CENTER ON RACE, POVERTY & THE ENVlRONMENT 

Mamr Dm- hcmr YSrAPV AmOctober 17,2007 

Via Electronic Mail 

Linda Irokawa-Otani, Reg&&ons Coordinator 

Department of Pesticide Regulation 

1001 I Street 

P.O. Box 4015 

Sacramento, CA 958 12-40 15 

dpr07002@cdpr.cagov 

Re: Comments on October 3,2007 Version of Draft Regulations Pedning to 

Proposed FCeld Fumigant Emissions Reduction 

Dear Ms. Irokawa-Otani: 

The Center on Race, Poverty & the Environment submits these comments on behalf of El 

Comitt para el Bienestar de EarIimart, Association of Irritated Residents, Community and 

Children's Advocates Against Pesticide Poisoning, Ventura CoastKeeper, and Wishtoyo Foundation 

(collectively "El Cornit&'). El Cornit6 are the Plaintiffs that have compeIled the Director of the 

Department of Pesticide Regulation ("DPR"'), Members of the Air Resources Board ("ARB"), and 

the Secretary of the California Enviornmental Protection Agency to keep their promise to the people 

of the State of California in the Pesticide Element of the 1994 Ozone State Implementation Plan 

("1994 SIP"'). The Center also submits these comments on behalf of California Rural Legal 

Assistance Fouudation, California Rural Legal Assistance, Inc., Californians for Pesticide Reform, 

Clean Water and Air Matter, Coalition for Clean Air, Moms Clean Air Network, and Pesticide 

Watch (collectively "Clean Air Advocates"). 

These proposed regulations, unfortunately, do not comply with the Court's Order or the 

* PROVIDING LE~L e TrcnNlc~~ MslsrAncc TO rnm GRMSROO~B MOVEMENT FOR ENVIRONM~N~AL JUSTXCC 
Ms. Linda Irokawa-Otani 

Comments on October 3,2007 Version of Draft Regulations 

October 17,2007 

Clean Air Act. Under the Order and the 1994 SIP, no later than January 1,2008, the Defendants 

have a duty to adopt, implement and submit to the U.S. Environmental Protection Agency ("EPA") 

for approval, regulations that achieve a 20% reductian of pesticide-related Volatile Organic 

Compound emissions fiom 199 I levels. Order, El Cornit4 pam el BieRestar de Eadimart v. 

Helliker,, No. 04-0882 (April 25,2006) (hereafter "Order"), attached as Exhibit 1. Furthamore, the 

Clean Air Act requires that these regulations be enforceable. State Implementation Plans 

shall include enfaceable emission limitations, and such other control measures, 

means or techniques (including economic incentives such as fees, marketable 

permits, and auctions of emission rights), as well as schedules and timetables for 

compliance, as may be necessary or appropriate to provide for attainment of such 

standard in such area by the applicable attainment date specified in this part. 

42 U.S.C. $7502(c)(6) (emphasis added); see also 741qaX2XA) (each SIP submitted by a state 

shall include "enforceable emissions limitations and other control measUtes . . . as may be necessary 

to or appropriate to meet the applicable requirements of this chapter"). 

The proposed regulations suffa fiom six deficiencies that violate the Order and the Act. 

First, the entire scheme is unenfomable by the U.S. Envirunmental Protection Agency and by 

citizens. 

Second, the entire scheme rests on (1) the manipulation of the 1991 baseline inventory using 

assumed historical methods of fumigant use; and (2) assumed compliance with the Order and the 

1994 SIP by mandating methods of fumigant use with DPR-estimated control efficiencies. In other 

words, the DPR creates a "new" baseline inventory and reduction calculations that rely solely on 

DPR estimates of the methods used. These method use adjustments are nothing more than wishful 

thinking and unsupported by the studies on which DPR relies. 

Third, the proposed regulations limit controls and inventory calculations to the May 1 

through October 3 1 time period. This seasonal approach to controk ventories is not 

consistent with the Order and the 1994 SIP, which mandate annual invent and reductions. l-- _ _ .- -- - --. - 

Fourth, the regulations create a loophole for alternative methods &use. These methods, 

approved at the discretion of the DPR Director Witlroutpnt,Iicn&cor comment, will not be 

submitted to EPA for approval. As such, any of these three-year "interim approvals" will not be 

enforceable by citizens or EPA if not approved by EPA as part of the State Implementation Plan. 

Fifth, DPR moses to pemeqtly codify the 199 1 baseline &tory in haft section 

6452.2. This, combined with DPR's di&%iw to adjust subsequent years' inventories, gives rise to 

Page 2 of 8 
Ms. Linda Irokawa-Otani 

Comments on October 3,2007 Version of Draft Regulations 

October 17,2007 

a reasonable concern, based on DPR's past bad-faith implementation of the 1994 Ome SIP, that 

DPR will manipulate inventories to avoid imposing the linnigant cq in Draft section 6452.3. DPR 

should not codifv the baseline inventory, but rather adjust the baseline along with other years' 

inventories if DPR changes its methodologies for estimating VOC emissions fbm pesticides. 

Sixth, DPR proposes to adopt Option 1 in section 6452.2, which would phase-in reductions 

in the Venm Nomttahnent Area. Neither the Order nor the Clean Air Act allow DPR to phase-in 

the mandated reductions in Ventura Unless and until EPA approves a revision to the SIP, DPR and 

ARB must comply with the Court order and the 1994 Ozone SIP. 

I. THE PROPOSED REGULATIONS ARE UNENFORCEABLE 

These draft regulations fail to meet the basic requirement that strategies designed to attain 

federal health-based National Ambient Air Quality Standards must be enforceable. 42 U.S.C. 44 

7410(aM2XA), 7502(c)(6). These draft regulations mandate pesticide users' compliance with 

certain methods of use for specific fumigants. See Draft 44 6447.3,6448.1,6449.1,6450.1,6450.2, 

and 645 1.1. The proposed regulations also mandate the DPR Director to establishes a cap, see Draft 

6452.2,' and directs County Agricultural Commissioners to apply the cap through county-issued 

permits. See Draft § 6452.3. 

Citizens and the U.S. Environmental Protection agency have no access to data to evaluate 

pesticide users' compliance with the use methods or permit. issued by County Agricultural 

Commissioners. Under record and reporting provisions in draft sections 6452.1,6624, and 6626, 

pesticide users maintain records on-site, submit Pesticide Use Reports to County AgriculW 

Commissioners, and send a copy of Pesticide Use Reports for field soil finnigant applications to 

DPR There are no provisions in these draft regulations to ensure that citizens and the U.S. 

Environmental Protection Agency have access to the records retained by pesticide users to 

determine pesticide users' compliance with the draft regulations, 

Moreover, there are no monitoring provisions that would allow for an evaluation of whether 

a pesticide user actually met the emission reductions specified for each method of fumigant use or 

'Draft 5 6452.3(c) states that if "the total allowances requested exceed an established 

firmigant emission limit, the Director will proportionally reduce each request to ensure that the 

limit is not exceedecL" (emphasis added). The Defendants argue on appeal in the U.S. Court of 

Appeals for the Ninth Circuit that the word 'kill" in the 1994 SIP is discretionary. El Cornit6 

does not agree, but requests that DPR change the 'W in section 6452.3(c) to "shall" to ensure 

that in the future, the Defendants's lawyers will not argue that the "will" is discretionsny. 

Page 3 of 8 
Ms. Linda Irokawa-Otani 

Comments on October 3,2007 Vasion of Draft Regulations 

October 17,2007 

actually complied with a Wgant emissions cap. Without monitoring of actual emissions or actual 

compliance with fumigant caps, then there is no way to determine whether a particular user actually 

complied or if those use methods yielded the desired VOC emissions reductions. The sole entities 

with the ability to evaluate actual complimce with the use methods and the fimigrmt caps are 

County Agricultural Commissioners? 

With respect to compliance with permits issued by a County Agricultural Commissioner, the 

draft regulations lack a provision which mandates that the recipient of a County-issued permit must 

comply with any emissions cap imposed pursuant to sections 6452.2 and 6452.3. These draft 

regulations only impose duties on the DPR and Agricultural Commissioners to implement a 

fumigant cap. See Draft 4 6452.3. The prohibition on a person using a Wgant that has a DPRimposed cap without a permit, see section 6452.3(a), is just not the same as mandating compliance 

with a pennit? Provisions to provide for enforcement of users' noncompliance with cap pennits 

must be included in these regulations to ensue enforceability. 

11. THE METHOD USE EaACTION AND APPLICATION METHOD ADJUSTMENT 

FACTOR METHODS ARE NOT BASED ON SOUND SCIENCE 

The method use ktion (MUF) and application method adjustment factor (AMAF) 

estimates that underlie DPR's VOC inventory calculations suffer from several, fundamental 

deficiencies: (I) the MUFs for the 199 1 and 2004 inventories do not have a factual foundation in 

PUR reports; (2) the validity of the MUFs for the 199 1 baseline inventory for all fumigants but 

1,3-dichloropropene are not vdable; (3) the field studies of AMAFs have highly variable results 

even among similar studies and are therefare manXestly highly uncertain; and (4) previous reviews 

have noted uncertainties in AMAF estimates and concluded that some AMAFs proposed by DPR 

were not conservative enough. See Memorandum from Brian Hill and Anne Katten to Brent 

Newell, dated October 17,2007, attached as Exhibit 2. 

2These regulations do not provide a funding mechanism, nor has DPR made a demonstration 

that the third-party enforcers (County Agricultml Commissioners) have the resources and legal 

authority that would support a demonstration that the state has the adequate authority and 

resources to implement and enforce these regulations. 

'Other regulations or provisions of the California Food & Ag Code may or may not mandate 

compliance with a comty-issued permit. The issue here is whether that duty may be enforced by 

citizens or the EPA as part of the State Implementation Plan. In order for the duty to comply 

with a permit to be enforceable, DPR and ARB must submit that regulatory or statutory provision 

to EPA for review and approval as part of the State Implementation Plan. 

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Ms. Linda Irokawa-Otani 

Comments on October 3,2007 Version of Draft Regulations 

October 17,2007 

The above deficiencies are important to note because DPR's strategy to meet its VOC 

reduction obligations rely principally on inventory adjustments. DPR is using these "adjustments," 

DPR o&ts large increases in pesticide use that have occurred since 199 1. 

III. THE PROPOSED REGULATIONS SHOULD APPLY YEAR-ROUND 

The method use mandates for fumigant applications and the finnigaut cap only apply from 

May lthrough October 3 1 of each year. See Draft 88 6447.3,6448,6449,6450,6451,6452.2, and 

6452.3. The Order and the 1994 SIP mandate annual reductions of VOC emissions, not seasonal 

reductions. ~ee's'iate Implementation Plan for Agricultural and Commercial Pesticides, November 

15, 1994 at 6-7 (Bates stamp 00007-00008), attached as Exhibit 3; Wells Memorandum at 1-2 

(Bates stamp 0000 17-0000 18), attached as Exhibit 4; Order at 2. As written now, there is an 

incentive for increasing fumigant use in the unrestricted months, which is inconsistent with the State 

Implementation Plan. 

IV. THE PROPOSED REGULATIONS HAVE A LOOPHOLE FOR ALTERNATIVE 

USE METHODS 

Sections 6447.3,6448.1,6449.1,6450.1,6450.2, and 645 1.1 all include the loophole 

described in section 6452 that allows the DPR Director, without any public notice or comment, to 

adopt "interim approvals" of firmigant use methods not described in 6447.3,6448.1,6449.1,6450.1, 

6450.2, and 645 1.1. See Draft $9 6452(b) and (c). The regulations provide a three-year life for such 

"interim approvals." Draft § 6452(d). 

The regulations do not call for DPR and ARB to submit these "interim approvals" to the 

EPA for inclusion in the State Implementation Plan. The regulations should be modiiied to require 

submission of "interim approvals'' to the EPA for inclusion in the State Implementation Plan. 

Absent approval by EPA, citizens and the EPA will not be able to enforce the "interim approvals." 

V. DPR SHOULD NOT PERMANENTLY CODIFY THE BASELINE INVENTORY 

Draft section 6452.2 attempts to permanently cow the baseline inventory of VOC 

emissions. Regardless of annual adjustments to the inventory specified in the proposed regulations, 

the baseline inventory will remain static. See Draft 5 6452.4. Moteover, the baseline inventory is 

measured in tons per day during the May 1 through October 3 1 time period. Both of these 

provisions are inconsistent with the Order and the Pesticide Element of the 1994 Ozone SIP. See 

State Implementation Plan for Agricultural and Commercial Pesticides, November 15,1994 at 6-7 

(Bates stamp 00007-00008), attached as Exhibit 3; Wells Memorandum at 1-2 (Bates stamp 

0000 17-0000 18), attached as Exhibit 4; Order at 2. 

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Ms. Linda Irokawa-Otaui 

Comments on October 3,2007 Version of Draft Regulations 

October 17,2007 

As set forth above in Section J.I and in the letter from Susan Kegley, et al. to Linda 

Irokawa-Otani, dated July 13,2007, DPR has manipulated the baseline inventory to include 

umupported assumptions regarding the method of use in 1991. The Draft Regulations then appear 

to take that new baseline inventory and codify porn& per year the 199 1 baseline inventory in the 

regulations. The benefit of this manoewer is threefold First, DPRpermmrentfy lowers the baseline 

invento~~.' Second, since the Order and the SIP mandate a percentage reduction from the baseline, 

DPR's Annual Volatile Organic Compound Emissions Inventory Report @raft 8 6452.4) will 

evaluate a compliance vis a vis a constMt target going fmvard.' Third, DPR will adjust the 

inventory -but not the baseline inventory - on an aunual basis by adjusting the "emission potential" 

of each pesticide product as well as the "emission rating" for each field -gation method of use. 

This system is prone to abuse by DPR, one of the agencies that has already been found in violation 

of the Clean Air Act based on manipulation of the inventory in order to avoid adopting regulations 

in 1997. See Memorandum from Mark PeppIe to Paul Gosselin, February 13,1997 (Bates 100345- 

100356), attached as Exhibit 6; El Comi&?para el Bienestar de Earlimart v. HelliRer, 416 F.Supp.2d 

912,923,933-934 (ED. Cal. 2006). In other words, DPR could be faced with a reduction shortfall 

and the political train-wreck of a potential fumigant cap in section 6452.3, but then exercise the 

discretion in section 6452.4 to produce an annual inventory report that change "emission potentialn 

and fimigant "emission ratings" to produce an inventary that magically complies with the constant 

tons per day target. Based on what DPR did in 1997 to avoid adom regulations, it is more than 

reasonable for El Cornit6 to question DPR's good faith impIementation of these draft regulations 

and the political will of the leaders of DPR and ARB members to do the right thing.6 

If the DPR is going to annually adjust the inventories with the discretion to change 

"emission potentialn and fumigant ''emission ratings," then DPR should also adjust the 199 1 

'Compare Draft 6452.2(a) with Memorandum from John Sanders to Tamara L. Roush, dated 

October 24,2006 at 2 ("Sanders Memo"), attached as Exhibit 5. For example, the draft 

regulations lower the baseline inventory for the San Joaquin Valley Nomttainment Area b 

22.3 tons per day to 16 tons per day and the baseline inventory for the Ventura Nonattainrnent 

Area from 3.9 tons per day to 2.6 tons per day. 

'For example, since Draft § 6452.2 codifies 16 tons per day for the San Joaquin Valley, 

compliance dl be measured against a 20% reduction fhm that '%benchma&" or 12.8 tons per 

day- 

'Indeed, members of the ARB voted recently to revise the 1994 SIP for Ventura because of 

strawberry gram' claimed inability to comply with the Order and the 1994 SIP. Both DPR and 

ARB suffer f?om a lack of political will to keep their promises in the face of industry opposition. 

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Ms. Linda Irokawa-Otani 

Comments on October 3,2007 Version of Draft Regulations 

October 17,2007 

baseline and the targets that the five nomttabment areas must achieve. Keeping the 1991 baseline 

the same while adjusting all subsequent inventories runs counter to the plain meaning of the 1994 

SIP, as well as DPR's historical inventory adjustment practice since the adoption of the 1994 SIP. 

vI. THE REGULATIONS MUST APPLY WITH EQUAL FORCE TO THE VENTURA 

NONATTAINMENT AREA 

Draft section 6452.2 presents two options that relate to the Ventura Nonattainment Area. 

Option 1 would allow for a phase-in of the reductions required by the Order and the 1994 Ozone 

SIP. DPR proposes Option 1 to aid strawbeny growers whose emissions of VOC hm finnigants 

have increased drastically since adoption of the 1994 SIP. See Sanders Memo, attached as Exhibit 

5. The ARB adopted this phase-in between 2008 and 2012 as a SIP revision to the State 

Implementation Plan on September 27,2007, despite the comments and objections by El Cornit6 

and several other air quality advocates. Option 2, in contrast, does not pmpose a phase-in for 

Ventura. 

DPR should adopt Option 2. DPR and ARB cannot unilaterally change the terms of the 

federally-enforceable SIP. A "SIP 'once adopted by a state becomes controlling and must be carried 

out by the state. "' Bayview Hunters Point Communirl, Advocates v. Metropolitan Transporttatwn 

Commission, 366 F.3d 692,695 (9th Cir. 2004), quoting Friends of the Earth v. Carey, 535 F.2d 

165, 169 (2nd Cir. 1976). California may submit a SIP revision to the U.S. EPA to change the 1994 

SIP for Ventura, but EPA cannot approve a revision if the revision will interfere with any applicable 

requirement concerning attainment, reasonable further pmgress, or any other applicable requirement 

of the Act. 42 U.S.C. $5 7410(a), 7410(1). In all other circumstances, however, DPR and ARB are 

''relegated to a lone option: compliance." F* of the Earih, 535 F.2d at 178. 

Unless and until the EPA approves the Ventura SIP revision as consistent with the Clean Air 

Act, including section 1 IN), 42 U.S.C. 5 7410(1), the regulations must mandate a 20% reduction 

from the 199 1 baseline inventory by January 1,2008 in Ventura County. 

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Ms. Linda Irokawa-Otani 

Comments on October 3,2007 Version of Draft Regulations 

October 17.2007 

VII. CONCLUSION 

For the reasons stated above, El Comitk and Clean Air Advocates urge DPR to reW from 

adopting these Draft Regulations and to incorporate revisions to the regulations and the inventory 

consistent with these comments. Thank you. 

~rentbdwell Paul Schramski 

Center on Race Poverty & the Environment Pesticide Watch 

Attorney for El Comitt 

Anne Katten, MPH Renee Nelson 

California Rural Legal Assistance Foundation Clean Water and Air Matter 

Michael Meuter Tracey Brieger 

California Rural Legal Assistance, hc. Californians for Pesticide Reform 

Luis Cabrales 

Coalition for Clean Air 

Lisa Kayser-Grant 

Moms Clean Air Network 

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