[Federal Register Volume 77, Number 79 (Tuesday, April 24, 2012)]
[Proposed Rules]
[Pages 24441-24451]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9850]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2012-0194; FRL-9664-5]
Approval and Promulgation of Implementation Plans; California;
Revisions to the California State Implementation Plan Pesticide Element
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to approve 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: (1) Reduce volatile organic compound
(VOC) emissions from the application of agricultural field fumigants in
the South Coast, Southeast Desert, Ventura, San Joaquin Valley (SJV),
and Sacramento Metro ozone nonattainment areas by restricting fumigant
application methods; (2) establish a contingency fumigant emissions
limit and allocation system for Ventura; (3) require CDPR to prepare
and make available to the public an annual pesticide VOC emissions
inventory report; and (4) require recordkeeping and reporting of
pesticide usage. EPA also proposes to approve 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. Lastly, EPA is providing its
response to a remand by the Ninth Circuit Court of Appeals of EPA's
2009 approval of a revision to the California SIP related to reducing
VOC emissions from pesticides.
DATES: Any comments must arrive by May 24, 2012.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2012-0194, by one of the following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow
the on-line instructions.
Email: steckel.andrew@epa.gov.
Mail or deliver: Andrew Steckel, (AIR-4), U.S.
Environmental Protection Agency Region 9, 75 Hawthorne Street, San
Francisco, CA 94105.
Instructions: All comments will be included in the public docket
without change and may be made available online at www.regulations.gov,
including any personal information provided, unless the comment
includes Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information that you
consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through www.regulations.gov or email.
The www.regulations.gov Web site is an ``anonymous access'' system, and
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send email directly to
EPA, your email address will be automatically captured and included as
part of the public comment. If EPA cannot read your comments due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment.
Docket: The technical support document (TSD) and the index to the
docket for this proposed action is available electronically on the
www.regulations.gov Web site and in hard copy at EPA Region 9, 75
Hawthorne Street, San Francisco, California 94105. While all documents
in the docket are listed in the index, some information 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 either of the contacts listed in the
FOR FURTHER INFORMATION CONTACT section below.
FOR FURTHER INFORMATION CONTACT: For information on the proposed action
on CDPR's regulations: Nancy Levin, Rules Office (AIR-4), (415) 972-
3848, levin.nancy@epa.gov. For information on the proposed actions on
CDPR's commitments and the PEST-1 measure: 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. Introduction
II. The Current California SIP Pesticide Element and Description of
the Proposed Revisions
A. Currently-Approved Provisions of the California SIP Pesticide
Element
B. Proposed Revisions to the California SIP Pesticide Element
III. EPA's Evaluation of the Revisions to the California SIP
Pesticide Element
A. Clean Air Act (CAA) Procedural and Administrative
Requirements for SIP Submittals Under CAA Section 110
[[Page 24442]]
B. Enforceability of Emission Limitations Under CAA Section
110(a)(2)(A)
C. Reasonably Available Control Measures/Reasonably Available
Control Technology (RACM/RACT) Requirement Under CAA Sections
172(c)(1) and 182(b)(1)
D. Finding of Non-Interference With Applicable Requirements of
the CAA Under Section 110(l)
IV. Response To Remand in Association of Irritated Residents Case
V. Proposed Actions and Opportunity for Public Comment
VI. Statutory and Executive Order Reviews
I. Introduction
This proposed action deals with revisions to California's
federally-approved program to reduce 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, San Joaquin Valley (SJV), and Sacramento Metro nonattainment
areas. Pesticides contribute to ozone pollution through the emissions
of volatile organic compounds (VOC). VOC react in the atmosphere with
nitrogen oxides (NOX) in the presence of sunlight to form
ozone. Breathing ground-level ozone can result in a number of health
effects that are observed in broad segments of the population. These
health effects include reduced lung function and inflamed airways,
which can increase respiratory symptoms and aggravate asthma or other
lung diseases. Ozone exposure also has been associated with increased
susceptibility to respiratory infections, medication use, doctor
visits, and emergency department visits and hospital admissions for
individuals with lung disease. Ozone exposure also increases the risk
of premature death from heart or lung disease. Children are at
increased risk from exposure to ozone because their lungs are still
developing and they are more likely to be active outdoors, which
increases their exposure.
Pesticides contribute about 5 percent to total VOC emissions in SJV
and Ventura ozone nonattainment areas and less than 1 percent to total
VOC emissions in the South Coast, SED, and Sacramento Metro areas. See
TSD, section I.D.
This proposal addresses the regulation of VOC emissions from
pesticides under the federal Clean Air Act (CAA or ``Act''). Pesticides
and their uses and application are primarily regulated under Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA). This proposal does
not address regulations of pesticides under FIFRA or other federal
acts.
II. The Current California SIP Pesticide Element and a Description of
the Proposed Revisions
A. Currently-Approved Provisions of the California SIP Pesticide
Element
Prior to today's proposal, EPA has taken three actions to either
approve or revise provisions of the California SIP Pesticide Element.
We briefly describe each action below. More information on each action
and its background can be found in section I.E. of the TSD for this
proposal.
1994 Pesticide Element--The 1994 Pesticide Element was
submitted by California in November 1994 as part of the State's
comprehensive 1-hour ozone attainment plan (known as the 1994 Ozone
SIP) and included a plan by CDPR to reduce VOC emissions from
agricultural and structural pesticides in five ozone nonattainment
areas by a maximum of 20 percent from 1990 baseline levels by 2005 and
to adopt regulations if necessary to achieve these reductions. EPA
approved the 1994 Pesticide Element on January 8, 1997 (62 FR 1150) and
codified it at 40 CFR 52.220(c)(204)(i)(A)(6) and 52.220(c)(236).
PEST-1 Measure in CARB's 2003 State Strategy--In 2003, the
California Air Resources Board (CARB) updated the statewide strategy
that was part of the 1994 Ozone SIP. One of the measures in the 2003
State Strategy was PEST-1 (``Implement Existing Pesticide Strategy''),
which retained and continued unchanged the provisions of the 1994
Pesticide Element. EPA approved the PEST-1 measure into the California
SIP as part of its action to approve in part and disapprove in part the
2003 South Coast Air Quality Management Plan and 2003 State Strategy.
See 74 FR 10176 (March 10, 2009), codified at 40 CFR
52.220(c)(339)(ii)(A)(1).\1\
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\1\ In Association of Irritated Residents v. EPA, No. 09-71383,
the 9th Circuit Court of Appeals remanded the approval of PEST-1 to
EPA with the instructions to determine whether the Pesticide Element
has sufficient enforcement mechanisms to satisfy the requirements of
the Clean Air Act (CAA or Act). We provide our response to the
remand in section IV of this notice.
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2007 Ventura Pesticide Element--In 2007, CARB submitted a
revision to the Ventura portion of the 1994 Pesticide Element. This
revision reduced in part and temporally the emissions reduction
commitment for Ventura in 1994 Pesticide Element. EPA approved this
revision in 2008. See 73 FR 41277 (July 18, 2008), codified at 40 CFR
52.220(c)(355)(i)(A).
B. Proposed Revisions to the California SIP Pesticide Element
EPA is proposing to approve regulations and commitments adopted by
the CDPR to limit VOC emissions from the use of agricultural and
commercial structural pesticides in the South Coast, SED, Ventura, SJV,
and Sacramento Metro ozone nonattainment areas.\2\ These CDPR
regulations and commitments were submitted by CARB to EPA as follows:
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\2\ The South Coast nonattainment area includes Orange County
and portions of Los Angeles, San Bernardino, and Riverside Counties.
The Southeast Desert (SED) nonattainment area includes the Coachella
Valley in Riverside County, Antelope Valley in Los Angeles County,
and the southwestern quadrant of San Bernardino County. The Ventura
nonattainment area is Ventura County. The San Joaquin Valley (SJV)
nonattainment area includes San Joaquin, Stanislaus, Merced, Madera,
Fresno, Tulare and Kings Counties and the valley portion of Kern
County. The Sacramento Metro nonattainment area includes Sacramento
County and parts of El Dorado, Placer, Solano and Sutter Counties.
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1. October 12, 2009 submittal \3\ of the following CDPR
regulations:
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\3\ See letter, James N. Goldstene, Executive Officer, CARB to
Laura Yoshii, Acting Regional Administrator, EPA Region 9, October
12, 2009.
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Title 3 California Code of Regulations (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
6624-6626 pertaining to emission inventory;
3 CCR sections 6452.2 and 6452.3 pertaining to field
fumigation limits and allowances in the Ventura ozone nonattainment
area.\4\
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\4\ CARB did not submit for inclusion into the SIP those
portions of 3 CCR sections 6452.2 and 6452.3 pertaining to field
fumigation limits and allowances in the South Coast, SED, SJV, and
Sacramento Metro ozone nonattainment areas.
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2. October 12, 2009 submittal \5\ of CDPR's revised ``Pesticide
Emission Reduction Commitment for the San Joaquin Valley''. This
submittal caps VOC emissions from the use of agricultural and
commercial structural pesticides in the SJV to 18.1 tpd and commits
CDPR to implement restrictions on non-fumigant pesticides in the SJV by
2014.
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\5\ See letter, James N. Goldstene, Executive Officer, CARB to
Laura Yoshii, Acting Regional Administrator, EPA Region 9, October
12, 2009.
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3. August 2, 2011 submittal \6\ of the following CDPR regulations
which revised in part and added to the October 12, 2009 submittal: \7\
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\6\ See letter, James N. Goldstene, Executive Officer, CARB to
Jared Blumenfeld, Regional Administrator, EPA Region 9, August 2,
2011.
\7\ As part of its August 2, 2011 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. CDPR adopted this set of methyl
iodide-related regulations on May 11, 2011, after and separately
from the CDPR April 7, 2011 regulations that are also included in
the CARB August 2, 2011 submittal.
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[[Page 24443]]
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 ozone
nonattainment area.
3 CCR section 6452.4 pertaining to the annual VOC
emissions inventory report.
3 CCR sections 6624 and 6626 pertaining to pesticide use
records and reports.
The submitted CDPR regulations that we are proposing action on
today can be divided into four distinct but related parts. The first
part (3 CCR sections 6447 through 6452) establishes standards for
fumigant application and restricts the use of certain higher-emitting
application methods in the five nonattainment areas. The second part (3
CCR sections 6452.2 and 6452.3) provides a contingency mechanism to
limit VOC emissions from field fumigant applications in the Ventura
nonattainment area. The third part (3 CCR section 6452.4) requires CDPR
to annually report on pesticide VOC emissions in each of the five
nonattainment areas and establishes requirements for the report. The
fourth part (3 CCR sections 6624 and 6626) establishes the
recordkeeping and reporting requirements necessary to ensure compliance
with the other parts. We describe each part in more detail below.
The first part (3 CCR sections 6447 through 6452) establishes, by
fumigant and method, requirements for the field application of seven
fumigants and restricts the use of certain higher-emitting application
methods in the South Coast, SED, Ventura, SJV, and Sacramento Metro
ozone nonattainment areas during the period May 1 to October 31.\8\
Requirements are described for the field fumigants: methyl bromide
(sections 6447 and 6447.3), 1,3-dichloropropene (sections 6448 and
6448.1), chloropicrin (sections 6449 and 6449.1), metam-sodium,
potassium N-methyldithiocarbamate and dazomet (sections 6450, 6450.1
and 6450.2), and sodium tetrathiocarbonate (sections 6451 and 6451.1).
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\8\ CDPR's regulations establishing the parameters for field
fumigant application methods (but not the restrictions on which
methods may be used during certain periods of the year) apply
statewide; however, EPA is limiting its approval to just the five
listed nonattainment areas.
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Specific requirements for applying these fumigants include, for
example, limiting fumigant application rates (pounds/acre); specifying
application methods (e.g., minimum injection depth below soil surface,
number of water treatments, minimum hours to leave tarpaulin in place);
and requiring plans to address damaged tarpaulins. 3 CCR section 6452
allows CDPR to approve alternative fumigation methods under certain
conditions and based on specific criteria.
As submitted, the second part of CDPR's regulations (3 CCR sections
6452.2 and 6452.3) apply only to the Ventura ozone nonattainment area.
This part requires CDPR to set a field fumigant VOC emissions limit for
Ventura in its annual VOC emissions inventory report if overall
pesticide emissions (not just fumigant emissions) in the Ventura
nonattainment area are found to be within five percent of or exceed the
listed benchmark. The benchmark is equivalent to the 20 percent
reduction in pesticide VOC emissions from 1990 emissions levels that is
required in the area by the California SIP Pesticide Element. This part
further requires that the county agricultural commissioner add
conditions to field fumigation permits or take other actions that will
prevent the field fumigant limit from being exceeded.
The third part of the submitted regulations (3 CCR section 6452.4)
requires CDPR to issue an annual emissions inventory report that
reports the total agricultural and commercial structural (fumigant and
nonfumigant) pesticide VOC emissions for previous years in each of the
five nonattainment areas and evaluates compliance with the emissions
reduction targets in each area. This section specifies the method for
calculating emissions and requires CDPR make a draft emissions
inventory available to the public for a 45-day comment period and post
the final report on its Web site.
The fourth part of the submitted regulations (3 CCR sections 6624
and 6626) establishes the pesticide use recordkeeping and reporting
requirements needed to assure compliance with the other parts. This
part requires anyone using pesticides in specific applications to keep
and maintain certain records for two years and requires operators of
property that produces an agricultural commodity and agricultural pest
control businesses to report the use of pesticides to the county
agricultural commissioner. These sections require the recording and
reporting of the method for fumigant application in the five
nonattainment areas.
CDPR has revised its commitments in the 1994 Pesticide Element to
limit VOC emissions from agricultural and commercial structural
pesticides in the SJV. Specifically, it is now committing to
Use a specified emissions estimation methodology to
establish the 1990 pesticide VOC emission levels and evaluate
compliance with the provisions in the 1994 Pesticide Element for SJV;
Implement restrictions on agricultural fumigation methods
and by 2014 implement restrictions on VOC emissions from non-fumigant
pesticides; and
Manage VOC emissions from agricultural and commercial
structural pesticide use to ensure that they do not exceed 18.1 tons-
per-day in the SJV area (which is equivalent to a 12 percent reduction
in pesticide VOC emissions from 1990 levels).
III. EPA's Evaluation of the Revisions to the California SIP Pesticide
Element
A. CAA Procedural and Administrative Requirements for SIP Submittals
Under CAA Section 110
CAA sections 110(a)(1) and (2) and 110(l) require a state to
provide reasonable public notice and opportunity for public hearing
prior to the adoption and submittal of a SIP or SIP revision. To meet
this requirement, every SIP submittal should include evidence that
adequate public notice was given and an opportunity for a public
hearing was provided consistent with EPA's implementing regulations in
40 CFR 51.102. All three submittals under consideration here included
evidence of adequate public notice and opportunity for comment.
CAA section 110(k)(1)(B) requires EPA to determine whether a SIP
submittal is complete within 60 days of receipt. This section also
provides that any SIP submittal that we have not affirmatively
determined to be complete or incomplete will become complete by
operation of law six months after the day of submittal. The October 12,
2009 submittals of the CDPR's regulations and the revised SJV Pesticide
Element went complete by operation of law on April 12, 2009. The August
2, 2011 submittal of revisions to CDPR's regulations went complete by
operation of law on February 2, 2012.
[[Page 24444]]
B. Enforceability of Emission Limitations Under CAA Section
110(a)(2)(A)
CAA section 110(a)(2)(A) requires that SIP ``shall include
enforceable emissions limitations, and such other control measures,
means or techniques (* * *) as well as schedules and timetables for
compliance, as may be necessary or appropriate for attainment * * *.''
In order to be enforceable, SIP regulations and commitments must be
clear regarding, for example, who must comply, by what date, the
standard of compliance, the methods used to determine compliance, and
the process and criteria for obtaining any variation from the normal
mode of compliance.\9\ Guidance used to help evaluate enforceability
includes the Bluebook and the Little Bluebook.\10\
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\9\ ``Review of State Implementations Plans and Revisions for
Enforceability and Legal Sufficiency'' (Enforceability Guidance),
Craig Potter, EPA, September 23, 1987. See also General Preamble for
the Implementation of Title I of the Clean Air Act Amendments of
1990. 57 FR 13498, 13502 and 13541 (April 16, 1992) and CAA sections
110(a)(2) and 172(c)(6). http://www.epa.gov/compliance/resources/policies/civil/caa/stationary/review-enf-rpt.pdf.
\10\ ``Issues Relating to VOC Regulation Cutpoints,
Deficiencies, and Deviations,'' U.S. EPA, OAQPS, May 25, 1988 (``the
Bluebook'') and ``Guidance Document for Correcting Common VOC and
Other Rule Deficiencies,'' U.S. EPA Region 9, August 21, 2001 (``the
Little Bluebook'').
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Field Fumigant Regulations
CDPR's regulations include recordkeeping requirements in 3 CCR
section 6624 (Pesticide Use Records) and the reporting requirements in
3 CCR section 6626 (Pesticide Use Reports for Production Agriculture).
Among these recordkeeping and reporting requirements is the provision
that require any person who uses a fumigant in any of the five ozone
nonattainment areas to record and report a description of the
application method. See 3 CCR sections 6624(f) and 6626(d). The
regulations provide specific methods, limits, and timeframes for
agricultural use of each fumigant. The regulations provide a process
and criteria for use of a field fumigation method not described in the
regulations. The request to implement a method not described in the
regulations must be accompanied by scientific data documenting the VOC
emissions, and that the method will not result in emissions greater
than any one of the methods allowed for use by the regulations. The
director must consider criteria such as data sufficiency and validity,
and representativeness of field conditions studied. See 3 CCR section
6452.
The recordkeeping and report requirements and other rule provisions
in the submitted regulations are clear and adequate to ensure that
California's submitted fumigant regulations is enforceable as required
by of CAA section 110(a)(2)(A).
Pesticide Emission Reduction Commitment for the San Joaquin Valley
The mechanism to track compliance with the 18.1 tpd limit on VOC
emissions from agricultural and commercial structural pesticides in SJV
is the Annual VOC Emissions Inventory Report required by 3 CCR section
6452.4. (Annual Volatile Organic Compound Emissions Inventory Report).
For tracking compliance with the overall VOC limit in the SJV, CDPR
proposes to use the emissions estimation methodology described on page
2-4 (in the section ``Procedure for Calculating Unadjusted and Adjusted
Volatile Organic Compound Emissions'') of November 5, 2008 memorandum
from Rosemary Neal, CDPR to Randy Segawa, CDPR, Subject: Update to the
Pesticide Volatile Organic Inventory; Estimated Emissions 1990-2006,
and Preliminary Estimates for 2007 (``Neal memorandum'').\11\
Procedures for calculating pesticide VOC emissions are also in 3 CCR
section 6452.4(a)(1).\12\ The Neal memorandum lays out a calculation
process that follows standard inventorying practice and provides the
same procedures for calculating VOC emissions as 3 CCR section
6452.4(a)(1). Pesticide usage rates used to calculate total emissions
are collected from pesticide use reports which are required by 3 CCR
section 6626 and the requirements for persons (e.g., pesticide
applicators) to keep and report the data necessary for preparing the
annual report are in 3 CCR section 6624. These 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 110(a)(2)(A).
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\11\ The Neal memorandum was included as part of October 12,
2009 submittal of the ``Pesticide Emission Reduction Commitment for
the San Joaquin Valley'' and we intend to include it as additional
material in the California SIP should we finalize our proposed
approval of CDPR's commitment.
\12\ These procedures apply not only to SJV but also to the
other four nonattainment areas.
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CDPR has committed to implement restrictions on VOC emissions from
non-fumigant regulations by 2014 which we interpret to mean by no later
than May 1, 2014 given that CDPR projects emissions reductions from
these restrictions in 2014 and its control program operates from May 1
to October 31 of each year. See ``Proposed SIP Commitment for San
Joaquin Valley,'' page 2. To achieve reductions in 2014, the
restriction would need to be implemented by the beginning of the
regulatory season (May 1) in that year. CDPR does not commit to a
specific emissions reduction from the additional restrictions on non-
fumigant pesticide; however, the restrictions are part of CDPR's
regulatory program to ensure that the inventory target of 18.1 tpd in
the SJV is not exceeded (Id. at page 1), which effectively defines the
needed stringency. This commitment is sufficiently clear and adequate
to ensure that is enforceable as required by CAA section 110(a)(1)(A).
C. Reasonably Available Control Measures/Reasonably Available Control
Technology (RACM/RACT) Requirement Under CAA Sections 172(c)(1) and
182(b)(1)
CAA section 172(c)(1) requires that each attainment plan ``provide
for the implementation of all reasonably available control measures as
expeditiously as practicable (including such reductions in emissions
from existing sources in the area as may be obtained through the
adoption, at a minimum, of reasonably available control technology),
and shall provide for attainment of the national primary ambient air
quality standards.'' RACM is a requirement only for nonattainment
areas.
EPA defines RACM as any potential control measure for application
to point, area, on-road and non-road emissions source categories that
meets certain criteria. These criteria include whether the measure is
technologically and economically feasible and either individually or
collectively with other RACM can advance the attainment date by at
least one year. See 57 FR 13498, 13560 (April 16, 1992). The
determination as to whether a SIP provides for the implementation of
RACM as required by CAA section 172(c)(1) is done as part of an area's
attainment and reasonable further progress plans and not on a rule-by-
rule basis.
For ozone nonattainment areas classified as moderate or above, CAA
section 182(b)(2) requires the implementation of reasonably available
control technologies (RACT) on all major sources of VOC \13\ and for
each
[[Page 24445]]
VOC source category for which EPA has issued a Control Techniques
Guideline (CTG). CAA section 182(f) requires that RACT under section
182(b)(2) also apply to major stationary sources of NOX. See
CAA sections 182(d) and (f).
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\13\ In areas classified as severe (such as SED, Ventura, and
Sacramento Metro), a major source is a stationary source that emits
or has the potential to emit at least 25 tons of VOC or
NOX per year. See CAA sections 182(d) and (f). For
extreme areas (South Coast and SJV), a major stationary sources is
one that emits or has the potential to emit at least 10 tons of VOC
or NOX per year. See CAA sections 182(e) and (f).
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The proposed revisions to the California SIP Pesticide Element that
we are evaluating here are intended to reduce VOC emissions in the
South Coast, SED, Ventura, SJV, and Sacramento Metro ozone
nonattainment areas. VOC emissions contribute to the formation of ozone
and secondary particulate matter. EPA, though, has determined by rule
that states do not need to address controls for sources of VOC
emissions for PM2.5 standard attainment unless the state
and/or EPA make a technical demonstration that such controls would
significantly contribute to reducing PM2.5 concentrations in
the nonattainment area. See 40 CFR 51.1002(c)(3). Such a determination
would be made in the context of each area's plan for attainment of the
PM2.5 standards. Of the areas subject to the California SIP
Pesticide Element, only the South Coast, SJV, and Sacramento Metro
areas are nonattainment for one or more of the PM2.5
standards and only South Coast controls VOC for PM2.5
attainment.
Field Fumigant Regulations
CARB's 2009 submittal of the field fumigant regulations did not
include a demonstration of how the field fumigation methods implement
RACT.\14\ In response to EPA comments, CDPR provided a document
containing more detailed information on its RACT evaluation of
fumigation methods.\15\ This document contains a general discussion of
strategies for controlling VOC emissions from fumigants and an
evaluation of field fumigation method options, including the basis for
those accepted and those rejected by CDPR for inclusion in its
regulations. It discusses current research on fumigant VOC emission
reduction methods, including a reevaluation of fumigants to obtain
additional data to replace surrogate data used in developing the
adopted regulations.
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\14\ See letter, Andrew Steckel, EPA Region 9 to Frank Spurlock,
CDPR and Mike Guzzetta, CARB, November 2, 2010.
\15\ See letter and attachments, Randy Segawa, CDPR to Andrew
Steckel, EPA-Region 9, Reducing Volatile Organic Compound Emissions
from Pesticides: Analysis of Alternatives for Field Fumigation
Methods, June 28, 2011.
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Field fumigation emissions are considered fugitive emissions
because they are emissions that ``could not reasonably pass through a
stack, chimney, vent, or other functionally-equivalent opening.'' \16\
As noted above, CAA section 182(b)(1) requires RACT be applied to all
to major stationary sources in a ozone nonattainment area classified
moderate or above. EPA has not yet defined by rule whether fugitive
emissions must be included in determination of major source status for
the purposes determining the application of section 182(b)(1) RACT
requirement; however, EPA believes, based on the information provided
in the CDPR's alternatives analysis, and the research cited to support
it, that CDPR has demonstrated that the proposed regulations are
stringent enough to implement RACT-level controls on the application of
pesticides.
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\16\ See 40 CFR 70.2 (Definitions).
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On January 10, 2012, EPA partially approved and partially
disapproved the section 182(b)(1) RACT SIP submitted by California on
June 18, 2009 for the SJV ozone nonattainment area. The partial
disapproval was based in part on our conclusion that the State had not
fully satisfied CAA section 182(b) RACT requirements for the
application of fumigants. See 77 FR 1417, 1425 (January 10, 2012).
Based on our proposed finding here that CDPR's field fumigant
regulations provide RACT-level controls on this source category, final
approval of these regulations would satisfy California's obligation to
implement RACT under CAA section 182(b)(1) for this source category for
the 1-hour ozone and 1997 8-hour ozone standards for the SJV RACT SIP.
EPA has recently approved the attainment, RFP and RACM
demonstrations in the 8-hour ozone SIPs for the South Coast and San
Joaquin Valley and the PM2.5 SIP for the South Coast (which
did include VOC reductions in its RFP and attainment
demonstrations).\17\ These demonstrations relied in part on VOC control
measures in the 2007 State Strategy; however, EPA's approval of these
demonstrations did not rely on emissions reductions from CDPR's field
fumigant regulations. Therefore, their approval into the SIP is
consistent with the approved RACM demonstrations.
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\17\ See 76 FR 69928 (November 9, 2011) (South Coast
PM2.5 Plan), 77 FR 12652 (March 1, 2012) (SJV 2007 8-hour
Ozone SIP), and 77 FR 12674 (March 1, 2012) (South Coast 8-hour
Ozone Plan). EPA has also recently approved the SJV 2008
PM2.5 SIP which relied in part on measures in the 2007
State Strategy. In approving that SIP, EPA concurred with the
State's determination that VOC did not need to be controlled for
PM2.5 attainment in the SJV and therefore the plan did
not include did not need to evaluate VOC control measures as part of
its RACM demonstration. See 76 FR 69896, 69924 (November 9, 2011).
The PM2.5 plan for the Sacramento Metro area is not due
until late 2012.
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CARB has submitted SIPs to address attainment of the 1997 8-hour
ozone standard in the SED, Ventura County, and Sacramento Metro
nonattainment. EPA has not yet acted on these plans although we note
that none rely on reductions from controls on pesticides.
Pesticide Emission Reduction Commitment for the San Joaquin Valley
As noted above, the demonstration that a SIP provides for the
implementation of RACM as required by CAA section 172(c)(1) is done as
part of an area's attainment and reasonable further progress plans and
not on an individual rule or commitment basis.
EPA recently approved the 2007 8-hour ozone SIP for the San Joaquin
Valley, including the SIP's RACM demonstration. 77 FR 12652 (March 1,
2012). To demonstrate that the SIP provided for RACM, California relied
in part on measures in the 2007 State Strategy, including the
``Pesticide Emission Reduction Commitment for the San Joaquin Valley''
(as revised April 17, 2009) that we are proposing to approve here.
However, because we had not yet approved the commitment into the SIP,
we did not grant any emissions reductions credit to the commitment in
either the RFP or attainment demonstration nor did we rely on it to
make our determination that the 2007 SIP provided for RACM. See Air
Division, EPA Region 9, ``Final Technical Support Document and Response
to Comments Final Rule on the San Joaquin Valley 2007 Ozone Plan and
the San Joaquin Valley Portions of the 2007 State Strategy,'' December
15, 2011, pp. 51-57. Because EPA's approvals of the attainment, RFP,
and RACM demonstrations in the SJV 2007 8-hour ozone SIP did not rely
on emissions reductions from CDPR's commitment to limit pesticide VOC
emissions in the SJV to 18.1 tpd, its approval into the SIP is
consistent with the approved RACM demonstration.
D. Finding of Non-Interference With Applicable Requirements of the CAA
Under Section 110(l)
Revisions to the SIP, including revisions to SIP-approved control
measure, must meet the requirements of CAA section 110(l) to be
approved by EPA. CAA section 110(l) ``Plan Revisions'' provides in
relevant part:
The Administrator shall not approve a revision of a plan if the
revision would interfere with any applicable requirement concerning
attainment and reasonable further progress (as defined in [section
171]) or any other applicable requirement of [the CAA].
[[Page 24446]]
We interpret section 110(l) to apply to all requirements of the CAA
and to all areas of the country, whether attainment, nonattainment,
unclassifiable, or maintenance for one or more of the six criteria
pollutants. We also interpret section 110(l) to require a demonstration
addressing all pollutants whose emissions and/or ambient concentrations
may change as a result of the SIP revision. The scope and rigor of an
adequate section 110(l) demonstration of noninterference depends on the
air quality status of the area, the potential impact of the revision on
air quality, the pollutant(s) affected, and the nature of the
applicable CAA requirements.
In reviewing a modification to an approved SIP provision, we look
to see to what extent the existing SIP has relied on that provision to
meet applicable CAA requirements. For emissions reduction measures, we
generally conclude that the revision will not interfere with any
applicable requirement related to attainment or RFP if the revised SIP
will provide the same or more emissions reductions on the same or
similar schedule as the existing SIP. We note, however, that CAA
section 110(l) does not bar approval of SIP revisions that may result
in higher levels of emissions than would potentially occur under the
unrevised SIP; only that such revisions do not result in the applicable
SIP no longer providing for expeditious attainment or RFP or complying
with any other applicable requirements of the CAA.
The submittals that we are evaluating in this proposal for
inclusion into the California SIP control VOC emissions in five
California areas. Neither the field fumigant regulations nor the SJV
pesticide SIP commitment explicitly regulated any other pollutant
besides VOC. VOC is a precursor pollutant for ozone as well as for both
fine (PM2.5) and coarse (PM10) particulate
matter.\18\ At this time, only the South Coast's SIP relies on VOC
controls for PM2.5 or PM10 attainment and none of
its adopted particulate matter plans rely on reductions from the
California SIP Pesticide Element (either as already approved or
proposed for approval here) to demonstrate attainment, RFP, or RACM or
to meet any other requirement of the CAA.
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\18\ As noted previously, while EPA considers VOC to be a
precursor to PM, it does not require control of VOC emissions for PM
standard attainment in most instances. See 72 FR 20586, 20589 (April
25, 2007) and 57 FR 13498, 13538 (April 16, 1992).
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Field Fumigant Regulations
The CDPR's field fumigant regulations are the first such
regulations incorporated into the California SIP. Their approval will
strengthen the SIP by providing SIP-enforceable measures and compliance
procedures to reduce emissions from the application of fumigants in the
five ozone nonattainment areas covered by the regulations. Their
approval will also aid compliance with the approved California SIP
Pesticide Element's provisions for reducing VOC emissions by 20 percent
from 1990 baseline levels in the South Coast, SED, Ventura, and
Sacramento Metro ozone nonattainment areas. Their approval will also
aid compliance with the proposed 18.1 tpd limit on pesticide VOC
emissions in the San Joaquin Valley. Therefore, EPA proposes to find
that approving the field fumigant regulations into the California SIP
will not interfere with any applicable requirement concerning
attainment and reasonable further progress or with any other applicable
requirement of the CAA.
Pesticide Emission Reduction Commitment for the San Joaquin Valley
In 1997, EPA approved the 1994 Pesticide Element into the
California SIP. See 62 FR 1150, 1170 (January 8, 1997). As approved,
the Element's goal was to reduce VOC emissions from agricultural and
commercial structural pesticide applications by a maximum of 20 percent
from the 1990 baseline emission inventory by 2005 in areas that relied
on VOC reductions from pesticides in their attainments plans with
reductions to occur linearly from 1990 to 2005 but it allowed for less
than 20 percent if fewer VOC reductions from pesticide were needed. See
``The State Implementation Plan for Agricultural and Commercial
Structural Pesticides,'' November 15, 1994 (``1994 Pesticide SIP''), p.
1.\19\
---------------------------------------------------------------------------
\19\ As submitted, the 1994 Pesticide Element consisted of three
documents: the 1994 Pesticide SIP and the memorandum from James W.
Wells, Director, CDPR, to James D. Boyd, Executive Officer, CARB,
May 9, 1995 (``Wells memorandum'') and the letter from James D.
Boyd, Executive Officer, CARB, to David Howekamp, Division Director,
EPA-Region 9, June 13, 1996 (``Boyd Letter''). As approved, it
consisted of the 1994 Pesticide SIP (40 CFR 52.220(c)(204)(i)(A)(6))
and the Boyd letter (40 CFR 52.220(c)(236)). See section IV of this
preamble for further discussion of the 1994 Pesticide Element.
---------------------------------------------------------------------------
The attainment demonstration for the SJV in the 1994 Ozone SIP
relied in part on reductions of 12 percent from 1990 emissions levels
from the 1994 Pesticide Element to demonstrate attainment by the area's
then-applicable attainment deadline of November 15, 1999. In approving
the 1994 Pesticide Element and the SJV ozone attainment demonstration,
EPA credited the element with 13 tpd (in 1994 SIP currency \20\) in VOC
emissions reductions in 1999.\21\ At the same time, EPA noted that
California had committed to adopt and submit any regulations necessary
to reduce VOC emissions from agricultural and commercial structural
pesticides by 12 percent in 1999 \22\ in SJV. See 61 FR 10920, 10935
(March 18, 1996).
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\20\ A SIP's ``currency'' is the emissions inventory on which it
is based. An emissions reduction expressed in a particular ``SIP
currency'' is an emissions reduction calculated using the inventory
included in that SIP. Because inventories vary from SIP to SIP for
reasons unrelated to controls (e.g., improved activity estimates or
emissions factors), the estimated emissions reductions from a
control measure in tons per day can change from SIP to SIP even if
the effectiveness of the control measure as a percentage of the
emissions category does not.
\21\ The 13 tpd figure was provided by CARB on page A-2 and in
Attachment C of the Boyd Letter. For the 1994 Ozone SIP, the State
estimated that VOC emissions from pesticide use in 1990 in the San
Joaquin Valley were 62.5 tpd. A 12 percent reduction from this level
would require reducing overall pesticide emissions to be no more
than 55.0 tpd in 1999. The State further estimated that without
controls, VOC emissions from pesticides in the SJV would increase to
67.9 tpd by 1999, thereby requiring a reduction of 12.9 tpd (67.9
tpd minus 55.0 tpd, rounded to 13 tpd) in 1999 in order to meet the
target level for a 12 percent reduction. See CDPR, Staff Report on
the Department of Pesticide Regulation's Proposed SIP Commitment for
San Joaquin Valley,'' undated, p. 1, ftn 1.
\22\ A 20 percent reduction that was to occur linearly over the
fifteen years between 1990 and 2005 would accrue reductions at a
rate of 1.33 percent per year (20 percent divided by 15 years)
resulting in a 12 percent reduction by 1999 (9 years times 1.33
percent per year).
---------------------------------------------------------------------------
In 2003, CARB updated the strategy that was part of the 1994 Ozone
SIP. One of the measures in the 2003 State Strategy was PEST-1
(``Implement Existing Pesticide Strategy''), which retained the
provisions of the 1994 Pesticide Element. In 2004, CARB submitted the
2004 Extreme [1-hour Ozone] Attainment Plan for the SJV \23\ which
relied in part on the 2003 State Strategy for the reductions needed to
demonstrate attainment by SJV's new applicable attainment date of
November 15, 2010. On page 27 of its staff report for that plan,\24\
CARB discusses the measures in the 2003 State Strategy including PEST-
1. It describes the measure as a ``[c]ontinuation of the Department of
Pesticide Regulation's approved SIP obligation to reduce volatile
emissions from pesticides [which f]or the San Joaquin Valley * * *
means a pesticide VOC emissions
[[Page 24447]]
target of 12 percent less than 1990 levels.''
---------------------------------------------------------------------------
\23\ San Joaquin Valley Air Pollution Control District,
``Extreme Ozone Attainment Demonstration Plan'' adopted October 8,
2004; amended October 20, 2005 and August 21, 2008.
\24\ CARB, Staff Report, Proposed 2004 State Implementation Plan
For Ozone In The San Joaquin Valley, Release Date: September 28,
2004.
---------------------------------------------------------------------------
EPA approved PEST-1 into the SIP as part of its action to approve
in part and disapprove in part the 2003 South Coast AQMP. See 74 FR
10176 (March 10, 2009), codified at 40 CFR 52.220(c)(ii)(A)(1). We have
not approved any other changes to the SJV-related provisions of 1994
Pesticide Element nor have we granted any emissions reductions credit
for the 1994 Pesticide Element beyond the 13 tpd (in 1994 SIP currency)
approved as part of our action on the 1994 Ozone SIP.\25\
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\25\ We have approved two ozone plans for the SJV since the
1997: the 2004 Ozone Plan in 2010 and the second, the 2007 8-hour
Ozone Plan in 2012. See 75 FR 10420 (March 8, 2010) and 77 FR 12652
(March 1, 2012). Neither plan nor our approval of them relied on
reductions in pesticide emissions to meet any applicable CAA
requirement.
---------------------------------------------------------------------------
California is now proposing to revise its SIP Pesticide Element for
the SJV to replace the requirement to achieve a percent reduction in
VOC emissions from pesticides with a limit on overall VOC emissions
from pesticides in the SJV of 18.1 tpd of VOC during the high ozone
season of May 1 to October 31. The 18.1 tpd cap equates to a reduction
of 12 percent from the current estimate of 1990 pesticide VOC emissions
levels in the SJV.\26\
---------------------------------------------------------------------------
\26\ See CDPR, Staff Report on the Department of Pesticide
Regulation's Proposed SIP Commitment for San Joaquin Valley,''
undated (enclosure 2 to memorandum, Christopher W. Reardon, Chief
Deputy Director, CDPR, to James Goldstene, Executive Officer, CARB,
October 5, 2009; subject: Amendments to the Pesticide Element of the
Ozone State Implementation Plan).
---------------------------------------------------------------------------
Based on our review of the proposed revision, we find that the
revision will result in, at minimum, the same emissions reductions that
are currently required by the approved SIP and will not delay those
reductions given that the limit is currently effective. We, therefore,
propose to find that approving CDPR's commitment to manage VOC
emissions from agricultural and commercial structural pesticide use to
ensure that they do not exceed 18.1 tpd in the SJV area into the
California SIP will not interfere with any requirement concerning
attainment and reasonable further progress or any other applicable
requirement of the CAA.
In comments that EPA received on its proposed approval of the SJV
2004 Extreme Ozone Attainment Plan (74 FR 33933(July 14, 2009)),
several non-governmental organizations argued that the 1994 Pesticide
Element requires a 20 percent reduction in VOC emissions from 1990
levels by 2005 in the SJV citing to the Boyd letter on page A-2.\27\
---------------------------------------------------------------------------
\27\ See letter, Brent Newell, Legal Director, Center on Race,
Poverty & the Environment, August 31, 2009, ``Comments on Approval
and Promulgation of Implementation Plans: 1-Hour Ozone Extreme Area
Plan for San Joaquin Valley, CA (Docket No. EPA-R09-OAR-2008-
0693),'' pp. 16-20.
---------------------------------------------------------------------------
In the Boyd letter, CARB provided EPA with suggested revisions to
our March 18, 1996 (61 FR 10920, 10935) proposed approval of the 1994
Ozone SIP. In reference to the 1994 Pesticide Element, CARB stated that
the ``commitment is for a 20% reduction from 1990 levels by 2005 in
each SIP area, except [San Diego]. [CARB] only took credit in the
attainment year: SJV 1999 = 12%; Sac 2005 = 20%; Ven 2005 = 20%; SED
2007 = 20%; SC 2010 = 20%.'' EPA does not find the ``commitment is for
a 20% reduction'' statement determinative as to the State's commitment
for SJV, not only because it is immediately contradicted by the
statement that a 12 percent credit was taken only in the attainment
year of 1999 but also because it is not entirely consistent with the
more extensive language describing the emissions reductions target in
other parts of the approved 1994 Pesticide Element and does not reflect
the reductions relied on in the SIP.
The 1994 Pesticide Element 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. With this language, the
percent reduction required in an area is tied to the emissions
reductions referenced, that is, relied on, in that area's plan. As
approved, the 1994 Pesticide Element also allowed for reductions of
less than 20 percent if fewer VOC reductions from pesticide were
needed. Id. As noted above, the reductions relied on in the 1994 Ozone
SIP in its attainment demonstration for SJV in 1999 were 13 tpd (in
1994 SIP currency) which equates to 12 percent reduction from 1990
baseline in 1999 (when anticipated growth in pesticide VOC emissions
between 1990 and 1999 is excluded) and no additional reductions have
been relied on in any SIP for SJV subsequent to the 1994 one.
Approval of the revised ``Pesticide Emission Reduction Commitment
for the San Joaquin Valley'' (submitted in 2009) will not interfere
with any applicable requirement related to attainment or reasonable
further progress for any PM2.5 or PM10 standard
in the SJV. EPA has determined that VOC controls are not required for
particulate matter 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).
Additional information on EPA's determination under CAA section
110(l) can be found in section II.D. of the TSD for this proposal.
IV. Response To Remand in Association of Irritated Residents Case
In this section, we discuss why EPA believes that our proposed
approval of the fumigant regulations and commitment for the SJV obviate
the need to rescind or modify EPA's previous approvals of the
California SIP Pesticide Element notwithstanding the deficiencies in
the 1994 Pesticide Element that have been brought to light by
subsequent litigation. In so doing, we summarize the relevant
background that provides the context for this explanation.
In 1994, California submitted the 1994 Pesticide SIP as part of its
comprehensive 1994 Ozone SIP. The 1994 Pesticide SIP set forth the goal
of reducing VOC emissions from pesticide use by as much as 20 percent
from 1990 levels as needed in those areas of California that relied on
emissions reductions from pesticides to meet CAA requirements for
attainment of the 1-hour ozone standard. The 1994 Pesticide SIP
included a process for re-evaluation of pesticide products (to refine
emissions estimates and to review for possible restrictions on use),
for establishing the 1990 base year inventory and for tracking
emissions, for reducing VOC emissions from pesticide use through
voluntary changes in pest management practices, and for developing
additional regulatory measures to ensure that reductions are achieved.
Upon review of the 1994 Pesticide SIP, EPA identified certain
completeness and approvability issues and requested clarification. See
letters, David P. Howekamp, Director, Air and Toxics Division, EPA
Region 9 to James W. Wells, Director, CDPR, March 20, 1995 and April
21, 1995. CDPR responded to EPA's request with a clarification of the
1994 Pesticide SIP that established a commitment on the part of CDPR
``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 specific percentages of the 1990 base year
emissions, by specific years, and in specific nonattainment areas,'' as
listed in a table showing percent reductions of 8, 12, 16, and 20
percent by 1996, 1999, 2002, and 2005, respectively, in the following
nonattainment areas: South Coast, Southeast Desert, Ventura, San
[[Page 24448]]
Joaquin Valley, and Sacramento Metro. See letter, James W. Wells,
Director, CDPR, to David P. Howekamp, EPA Region 9, March 31, 1995; the
Wells memorandum; and the related transmittal letter for the Wells
memorandum from James D. Boyd, Executive Officer, CARB to Felicia
Marcus, Regional Administrator, EPA Region 9, May 11, 1995.
In March 1996, EPA proposed to approve the 1994 Pesticide Element,
among other elements of the 1994 Ozone SIP and did so based in part on
the clarification provided by CDPR through the Wells memorandum. See 61
FR 10920, 10935-10936 (March 18, 1996). In response to EPA's proposed
rule, CARB submitted a letter stating: ``In the pesticide element of
the SIP, the [CDPR] projected a steady decline in volatile emissions
from pesticides between 1996 and 2005. However, California took SIP
credit for these reductions only in the applicable attainment year for
the San Joaquin Valley, Sacramento Region, Ventura County, the
Southeast Desert, and the South Coast. The notice should reflect this
information.'' See letter, James M. Strock, Secretary for Environmental
Protection, California Environmental Protection Agency, to Felicia
Marcus, Regional Administrator, EPA Region 9, May 2, 1996. CARB
subsequently submitted the Boyd Letter providing additional detail that
was intended to supplement the technical corrections identified in the
State's formal May 2 comment letter. Through the Boyd Letter, CARB
clarified again that CDPR's commitment was for a 20 percent reduction
from 1990 levels by 2005 in the five specified nonattainment area but
also noted that CARB only took credit in the attainment year, which
CARB specified as a 12 percent reduction by 1999 in San Joaquin Valley,
and 20 percent reduction in the attainment years for the four other
nonattainment areas.\28\
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\28\ At the time of EPA's action on the 1994 California Ozone
SIP and related 1994 Pesticide Element, the SJV was classified as a
``serious'' nonattainment area for the 1-hour ozone standard with an
applicable attainment date of 1999. See 61 FR 10920, 10925. Years
after approval of the 1994 SIP, the SJV was reclassified as
``severe'' and then ``extreme'' for the 1-hour ozone standard. See
66 FR 56476 (November 8, 2001) and 69 FR 20550 (April 16, 2004).The
other four areas were classified as ``severe'' or ``extreme'' with
later attainment dates at the time of EPA's action on the ozone SIP
and Pesticide Element.
---------------------------------------------------------------------------
In 1997, EPA took final action to approve the 1994 Pesticide
Element, and most of the 1994 California Ozone SIP and again referred
to the Wells memorandum as providing the clarification necessary to
provide EPA with the basis to approve the 1994 Pesticide Element as
meeting the applicable requirements for enforceability of SIP
revisions. See 62 FR 1150, 1169-1170 (January 8, 1997). However, in the
1997 final rule, EPA referred explicitly to California's request in its
May 2, 1996 comment letter to exclude emissions reductions for interim
years from the SIP, and also implicitly referred to the Boyd Letter by
citing CARB's decision not to assign credit to the pesticides measure
except for purposes of attainment. In the final rule, we tried to
reconcile the Wells memorandum with California's comment letter and the
Boyd letter and summarized what we believed the Pesticide Element to
contain with respect to regulatory measures, 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.'' Id. at 1170.
In listing the specific portions of the 1994 Ozone SIP and related
documents that we were approving and incorporating as part of the
California SIP in our 1997 final action, we listed CDPR's 1994
Pesticide SIP and the Boyd Letter, but did not list the Wells
memorandum. While EPA's failure to approve and incorporate the Wells
memorandum into the SIP may have been inadvertent, California's May 2,
1996 comment letter and the Boyd Letter made such approval and
incorporation (i.e., without modification) problematic because the
Wells memorandum contained interim year emissions reduction commitments
that the California comment letter and Boyd Letter specifically
excluded.
In the mid-2000's, several community groups sued CDPR under the CAA
for failure to adopt and submit regulations ensuring VOC emissions
reductions from pesticide use in Ventura County based on the
commitments set forth in the Wells memorandum. Upon review of the
record, the Ninth Circuit Court of Appeals in effect denied the
community group the remedy that the group sought based on the court's
determination that the Wells memorandum was not in fact approved into
the California SIP and thus the commitment by CDPR to adopt and submit
regulations as set forth in the Wells memorandum was not enforceable
under the Act. See El Comit[eacute] para el Bienestar de Earlimart v.
Warmerdam, 539 F.3d 1062 (9th Cir. 2008) (Warmerdam). In the wake of
the Warmerdam decision, the community group filed a petition for review
in the Ninth Circuit challenging EPA's 1997 approval of the 1994 Ozone
SIP on the grounds that, without the Wells memorandum, EPA's approval
of that SIP was arbitrary and capricious because it relied on
unenforceable emissions reductions from the 1994 Pesticide Element. See
El Comit[eacute] para el Bienestar de Earlimart v. EPA, No. 08-74340
(``El Comit[eacute]''). The Ninth Circuit has not issued its decision
in the El Comit[eacute] case against EPA's approval of the 1994 Ozone
SIP.
Meanwhile, in 2004, California resubmitted the 1994 Pesticide
Element to EPA as part of the 2003 State Strategy, which was originally
intended to replace the state measures potion of the 1994 California
Ozone SIP in the California SIP, in the form of a control measure
referred to as ``PEST-1.'' PEST-1 was simply a continuation of the
original 1994 Pesticide Element. In 2009, we approved PEST-1 as part of
our approval of the 2003 State Strategy reasoning that approval or
disapproval of PEST-1 amounted to the same thing from the standpoint of
the California SIP, namely the 1994 Pesticide Element. See 74 FR 10176
(March 10, 2009). EPA's approval of PEST-1 was challenged and the Ninth
Circuit disagreed with EPA's decision that approval or disapproval of
PEST-1 amounted to the same thing and remanded the approval of PEST-1
back to EPA for an evaluation of the Pesticide Element for
enforceability. See Association of Irritated Residents v. EPA, 632 F.3d
584 (9th Cir. 2011), revised January 27, 2012 (AIR). Specifically, the
Ninth Circuit held, given its earlier finding in the Warmerdam case
that the Wells memorandum was not approved and incorporated into the
California SIP, that EPA must determine whether the approved 1994
Pesticide Element has sufficient enforcement mechanisms to satisfy the
requirements of the CAA. In light of the decision in AIR, EPA filed a
supplemental brief that argues that the decision in the AIR case makes
the El Comit[eacute] case moot on the grounds that the relief granted
in the AIR case with respect to PEST-1 amounts to the same relief that
the petitioner could gain by a favorable decision in the El
Comit[eacute] case, namely re-evaluation of the Pesticide Element for
enforceability. The petitioners in the El Comit[eacute] disagree that
the AIR decision has made the El Comit[eacute] case moot, and the Ninth
Circuit has not yet issued its decision in the El Comit[eacute] case.
[[Page 24449]]
In light of the remand in the AIR case and with due consideration
to the history summarized above, we must re-evaluate the enforceability
of the 1994 Pesticide Element recognizing that the Wells memorandum is
not approved into the SIP and take appropriate remedial actions if the
element (without the Wells memorandum) does not meet the minimum
requirements for enforceability under the CAA. We are using this
proposed rule on the submitted fumigant regulations and revised SIP
commitment for the SJV as the opportunity to present our re-evaluation
and to explain our rationale for taking no action to rescind or modify
our approvals of the 1994 Pesticide Element in 1997 and again (as PEST-
1) in 2009.
First, we recognize that the 1994 Pesticide Element is a
``committal'' measure rather than a ``control'' measure. That is, the
1994 Pesticide Element constitutes a measure for which the State does
not provide regulations (or equivalent enforceable mechanism) in
support of the emissions reductions credited to the measure at the time
EPA takes action on the RFP or attainment demonstration plan that
relies on the emissions reduction, but commits to adopt and submit
regulations in support of the emissions reductions prior to the time
when the reductions are needed for RFP or attainment. EPA has found,
under certain circumstances, that committal measures that are relied on
to meet RFP, attainment, and/or other emissions reductions requirements
of the CAA to be enforceable, and thus approvable, only if such
measures identify the responsible party, applicability, adoption dates
for rules (if applicable), implementation dates, and emissions
reductions in terms of emissions rates (such as tons per day) equal to
the credit taken in the RFP or attainment plan for the committal
measure.
Back in 1995, when EPA reviewed the 1994 Pesticide SIP, we sought
clarification from CDPR on whether the 1994 Pesticide SIP establishes a
commitment to limit VOC emissions from pesticides to specific
percentages of the 1990 base year emissions by specific years in
specific nonattainment areas, regardless of future growth in emissions
that might otherwise occur and whether the Pesticide Element
establishes a commitment to adopt any regulations by a specific month
prior to the implementation date. See letter, David P. Howekamp,
Director, Air and Toxics Division, EPA Region 9 to James W. Wells,
Director, CDPR, March 20, 1995. Later, we requested that CDPR modify
the SIP to be explicit as to the dates of rule adoption and submittal
and the emissions reductions by date and area. See letter, David P.
Howekamp, Director, Air and Toxics Division, EPA Region 9 to James W.
Wells, Director, CDPR, April 21, 1995. The clear implication in EPA's
request to CDPR is that EPA believed at the time that such a
modification of the 1994 Pesticide SIP was necessary to meet the
minimum level of enforceability for crediting the emissions reductions
from such a committal measure. CDPR's response, via CARB, was the Wells
memorandum.
EPA's views on acceptable committal measures have not changed
significantly since the time of EPA's review and approval of the 1994
Pesticide Element in 1997, and thus, we can infer from the
correspondence between EPA and CDPR cited above and EPA's statements in
both the 1996 proposed rule and 1997 final rule that, in the absence of
the Wells memorandum, EPA would not have approved the 1994 Pesticide
Element on the grounds that it does not meet the minimum level of
enforceability that the CAA requires. See, generally, CAA section
110(a)(2) (``Each such plan shall (A) include enforceable emission
limitations and other control measures, means, or techniques * * * as
may be necessary or appropriate to meet the applicable requirements of
[the CAA]''). We have no reason to conclude otherwise today, and thus,
we affirm that, absent a commitment providing the specificity found in
the Wells memorandum, the 1994 Pesticide Element does not meet the
minimum requirements for enforceability of SIP committal measures.
Second, we discuss what actions EPA should take to address the
deficiency in enforceability of the 1994 Pesticide Element as discussed
above. We do so recognizing that CDPR has, since EPA's approval of the
1994 Pesticide Element, adopted and (via CARB) submitted regulations
that in effect have converted many of the non-regulatory provisions in
the 1994 Pesticide Element into a regulatory form. Specifically, CDPR
has adopted and submitted regulations restricting the use of field
fumigant application methods; requiring CDPR to annually inventory and
report pesticide VOC emissions for each area; establishing pesticide
use recordkeeping and reporting requirements; and creating a
contingency field fumigation limit and allowance program for Ventura.
These are the types of regulations that the commitment in the Well
memorandum would have made enforceable had the Wells memorandum been
approved into the SIP, and thus, we find no need to perfect the
commitment to regulations in the 1994 Pesticide Element because the
actual submittal of the regulations themselves obviates the need for an
enforceable commitment to submit those same regulations.
While we believe that the submitted CDPR regulations fulfill the
otherwise unenforceable commitment in the 1994 Pesticide Element to
adopt and submit regulations, the question remains whether the
regulations alone suffice to ensure that the emission reduction targets
(20 percent from 1990 levels in the South Coast, Southeast Desert,
Ventura, and Sacramento Metro areas and 12 percent from 1990 levels in
San Joaquin Valley) are met. Based on our review of the regulations for
this proposed action, we find that compliance with the emission
reductions targets is provided through CDPR regulations limiting field
fumigant application to lower-emitting methods and establishing a
fumigant emissions limit and allocation system for Ventura County and
monitored and enforced through regulations that require recordkeeping
and reporting of pesticide usage and CDPR to annually evaluate and
report VOC emissions from pesticides in each area.
These provisions are adequate to ensure that the emission reduction
targets are met in the Sacramento Metro, South Coast, and Southeast
Desert areas given that VOC emissions from pesticide use are typically
60 percent lower than 1990 levels in Sacramento Metro and Southeast
Desert and 80 percent lower than 1990 levels in the South Coast. See
CDPR's Annual Report on Volatile Organic Compound Emissions from
Pesticides: Emissions for 1990-2010 (March 2012), page 3. To a large
degree, the reductions in VOC emissions from pesticide use (relative to
1990 levels) in these three areas have resulted from permanent changes
in land use, although CDPR's regulations still serve an important
function by reducing the VOC emissions from remaining pesticide use in
the areas and by establishing a regulatory mechanism to track VOC
emissions from this source category that could, if necessary, provide
the basis for additional regulatory measures if, for some reason, VOC
emissions from pesticide use were to increase significantly over
current levels.
For Ventura County, in recognition that VOC emissions from
pesticide use are predominantly from fumigant use and are high enough
that they could, in a given year due to fluctuations in pesticide use,
violate the 20 percent emission reduction target, CDPR has submitted,
and we are proposing to
[[Page 24450]]
approve, additional regulatory provisions for that area. These Ventura-
specific provisions require CDPR to set a field fumigant VOC emissions
limit in its annual VOC emissions inventory report if overall pesticide
emissions (not just fumigant emissions) in the Ventura nonattainment
area are found to be within five percent of or exceed the listed
benchmark. The benchmark is equivalent to the 20 percent emissions
reduction target called for in the 1994 Pesticide Element for the
Ventura area. The Ventura-specific provisions also require the county
agricultural commissioner to add conditions to field fumigation permits
or take other actions to prevent the field fumigation limit from being
exceeded. As such, the regulations reasonably ensure that the 20
percent emissions reduction target would be met in Ventura County.
For the 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 the SJV
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 emission reduction target
would be met in the SJV. 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 SJV. 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 not specified.\29\ 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.
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\29\ CDPR has presented options for these measures. See CDPR
presentation ``Volatile Organic Compound Emissions from Pesticides:
Options for Reducing Non-Fumigant Emissions'' September 2011 and
November 2011, which can be found at http://www.cdpr.ca.gov/docs/emon/vocs/vocproj/nonfum_options_091611.pdf http://www.cdpr.ca.gov/docs/emon/vocs/vocproj/nonfum_options_prec_111811.pdf.
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For the reasons stated above, we conclude that there is no need to
rescind or otherwise modify our 1997 approval of the 1994 Pesticide
Element or our 2009 approval of PEST-1 notwithstanding the deficiencies
in enforceability in the 1994 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 the San Joaquin
Valley provide the enforceable mechanism that would otherwise be
lacking in the 1994 Pesticide Element. If EPA approves the regulations
and commitment, as proposed herein, then the 1994 Pesticide Element
would be fulfilled. If, after consideration of comments, EPA concludes
that the regulations and commitment do not meet the applicable CAA
requirements, then the decision regarding EPA's previous actions on the
1994 Pesticide Element would need to be reconsidered.
V. Proposed Actions and Opportunity for Public Comment
For the reasons discussed above, EPA is proposing to approve 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 and to
incorporate them into the California's federally-enforceable SIP. We
are deferring action on the set of regulations submitted by CARB August
2, 2011 related to incorporating requirements related to methyl iodide
into the fumigant regulations.
Based on the proposed approval of these SIP revisions, EPA does not
plan to rescind or modify the Agency's prior approvals of the Pesticide
Element because the Agency has concluded that the revisions fulfill the
commitments of the original Pesticide Element, thus obviating the need
to address the deficiencies in enforceability of those original
commitments.
We encourage the public to comment on these proposals. Comments
will be accepted for 30 days following publication of the proposal in
the Federal Register. The deadline and a list of options for submitting
comments is provided at the DATES and ADDRESSES sections at the
beginning of this preamble.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission 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 submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not propose to impose additional requirements
beyond those imposed by state law. For that reason, this proposed
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 CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629 (February 16, 1994)).
In addition, this proposed action 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
[[Page 24451]]
EPA notes that it will not impose substantial direct costs on Tribal
governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 13, 2012.
Jared Blumenfeld,
Regional Administrator, Region 9.
[FR Doc. 2012-9850 Filed 4-23-12; 8:45 am]
BILLING CODE 6560-50-P