### CENTER ON 

## RACE, POVERTY 

### & THE ENVlRONMENT

Mamr Dm- hcmrYSrAPV AmOctober 17,2007
ViaElectronic 

### Mail
Linda 

### Irokawa-Otani, Reg&&ons Coordinator Department ofPesticide Regulation 1001

### I Street P.O. Box 4015 Sacramento, CA 958 12-40 15 dpr07002@cdpr.cagov


### Re: Comments on October3,2007 

### Version ofDraft 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 AdvocatesAgainst 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 CaliforniaEnviornmental 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 CaliforniaRural Legal AssistanceFouudation, California Rural Legal Assistance, Inc., Californiansfor PesticideReform, 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 MOVEMENTFOR 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 

### submitto 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 Cornit4pam elBieRestardeEadimart 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 

### asfees, 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 submittedby 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 

### suffafiom six deficienciesthat violate the Order and the Act. First, the 

### entire scheme is unenfomable by the U.S. EnvirunmentalProtection Agency and by citizens. Second, the entire scheme 

### rests on (1) the manipulation of the 1991 baseline inventory using assumedhistorical 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 estimatesof 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 calculationsto the May 1 through 

### October 

### 31 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 alternativemethods &use. These methods, approved at the discretion ofthe DPR DirectorWitlroutpnt,Iicn&cor comment, will not be submitted to EPA 

### for approval. 

### As such, any ofthese three-year 

### "interim approvals" 

### will not be enforceable by citizens or 

### EPA ifnot approvedby EPA as part of the State Implementation Plan. Fifth, DPR moses to pemeqtly codifythe 1991baseline &tory in 

### haftsection 6452.2. This, combined with DPR's 

### di&%iw to adjust subsequentyears' inventories, gives rise to Page 2 of 8Ms. 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 ofthe 1994Ome 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 changesits methodologies for 

### estimating VOC emissions 

### fbmpesticides. Sixth, DPR proposes to adopt Option 1 

### in section 6452.2, which would phase-in reductions in the

### VenmNomttahnent Area. Neither the 

### Order nor the Clean 

### Air Act 

### allowDPR 

### to phase-in the mandatedreductions 

### in Ventura Unless and 

### until EPA approves a revision 

### to the SIP, DPR 

### and ARB must comply with the Court order and the 1994Ozone 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 CountyAgricultural 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' compliancewith the use 

### methods or permit. 

### issuedby 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 CountyAgriculW Commissioners, and send a copy ofPesticide

### Use Reports for field 

### soil finnigantapplicationsto DPR 

### There 

### are no provisions 

### in these 

### draftregulations 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 ofwhether a pesticide user actuallymet the emissionreductions specified for eachmethod 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 requeststhat DPR change the 'Win 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 ofDraft Regulations October 17,2007
actually complied

### with a Wgantemissions cap. Without monitoring of actual emissions or actual compliancewith 

### fumigant caps, 

### thenthere 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 complimcewith 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 imposedpursuant 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 Wgantthat has a DPRimposed cap without a 

### permit, see section 6452.3(a), 

### isjust not the same 

### as 

### mandating compliance 

### with a pennit? Provisions to provide for enforcement ofusers' noncompliance with cappennits 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) estimatesthat underlie DPR's VOC inventory calculations 

### suffer from 

### several, fundamental deficiencies: 

### (I) the 

### MUFs forthe 

### 1991 and 2004 inventories do not have a factual foundationin 

### PUR reports; (2) the validity ofthe MUFs for the 1991baseline inventory for all fumigantsbut 1,3-dichloropropene 

### are not vdable; (3) the field 

### studies ofAMAFs have highlyvariable results even among similar 

### studies and 

### are therefare manXestly highly uncertain; and (4) previous 

### reviews have noted uncertainties 

### in AMAF estimates 

### and concluded 

### that someAMAFs proposed 

### by 

### DPR were not conservative enough. SeeMemorandum 

### from Brian 

### Hill and 

### Anne Kattento Brent Newell, 

### dated 

### October 17,2007, attached asExhibit 2.

2Theseregulations 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 authoritythat would support a demonstration that the state has the adequate authority and resources to implement and enforce these regulations. 'Other regulations or provisions ofthe CaliforniaFood &Ag Code may or may not mandate compliance with a comty-issuedpermit. 

### 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 statutoryprovision to 

### EPA for 

### review 

### and approval 

### aspart ofthe State ImplementationPlan. Page 4 of 8Ms. 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 strategyto meet its VOC reduction obligations rely 

### principally on inventory 

### adjustments. DPR 

### is using these "adjustments," DPR o&ts large 

### increasesin pesticide 

### use that have occurred since 1991.


### 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 

### 31of 

### each 

### year. See 

### Draft 

## 88 6447.3,6448,6449,6450,6451,6452.2, and 6452.3. The Order and the 1994 

### SIP mandate annualreductions 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 000017-000018), attached 

### as Exhibit 4; 

### Order at 2. 

### As 

### written now, there 

### is 

### an incentive for increasing 

### fumigant use in the unrestrictedmonths, which is inconsistent

### with the State ImplementationPlan.


### 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 submissionof 

### "interimapprovals'' to the 

### EPA for inclusion 

### in the State ImplementationPlan. 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 duringthe May 1

### through 

### October 3 1time period. Both ofthese provisions 

### are inconsistent

### with the Order and the Pesticide Element of 

### the 

### 1994 Ozone SIP. See StateImplementation Plan for Agricultural and Commercial Pesticides, November 15,1994 at 6-7 

### (Batesstamp 00007-00008), attached as Exhibit 3; Wells Memorandum at 1-2 (Bates stamp 000017-000018), attached as Exhibit 4; Order at 2. Page 5 of 8

### 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 letterfrom 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 codifyporn& per year the 199 1baseline inventory in the regulations. The benefit ofthis 

### manoewer is threefold 

### First, DPRpermmrentfy lowers the baseline invento~~.'Second, since the Order and the 

### SIPmandate 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 basisby 

### adjustingthe "emission potential" of each pesticide product 

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

### This system 

### is prone to abuseby DPR, 

### one of the agencies that has alreadybeen found in violation of the Clean Air Act based on manipulationof 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 elBienestar

### de Earlimart v. 

### HelliRer, 416 F.Supp.2d 912,923,933-934 (ED. Cal. 2006). 

### In other words, DPR couldbe faced with 

### a reduction shortfall and the political 

### train-wreck of a potential 

### fumigantcap in section 6452.3, but then exercise the discretion 

### in section 6452.4 to produce 

### an annual inventory reportthat change "emission potentialn and fimigant "emission ratings" to produce 

### an inventarythat magically complies 

### with the constant tonsper day

### target. 

### Based on 

### what DPR did in 1997to avoid 

### adomregulations, it is more than reasonable for El Cornit6 to question DPR's good faith impIementation ofthese draft regulations and the political will ofthe leadersofDPR and 

### ARB members 

### to do the right thing.6


### If the DPR is going to annually 

### adjust the inventorieswith the discretion to change "emission potentialn and fumigant ''emission ratings," then DPR should 

### also adjust the 1991

'Compare 

### Draft 6452.2(a) with MemorandumfromJohn Sanders

### to 

### Tamara

### L. Roush, dated October 24,2006 at 2 ("Sanders Memo"), 

### attachedas Exhibit 5. For example, the draft regulations lower the baseline inventoryfor the 

### San Joaquin Valley Nomttainment Area 

### b 

### 22.3 tons per day to 16tons 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 16tons 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 ofthe 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 ofpolitical will to keep theirpromises in the face of industry opposition. Page 6 of 8

### 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 1991baseline the same while adjusting all subsequent inventories 

### runs counterto the plain meaning of the 1994 

### SIP,as well as 

### DPR's historical inventory adjustmentpractice 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 1994Ozone 

### SIP. DPR 

### proposes Option 

### 1to aid 

### strawbeny growers whose emissions ofVOC hm 

### finnigants have increased drastically since adoption ofthe 1994 SIP. 

### See 

### SandersMemo, 

### attached as Exhibit 

### 5. The ARB adopted this phase-in 

### between 2008 and 2012 as a 

### SIP revision to the State ImplementationPlan on September 27,2007, 

### despite the 

### comments and objectionsby 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-enforceableSIP. A 

### "SIP 'once 

### adopted 

### by a 

### state becomes controlling 

### andmust 

### be carried out by the state. 

### "' Bayview Hunters Point Communirl, Advocates v. 

### Metropolitan Transporttatwn Commission,366 

### F.3d 692,695 

### (9th Cir. 2004), 

### quoting

### Friendsofthe 

### 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 forVentura, but 

### EPA cannot approve a revision 

### if the revision will interfere with any applicable requirement concerning attainment, reasonable furtherpmgress, or any other applicable requirement ofthe 

### 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 SIPrevision 

### as consistent with the CleanAir 

### Act, including section 1 IN), 42 U.S.C. 

## 5 7410(1), the regulations must mandate 

### a 20% 

### reduction from the 1991baseline inventoryby January 1,2008

### in Ventura County.

Page 7 of 8

### 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 AssistanceFoundation Clean 

### Water and Air 

### Matter
Michael Meuter Tracey Brieger CaliforniaRural Legal Assistance,hc. 

### Californians for Pesticide Reform 

### Luis Cabrales Coalition for Clean 

### Air 

### Lisa Kayser-Grant Moms Clean AirNetwork

Page 8 of 8