[Federal Register Volume 77, Number 208 (Friday, October 26, 2012)]
[Rules and Regulations]
[Pages 65294-65305]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26311]
[[Page 65294]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2012-0194; FRL-9723-1]
Approval and Promulgation of Implementation Plans; California;
Revisions to the California State Implementation Plan Pesticide Element
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving several revisions to the Pesticide Element of
the California state implementation plan (SIP). These revisions include
regulations adopted by the California Department of Pesticide
Regulation (CDPR) that: Reduce volatile organic compound (VOC)
emissions from the application of agricultural field fumigants in the
South Coast, Southeast Desert, Ventura County, San Joaquin Valley
(SJV), and Sacramento Metro ozone nonattainment areas by restricting
fumigant application methods; establish a fumigant emission limit and
allocation system for Ventura County; require CDPR to prepare and make
available to the public an annual pesticide VOC emissions inventory
report; and require recordkeeping and reporting of pesticide usage. EPA
is also approving CDPR's commitments to manage VOC emissions from the
use of agricultural and commercial structural pesticides in the SJV to
ensure that they do not exceed 18.1 tons per day and to implement
restrictions on VOC emissions in the SJV from non-fumigant pesticides
by 2014. We are approving these regulations and commitments as
complying with applicable requirements of the Clean Air Act. Lastly,
EPA is finalizing its response to remands by the Ninth Circuit Court of
Appeals of EPA's previous approvals of the California SIP Pesticide
Element.
DATES: The rule is effective November 26, 2012.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-0194 for
this action. The index to the docket is available electronically at
www.regulations.gov and in hard copy at EPA Region 9, 75 Hawthorne
Street, San Francisco, California. While all documents in the docket
are listed in the index, some may be publicly available only at the
hard copy location (e.g., copyrighted material) and some may not be
publicly available at either location (e.g., CBI). To inspect the hard
copy materials, please schedule an appointment during normal business
hours with one of the contacts listed in the FOR FURTHER INFORMATION
CONTACT section below.
FOR FURTHER INFORMATION CONTACT: For information on the approval of
CDPR's regulations: Nancy Levin, Rules Office (AIR-4), (415) 972-3848,
levin.nancy@epa.gov. For information on the approval of CDPR's
commitments and the response to the Ninth Circuit remands: Frances
Wicher, Air Planning Office (AIR-2), (415) 972-3957,
wicher.frances@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we'', ``us'' and
``our'' refer to EPA.
Table of Contents
I. Summary and Background
II. Responses to Public Comments on the Proposed Action
III. Final Action
IV. Statutory and Executive Order Reviews
I. Summary and Background
This action deals with revisions to California's federally-approved
program to reduce volatile organic compound (VOC) emissions from the
use of agricultural and structural pesticides to improve ozone air
quality in five areas of the State: the South Coast, Southeast Desert
(SED), Ventura County, San Joaquin Valley (SJV), and Sacramento Metro
ozone nonattainment areas. VOC from pesticides and other sources react
in the atmosphere with nitrogen oxides (NOX) from mobile and
other combustion sources in the presence of sunlight to form ozone.
EPA is approving as revisions to California state implementation
plan (SIP) regulations and commitments adopted by the California
Department of Pesticide Regulation (CDPR). These CDPR regulations and
commitments were submitted by the California Air Resources Board (CARB)
to EPA as follows:
1. October 12, 2009 submittal of the following CDPR regulations:
Title 3 California Code of Regulations (3 CCR), sections
6447 (first paragraph) and 6447.3-6452 pertaining to field fumigation
methods;
Portions of 3 CCR sections 6452.1-6452.4 and sections 6624
and 6626 pertaining to emissions inventory;
3 CCR sections 6452.2 and 6452.3 pertaining to field
fumigation limits and allowances in the Ventura County ozone
nonattainment area.
2. October 12, 2009 submittal of CDPR's revised SIP commitment for
the San Joaquin Valley (adopted by the CDPR Director, April 17, 2009).
This submittal limits VOC emissions from the use of agricultural and
commercial structural pesticides in the SJV to 18.1 tons per day (tpd)
and commits CDPR to implement restrictions on non-fumigant pesticides
in the SJV by 2014.
3. August 2, 2011 submittal of the following CDPR regulations that
revised in part and added to the October 12, 2009 submittal: \1\
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\1\ As part of this submittal, CARB also submitted 3 CCR section
6400 (Restricted Materials), 6446 (Methyl Iodide Field--General
Requirements) and section 6446.1 (Methyl Iodide Field Fumigation
Methods) and methyl-iodide related portions of provisions
6452.2(a)(4)(Annual Volatile Organic Compound Emissions Inventory
Report) and 6624(f) (Pesticide Use Records). We are deferring action
on these provisions due to California's cancellation, effective
March 21, 2012, of the registration of all products containing the
active ingredient methyl iodide.
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3 CCR sections 6448.1, 6449.1, and 6450.1 pertaining to
fumigation method restrictions.
Portions of 3 CCR sections 6452.2 and 6452.3 pertaining to
field fumigation limits and allowances in the Ventura County ozone
nonattainment area.
3 CCR section 6452.4 pertaining to the annual VOC
emissions inventory report.
3 CCR section 6626 pertaining to pesticide use reports.
EPA proposed to approve these submittals as revisions to the
California SIP on April 24, 2012 at 77 FR 24441. A detailed discussion
of these submitted revisions, the Clean Air Act (CAA) and EPA
requirements applicable to them, and our evaluation can be found in the
proposed rule and the technical support document (TSD) for this final
action.\2\ In this final rule, EPA is approving these revisions to the
California SIP based on our conclusion that they comply with applicable
CAA and regulatory requirements for SIP revisions. We are also finding
that the fumigant regulations meet the CAA section 182(b)(2)
requirement to provide for reasonably available control technology on
the application of fumigants in the SJV.
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\2\ Air Division, EPA Region 9; Technical Support Document--
Final Rule Approval of Revisions to the Pesticide Element of the
California State Implementation Plan; August 14, 2012. The TSD can
be found in the docket for this rulemaking.
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In the April 24, 2012 proposal, EPA also provided its preliminary
response to the remand by the Ninth Circuit Court of Appeals in
Association of Irritated Residents v. EPA, 632 F.3d 584 (9th Cir.
2011), revised January 27, 2012 (AIR). This remand required EPA to
evaluate the California SIP Pesticide Element for enforceability under
the CAA. See 77 FR 24441, 24447. In this action, we are finalizing that
response without change.
Lastly, in our April 24, 2012 proposed rule, we referred to another
Ninth
[[Page 65295]]
Circuit petition for review, El Comite Para El Bienestar De Earlimart
v. EPA (No. 08-74340) (``El Comit[eacute]''). 77 FR 24441 at 24448. In
El Comit[eacute], various environmental and community groups challenged
EPA's 1997 approval (62 FR 1150, Jan. 8, 1997) of the 1994 SIP for the
1-hour ozone standard for various California nonattainment areas
(``1994 California Ozone SIP''), which included approval of the
California SIP Pesticide Element, on the basis of the same 2008 Ninth
Circuit decision, El Comit[eacute] Para El Bienestar De Earlimart v.
Warmerdam, 539 F.3d 1062) (``Warmerdam''), that was the basis for the
remand in Association of Irritated Residents. At the time of our April
24, 2012 proposed rule, the Ninth Circuit had not issued its decision
in El Comit[eacute].
Since then, the Ninth Circuit has issued a remand order to EPA in
El Comit[eacute] to reconsider its approval of the 1994 California
Ozone SIP in light of the Warmerdam decision, as required by the remand
in Association of Irritated Residents.\3\ The remands in both
Association of Irritated Residents and El Comit[eacute] necessitate the
same evaluation (i.e., for CAA enforceability) for the same portion of
the California SIP (i.e., the California SIP Pesticide Element). Thus,
our decision not to rescind or amend our 2009 re-approval of the
California SIP Pesticide Element, in light of today's action approving
the CDPR's revised SIP commitment for the San Joaquin Valley and
fumigant regulations, finalizes not only our response to the remand in
Association of Irritated Residents, but it also finalizes our response
to the remand in El Comit[eacute].
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\3\ The Ninth Circuit issued its remand order in El
Comit[eacute] on dated July 2, 2012.
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II. Responses to Public Comments on the Proposed Action
A. Comments Received on the Proposed Action
EPA provided the public an opportunity to comment on its proposal
to approve the revisions to the California SIP Pesticide Element for 30
days following the proposal's April 24, 2012 publication in the Federal
Register. We received one comment letter on the proposed approval. This
letter was submitted by the Center on Race, Poverty and the Environment
on behalf of itself and 41 California environmental and community
organizations (collectively ``El Comit[eacute]''). See letter, Brent
Newell, General Counsel, Center on Race, Poverty & the Environment, May
24, 2012. We summarize our response to El Comit[eacute]'s main comments
below. Our complete responses to all comments received can be found in
section III of the TSD. A copy of the comment letter and its
attachments can be found in the docket for this rule.
B. Enforceability of CDPR's Revised SIP Commitment for San Joaquin
Valley
Comment: El Comit[eacute] argues that CDPR's revised SIP commitment
to limit pesticide VOC emissions in the SJV to no more than 18.1 tpd is
not enforceable because citizens may not enforce the manner in which
the Department calculates the baseline inventory and subsequent years'
inventories as a means to challenge a failure to adopt regulations or
otherwise to limit pesticide VOC emissions in the SJV. They (El
Comit[eacute]) also argue that including the inventory calculation
procedures in the SIP would not make the revised commitment
enforceable.
Response: Except for the analysis required by CAA section 110(l),
the SJV baseline (that is, the 1990 baseline used to calculate the
required level of emissions reductions) is no longer at issue now that
the State has fixed the maximum level of pesticide VOC emissions
allowed in the SJV at a fixed 18.1 tons per day (tpd).\4\ Once this
limitation is incorporated into the SIP, the 1990 baseline inventory
will be of only historical interest and neither it nor the calculation
procedures used for it need to be enforceable. Therefore, in addressing
El Comit[eacute]'s comments, we will focus on the enforceability of the
calculation procedures for the subsequent years' inventories.
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\4\ Fixed, that is, without the State first seeking and EPA
approving through notice and comment rulemaking a revision to the
SIP. To be approved, such a SIP revision would need to meet all
applicable CAA requirements and not be barred under the section
110(l) non-interference provisions.
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The ``emissions inventories'' required by both the revised SIP
commitment for the SJV and the fumigant regulations should not be
confused with the emissions inventories that are required by specific
sections of the CAA, such as sections 172(c)(3) and 182(a)(1). They are
not the same in either scope or purpose. CAA section 172(c)(3) requires
SIPs to ``include a comprehensive, accurate, current inventory of
actual emissions from all sources of the relevant pollutant or
pollutants in such [nonattainment] area. * * *'' The purpose of the
comprehensive inventories required by this and similar CAA sections is
to provide the basis for, among other things, the demonstrations of
attainment and progress toward attainment required, for example, by CAA
sections 182(c)(2)(A), 182(b)(1), and 182(c)(2)(B). Emissions
inventories submitted to meet the CAA's specific inventory requirements
are intended to describe but not control emissions from sources and
source categories in the inventory and thus are not enforceable
emission limitations as defined by CAA section 302(k).
In contrast, the ``emissions inventory'' called for in the revised
SIP commitment and fumigant regulations is not a specific requirement
of the CAA. It is instead an emissions estimation for a single
emissions source--pesticide usage in the SJV--for the sole purpose of
``evaluat[ing] compliance with the 1994 SIP pesticide element for
SJV.'' Revised SIP commitment for the SJV, p. 2. Together with the
calculation methodology in the Neal memorandum,\5\ the annual inventory
requirement in 3 CCR section 6452.4(a)(1), and the reporting and
recordkeeping requirements in sections 6624 and 6626, it is the means
for monitoring compliance of this emissions source (pesticide usage in
the SJV) with its applicable emission limit of not more than 18.1 tons
of VOC per day.
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\5\ The Neal memorandum is the memorandum from Rosemary Neal,
Ph.D., CDPR to Randy Segawa, CDPR, November 5, 2008; Subject: Update
to the Pesticide Volatile Organic Inventory. Estimated Emissions
1990-2006, and Preliminary Estimates for 2007. This memorandum is
being included in the SIP in this action.
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Under the CAA and EPA regulations, a wide range of data and means
of collecting data qualify as methods to monitor compliance. CDPR's
procedures for monitoring compliance with the 18.1 tpd emission limit
for VOC emissions from pesticides in the SJV fall squarely within this
range. See, for example, 40 CFR 64.1 (defining compliance monitoring to
include emission estimation and calculation procedures).
EPA considers the compliance monitoring associated with an emission
limitation to be part of that limitation and, once incorporated into
the SIP, enforceable under CAA sections 113 and 304. Therefore,
including the inventory calculation procedures along with the
requirements for an annual emissions inventory report and recordkeeping
and reporting by pesticide users (which collectively constitute the
compliance monitoring procedures for the 18.1 tpd emission limit), in
the SIP will make CDPR's revised commitment for the SJV fully
enforceable under CAA sections 113 and 304.
We also note that citizens seeking to enforce the revised
commitment for the SJV under CAA section 304 are not
[[Page 65296]]
restricted to using CDPR's inventory procedures or CDPR-generated
inventories to demonstrate a violation. Under the CAA and EPA
regulations, citizens may use any credible evidence of violation to
enforce a SIP-approved emission limitation under CAA section 304. See
CAA section 113, 40 CFR 51.212(c) and 40 CFR 52.12 and 52.30.
Comment: El Comit[eacute] comments that EPA proposes to find that
the revised SIP commitment for the SJV is enforceable based on the Neal
memorandum, citing to the proposed rule at 77 FR 24441, 24444. It then
claims that EPA contradicts itself by stating the SIP revision is
unenforceable because it does not commit to specific measures to ensure
that the 18.1 tpd limit is not exceeded, citing to the proposed rule at
77 FR 24441, 24450.
Response: We did not propose to find that the revised commitment
for the SJV is enforceable based solely on the Neal memorandum. In the
proposed rule, we cite not only to the Neal memorandum but also to
several other provisions in CDPR's submitted regulations \6\ and to the
fumigant application method regulations to find that the 18.1 tpd
emission limit for the SJV is enforceable:
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\6\ These other provisions included the annual emissions
inventory requirements in section 6452.4; the emissions inventory
calculation methodology in section 6452.4(a)(1) and recordkeeping
and reporting requirements for pesticide users in sections 6624 and
6626. We are approving each of these provisions into the California
SIP.
These [compliance monitoring] provisions are clear and adequate
in combination with the fumigant regulations to ensure the pesticide
VOC limit for the SJV is enforceable as required by CAA section
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110(a)(2)(A).
77 FR 24441, 24444.
This statement is consistent with the one later in the proposed
rule that El Comit[eacute] claims contradicts it:
Considered in isolation, the revised commitment for San Joaquin
Valley changes the form of the commitment in the 1994 Pesticide
Element for the SJV but does not represent an enforceable measure
for SIP purposes. However, when viewed in light of the CDPR's
regulations, the combination of the commitment and fumigant
regulations does meet the minimum requirements for enforceability of
SIP measures and reasonably ensures that the 12 percent emissions
reduction target from the 1994 Pesticide Element would be achieved
in San Joaquin Valley.
77 FR 24441, 24450.
Comment: El Comit[eacute] argues that EPA's proposal to approve the
revised SIP commitment for SJV as enforceable conflicts with the Ninth
Circuit's decision in Warmerdam. They assert that in this decision, the
Ninth Circuit did not allow citizens to ``bootstrap'' arguments of
inventory manipulation to enforce a commitment to adopt regulations,
citing Warmerdam at 1072-73. El Comit[eacute] argues that the revised
SIP commitment is a discretionary commitment and that the CAA does not
allow such discretionary commitments.
Response: Our finding that the revised commitment for SJV is
enforceable does not conflict with Warmerdam. In Warmerdam, the Ninth
Circuit ruled that the baseline inventory could not be turned into an
enforceable emission limitation by ``bootstrapping it to the commitment
to adopt regulations.''
As explained above, except for the analysis required by CAA section
110(l), the SJV baseline (that is, the 1990 baseline used to calculate
the required level of emissions reductions) no longer has a purpose now
that the State has set the maximum level of pesticide VOC emissions
allowed in the SJV at a fixed 18.1 tpd. Once that limitation is
incorporated into the SIP, the 1990 baseline inventory will be of
historical interest only and neither it nor the calculation procedures
used for it need to be enforceable in the future. We note that this
will also be true for the 1990 baseline inventory for Ventura County
once we approve the fumigant regulations.
CDPR's revised SIP commitment for the SJV is not a discretionary
commitment. As discussed above and in the proposed rule, the commitment
(including the fixed 18.1 tpd limitation on pesticide VOC emissions in
the SJV), the monitoring procedures necessary to determine compliance
with it, and the fumigant regulations combine to be a fully enforceable
program under the CAA once approved into the SIP. We note again that
citizens may use any credible evidence to enforce the commitment and
are not restricted to using inventories generated by the State.
Comment: El Comit[eacute] argues that the revised commitment by
CDPR to manage pesticides emissions in the SJV is unenforceable because
it is impractical to determine whether emissions levels are exceeded
because inventories are only available two years after the fact. They
further argue that the emission controls should constantly limit
pesticide VOC emissions and ``not lag two years behind.'' To support
these arguments, El Comit[eacute] cites to the discussion of the
fundamental principles for SIPs and control strategies found in the
General Preamble at 13567-13568,\7\ noting in particular the second
principle relating to enforceable measures. They also cite to the
General Preamble's discussion of enforceability of SIP regulations at
13502.
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\7\ The ``General Preamble for the Implementation of Title I of
the Clean Air Act Amendments of 1990,'' published at 57 FR 13498 on
April 16, 1992, describes EPA's preliminary view on how we would
interpret various SIP planning provisions in title I of the CAA as
amended in 1990, including those planning provisions applicable to
the 1-hour ozone national ambient air quality standard (NAAQS). EPA
continues to rely on certain guidance in the General Preamble to
implement the 8-hour ozone NAAQS under title I.
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Response: El Comit[eacute] confuses two requirements: the
requirement that an emission limitation assures continuous emissions
reductions and the requirement for a practical means of determining
compliance with that emission limitation. The cited sections of the
General Preamble all address the latter requirement. We have reviewed
CDPR's revised SIP commitment for the SJV against the criteria for
enforceability given in the General Preamble and determined that it
meets them. See TSD, section III.B., Response B-6.
As to the requirement for continuous emissions reductions, we
cannot consider the 18.1 tpd emission limit for the SJV as unrelated to
the fumigant regulations. Not only do the fumigant regulations contain
the reporting and recordkeeping requirements necessary for monitoring
compliance with the limit, they also contain the principal control
requirements for maintaining pesticide VOC emissions in the SJV under
that limit. CDPR considers the 1.5 tpd in emissions reductions from the
application method restrictions in the fumigant regulations to be
sufficient to meet the SJV limit in a typical year.\8\ These
restrictions apply throughout the May 1 to October 30 regulatory season
and thus provide for continuous emissions reductions during that
season.
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\8\ CDPR, ``Staff Report on the Department of Pesticide
Regulation's Proposed SIP Commitment for San Joaquin Valley,''
(``CDPR staff report''), p. 4.
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As a practical matter, CDPR produces the inventories as soon as
practicable given the size and complexity of the source at hand
(pesticide usage in the SJV), the sheer amount of data that must be
evaluated, and the requirement in 3 CCR section 6452.4(b) that the
public be given 45 days to comment on the draft inventories.
C. Approval of the Revised Pesticide Element for SJV Under CAA Section
110(I)
Comment: El Comit[eacute] comments that the commitment in the
existing 1994 Pesticide Element is both a tonnage commitment in an
areas' attainment year and a percentage commitment: 13
[[Page 65297]]
tpd reduction by 1999 and 20 percent reduction from 1990 by 2005 in the
SJV.
Response: We agree that the commitment in the 1994 Pesticide
Element \9\ is both a tonnage commitment and a percentage commitment,
and we agree that the ton per day reduction called for in the Element
is 13 tpd. Where EPA disagrees with El Comit[eacute] is that EPA has
concluded that the percentage commitment corresponds to the tonnage
commitment in that they both relate directly to the attainment needs of
SJV in achieving the 1-hour ozone standard by 1999 as anticipated by
California in 1994 and 1996 in developing its Ozone SIP, and approved
by EPA in 1997 when EPA approved that plan.
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\9\ As these terms are used in this document, the ``1994
Pesticide SIP'' is the State Implementation Plan for Agricultural
and Commercial Structural Pesticides, November 15, 1994 which was
submitted as part of the 1994 California State Implementation Plan
for Ozone (``1994 California Ozone SIP''). The 1994 Pesticide SIP is
incorporated at 40 CFR 52.220(c)(204)(i)(A)(6). The 1994 California
Ozone SIP was approved at 62 FR 1150 (January 8, 1997). The ``Boyd
Letter'' is the letter from James Boyd, CARB's Executive Officer to
David Howekamp, Air and Toxics Division Director, EPA Region 9, June
13, 1996. This letter and its appendices are incorporated at 40 CFR
52.220(c) (236). The 1994 Pesticide SIP and the Boyd Letter
collectively constitute the ``1994 Pesticide Element.''
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We explained the basis for our conclusion in this regard on pages
24446-24447 of the proposed rule. First, we note that the Boyd Letter,
while clarifying certain other aspects of the Pesticide Element,
introduced an ambiguity in the percentage commitment for SJV by
stating, in the same paragraph, that the commitment in each SIP area
(which in this context presumably includes SJV) is for a 20 percent
reduction from 1990 to 2005 and that the credit taken in SJV is 12
percent.
To resolve this ambiguity, EPA is taking into account the words of
the 1994 Pesticide Element itself and the words of EPA's final rule
approving the 1994 California Ozone SIP, including this Element.
First, the 1994 Pesticide SIP committed CDPR to a ``maximum of 20
percent'' reduction in pesticide VOC emissions from 1990 baseline
levels in areas ``which reference VOC reductions'' from the element in
their plans. See 1994 Pesticide SIP, p.1. In the case of SJV, the
``plan'' that references VOC reductions from the Pesticide Element is
the attainment demonstration plan for SJV in the 1994 California Ozone
SIP, and it took credit for a 12 percent (not a 20 percent) reduction
in baseline emissions from 1990.
Second, the Pesticide SIP states: ``[t]he plan offers the
flexibility to achieve reductions of less than 20 percent by the year
2005 in air districts if less pesticide VOC emission reductions are
needed.'' Id. At the time when the 1994 California Ozone SIP was
adopted and approved, the applicable attainment date for SJV was 1999,
and the 1994 California Ozone SIP, as ultimately approved, took credit
for only a 12 percent reduction in pesticide VOC emission in that area
because that was all that the attainment demonstration at the time
called for from that source category. By its terms, the 1994 Pesticide
SIP was developed specifically to be flexible enough to provide for a
less-than-20 percent reduction in areas that did not need the full 20
percent to meet attainment needs.
Third, in EPA's final rule approving the 1994 California Ozone SIP
(and the related 1994 Pesticide Element), we summarized our
understanding of the emissions reduction commitments in the Pesticide
Element as follows: ``As described in the SIP, California has committed
to adopt and submit to U.S. EPA by June 15, 1997, any regulations
necessary to reduce VOC emissions from agricultural and commercial
structural pesticides by 20 percent of the 1990 base year emissions in
the attainment years for Sacramento, Ventura, Southeast Desert, and the
South Coast, and by 12 percent in 1999 for the San Joaquin Valley.''
See 62 FR at 1150, at 1170 (January 8, 1997). Therefore, in view of the
overall design and purpose of the 1994 Pesticide Element and EPA's
understanding of the commitments in the Element at the time of the
approval of the Element into the California SIP, we have concluded that
the approved Pesticide Element includes a 12 percent emissions
reduction commitment in SJV, not a 20 percent emissions reduction
commitment.
Comment: El Comit[eacute] comments that the plain language of the
1994 Pesticide SIP and the [Boyd] Letter together commit to achieve a
20 percent reduction of pesticide VOC from 1990 levels by 2005, and
EPA's approval of the revised SIP commitment for SJV will violate
section 110(l) because CDPR and CARB have failed to demonstrate the
change in the commitment to 12 percent will not interfere with
attainment, reasonable further progress (RFP), or any other
requirements of the CAA. They also comment that EPA's finding that the
existing commitment is for 12 percent (rather than 20 percent) and
that, as a result, approval of the revised SIP commitment for SJV would
not violate section 110(l), has no basis in the plain language of the
SIP, and is contrary to the Ninth Circuit's decision in Safe Air for
Everyone v. EPA, 488 F.3d 1088 (9th Cir. 2007).
Response: As discussed above, EPA believes that the SIP commitment
in the 1994 Pesticide SIP (as modified by the Boyd Letter) for SJV is
ambiguous and thus subject to interpretation. We have interpreted the
1994 Pesticide SIP and Boyd Letter, in light of the language of both
and do not find any one sentence of either document to be a definitive
statement as to the commitment in SJV. Rather, in light of CDPR's
stated purposes and design of the 1994 Pesticide Element itself, and
the reliance on it by California in demonstrating attainment of the SJV
by 1999 with respect to the 1-hour ozone standard, we have concluded
that, consistent with EPA's language in approving the 1994 Pesticide
Element, that the commitment is a 12 percent commitment in SJV. Thus,
we do not view our approval of the revised SIP commitment for SJV as a
relaxation in the California SIP because it would result in the same
emissions reductions as would result under the existing approved
California SIP Pesticide Element.
Our conclusion in this regard is not contrary to the Ninth
Circuit's decision in the Safe Air case cited by El Comit[eacute]. As
noted by El Comit[eacute], in Safe Air, the Ninth Circuit held that the
content of a SIP is based on its ``plain meaning when such a meaning is
apparent, not absurd, and not contradicted by the manifest intent of
EPA, as expressed in the promulgating documents available to the
public.'' Safe Air for Everyone v. EPA, 488 F.3d 1088, at 1100 (9th
Cir. 2007). In this instance, the meaning of the 1994 Pesticide
Element's percent reduction SIP commitment for SJV is not ``plain,''
and even if it were, it is ``contradicted by the manifest intent of
EPA, as expressed in the promulgating document available to the
public,'' i.e., EPA's 1997 final rule approving the 1994 Pesticide
Element into the California SIP. Thus, EPA's interpretation of the
Element's percent reduction SIP commitment for SJV in the context of
this rulemaking is consistent with the Ninth Circuit's decision in Safe
Air and consistent with EPA's stated interpretation in 1997 of this
same commitment.
As to CAA section 110(l), relative to California's and EPA's
interpretation of the Pesticide Element to require a 12 percent
reduction in pesticide VOC emissions in (rather than 20 percent) from a
1990 baseline, we have concluded that the revised SIP
[[Page 65298]]
commitment for SJV would result in, at a minimum, the same emissions
reductions that are currently required under the approved SIP, and
neither the approved 8-hour ozone plan nor the approved
PM2.5 plan for SJV rely on emissions reductions due to the
Pesticide Element. As such, we have also concluded, as we did for the
proposed rule, that our approvals of the fumigant regulations and
revised SIP commitment for SJV will not interfere with attainment and
RFP or any other applicable requirement of the CAA and thus comply with
the requirements of CAA section 110(l). See 77 FR 24441, at 24447.
Comment: El Comit[eacute] comments that an approval of the revised
SIP revision would violate CAA section 110(l) because neither CDPR nor
CARB has demonstrated that the SIP revision does not backslide when it
changes the manner by which the 1990 baseline inventory is calculated.
They contend that the 1994 Pesticide Element committed CDPR to using
the 1991 Pesticide Use Report (PUR) data to estimate the 1990 baseline
inventory because ``such data is more accurate than 1990 PUR data.''
Response: CAA section 110(l) does not prohibit any backsliding and
does not bar approval of a SIP revision based solely on a state's
failure to accompany the revision with a demonstration of non-
interference. Section 110(l) only prohibits backsliding that would
interfere with any applicable requirement of the CAA.
As stated above, we have concluded that the emissions reduction
commitment in SJV under the existing SIP is 12 percent from 1990
levels, not 20 percent, and thus, the establishment of a 18.1 tpd limit
(which represents a 12 percent reduction from 1990) through this SIP
revision would result in the same emissions reductions from pesticide
VOC emissions as required under the existing SIP.
We reviewed the language of the existing Pesticide SIP itself to
see whether it could be reasonably interpreted to allow for use of 1990
PUR data, rather than 1991 PUR data, to determine whether the
establishment of the 18.1 tpd limit (determined using 1990 PUR data)
represents a revision to the SIP that would result in an emissions
impact. If the existing SIP could be reasonably interpreted to allow
for use of 1990 PUR data, then no emission impact would result.
The 1994 Pesticide SIP requires that a 1990 baseline inventory be
used to determine the level of emissions reductions needed: ``[t]his
plan is designed to reduce volatile organic compound (VOC) emissions
from agricultural and commercial structural pesticide applications by a
maximum of 20 percent from the 1990 baseline * * *.'' p. 1. The 1994
Pesticide SIP is clear that this 1990 baseline inventory is to
represent conditions in 1990:
``The base year inventory will be created from the 1991
Pesticide Use Report and then adjusted by a factor to represent the
1990 base year.'' p. 5;
``In cooperation with DPR, [CARB] will develop a baseline
inventory of estimated 1990 pesticidal VOC emissions based on 1991
pesticide use data, adjusted to represent the 1990 base year.'' p. 6;
``The baseline inventory will be calculated by summing the
estimated 1990 emissions of each agricultural and commercial structural
use pesticide.'' p. 6;
``[Estimated 1990 e]missions will be calculated by
multiplying the VOC Emissions Factor value for each product by the
adjusted use of that product in 1990.'' p. 5.
The 1994 Pesticide SIP also emphasizes the use of the best
available information to calculate the inventory, including in the
rationale for using the 1991 PUR data in lieu of the 1990 data. It also
allows (on page 6) for ``further adjust[ments] by additional VOC
Emission Factors if additional information becomes available.'' While
this statement applies to VOC emission factors, it would be counter-
intuitive to limit adjustments to just this type of data if the primary
interest is to produce the best possible assessment of pesticide VOC
emissions in the 1990 base year.
In the 1994 Pesticide SIP (page 5), CDPR stated it would use the
1991 PUR data (backcasted to represent 1990) as the starting point for
calculating the 1990 baseline inventory because ``[i]t is believed that
the 1991 pesticide use report would be a more accurate source to
determine 1990 pesticidal VOC emissions.'' CDPR did not concede that
the 1991 PUR data was more accurate and thus left open the option to
use 1990 PUR data to calculate the 1990 baseline inventory if that data
was determined to be more or similarly accurate. CDPR would later
determine that the data for the two years was in fact of similar
accuracy. This determination weakens any reading that the SIP mandates
the use of the 1991 PUR data, given the SIP's emphasis on the 1990
baseline inventory reflecting 1990 conditions and on the use of the
best available data.
We also observe that the use of unbackcasted 1991 PUR data to
calculate the baseline inventory results in a 1991 baseline inventory.
Using a 1991 baseline inventory to set SJV's (or any area's) pesticide
VOC emission limit, as El Comit[eacute] advocates, would conflict with
the plain language of the 1994 Pesticide SIP, which indisputably
requires that these emission limits be set from a 1990 baseline.
For these reasons, we conclude that the existing Pesticide Element
does allow for the use of 1990 PUR data to determine 1990 baseline
emissions, and thus, the establishment of an 18.1 tpd emission limit in
the Valley that derives from 1990 PUR does not represent a revision to
the SIP that results in higher emissions than would be allowed under
the existing Pesticide Element.
For the purposes of this response, we have also investigated
further the possibility that unbackcasted 1991 PUR data is required
under the existing SIP and that use of 1990 PUR data would result in a
higher limit than one resulting from the use of unbackcasted 1991 PUR
data to establish the baseline emissions. To do this, we used
information from the CDPR staff report on the revised SIP commitment
for SJV to isolate the potential emissions impact of using 1990 PUR
data rather than unbackcasted 1991 PUR data and calculated the
difference to be 0.7 tpd.\10\ In other words, if unbackcasted 1991 PUR
data were required to be used in connection with establishing baseline
VOC emissions from agricultural and commercial structural applications,
then, based on data in the CDPR staff report, the corresponding limit
in SJV (ensuring a 12 percent reduction) would be 17.4 tpd, 0.7 tpd
lower than the 18.1 tpd limit developed using 1990 PUR data.
---------------------------------------------------------------------------
\10\ See CDPR staff report, p. 4. The 0.7 tpd is calculated as
88 percent of 20.6 tpd minus 88 percent of 19.8 tpd. The value of
20.6 tpd represents 1990 baseline emissions estimated using 1990 PUR
data and 19.8 tpd represents 1991 baseline emissions estimated using
1991 PUR data.
---------------------------------------------------------------------------
Alternatively, based on this analysis, we find that, even if the
existing SIP required the use of unbackcasted 1991 PUR data to
calculate the baseline and the use of the 1990 PUR data represented a
revision to the SIP, we find that the potential emissions impact (0.7
ton per day of VOC higher limit) of using 1990 PUR data instead would
not interfere with RFP or attainment of the NAAQS, for the following
reasons.\11\ As to ozone, we note that the approved 1997 8-hour ozone
plan for SJV shows how the plan provides for VOC and NOX
reductions that surpass RFP requirements and provides for
[[Page 65299]]
expeditious attainment even without considering any VOC reductions from
pesticides. See 76 FR 57846, 57861 and 57858 (September 16, 2011) and
77 FR 12652 (March 1, 2012). The SJV area has recently been designated
as extreme nonattainment for the 2008 8-hour ozone NAAQS, but the
nonattainment plan for that standard is not due until 2015. See 77 FR
30088 (May 21, 2012) and 40 CFR 51.908.
---------------------------------------------------------------------------
\11\ For purposes of comparison, VOC emissions in SJV are
expected to decline to 339 tpd by 2023 under the EPA-approved 2007
Ozone Plan. See 76 FR 57846, 57850 (September 16, 2011).
---------------------------------------------------------------------------
As to particulate matter (PM), we reiterate our observation from
our proposed rule (at page 24447) that EPA has determined that VOC
controls are not required for PM control in the SJV. See 72 FR 20586,
20589 (April 25, 2007); 69 FR 30006, 30007 (May 26, 2004); and 76 FR
69896, 69924 (November 9, 2011). In addition, we note that while the
EPA-approved PM plans do not address the 2006 PM2.5 NAAQS
for which the SJV has also been designated as ``nonattainment,'' 74 FR
58688 (November 13, 2009), the nonattainment plan for the 2006
PM2.5 NAAQS is not due until December 2012.
Comment: El Comit[eacute] asserts that because the 1994 Pesticide
Element calls for year-round reductions, approval of the revisions
would violate CAA section 110(l) because neither CDPR nor CARB has
demonstrated that the SIP revision does not backslide when the SIP
revision only calls for seasonal (May through October) controls.
Response: CAA section 110(l) does not prohibit any backsliding and
does not bar approval of a SIP revision based solely on a state's
failure to accompany the revision with a demonstration of non-
interference. Section 110(l) only prohibits backsliding that would
interfere with any applicable requirement of the CAA.
El Comit[eacute] provides no support for their position that the
1994 Pesticide Element requires year-round reductions. They do not cite
to specific language in the Element and make no arguments as to why it
should be interpreted to require year-around reductions. In our review
of the 1994 Pesticide Element, we find nothing in it that directly
addresses the issue of year around versus seasonal controls. Even with
the most generous reading, the 1994 Element is at best ambiguous on the
subject. This issue is also not directly addressed in EPA's rulemakings
on the 1994 Ozone Plan. For these reasons, we have looked to
California's stated purpose for including the 1994 Pesticide Element in
its SIP and how the State relied on the emissions reductions from the
Element to discern the best interpretation of its requirements
regarding seasonality.
California submitted the 1994 Pesticide Element as part of its
comprehensive plan to meet the 1-hour ozone standard and included
reductions from this measure in the attainment demonstrations for the
South Coast, Southeast Desert, Ventura County, SJV, and Sacramento
nonattainment areas. From the language of the 1994 Pesticide Element
itself, the reason for including a measure to reduce pesticide VOC
emissions in the SIP was to address pesticide's contribution to ozone
formation. See 1994 Pesticide SIP, p. 1.
Ozone is a seasonal pollutant with unhealthy levels being recorded
mainly in the summer months when conditions are most conducive to its
formation. The seasonality of ozone standard exceedances is reflected
in EPA's policies and regulations that require ozone SIPs to include
summer season inventories. See, for example, EPA's General Preamble at
57 FR 13498, 13502.
We described California's definition of its ``summer season'' (that
is, its ozone season) in our proposed approval of the 1994 Ozone SIP as
being from May through October. See 61 FR 10920, 10937. Consistent with
the summer season being the period of concern for ozone, all the
emissions inventories, the rate of progress demonstrations, and the
attainment demonstrations in the 1994 Ozone SIP are expressed in tons
per summer day. See, for example, 61 FR 10920, 10943-44. Estimates of
emissions reductions from measures are also expressed in tons per
summer day.
Taken together, these facts argue that the 1994 Pesticide Element
as approved can be reasonably interpreted to apply only to the ozone
season. As we noted above, this ozone season was defined by California
in its 1994 Ozone SIP as being from May to October, the exact period
that the fumigant regulations and the revised pesticide commitment for
SJV cover. We, therefore, find that approval of these SIP revisions
does not violate CAA section 110(l) on the basis that they provide for
seasonal controls only.
D. Enforceability of the Fumigant Regulations
Comment: El Comit[eacute] alleges that the fumigant regulations are
not enforceable because they do not guarantee that citizens and EPA
have access to data to evaluate pesticide users' compliance with the
fumigant application methods or permits issued by County Agricultural
Commissioners (CAC).
Response: Under the fumigant regulations, applicators (farm
operators or pest control businesses) are required to limit their use
of fumigant-specific application methods during May 1- October 31 to
those methods specified in the regulations. An applicator demonstrates
compliance with the regulations by reporting the details of each
fumigant application (e.g. the permittee/property operator, operator
ID/permit number, acres planted, acres treated, application method,
crop, date, time, and location) to the CAC, which in turn, provides the
data to CDPR. As El Comit[eacute] acknowledges, the public can obtain
PUR data by making a California Public Records Act (CPRA) request to
the CAC or CDPR. In addition, CDPR makes the PUR data available
electronically to the public for free at the California Pesticide
Information Portal (CalPIP) Web site at http://calpip.cdpr.ca.gov/main.cfm. The fact that the public has free online access to individual
and summary PUR data enhances enforceability as compared to other SIP
regulations, for which the data may be only accessible through a CPRA
request.
We note again that citizens are not limited to enforcing based
solely on records reported by sources. Under applicable CAA and
regulatory provisions, any credible evidence of violation may be used.
Such credible evidence might include, for example, photographs of a
fumigant application taken from a public road.
Comment: El Comit[eacute] states that the two-year record retention
time in 3 CCR section 6624(g) severely undermines enforceability of the
fumigant regulations because PUR data may no longer be available by the
time CDPR publishes its Annual Emissions Inventory Report, up to two
years later.
Response: The PUR data used to determine compliance with the
fumigant regulations and to support enforcement is available to
regulators and the public well before the two-year user retention
provision ends. The fumigant regulations require the property operator
to submit a PUR to the CAC by the 10th of the month following each
fumigant application. Pest control businesses must submit the PUR to
the CAC within 7 days of the application. See 3 CCR section 6626(a) and
(b). The public can request PUR data from the CAC as soon as the PUR is
submitted. The CAC must submit to CDPR a copy of each PUR received, and
any other relevant information required by CDPR, within one calendar
month after the CAC receives it. See California Food and Agricultural
Code (CFAC) section 14012(b). CDPR publishes the PUR data online
approximately one year after the
[[Page 65300]]
growing season ends.\12\ The PUR data, which is an input to the Annual
Emissions Inventory Report, is not destroyed after two years, but
rather it is retained and available on an on-going basis in CDPR's
publicly-available, free and online PUR database at http://calpip.cdpr.ca.gov/main.cfm.
---------------------------------------------------------------------------
\12\ Memorandum, Nancy Levin, EPA Region 9, to Docket EPA-R09-
OAR-2012-0194, August 10, 2012, Subject: Summary of July 16, 2012
conference call between EPA and California Department of Pesticide
Regulation.
---------------------------------------------------------------------------
Comment: El Comit[eacute] states that there are no monitoring
provisions that would allow for an evaluation of whether the pesticide
user met the emissions reductions specified for each fumigant
application method or whether the user complied with a fumigant VOC
emission limit.
Response: No such monitoring provisions are needed because the
fumigant regulations do not require that an individual pesticide user
meet either specific emissions reductions or the fumigant emission
limit. Rather, they prohibit the use of certain fumigant application
methods during the peak ozone season. In this way the fumigant
regulations are similar to other regulations that require (or prohibit)
use of certain control measures or work/management practices but do not
otherwise require the source to meet specific numerical emission
limits.\13\ EPA has approved many regulations that require the use of
specific control methods, rather than a specific emission limit. For
example, SIP regulations require gasoline stations to install pre-
approved vapor recovery devices but do not concurrently require them to
meet an emission limit.\14\ SIP rules for confined animal feeding
operations, open burning, and agricultural fugitive dust are examples
of regulations that require the use of specific management practices
rather than compliance with a specific emission limit, similar to
CDPR's pesticide regulations.\15\
---------------------------------------------------------------------------
\13\ CAA section 302(k) defines the terms ``emission
limitation'' and ``emission standard'' to include a design,
equipment, work practice or operational standard.
\14\ See, for example, SJVUAPCD Rule 4622 Gasoline Transfer Into
Motor Vehicle Fuel Tanks (amended December 20, 2007), approved 74 FR
56120 (October 30, 2009).
\15\ See, for example, SJVUAPCD Rule 4570 Confined Animal
Facilities (amended October 21, 2010), approved 77 FR 2228 (January
17, 2012); Rule 4103 Open Burning (amended May 14, 2010), approved,
77 FR 214 (January 4, 2012); Rule 4550 Conservation Management
Practices (amended August 19, 2004), approved 71 FR 7683 (February
14, 2006).
---------------------------------------------------------------------------
Under the SIP, fumigant VOC emission limits will apply only in
Ventura County. 3 CCR section 6452.2. Ventura County's overall
pesticide VOC emission limit is monitored through the annual emissions
inventory that is calculated by CDPR and not by individual pesticide
users. Section 6452.4(a)(2). If pesticide VOC emissions in a given year
approached or exceeded the limit, then CDPR and Ventura County CAC are
required to implement a fumigant limit/allowance system and to
condition or deny restricted use permits to limit fumigant VOC
emissions until overall pesticide VOC emissions, as reported in the
annual emissions inventory, fall back below the limit for two
consecutive years. Id.
Comment: El Comit[eacute] states that the regulations are not
federally enforceable because they fail to require sources to comply
with new permit conditions should the fumigant VOC emission limit and
allowance system be triggered under 3 CCR section 6452.2.
Response: The requirement to condition permits to comply with a
fumigant VOC emission limit is only applicable to Ventura County under
the SIP. Section 6452.2(e) prohibits a person from applying a field
fumigant during the ozone period once the fumigant VOC emission limit
is established unless their restricted material permit includes a field
fumigant emission allowance or the notice of intent (NOI) to apply a
fumigant is approved in writing. In addition, section 6452.2(c)
requires that if Ventura County's fumigant VOC limit is triggered, the
CAC must condition or deny permits in such a manner to assure that the
fumigant VOC emission limit is not exceeded. These sections, which are
being incorporated into the SIP, are sufficient for federal
enforceability.
Comment: El Comit[eacute] argues that 3 CCR section 6452(b)
provides for improper director's discretion for alternative methods,
noting, in particular, the lack of explicit and replicable procedures
for determining whether the scientific data demonstrates that the
alternative method's emissions rates are no greater than other methods
allowed under the regulations.
Response: EPA has determined that the director discretion in
section 6452(b) is not a basis for disapproval given the restrictions
placed on the CDPR Director's ability to approve alternative methods
and given the limited history of regulating fumigant application
methods to reduce VOC emissions. See TSD, section II.E.
EPA's general policy regarding director's discretion is stated in
52 FR 45109 (November 24, 1987). Provisions allowing for a degree of
state director discretion may be considered appropriate if explicit and
replicable procedures within the rule tightly define how the discretion
will be exercised to assure equivalent emissions reductions.\16\ Under
section 6452(b), a request for approval of an alternative application
method must be accompanied by scientific data documenting the VOC
emissions reductions (section 6452(b)(1)) and no alternative method may
be approved if its emission rate and the maximum emission rate are
greater than those for any method already specified in the regulations
for use in the area for that fumigant (section 6452(b)(1)(A) and (B)).
Section 6452(c) also explicitly requires the CDPR Director to evaluate
the submitted scientific data to determine 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 represent agricultural fields fumigated. A notice of
interim approval of an alternative method must be published on CDPR's
Web site (section 6452(d)) and interim approvals expire after three
years (section 6452(e)). In addition, we note that all pesticide users
are required by law to follow the federal label, state regulations, and
permit conditions at the county level (CFAC section 12973). These
provisions appropriately limit the CDPR director's discretion.\17\
---------------------------------------------------------------------------
\16\ EPA Region 9, Guidance Document for Correcting Common VOC &
Other Rule Deficiencies, (a.k.a., Little Bluebook), August 21, 2001.
\17\ We note that EPA has approved a limited number of other SIP
rules addressing similar regulatory programs allowing for director's
discretion to approve alternate methods of compliance, provided that
emissions are no greater than other approved methods. See, for
example, SJVUAPCD Rule 4550 Conservation Management Practices
(amended August 19, 2004), Section 6.2.3.2; approved 71 FR 7683
(February 14, 2006).
---------------------------------------------------------------------------
E. Pesticide Emissions Inventories
Comment: El Comit[eacute] comments the Method Usage Fractions (MUF)
for the 1991 and 2004 inventories do not have a factual foundation in
the PUR. They also comment that the validity of the MUF for the 1991
inventory for all fumigants but 1,3-dichloropropene are not verifiable
and that CDPR has not presented any evidence supporting its estimates
of historical fumigant application methods, nor has it made public the
details of the process by which this information was obtained.
Response: The PUR reports were not required to list the fumigation
application method prior to 2008; therefore, it is not possible to base
the MUF of the PUR prior to that year.\18\ We
[[Page 65301]]
note that the 1990, 1991 and 2004 inventories do not have any relevance
to today's action.
---------------------------------------------------------------------------
\18\ Usually there are several different types of application
methods used for a particular fumigant in any particular NAA. Each
method of use (e.g. drip, sprinkler, shank, tarp, etc.) represents a
fraction of the total number of methods used and is referred to as
the Method Use Fraction (MUF). The sum of all MUFs for any
particular (NAA/fumigant AI) combination is one. See Rosemary Neal,
Ph.D., Frank Spurlock, Ph.D., and Randy Segawa, California
Department of Pesticide Regulation, ``Annual Report on Volatile
Organic Compound Emissions from Pesticides: Emissions For 1990--
2010,'' Revised, June, 2012 (``Revised 2010 Pesticide VOC Emissions
Report''), p. 13.
---------------------------------------------------------------------------
CDPR has provided a detailed explanation of its process for
determining the frequency of use of historical fumigant methods for the
1991 inventory as well as the 1990 inventory (which is the basis for
calculating reductions) in the Barry memorandum.\19\ Prior to 2008, the
MUF were based on grower/applicator surveys, use data, expert opinion,
and regulatory history. Since 2008, applicators have been required to
report application methods on the PUR, so recent MUF calculations are
based on empirical data. EPA has been presented with no evidence to
dispute that CDPR used best available data to develop the MUF for the
baseline inventory.
---------------------------------------------------------------------------
\19\ Memorandum, Terrell Barry, Ph.D., et al., CDPR, to John
Sanders, Ph.D., CDPR; ``Pesticide Volatile Organic Compound Emission
Adjustments for Field Conditions and Estimated Volatile Organic
Compound Reductions-Revised Estimates;'' September 29, 2007.
---------------------------------------------------------------------------
Comment: El Comit[eacute] comments that CDPR's Application Method
Adjustment Factors (AMAF) are based on unrepresentative field
fumigation studies conducted in other states under cool soil conditions
and therefore do not provide an accurate estimate of emissions from
California fumigations conducted at high temperatures in the Central
Valley during the peak ozone season from May to October. They also
comment that studies conducted under worst-case scenarios have been
excluded from the group of studies on which the fumigant application
regulations are based.
Response: Similar comments were raised to CDPR during the comment
periods prior to the adoption of the 2008 fumigant regulations and to
CARB during the comment period prior to the adoption of the 2007 State
Strategy (specifically on the revisions to the 1994 Pesticide Element
for Ventura County that were included as Appendix H to the State
Strategy). CDPR responded to these comments in the final Barry
Memorandum (pp. 15-17) and in its response to comments on its proposed
regulations.\20\ CARB also provided responses.\21\ Both stated that the
studies included had been reviewed and accepted as sufficient to
provide reliable data and were conducted under a variety of conditions
and locations.
---------------------------------------------------------------------------
\20\ See CDPR, Rulemaking File For Regulations Filed and in
Effect on January 8, 2008; Final Statement of Reasons, Attachment A:
Summary of Comments Received During the 45-Day Comment Period and
DPR's Response.
\21\ CARB, Environmental Analysis for the Proposed Revision to
the Pesticide Commitment of the 1994 Ozone SIP for the Ventura
County Nonattainment Area, Revised August 13, 2007 (``CARB August
2007 Environmental Analysis'').
---------------------------------------------------------------------------
Comment: El Comit[eacute] comments that (1) the field studies of
AMAF have highly variable results even among similar studies and are
therefore highly uncertain and that previous reviews have noted
uncertainties in AMAF estimates and concluded that some AMAF proposed
by CDPR were not conservative enough. They also comment that because
the natural variability in flux rates (the rate at which the fumigant
escapes from the soil) is large, a single study (or even several
studies) will not provide an accurate estimate of actual emissions.
Response: CDPR responded to similar comments made during the 45-day
comment period on the initial proposal of the fumigant regulations in
July 2007. It agreed that flux rates vary and that the Department has
chosen to average flux rates to get the most accurate picture of
overall emissions. Their response, which is supported by CARB, is as
follows:
DPR agrees that the variability in flux rates (emissions)
between applications is large. For fumigants and application methods
with multiple studies, the standard deviations of the emissions are
approximately 50 percent. DPR has chosen to use the average flux
rates to estimate emissions for three reasons. First, the emissions
inventory represents the aggregate emissions from all agricultural
and structural pesticide applications within a region over several
months. The average flux rates represent the most accurate estimate
of aggregate emissions. Second, all pesticide applications included
in DPR's inventory represent its most accurate and consistent
estimate of emissions, for both the base year and subsequent years.
Using a consistent method to estimate emissions is essential for
making relative comparisons and determining compliance with the SIP
commitments. Using the most accurate estimates for some applications
and high-end estimates for other applications would skew the
inventory and make relative comparisons unreliable. Third, even if
DPR were to use high-end emission estimates, they would affect both
current emissions and emissions for the 1991 base year. Estimates of
the 1991 base year emissions are generally more uncertain, than
current emissions. DPR would likely apply a larger uncertainty
factor to the 1991 base year than current emissions, and the
emissions reductions achieved would be larger than currently
estimated using the average flux rates.
See CDPR, Rulemaking File For Regulations Filed and in Effect on
January 8, 2008; Final Statement of Reasons, Attachment A: Summary of
Comments Received During the 45-Day Comment Period and DPR's Response.
Therefore, we conclude that CDPR took a reasoned approach to
establishing AMAF based on the available science.
F. Necessary Assurances Under CAA Section 110(a)(2)(e)
Comment: El Comit[eacute] states that the fumigant regulations are
unenforceable because they do not provide a funding mechanism, and
because CDPR has not demonstrated under CAA section 110(a)(2)(E) that
the state and CAC have adequate personnel, funding and authority to
implement and enforce the regulations.
Response: We disagree that the fumigant regulations are
unenforceable if they do not provide a mechanism to fund enforcement.
Nothing in the CAA or EPA regulations require a SIP rule to include a
rule-specific funding mechanism in order to be enforceable. If that
were so, every SIP-approved rule would need to contain a specific
funding mechanism before EPA could incorporate into SIP, which is not
the case.
CAA section 110(a)(2)(e) requires states to provide ``necessary
assurances that the State * * * will have adequate personnel, funding,
and authority under State (and, as appropriate, local) law to carry out
such implementation plan.'' CDPR has provided sufficient assurance that
it has adequate funding (as well as personnel and authority) to
implement the regulations.
CDPR funds CAC on an annual basis to conduct inspections and
enforcement activities. Funding derives from an assessment on pesticide
sales. CDPR collects 21 mill (or 2.1 cents) per dollar, of which
approximately 7.6 mill is designated for CAC pesticide use inspection
and enforcement activities (3 CCR section 6386; CFAC sections 12841 and
12841.3). In 2006 CDPR and the California Agricultural Commission and
Sealers Association entered into a Memorandum of Understanding that
explains the process for distributing funds.\22\
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\22\ CDFA, Disbursement of Residual Mill Assessment Funds To
Enhance Local Pesticide Enforcement Programs, May 2006, found at
http://www.cdfa.ca.gov/exec/county/documents/DISBURSMENT_OF_RESIDUAL_MILL_ASSESSMENT_FUNDS_TO_ENHANCE.pdf.
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The CAC have conducted 3,154 field fumigant inspections since
January 1, 2008.\23\ In 2010-2011, CAC made 724 field fumigant
inspections and 2,130 structural fumigation inspections
[[Page 65302]]
statewide.\24\ In addition, CAC must conduct pre-application site
evaluation inspections for at least 5 percent of all sites identified
in permits or notices of intent (NOI) to apply pesticides for
agricultural use (3 CCR section 6436). In 2010-2011, CAC's conducted a
total of 7,941 pre-application inspections out of a total of 136,491
NOI,\25\ or 5.8 percent of NOI reviewed.
---------------------------------------------------------------------------
\23\ Email and attachment from Ken Everett, CDPR to Nancy Levin,
EPA, August 1, 2008.
\24\ See CDPR, California Statewide Pesticide Regulatory
Activities Summary Between July 2010 and June 2011 (http://www.cdpr.ca.gov/docs/enforce/prasr/10-11prasr.pdf), page 31.
\25\ See CDPR, California Statewide Pesticide Regulatory
Activities Summary Between July 2010 and June 2011, pp. 31 and 33
(found at http://www.cdpr.ca.gov/docs/enforce/prasr/10-11prasr.pdf).
---------------------------------------------------------------------------
Both CDPR and CAC enforcement authority is derived from State law
and regulation. See CFAC section 14004; see also, CFAC section 2281 and
11501.5 and 3 CCR sections 6140 and 6128. Beyond its enforcement
authorities, California law provides CDPR with the authority to place
limitations on the quantity, area, and manner of application to reduce
pesticide emissions through restricted materials permit conditions. See
CFAC section 14006.5 and 3 CCR section 6412. Permits to use restricted
materials are issued by the CAC, who has broad discretion to condition
the permits on additional use restrictions. See CFAC section 14006.
CDPR has oversight of the permit process and recommends conditions to
be included in the CAC's permits. It can also enact use restrictions by
regulation. See CFAC section 14005. In addition, for products
containing a new active ingredient, CDPR may place appropriate
restrictions on a product's use, including limitations on the quantity,
area, and manner of application, and require low VOC formulations as a
condition of registration. See CFAC section 12824.\26\
---------------------------------------------------------------------------
\26\ CDPR describes its authorities on page 1 of the revised SIP
commitment for the SJV.
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Comment: El Comit[eacute] asserts that approval of the revised SIP
commitment for the SJV and the fumigant regulations would be arbitrary
and capricious and a violation of CAA section 110(a)(2)(E) because
neither CDPR nor CARB have provided a demonstration that the commitment
and regulations are not prohibited by Title VI of the Civil Rights Act
and EPA's regulations implementing Title VI.
Response: In addition to requiring a state to provide necessary
assurances regarding adequate resources and authority for
implementation, CAA section 110 (a)(2)(E) also requires a state to
provide ``necessary assurances that the State * * * is not prohibited
by any provision of Federal or State law from carrying out such
[SIP].''
El Comit[eacute] asserts that California failed to provide a
``demonstration'' that its proposed revisions are not prohibited by
Title VI of the Civil Rights Act.\27\ Section 110(a)(2)(E), however,
does not require a state to ``demonstrate'' it is not prohibited by
Federal or State law from implementing its proposed SIP revision.
Rather, this section requires a state to provide ``necessary
assurances'' of this. Courts have given EPA ample discretion in
deciding what assurances are ``necessary'' and have held that a general
assurance or certification is sufficient. (``EPA is entitled to rely on
a state's certification unless it is clear that the SIP violates state
law and proof thereof * * * is presented to EPA.'' BCCA Appeal Group v.
EPA, 355 F.3d 817, 830 fn 11 (5th Cir. 2003)).
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\27\ Title VI of the Civil Rights Act of 1964 prohibits
discrimination by entities receiving federal funds. 42 U.S.C. 2000d.
Section 601 provides that no person shall, ``on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity'' covered by Title VI. Id. Section 602
authorizes federal agencies that provide federal funding assistance
to issue regulations to effectuate the anti-discrimination
provisions of Title VI. Id. at 2000d-1. Pursuant to section 602, EPA
promulgated regulations prohibiting EPA funding recipients from
engaging in discrimination. See 40 CFR 7.30 and 7.35.
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El Comit[eacute] does not allege a violation of Title VI by either
CDPR or CARB nor does it provide evidence that either the revised SIP
commitment for the SJV and/or the fumigant regulations would result in
any adverse environmental impacts. While El Comit[eacute] includes in
their letter several statements on fumigant usage and fumigant VOC
emissions in Ventura County and the SJV (citing various CDPR documents
as the sources), it provides no evidence that these usage rates or
pesticide VOC emissions rates are either the result of implementing the
revised SIP commitment and/or fumigant regulations or would not have
resulted absent the implementation of the commitment and
regulations.\28\
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\28\ It is also worthy of note that, to EPA's knowledge, none of
the groups that signed the El Comit[eacute] letter raised Title VI
concerns during CDPR's rulemaking process to adopt and amend the
fumigant regulations or adopt the revised SIP commitment for SJV nor
did they raise any Title VI concerns to EPA while CDPR and CARB were
going through their respective rulemaking processes.
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On the other hand, California has provided multiple evaluations
that show the revised SIP commitment for SJV and the fumigant
regulations will improve California's air quality by reducing VOC
emissions from pesticides, will not result in any significant adverse
environmental impacts, and in fact, by reducing VOC, will improve air
quality and assist the areas in their progress toward attainment of the
ozone standards.\29\
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\29\ For a list of these, see TSD, Section III.F. Response F-2.
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Both CDPR and CARB receive annual grants from EPA and have done so
for many years. As grant recipients, both agencies must certify their
compliance with Title VI and have done so in every year since the
revised commitment and fumigant regulations were first adopted by CDPR
in 2007 and submitted by CARB in 2009.\30\ In addition, by letter dated
August 7, 2012, CDPR provided EPA a further description of the ways in
which its pesticide regulatory program, including the VOC rule EPA is
approving today, complies with sections 601 and 602 of Title VI of the
Civil Rights Act of 1964 (Title VI) that govern recipients of federal
financial assistance.\31\ Thus, EPA concludes California has provided
the necessary assurances pursuant to 110(a)(2)(e).
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\30\ See, for example, EPA Form 4700-4, Preaward Compliance
Review Report for All Applicants and Recipients Requesting EPA
Financial Assistance for CDPR, May 10, 2010 and EPA Form 4700-4,
Preaward Compliance Review Report for All Applicants and Recipients
Requesting EPA Financial Assistance for CARB, August 13, 2010.
\31\ Letter, Brian R. Leahy, Director, CDPR to Jared Blumenfeld,
Regional Administrator, EPA Region 9, August 7, 2012, which can be
found in the docket for this rule.
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G. EPA's Response to the Ninth Circuit Court of Appeals Remand in
Association of Irritated Residents Case
Comment: El Comit[eacute] asserts that EPA offered no factual basis
or reasoned explanation for concluding that, with the addition of the
fumigant regulations, the revised SIP commitment for SJV is
sufficiently enforceable, and because EPA has failed to provide an
explanation, its approval of the fumigant regulations and the revised
SIP commitment as enforceable in tandem is arbitrary and capricious.
Response: On page 24450 of our April 24, 2012 proposed rule, we
concluded that:
* * * there is no need to rescind or otherwise modify our 1997
approval of the Pesticide Element or our 2009 approval of PEST-1
notwithstanding the deficiencies in enforceability in the Pesticide
Element due to the absence of an enforceable mechanism like the
Wells Memorandum. In short, this is because CDPR's regulations and
revised commitment for San Joaquin Valley provide the enforceable
mechanism that would otherwise be lacking in the Pesticide Element.
If EPA approves the regulations and commitment, as proposed herein,
then the Pesticide Element would be fulfilled. If, after
consideration of comments, EPA concludes that the regulations and
commitment do not
[[Page 65303]]
meet the applicable CAA requirements, then the decision regarding
EPA's previous actions on the Pesticide Element would need to be
reconsidered.
As explained further here and in other sections of this document,
EPA is concluding CDPR's regulations and the commitment meet the
applicable CAA requirements, and thus, we are finalizing our
determination that the commitments in the 1994 Pesticide Element have
been fulfilled, which in turn, forms the basis for our final decision
not to rescind or otherwise modify our 1997 approval of the Pesticide
Element or our 2009 approval of PEST-1. Specifically, as to SJV, we
stated:
For San Joaquin Valley, CDPR's regulations restricting fumigant
application methods and establishing requirements on CDPR to
inventory and report VOC emissions from pesticide use apply just as
they do in the other four nonattainment areas. While these
regulations and other measures have decreased VOC emissions from
pesticide use in San Joaquin Valley such that current VOC emissions
are approximately 18 percent less than 1990 levels, CDPR concluded
that a mechanism was needed to supplement the regulations to ensure
that the 12 percent emissions reduction target would be met in the
San Joaquin Valley. The supplemental mechanism chosen by CDPR is the
adoption of a commitment, which we are proposing to approve in
today's action, to manage VOC emissions from commercial structural
and agricultural pesticide use, such that the related VOC emissions
do not exceed 18.1 tons per day in the San Joaquin Valley. This
level of emissions reflects a 12 percent emissions reduction from
1990 level of VOC emissions from pesticide use. The specific
measures that CDPR would undertake to bring emissions back down to
that level in the event that the annual inventory reveals that the
18.1 tons per day emissions level had been exceeded are vague.
Considered in isolation, the revised commitment for San Joaquin
Valley changes the form of the commitment in the Pesticide Element
for the valley but does not represent an enforceable measure for SIP
purposes. However, when viewed in light of the CDPR's regulations,
the combination of the commitment and fumigant regulations does meet
the minimum requirements for enforceability of SIP measures and
reasonably ensures that the 12 percent emissions reduction target
from the Pesticide Element would be achieved in San Joaquin Valley.
77 FR 24441, 24450.
Factual support for our conclusion is found in the CDPR staff
report on the revised SIP commitment for SJV which provides a table of
baseline pesticide emissions in SJV (19.3 tpd) and an estimate of the
VOC emissions reductions (1.5 tpd) due to CDPR's fumigant regulations
(that are being approved as part of this action). Based on the data in
CDPR's table, the fumigant regulations reduce baseline pesticide
emissions to 17.8 tpd, which is 0.3 tpd less than the 18.1 tpd
emissions cap (that derives from the 12 percent emissions reduction
commitment from the existing California SIP Pesticide Element).
Therefore, in most years, CDPR's fumigant regulations alone would
safeguard the emission limit.
CDPR acknowledges, however, that fumigant use varies from year to
year and could in some years be unusually high, raising the potential
for the emission limit to be exceeded. This is why CDPR commits (1) to
implement restrictions to reduce VOC emissions from non-fumigant
pesticides by 2014 and (2) to commit to manage pesticide VOC emissions
in SJV through annual emissions inventories and take further steps to
reduce pesticide VOC emissions if necessary to bring such emissions
back down below the emission limit.
Comment: El Comit[eacute] argues that EPA's rationale for finding
the combination of the revised SIP commitment for SJV and the fumigant
regulations enforceable is unfounded because three quarters of all
adjusted pesticide VOC emissions in the SJV in 2010 came from non-
fumigants and SJV exceeded the 18.1 tpd emissions cap in 2005 and 2006
``despite CDPR's use of an adjusted inventory for fumigants in the
Valley.'' They argue further that controlling only one-quarter of the
pesticide VOC inventory in the Valley with the fumigant regulations
does not ensure that the revised SIP commitment meets the CAA
requirement for enforceability.
Response: El Comit[eacute] cites CDPR's 2010 annual inventory of
pesticide VOC emissions as the source for their claim that VOC
emissions in SJV exceeded the 18.1 tpd limit in 2005 and 2006 and that
fumigant VOC emissions represent only 25 percent of the overall total
pesticide emissions in SJV. Based on our review of CDPR's Revised 2010
Pesticide VOC Emissions Report, we confirm El Comit[eacute]'s factual
statements but believe that the report supports EPA's conclusion that
the combination of the commitment and fumigant regulations does meet
the minimum requirements for enforceability of SIP measures and
reasonably ensures that the 12 percent emissions reduction target from
the Pesticide Element would be achieved in SJV. This is because (1) the
emissions cap of 18.1 tpd has not been exceeded since adoption of
CDPR's fumigant regulations in 2008; and (2) the percentage of
pesticide VOC emissions due to fumigant use has declined from an
average of 34 percent during the 3-year period (2005-2007) prior to
implementation of CDPR's fumigant regulations to an average of 24
percent during the 3-year period (2008-2010) after implementation. See
tables 5 and 6a of CDPR's Revised 2010 Pesticide VOC Emissions Report.
This decline in the percentage of pesticide VOC emissions due to
fumigant use is exactly the effect that would be expected in light of
the implementation of CDPR's restrictions on the use of higher-emitting
application methods, and it demonstrates that CDPR's fumigant
regulations are effective at reducing pesticide VOC emissions in the
SJV and to maintaining in compliance with the 18.1 tpd emission limit.
Comment: El Comit[eacute] argues that because the SIP revision
lacks a commitment to retain the fumigant regulations, EPA's rationale
for using the fumigant regulations as its basis for finding the SIP
revision enforceable is ``illusory.'' El Comit[eacute] asserts that
CDPR could rescind the fumigant regulations and CARB could offer new
VOC controls applicable to other sources to support a section 110(l)
demonstration.
Response: The SIP revision does not need to include a commitment to
retain the fumigant regulations. If CDPR were to rescind the fumigant
regulations, such rescission must be approved by EPA as a SIP revision
to be rescinded as a part of the California SIP. The CAA does not allow
unilateral changes to SIPs by states. Moreover, EPA has determined that
the fumigant regulations are required to meet the section 182(b)(2)
reasonably available control technology (RACT) requirement in the SJV,
so for at least for SJV, California would need to demonstrate that the
SIP still provides for RACT in SJV absent the fumigant regulations.
Simple substitution of the fumigant regulations with new VOC emissions
controls may not suffice in SJV due to the RACT requirement for the
pesticide use source category.
In addition, to approve any rescission of CDPR's fumigant
regulations submitted as a SIP revision, we would need to find that
such rescission would not interfere with RFP and attainment of the
NAAQS or any other applicable requirement of the Act pursuant to CAA
section 110(l), and would therefore need to consider the effect of the
rescission on the continued enforceability of the California SIP
Pesticide Element and would need to consider the emissions impacts in
the context of the RFP and attainment needs of the areas for which the
regulations provide emissions reductions. Lastly, we note that any
action EPA would take on such a rescission of the fumigant regulations
would be subject to the normal public
[[Page 65304]]
notice and comment procedures that EPA follows for all actions on SIPs
and SIP revisions.
III. Final Action
EPA is approving under CAA section 110(k)(3) the revisions to the
California SIP Pesticide Element submitted by CARB on October 12, 2009
and August 2, 2011 (with the exception of the provisions related to
methyl iodide). These revisions include CDPR's fumigant regulations and
its revised SIP commitment for the SJV. Our approval will incorporate
these revisions into the California's federally-enforceable SIP. This
approval also satisfies California's obligation to implement RACT for
field fumigation operations in the SJV under CAA section 182(b)(2) for
the 1-hour ozone and 1997 8-hour ozone standards and thereby terminates
both the sanctions clocks and the Federal Implementation Plan clock for
this source category triggered by our January 10, 2012 partial
disapproval action. See 77 FR 1417 (January 10, 2012).
EPA provided its preliminary response to the remands by the Ninth
Circuit Court of Appeals in Association of Irritated Residents v. EPA,
632 F.3d 584 (9th Cir. 2011), revised January 27, 2012 (AIR) in the
proposal for this rule. See 77 FR 24441, 24447. The Association of
Irritated Residents remand required EPA to evaluate the California SIP
Pesticide Element for enforceability under the CAA. In the proposed
rule, EPA found that there is no need to either rescind or modify our
prior approvals of the Pesticide Element because it had concluded that
the SIP revisions fulfilled the commitments of the original Pesticide
Element, thus obviating the need to address the deficiencies in
enforceability of those original commitments. We are finalizing our
response from the proposal without change.\32\
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\32\ Our final response to the remand in Association of
Irritated Residents also represents our final response to the Ninth
Circuit's July 2, 2012 remand order in El Comit[eacute] Para El
Bienestar De Earlimart v. EPA (No. 08-74340). Because both remands
necessitate the same type of evaluation for the same portion of the
California SIP, our rationale for our response to both remands is
the same.
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IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the EPA Administrator is required to
approve a SIP submittal that complies with the provisions of the Act
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submittals, EPA's role is to approve State
choices, provided that they meet the criteria of the CAA. Accordingly,
this action merely approves State law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
State law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 26, 2012. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 14, 2012.
Jared Blumenfeld,
Regional Administrator, Region 9.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraphs (c)(413) and (c)(414)
to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(413) The following plan revisions were submitted on October 12,
2009, by the Governor's designee.
(i) Incorporation by reference.
(A) California Department of Pesticide Regulation.
(1) California Code of Regulations, Title 3 (Food and Agriculture),
Division 6 (Pesticides and Pest Control Operations), Chapter 2
(Pesticides), Subchapter 4 (Restricted Materials), Article 4 (Field
Fumigation Use
[[Page 65305]]
Requirements), sections 6447, ``Methyl Bromide-Field Fumigation--
General Requirements,'' the undesignated introductory text (operative
January 25, 2008; as published in Register 2010, No. 44); 6447.3,
``Methyl Bromide-Field Fumigation Methods'' (operative January 25,
2008); 6448, ``1,3, Dichloropropene Field Fumigation--General
Requirements'' (operative January 25, 2008); 6449, ``Chloropicrin Field
Fumigation--General Requirements'' (operative January 25, 2008); 6450,
``Metam-Sodium, Potassium N-methyldithiocarbamate (metam-potassium),
and Dazomet Field Fumigation--General Requirements'' (operative January
25, 2008); 6450.2, ``Dazomet Field Fumigation Methods'' (operative
January 25, 2008); 6451, ``Sodium Tetrathiocarbonate Field Fumigation--
General Requirements'' (operative January 25, 2008); 6451.1, ``Sodium
Tetrathiocarbonate Field Fumigation Methods'' (operative January 25,
2008); 6452, ``Reduced Volatile Organic Compound Emissions Field
Fumigation Methods'' (operative January 25, 2008); 6452.1, ``Fumigant
Volatile Organic Compound Emission Records and Reporting'' (operative
January 25, 2008).
(ii) Additional material.
(A) California Department of Pesticide Regulation.
(1) Decision, ``In the Matter of Proposed Ozone SIP Commitment for
the San Joaquin Valley,'' signed by Mary-Ann Warmerdam, April 17, 2009,
including Exhibit A, ``Department of Pesticide Regulation Proposed SIP
Commitment for San Joaquin Valley.''
(2) Memorandum, Rosemary Neal, Ph.D., California Department of
Pesticide Regulation to Randy Segawa, California Department of
Pesticide Regulation, November 5, 2008; Subject: Update to the
Pesticide Volatile Organic Inventory. Estimated Emissions 1990-2006,
and Preliminary Estimates for 2007.
(414) The following plan revisions were submitted on August 2,
2011, by the Governor's designee.
(i) Incorporation by reference.
(A) California Department of Pesticide Regulation.
(1) California Code of Regulations, Title 3 (Food and Agriculture),
Division 6 (Pesticides and Pest Control Operations), Chapter 2
(Pesticides), Subchapter 4 (Restricted Materials), Article 4 (Field
Fumigation Use Requirements), sections 6448.1, ``1,3-Dichloropropene
Field Fumigation Methods'' (operative April 7, 2011); 6449.1,
``Chloropicrin Field Fumigation Methods'' (operative April 7, 2011);
6450.1, ``Metam-Sodium and Potassium N-methyldithiocarbamate (Metam-
Potassium) Field Fumigation Methods'' (operative April 7, 2011);
6452.2, ``Fumigant Volatile Organic Compound Emission Limits''
(excluding benchmarks for, and references to, Sacramento Metro, San
Joaquin Valley, South Coast, and Southeast Desert in subsection (a) and
excluding subsection (d))(operative April 7, 2011); 6452.3, ``Field
Fumigant Volatile Organic Compound Emission Allowances'' (operative
April 7, 2011); 6452.4, ``Annual Volatile Organic Compound Emissions
Inventory Report'' (excluding reference to section 6446.1 in
subsection(a)(4))(operative April 7, 2011).
(2) California Code of Regulations, Title 3 (Food and Agriculture),
Division 6 (Pesticides and Pest Control Operations), Chapter 3 (Pest
Control Operations), Subchapter 2 (Work Requirements), Article 1 (Pest
Control Operations Generally), sections 6624, ``Pesticide Use Records''
(excluding references in subsection (f) to methyl iodide and section
6446.1) (operative December 20, 2010); section 6626, ``Pesticide Use
Reports for Production Agriculture'' (operative April 7, 2011).
* * * * *
[FR Doc. 2012-26311 Filed 10-25-12; 8:45 am]
BILLING CODE 6560-50-P