpretation of the original Pesticide Element commitment as having both a tonnage reduction commitment in additionto the percent reduction

, commitment rests on general and specific grounds. First, EPA has traditionally found committal measures, such 

### as the commitmentto reduce VOC emissions in the Pesticide Element of the 1994Ozone SIP, to be enforceable, and thus approvable, only if such measures identify the responsible party, adoption dates for rules, implementation dates, and emissions reductions in terms of emissions rates (such as tons per day) equal to the credit taken in the RFP or attainmentplan for the committal measure. The tonnage specification provides the essential linkbetween the committal measure and the RFP or attainment demonstration. See the general discussion of committal measures in EPA's final rule approving

EPA's language in the preamble ofthe final rule. DPR now cites the preamble for the claim that the pesticide commitment for the Valley is 12%from 1990 levels. ISOR at 2.

62 Fed. Reg. 11 50, 1169-1170 (Jan. 15, 1997).the 1994 Ozone SIP at 62 

### FR 1 150 (January 8, 1997), at 1155-1 157, and the specific discussionofthe committal measures submitted as part of the 1994 Ozone SIPat 1 157, column 

### 3. In this case, the tonnage commitment (for 2005) links the original Pesticide Element commitment to the approved attainment demonstration for Ventura County. Each specific element of a committal measure, once the measure is approvedby EPA, is considered to be enforceable. Thus, we believe that EPA would not have found the original Pesticide Element commitment for Ventura approvable unless the measure includedthe 2.37 tons per day reduction in pesticide VOC emissionsin 2005 that was credited to the measure in the 1994 Ozone SIP.

Id. at 41281.

The plain language of the Howekamp Letter states that the pesticide commitment is for a 20% reduction from 1990 levels by 2005 in each SIP area, except San Diego. We fully expect DPR to honor this commitment.

B. The Proposed Regulation Violatesthe State Implementation Plan because the SIP Requires Reductions by 2005, not 2011.
The proposed regulation violates the SIPby deferring the imposition of fumigant emission limits to 201 1, instead ofmaintaining the current 2008 implementation. As written, the SIP requires a 20% reduction in all areasby 

### 2005. Howekarnp Letter at A-2, attached as Exh. 2. Deferral of the backstop if fumigant use restrictions fail will allow

more VOC emissions than the SIP allows.

DPR shouldhave adopted these regulations in 1997, and achieved the reductions by 2005. The proposed regulation reflects a pattern and practice by DPR of delay and inaction instead of protecting public health. DPR should implementthe fumigant emission limits 

### now and not defer the already late implementation until 201 1. We therefore call on DPR toremove language from the proposed regulation that defers the limitsto 20 11.

C. The Proposed Regulation Violates the State Implementation Plan because DPR Restricts Applicability of Fumigant Emission Limits to the May 1to October 31 Time Period.
The fumigant emission limits areproposed for only May 1 through October 

### 31of each year. See Draft § 6452.2. The 1994 SIP mandates annual reductions of VOC emissions, not seasonal reductions. See State Implementation Plan for Agricultural and Commercial Pesticides,November 15, 1994at 6-10, attached as Exh. 3. As written now, there is an incentiveto increase fumigant use in the unrestricted months, which is inconsistent with the State Implementation Plan. Moreover, pushing fumigant use intothe winter months will increaseVOC emissions that contributeto fine particle pollution (~~2.5).~

11. The Proposed State Implementation Plan Revision Interferes with Attainment of the 

### 1-Hour Ozone Standard.

DPR proposes a substantial revision to the SIP, which EPA may not approve unless EPA finds that the revision does not interferewith attainment, reasonablefurther progress, or any other requirement of the Act. See42 U.S.C. $ 7410(1). Even though EPA has rescinded the 1-hourstandard, all mandatory and discretionary measures to attain the 1-hour standard remain in place subject to section 1 lO(1) of the Act. See 69 Fed. Reg. 2395 1,23972-23974 (April 30,2004); see also South Coast Air Quality Management District v. U.S. E.P.A., 472 F.3d 882 (D.C. Cir. 2006). DPR has made no effort to demonstrate that the SIP revision,includingthe proposed deferral of fumigant emission limits in section 6452.2, will not interfere with any requirement associatedwith the 1-hourozone National Ambient Air Quality ~tandard.~

111. The Proposed State ImplementationPlan Revision Relies on Control Strategies that are not SIP-Approved Rules.

EPA has not approved the 2008 fumigant regulations as a part ofthe SIP. Moreover, DPR does not plan on submittingthe proposed regulation to EPA for inclusion in the 

### SIP.' The failure of DPR to include the adopted strategies 

### in the SIP violates the Clean Air Act, which mandates that any controlmeasures to attain the National Ambient Air Quality Standards must be part of the SIP.

One of the fundamental principles of the Clean Air Act is that State Implementation Plans must contain the emission limitations and control measures to provide for attainment of the health-based NAAQS by the applicable deadline, provide reasonable further progress, and comply with any other applicable requirement ofthe Act. 42 U.S.C. $$ 74IO(a)(2)(A), 7502(c)(6). In addition, California must demonstrate that "the plan, as

VOC is not only an ozoneprecursor, but also a fine particle (PM2.5 precursor)which ARB and the San Joquin Valley Unified Air Pollution Control District included as a PM2.5 precursor in the 2008 SanJoaquin Valley PM2.5 Attainment Plan. See 2008 PM2.5 Plan, Appendix F, attached as Exh. 4. DPR has made no effort to demonstrate that increasing VOC emission in winter months will not interferewith attainment, reasonable further progress, or any other requirement related to PM2.5, as requiredby section 1 lO(1) of the Act, 42 U.S.C. $ 7410(1). Deferring the fumigant emission'limitsin section 6452.2until 201 1 dire~tly interferes with attainment of the I-hour standard in the San JoquinValley, which has a November 15, 2010 attainment deadline as an extreme 1-hourozonenonattainment area. In order to attain by that deadline, the Valley must not have more than one violation per year per monitoring station (averaged over the three year period preceding the deadline). 

## 'Phone conversation with Polly Frenkel, DPR Counsel, and Brent Newell, dated November 17,2008.revised, will provide for attainment of the ozone national ambient air quality standard" by the deadline for an extreme area. 42 U.S.C. 

## 8 75 1 1 a(c)(2)(A). Section 182(b)(l)(C) mandates that "emissions reductions are creditable



## . ..to the extent that they 

### have actually occurredfrom the implementation ofmeasures required under the

### applicable implementation plan, rules promulgated by the Administrator, or a permit under subchapter

### V of this chapter." 42 U.S.C. 

## 5 751la(b)( l)(C) (emphasis added).

EPA's regulations implement the requirements of the Act and echo its mandates. Already-adopted regulations on which a plan reliesmust be included in theplan itself. "Revisions of a plan, or any portion thereof, 

### will not be consideredpart ofan applicable plan until such revisions have been approvedby the Administrator in accordance with this part."9 40 C.F.R. 

## 8 5 1.105 (emphasisadded). "Each plan must demonstrate that the
measures, rules, and regulations contained in it are adequateto provide for the timely attainment and maintenance ofthe national standard that it implements." 40 C.F.R. 

## 5 5 1.112(a). EPA's regulations plainly require that

Emission limitations and other measuresnecessary for attainment and maintenance of any national standard, including any measures necessary to implement the requirements of subpart L must be adopted as rules and regulations enforceable by the State agency. 

### Copiesofall such rules and regulationsmust be submitted with the plan.

40 C.F.R. 

## 8 51.281 (emphasis added).

The General Preamble, EPA's guidance on implementationofTitle I of the Act, further demonstrates that the state's already adopted measures must be submitted to EPA and included in the State ImplementationPlan in order to satisfy the requirements of the Act.

One purpose of a SIP isto perform demonstrations of how various goals will be achieved. These goals are of three types: Attainment of the NAAQS, maintenance ofthe NAAQS once attainment occurs, and prescribed rates of progress. 

## . . .These assumptions, control strategies, and measures are developed as necessary to meet the attainment objectives for the area and the Act's requirements

### (e.g.RACT). These assumptions and

measures are key components of the SIP. It is importantto note that projections of the effect of planned air pollution control measures



## '"The term 'applicable implementation plan' means the portion (or portions) of the implementation plan, or most recent revision thereof, which as been approved under section 7410 of this title, or promulgated under section7410(c) of this title, or promulgated or approvedpursuant to regulations promulgated under section 7601 (d) of this title and which implements the relevant requirements of this chapter." 42 U.S.C. 

### 3 7602(q).

"Plan means animplementation plan approved or promulgated under section 110of 172 of the Act." 40 C.F.R. 

### 3 51.100Cj) ("1 10 of 172" in original).contained 

### in the SIP'S are not merely assumed but are enforced 

### by regulationsadoptedaspart ofthe SIP. Therefore, ifthe control measures are not implemented sufficiently to result in requiredreductions, the State

or local agency, or EPA, can take actionto enforce implementationof the regulations. Thisprovides a means of achieving, at least, in part, the goals of attainment and f?urther progress required in the Act.

57 Fed. Reg. 13498, 13567 (April 16, 1992)(emphasis added).

The General Preamble sets forth what it calls four "fundamental principles for SIPS": SIP measures must be quantifiable,enforceable, replicable, and accountable. Id. at 13567-13568. These principles apply to all SIPSand control measures. Id. at 13568. Of importance here, the second principle (enforceablemeasures) means that the measures

are "duly adopted, and specify clear, unambiguous, and measurablerequirements." Id. "A legal means for ensuring compliancemust also exist for a measure to be enforceable." Id. The practicality of determining complianceis a factor. "A regulatory limit is not enforceable if, for example, it is impractical to determine compliance with the published limit." Id. EPA fixher explainsthe concept of enforceability

### in the General Preamble:

In general, for a SIP regulationtobe enforceable, it must clearly spell out which sources or source types are subjectto its requirements and what its requirements (work practices, emission limits, etc.) are. The regulation also needs to specify the time frameswithin which these requirements must be met, and must definitively state recordkeeping and monitoring requirements appropriateto the type of sources being regulated. The recordkeeping and monitoringrequirements must be sufficient to allow determinations on a continuing basis whether sourcesare complying. An enforceable regulation must also containtest procedures in order to determine whether sources are in compliance.

Id. at 13502.

The Proposed SIP Revision also relies on DPR's discretionary authority to impose restrictions on non-fumigants and on total VOC emissions from pesticides to ensure that Valley emissions do not exceed a specific level of emissions. See Attachment A, Department of Pesticide Regulation Proposed SIP Commitmentof San Joaquin Valley ("Attachment A") at 1-2. Those provisions of state law have not been submitted to EPA for inclusion in the SIP nor have they been approved by EPA as a part ofthe SIP. These

measures must be enforceable and in the SIP, and not merely in the sole discretion of DPR.



### IV. 

### The Proposed SIP Revision is Unenforceable.

The Proposed SIP revision does not commit to achieving any tonnage reduction from fumigant or non-fumigant regulations. By its own terms, the Proposed SIPrevision leaves the total tonnage at the discretion ofDPR. The "measure may provide more orless reductions than the amount shown." Attachment A at 2. Under the terms of the Proposed SIP revision, the "commitment" isnot an enforceable commitment, but a

measure to achieve reductions at DPR's unfettered discretion.



### V. The Proposed Regulation should Account for EPA Action to Define Methyl Bromide or other Pesticide Products as Non-VOC.

Currently pending before the EPA is a petition by 

### an industry group to delist methyl bromide as a VOC." We are concerned that the proposed regulation's use of a tonnage benchmark rather than a percentage of the 1990base year emissions will allow DPR to claim that the target has been met if EPA grants the methyl bromide petition. In other words, removing methyl bromide from the inventorywould reduce the tons per day emitted in the five air basins and create the impression that emissions targets have been met.

To maintain the integrity of the 1994 Pesticide Element, any deletion of a pesticide product from the definition of VOC should also remove that product's emissions from the base year inventory. Thus, deletionof methyl bromide won't create a statistical lie: keeping the fixed benchmark which was calculated using methyl bromide in the base year. Since changing the VOC-exempt list is a realistic possibility, and since it would have a dramatic effect on both the baseline inventory and all subsequent years, any new SIP language should anticipate such changes and plan for them. We suggest the following language be incorporated into the SIP:

If the U.S. Environmental ProtectionAgency takes final action to list any pesticide or pesticide ingredient (active or inert) asVOC-exempt, for example methyl bromide or MITC, then within 30 days of such final action DPR shall recalculate the 1990 baseline inventory and corresponding emission limitation to eliminate the amount of VOC that the pesticide contributed in the base year inventory.

Furthermore, the estimates of VOC emissionsare affectedby a wide variety of factors, each with uncertainties, and each of which are in a process of ongoing refinement. For example, the emissions potentials (EPs) are regularly revised. Examples and details which might make these points are footnotedbelow."

'O Petition by Chemturato EPA, dated August 16,2007, attached as Exh. 5. 11 As a major, non-hypothetical example, suppose the commitment to reduce emissions in the San Joaquin Valley is frozen at 18.1tons per day, as DPR proposes in 6452.2(a) and the proposed SIP revision. Suppose that subsequently U.S. EPA lists methyl bromide as a non-contributor (exempt compound) for VOC formation. This will abruptly and substantially reduce the VOC inventory for any year under consideration. However, if the base year "benchmark" is fixed at 18.1tons per day and it is not recalculated based on this exemption, a non-meaningful tonnage reduction will appear to have been achieved. DPR has suggested it would propose a SIP revision to correct this, despite having very little incentive to do so and a well-established track record of delay and inaction.One of the key principles of the commitment to reduce VOC emissionsto a below 80% the base year, is to calculate the base year and subsequent years using the same methodology and factors. This means retrospectively adjusting the estimate ofVOCs emitted in the base year. While ithas been suggested that this is confusing, to do anything else immediately introduces non-comparable calculations. Non-comparable calculations render the concept of a percentage reduction far less meaningful and invites "compliance" arguments based on illusory "reductions."

In summary, regulations and the SIP should confirm that the base year, the reduction targets (80% ofthebase year) and subsequent years will always be compared using the same methodology and factors.

VI. Conclusion.

Weurge DPR to retain the current 20% reduction requirement in the San Joaquin Valley, to not defer the impositionof fumigant emission limits to 20 11, and torequire annual reductions ofpesticide-relatedVOC. DPR has an over-due obligationto regulate pesticide VOC emissions and should honor its promise to Californians.

Sincerely,

Brent Newel1 Dr. Brian Hill, Ph.D. Center on Race, Poverty & the Environment PANNA

Anne Katten CRLA Foundation

Frequent SIP revisions to change benchmarksbased onnew EPs or new U.S. EPA listings of VOC exempt compoundswould not be an efficient process and take years to complete.

As a more minor example, but one which will repeatedly affect the calculations as new EP data comes in, supposethat the EP of any ofthe hundreds of pesticide formulations is revised, and the formulation in question was used in both the base year and the present year. If the benchmark is frozen at 18.1tons per day, and the new estimate is applied to the present year, another illusory, non-meaningful percentage change will appear. This will look like a setback iftherevised EP ishigher, and look like progress if the revised EP is lower.Martha Dina Argiiello Executive Director Physicians for Social Responsibility- Los Angeles Los Angeles, CA

Davis Baltz, M.S. Special Projects Advisor Commonweal Bolinas CA

Jose T. Bravo Executive Director Just Transition Alliance Chula Vista, CA

Barbara A. Brenner Executive Director Breast Cancer Action San Francisco, CA

Luis Cabrales Senior Campaign and Outreach Associate Coalition for Clean Air Los Angeles, CA

Caroline Cox Research Director Center for Environmental Health Oakland, CA

Teresa Deanda Founder/Director El Comitepara el Bienestar de Earlimart Earlimart, CA

Christopher Gavigan Executive Director Healthy Child Healthy World Los Angeles, CA

RenC L. Guerrero Legislative Advocate Planning and Conservation League Sacramento, CA Bill Magavern Director Sierra Club California

Rosenda Mataka GraysonNeighborhood Council Grayson, CA

M. Suzanne Murphy Executive Director Worksafe, Inc. Oakland, CA

Renee Nelson President Clean Water and Air Matter (CWAM) Bakersfield, CA

Joan Poss Secretary FresCAMP (Fresno Coalition Against the Misuse of Pesticides) Fresno, CA

Jeanne Rizzo, R.N. President and CEO Breast Cancer Fund San Francisco, CA

Yarnmilette G. Rodriguez Central Valley Regional Director Latino Issues Forum Fresno, CA
Sarah Sharpe Environmental Health Director Fresno Metro Ministry Fresno, CA

Scott Smithline Director of Legal and Regulatory Affairs Californians Against Waste Sacramento,CAMary Milner Haffner Board member Community and Children's Advocates Against Pesticide Poisoning (CCAAPP) Ventura, CA

Kevin D. Hamilton,RRT,RCP Founding Member: Medical Advocates for Healthy Air Fresno, CA

Isabelle Jenniches Co-founder: StopTheSpray.ORG Carmel Valley, CA

Rey Leon Executive Director Latino Environmental Advancement and Policy Institute (LEAP) Fresno. CA

Linda MacKay President TriCounty Watchdogs Grapevine Region along Interstate 5 Executive Director California Institute for Rural Studies Davis, CA

Paul SchramskiTowers Pesticide Watch Sacramento,CA

Mitzi Shpak Executive Director Action Now Los Angeles, CA
Ron Sundergill Pacific Regional Director National Parks Conservation Association. Fresno, CA
Mily Trevino-Sauceda Executive Director Lideres Campesinasde California Pomona, CA

Andria Ventura Program Manager Clean Water Action California



### Nan Wishner Stop the Spray East Bay Oakland/Berkeley,CA