# Technical Support Document

Final Rule

Approval of

Revisions to the Pesticide Element
of the California State Implementation Plan

Air Division

Environmental Protection Agency Region 9

August 14, 2012For further information on this technical support document, please contact:

Fumigant Regulations:

Nancy Levin Rules Office (AIR

- 4) (415) 972

- 3848 levin.nancy@epa.gov

Revised State Implementation Plan Commitment for the San Joaquin Valley:

Frances Wicher Office of Air Planning (AIR

- 2) (415) 972

- 3957 wicher.frances@epa.gov

Air Division U.S. Environmental Protection Agency

- Region 9

75 Hawthorne Street San Francisco, California 94105

Most d ocuments referenced in this technical support document may be found on www.regulations.gov in the docket for this rulemaking , docket no. EPA

- R09

- OAR

- 2012

- 0194

. Documents that are not available in an electronic format may be found at the address above.

## Table of Contents

i I. Summary and Background Information

................................ ................................ ................ 1

A. Submitted Revisions to the California SIP Pesticide Element

................................ .............. 1

1. CDPR Regulations

................................ ................................ ................................ ............. 2

2. CDPR’s Revised SIP Commitment for the San Joaquin Valley

................................ ......... 3

B. Currently

- Approved Provisions of the California SIP Pesticide Element

............................ 4

C. Areas Affected by the Revisions to the California SIP Pesticide Element

........................... 5

D. Pesticide Emissions Inven tory

................................ ................................ ............................ 10

E. History of the California SIP Pesticide Element

................................ ................................ . 12

1. The 1994 Pesticide Element in the 1994 Ozone SIP

................................ ....................... 13

2. “PEST

- 1” Measure in the 2003 State Strategy

................................ ............................... 18

3. 2 007 Revisions to the Pesticide Element for Ventura County

................................ ......... 19

F. Proposed Action and Comments Received on the Proposed Action

................................ ... 20

II. Evaluation of the Revisions to the California SIP Pesticide Element

.............................. 21

A. Clean Air Act Procedural Requirements Applicable to SIP Submittals and Revisions.

.... 21

1. Requirements for Public Notice and Hearing for SIP Submittals

................................ .... 21

2. Completeness Determinations

................................ ................................ ......................... 21

B. Enforceability

................................ ................................ ................................ ...................... 23

1. CAA Requirements for Enforceability of Rules and Commitments

............................... 23

2. Evaluation and Conclusions

................................ ................................ ............................. 24

a. CDPR Regulations

................................ ................................ ................................ ....... 24

b. Revised SIP Commitment for the San Joaquin Valley

................................ ................ 25

C. Reasonably Available Control Measures/Reasonably Available Control Requirements (RACM/RACT)

................................ ................................ ................................ ........................ 25

1. Requirements for RACM/RACT

................................ ................................ ..................... 25

2. RACM/RACT Evaluatio n and Conclusion

................................ ................................ ...... 26

a. Field Fumigant Regulations: South Coast, Ventura County, Southeast Desert, San Joaquin Valley, and Sacram ento Metro

................................ ................................ ............ 26

b. Revised SIP Commitment for the San Joaquin Valley

................................ ................ 28

D. Finding of Non

- Interference with Applicable Requirements of the CAA under Section 110(l)

................................ ................................ ................................ ................................ ......... 28

1. CAA Section 110(l) Requirements

................................ ................................ .................. 28

2. Evaluation and Conclusion

................................ ................................ .............................. 29

## Table of Contents

ii a. Attainment and Reasonable Further Progress for Ozone and Particulate Matter

........ 29

b. RACM for Ozone and Particulate Matter

................................ ................................ .... 32

c. Air Toxics/Stratospheric Ozone

................................ ................................ ................... 33

E. Additional Reco mmendations for the Next Rule Revision

................................ ................. 33

III. Responses to Comments

................................ ................................ ................................ ..... 35

A. Comments Received on the April 24, 2012 Proposed Approval of the Revision to the California SIP Commitment for the San Joaquin Valley.

................................ ......................... 35

B. Enforceability of CDPR’s Revised SIP Commitment for San Joaquin Valley

................... 36

C. Approval of the Revised Pesticide Element for SJV under CAA Section 110(l)

............... 45

D. Enforceability of the Fumigant Regulations

................................ ................................ ....... 54

E. Pesticide Emissions Inventories

................................ ................................ .......................... 57

F. Necessary Assurances under CAA Section 110(a)(2)(e)

................................ ..................... 63

G. EPA’s Response to the Ninth Circuit Court of Appeals Remand in Association of Irritated

Residents Case

................................ ................................ ................................ .......................... 67

## List of Acronyms

iii μ: micron (one millionth) AMAF: application method adjustment factor ARB: California Air Resources Board (also CARB) APCD: air pollution control district AQMD: air quality management district AQMP: Air Quality Management Plan

BACM: best available control measure

CAA: Federa l Clean Air Act as amended in 1990 CAC: County Agricultural Commissioners CARB: California Air Resources Board (also ARB) CCR: California Code of Regulations CDPR: California Department of Pesticide Regulation CFAC: California Food and Agriculture Code CFR: Code of Federal Regulations

CPRA: California Public Records Act CTG: control techniques guideline DPR: California Department of Pesticide Regulation EP: emission potential EPA: United States Environmental Protection Agency Fine particulate: PM 2.5 FR: Federal Register N/A: not applicable MeI: methyl iodide (a fumigant)

NAA: nonattainment area NAAQS: national ambient air quality standard

NO

x : oxides of nitrogen NPRM: notice of proposed rulemaking

O 3 : ozone PM: particulate matter

PM 10 : particulate matter with a diameter of 10 μm or less, includes PM 2.5 PM 2.5 : particulate matter with a diameter of 2.5 μm or less ppm: parts per million RACM: reasonably available control measures RACT: reasonably available control technology

RFP: reasonab le further progress ROP: rate of progress

SC: South Coast

SED: Southeast Desert SIP: state implementation plan SJV: San Joaquin Valley SJVAPCD/SJVUAPCD: San Joaquin Valley (Unified) Air Pollution Control District tpd: tons per day

TSD: technical support document VOC: volatile organic compoundsAir Division EPA

- Region 9 Page 1 

## I. Summary and Background Information

This document provides supporting information and analysis for EPA’s approval of revisions to the provisions of California state imple mentation plan (SIP) for controlling volatile organic compounds (VOC) from pesticide usage in five California ozone nonattainment areas: South Coast, Southeast Desert (SED), Ventura County, San Joaquin Valley (SJV), and Sacramento Metro. These provisions are referred to collectively as the California SIP P esticide

Element. EPA proposed this approval on April 24, 2012 at 77 FR 24441.



### A. Submitted Revisions to the California SIP Pesticide Element

EPA is approv ing the following submittals made by the Califo rnia Air Resources Board (CARB) as revisions to the California SIP:

1. October 12, 2009 submittal of regulations adopted by the California Department of Pesticide Regulation (CDPR): 1

 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 and 6452.4 and sections 6624 and 66 2 6 pertaining to

emissions inventor y ;

 3 CCR sections 6452.2 and 6452.3 pertaining to field fumigation limits and allowan ces in

the Ventura County ozone nonattainment area

. 2

2. October 12, 2009 submittal of a revised SIP Commitment for the San Joaquin Valley, 3
adopted by CDPR director on April 17, 2009. This submittal limits VOC emissions from the use of agricultural and commercial structural pesticides in th e SJV to 18.1 tpd and commits CDPR to implement restrictions on non

- fumigant pesticides in the SJV by 2014.

1 As part of this submittal, CARB withdrew its January 28, 2008 submittal of an earlier version of the field fumigant regulations. See letter, James N. Goldstene, Executive Officer, CARB to Laura Yoshii, Acting Regional Administrator, EPA Region 9, October 12, 2009 and State of California, Air Resources Board, Executive Order S

09

- 011 Relating to Approval of Regulations to Achieve Pesticide Volatile Organic Compound Emission Reductions, October 12, 2009.

2 CARB did not submit for inclusion into the SIP th ose 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.

3 As part of this submittal, CARB withdrew the SIP commitment for the SJV t hat was included o n page 131 of the CARB’s Proposed State Strategy for California’s 2007 State Implementation Plan (as adopted September 27, 2007) (“2007 State Strategy” ) that it submitted on November 15, 2007. See letter, James N. Goldstene, Executive Officer, CARB to Laura Yoshii, Acting Regional Administrator, EPA Region 9, October 12, 2009 and State of California, Air Resources Board, Executive Order S

- 09

- 005 Relating to Approval of Amendments

to the 2007 Ozone Plan for the San Joaquin Valley to Achieve Pesticide Emission Reductions, October 12, 2009.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14, 2012

Air Division EPA

- Region 9 Page 2 3. August 2, 2011 submittal of revisions to CDPR regulations. 4 This submittal revised and added to the October 12, 2009 submittal, and included th e following : 5

 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.

1. CDPR Regulations

The submitted CDPR regulati ons can be divided into four distinct but related parts . The first part (revisions to 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 between May 1 and October 31 of each year. 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 County nonattainment area to ensure that the area’s overall limit on pesticide VOC emission limit is not exceeded. 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. EPA describes each part in more detail below.

The first part of the submitted regulations establishes, by fumigant and method, requirements for the field application of seven fumigants and restricts to the lowest

- emitting ones, the methods that may be used to apply field fumigants in the in the South Coast, SED, Ventura County , SJV, and Sacramento Metro ozone nonattainment areas during the period May 1 to October 31. Requiremen ts 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).

Specific requirements for applying these fumigants include, for example , l imiting fumigant application rates (pounds/acre) ; s pecifying application methods (e.g., minimum injection dep th below soil surface, number of water treatments, minimum hou rs to leave tarpaulin in place); and r equiring plans to address damaged tarpaulins )

. 3 CCR section 6452

4 See letter, James N. Goldstene, Executive Officer, CARB to Jared Blumenfeld, Regional Administrator, EPA Region 9, August 2, 2011 and State of California, Air R esources Board, Executive Order S

- 11

- 015, Relating to Approval of Regulations to Achieve Pesticide Volatile Organic Compound Emission Reductions, August 2, 2011.

5 CARB also submitted 3 CCR section 6400 (Restricted Materials), section 6446 (Methyl Iodide Field

– General Requirements) and section 6446.1 (Methyl Iodide Field Fumigation Methods) and related portions of provisions section 6452.2 (a)(4) (Annual Volatile Organic Compound Emissions Inventory Report) and section 6624 (f) (Pesticid e Use Records)

. E PA is 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 its April 7, 2011 regulations that are also included in CARB’s August 2, 2011 submittal.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14, 2012

Air Division EPA

- Region 9 Page 3 allows CDPR to approve alternative fumigation methods under certain conditions and based o n specific criteria

. As submitted, the second part of the regulations applies only to the Ventura County

ozone nonattainment area. Th is part requires CDPR to set a field fumigant VOC emission limit

for Ventura County in its annual VOC emissions inventory r eport if overall pesticide emissions (not just fumigant emissions) in the Ventura County nonattainment area are found to be within 5 percent of or exceed the listed benchmark. The benchmark is equivalent to the 20 percent reduction in pesticide VOC emissio ns 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 other take other actions that will

preven t the field fumigant limit from being exceeded.

The third part of the submitted regulations requires that CDPR to issue an annual emissions inventory report which report s the total agricultural and commercial structural (fumigant and nonfumigant) pesticide VOC emissions for the previous years in each of the five nonattainment areas and evaluates compliance with the emissions reduction limits in each area

. These regulations specify the method for calculating emissions and require that CDPR make a draft emiss ions inventory available to the public for 45

- day comment period and post the final report on its website.

The fourth part of the submitted regulations establish the pesticide use recordkeeping and reporting requirements needed to assure compliance with th e other parts. This part require s anyone using pesticides in specific applications to maintain certain records for two years and requires operator s of property which produc e an agricultural commodity and agricultural pest

control business es to report the u se of pesticides to the county agricultural commissioner. These regulations require the recording and reporting of the method for fumigant application in the five

nonattainment areas.

2. CDPR ’s Revised SIP Commitment for the San Joaquin Valley

CDPR has re vised its previous commitments to limit VOC emissions from commercial structural and pesticides in the SJV. Specifically, it is now committing to

 use the specified emissions estimation methodology 6 to establish the 1990 pesticide VOC

emission levels and e valuate 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 of non

- fumigant pesticides; and

 manage VOC emissions from agricultur al and commercial structural pesticide use to ensure that they do not exceed 18.1 tons

- per

- day in the SJV are a (which is equivalent to a 12 percent reduction in pesticide VOC emissions from 1990 levels).

6 Fo r 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 the November 5, 2008 memorandum from Rosemary Neal, CDPR to Randy Segawa, CDPR, Subject: Update to the Pesticide Volatile Organic Invento ry. Estimated Emissions 1990

- 2006, and Preliminary Estimates for 2007” (“Neal memorandum”).TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14, 2012

Air Division EPA

- Region 9 Page 4 

### B. Currently

- Approved Provisions of the California SIP Pesticide Element

Prior to today’s action, EPA has taken three actions to either approve or revise provisions of the California SIP Pesticide Element. EPA briefly describes each action below and discuss es each action and its background in more detail i n section I.E. of this TSD.

 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 and included, among other things, a commitment by CDPR to reduce V OC emissions from agricultural and structural pesticide emissions in five ozone nonattainment areas by a maximum of 20 percent from 1990 baseline levels. 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)

. 7

 PEST

- 1 Measure in CARB’s 2003 State Strategy

– In 2003, CARB updated the statewide strategy that was part of the 1994 O zone SIP. One of the measures in the 2003 State Strategy was PEST

- 1 ( “ Implement Existing Pes ticide Strategy ” ), which retained the provisions of the 1994 Pesticide Element. EPA approved PEST

- 1 into the SIP as part of its action to approve in part and disapprove in part the 2003 South Coast A ir Quality Management Plan (A QMP )

. See 74 FR 10176 (March 10, 2009), codified at 40 CFR § 52.220(c)(339)(ii)(A)( 1 ). 8

7 In 2004, litigation was brought against CDPR in federal district court to enforce the 1994 Pesticide Element. In 2006, the District court ordered the Department to adopt, implement regulations to achieve the emissions reduction goals as set forth in the May 9, 1995 memorandum from James Wells to James Boyd (“Wells memorandum”). See El Comité Para el Bienestar de Earlimart v. Helliker, 416 F. Supp. 2d 912 [E.D. Ca l. 2006]. In its review of District court’s decision and order, the 9 th Circuit Court of Appeals determined that the Wells memorandum relied on by El Comit é and the subsequently by the District court in its decision was not included in

the SIP and vacated the District court’s order. See El Comité para el Bienestar de Earlimart v . Warmerdam , 539 F.3d 1062, 1069

- 1072 ( Warmerdam )

.

8 As part of its decision in Association of Irritated Residents v. EPA , No. 09

- 71383 , the 9 th Circuit Court of Appeals determined that EPA had erred in approving the PEST

- 1 measure without first evaluating the approved 1994 Pesticide Element, particularly as to whether the Element had sufficient enforcement mechanisms to satisfy the requirements o f the CAA. In the April 24, 2012 proposal, EPA provided its preliminary response to the remand by the Ninth Circuit Court of Appeals in Association of Irritated Residents . This remand required EPA to evaluate the

California SIP Pesticide Element for enforc eability under the CAA. See 77 FR 24441, 24447. In this action, we are finalizing that response without change.

In the proposed rule, we also referred to another Ninth Circuit petition for review, El Comit é P ara El

Bienestar D e Earlimart v. EPA (No. 08

- 743 40) (" El Comité ") . 77 FR 24441 at 24448. In El Comité , 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 Cali fornia Ozone SIP"), which included approval of the California SIP Pesticide Element, on the basis of the same 2008 Ninth Circuit decision, El

Comité Pa ra E l Bienestar D e Earlimart v. Warmerdam , 539 F.3d 1062) (" Warmerdam "), that was the basis for the

reman d in Association of Irritated Residents . At the time of our proposed rule, the Ninth Circuit had not issued its

decision in El Comité . Since then, the Ninth Circuit has issued a remand order to EPA in El Comité to reconsider its approval of the 1994 Califo rnia Ozone SIP in light of the Warmerdam decision, as required by the remand in
Association of Irritated Residents

. 8 The remands in both Association of Irritated Residents and El Comité 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 our appr oval of CDPR’s revised SIP commitment for the SJV and fumigant regulations,TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14, 2012

Air Division EPA

- Region 9 Page 5  2007 Ventura County Pesticide Element

– In 2007, CARB submitted a revision to the 1994 Pesticide Element that reduced in part and temporally the emissions reduction commitments in Ventura County. EPA approved this revision in 2008. See 73 FR 41277 (July 18, 2008), codified at 40 CFR § 52.220(c)(355)(i)(A) ( 1 )

.



### C. Areas Affected by the Revisions to the California SIP Pesticide Element

The field fumigant regulations pertaining to restricted materials and fumigation methods restrictions (3 CCR sections 6447.3, 6448.1, 6449.1, 6450.1, 6450.2, 6451.1, 6452), to annual

VOC emissions inventor y report requirement (3 CCR section 6452.4); and to the pesticide use reports requirements (3 CCR sections 6452.1, 6624 and 6626) apply to the following five

California ozone nonattainment areas : 9

South Coast  Orange County

 Los Angeles County (part)

 Riverside County (part)

 San Bernardino County (part)

Southeast Desert (SED)  Riverside County (Coachella Valley portion)

 San Bernardino County (part)

 Los Angeles County (Lancaster/Palmdale)

Ventura County  Ventura County

San Joaquin Valley  San Joaquin County

 Stanislaus County

 Merced County

 Madera County

 Fresno County

 Tulare County

 Kings County

 Kern County ( valley portion)

Sacramento Metro  Sacramento County

 Yolo County

finalizes not only our response to the remand in Association of Irritated Residents , but it also finalizes our response

to the remand in El Comité

.

9 CDPR’s regulations establish ing the parameters for field fumigant application methods (but not the restrictions on which methods may be used during certain periods of the year) and pesticide use recordkeeping and reporting requirements apply statewide; however, EPA is limiting its ap proval of these provisions to just the five

listed nonattainment areas.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14, 2012

Air Division EPA

- Region 9 Page 6  El Dorado County (part)

 Placer County (part)

 Solano County (part)

 Sutter County (part)

The provisions in 3 CCR sections 6452.2 and 6452.3 which pertain to field fumigation

limits and allowances as submitted are only applicable to the Ventura County ozone nonattainment area.

The revised SIP commitment for the SJV a pplies solely to the San Joaquin Valley 1

- hour ozone nonattainment area, as described above

.

In Table 1 below, EPA lists the current a ttainment status for the national ambient air quality standards for ozone and particulate matter of the five areas that are affected by the
revisions to the California SIP Pesticide Element. EPA also lists the current status of each area’s ozone and (if ap plicable) particulate matter pl ans. It provides information for both the ozone and particulate matter standards because VOC emissions are considered precursors emissions for both pollutants; however, we note that not all areas are required to control VOC f or particulate

matter attainment.

The applicable standards are:

1

- hour ozone standard  0.12 parts per million (ppm)

 40 CFR § 50.9

 Revoked, effective June 15, 2005; 69 FR 23951
(April 30, 2004)

1997 8

- hour ozone standard  0.08 ppm

 40 CFR § 50.10

 62 FR 38894 (July 18, 1997)

2008 8

- hour ozone standard  0.075 ppm

 40 CFR § 50.15

 73 FR 16511 (March, 27, 2008)

1997 PM 2.5 standards  15.0 micrograms per cubic meter (μg/m 3 )

annual arithmetic mean and

 65 μg/m3 24

- hour average

 40 CFR § 50.7

 62 FR 38711 (July 18, 1997)

2006 PM 2.5 standards  15.0 micrograms per cubic meter (μg/m3)

annual arithmetic mean concentration, and

 35 μg/m 3 24

- hour average concentrationTSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14, 2012

Air Division EPA

- Region 9 Page 7  40 CFR §50.13

 71 FR 61224 (October 17, 2006)

PM

- 10 standard  150 (μg/m3) 24

- hour average concentration

 40 CFR § 50.6

 52 FR 24663 (July 1, 1987) as amended at 62
FR 38711 (July 18, 1997), 65 FR 80779
(December 22, 2000) and 71 FR 61224
(October 17, 2006)TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Division EPA

- Region 9 Page 8



### T ABLE 

### 1

- A TTAINMENT AND 

### P LAN 

### S TATUS OF 

### A REAS 

### S UBJECT TO THE 

### P ESTICIDE 

### E LEMENT



### O ZONE AND 

### P ARTICULATE 

### M ATTER 

### NAAQS

S TANDARD 1

- HOUR O ZONE 8

- H OUR O ZONE P ARTICULATE M ATTER

A REA A TTAINMENT
S TATUS P LAN S TATUS A TTAINMENT
S TATUS P LAN S TATUS A TTAINMENT
S TATUS P LAN S TATUS

South Coast Nonattainment/

Finding of failure to

attainment Approved Nonattainment/

extreme Approved 1997: Nonattainment 1997: Approved

2008: Nonattainment N/A 2006: Nonattainment 2006: Due December 14, 2012

PM 10 : Redesignation

to attainment requested PM 10 : Approved

Southeast

Desert Nonattainment/

Finding of failure to

attainment Approved Nonattainment/ pending severe

classification per S tate ’s request Pending action 1997: Attainment/

unclassifiable 1997: N/A

2008: Nonattainment N/A 2006: Attainment/

unclassifiable 2006: N/A

PM 10 : Redesignation

to attainment requested (Coachella Valley) PM 10 : Approved

(Coachella Valley)

Ventura County Nonattainment/

Finding of

attainment Approved Nonattainment/

severe Pending action 1997: Attainment/

unclassifiable 1997: N/A

2008: proposed

Nonattainment N/A 2006: Attainment/

unclassifiable 2006: N/A

San Joaquin Valley Nonattainment/

Finding of failure to

attainment Approved Nonattainment/

extreme Approved 1997 PM 2.5 : Nonattainment 1997 PM 2.5 :

Approved

2008: Nonattainment N/A 2006 PM 2.5 : Nonattainment 2006 PM 2.5 : Due

December 14, 2012

PM 10 : attainment PM 10 : ApprovedTSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Division EPA

- Region 9 Page 9



### T ABLE 

### 1

- A TTAINMENT AND 

### P LAN 

### S TATUS OF 

### A REAS 

### S UBJECT TO THE 

### P ESTICIDE 

### E LEMENT



### O ZONE AND 

### P ARTICULATE 

### M ATTER 

### NAAQS

S TANDARD 1

- HOUR O ZONE 8

- H OUR O ZONE P ARTICULATE M ATTER

A REA A TTAINMENT
S TATUS P LAN S TATUS A TTAINMENT
S TATUS P LAN S TATUS A TTAINMENT
S TATUS P LAN S TATUS

Sacramento

Metro Nonattainment/

Finding of

attainment Approved 1997:

Nonattainment/

severe Pending action 1997: Attainment/

unclassifiable 1997 PM 2.5 : N/A

2008: Nonattainment N/A 2006: Nonattainment 2006 PM 2.5 : Due December 14, 2012

PM 10 : redesignation

to attainment requested PM 10 : pending

actionTSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 10 

### D. Pesticide Emissions Inventory

As required by 3 CCR section 6452.4(a), CDPR annually reports on VOC emissions from agricultural and commercial structural pesticide applications in the five areas subject to the provisions of the California SIP Pesticide SIP. The most recent report, with emissions estimates for 1990 and 2004 through 2010, was issued on March 29, 2012 and revised on June 17, 2012

. 10
Table 2 shows the estimates of VOC emissions from pesticides in each area as well as the SIP target level from this report. The inventory represent s daily average emissions for period May 1

and October 31 of each year. Table 3 compares current estimated em issions from pesticides in

each area to total VOC emissions from all sources in the area.



### T ABLE 

### 2

– A DJUSTED 

### VOC E MISSIONS FROM 

### P ESTICIDES


### T ARGET 

### L EVEL AND 

### E MISSIONS IN 

### 1990 AND 

### 2004

- 2010

TONS PER AVERAGE DAY M AY 1

- O CTOBER 31

1990 G OAL 2004 2005 2006 2007 2008 2009 2010

SJV 20.5 18.1 17.3 20.7 21.3 17.1 14.5 13.2 15.5

Ventura 3.8 3.0 3.9 3.6 3.7 3.4 1.7 2.1 2.6

South Coast 10.8 8.7 1.9 2.0 1.5 1.5 1.3 1.2 1. 7

SED 1.2 0.9 1.0 0.7 0.6 0.8 0.3 0.3 0.5

Sacramento

Metro 2.8 2.2 1.2 1.2 1.4 1. 0 0.9 0.9 1. 0

Source: Revised 201 0 Pesticide VOC Emissions Report, Table 5, p. 20.

10 R osemary 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,” March 29, 2012 (“2010 Pesticide VOC Emissions Report”) and Rosemary Neal, Ph.D.

, Frank Spurlock, Ph.

D ., and Randy Segawa , California Department of Pesticide Regulation, “Annual Report on Volatile Organic Compound Emissions fro m Pesticides: Emissions For 1990

– 2010,” Revised, June , 2012 (“Revised 2010 Pesticide VOC Emissions Report”).TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 11 

### T ABLE 

### 3

- P ESTICIDE 

### E MISSIONS AS 

### P ERCENT OF 

### O VERALL 

### VOC E MISSIONS

2010 P ESTICIDE VOC

E MISSIONS

TONS PER SUMMER DAY T OTAL 2011 VOC

I NVENTORY

TONS PER SUMMER DAY P ESTICIDE AS P ERCENT

OF TOTAL VOC

E MISSIONS

SJV 16.8 354 4.7%

Ventura 2.6 48.3 5.3%

South Coast 1.2 580 0.2%

SED 0.5 88.1 0.6%

Sacramento

Metro 1.1 121 0.9%

Source: Total 2011 VOC inventory for SJV and SC: CARB, 8

- Hour Ozone State Implementation Plan Revisions for the South Coast and San Joaquin Valley Air Basins, July 21, 2011, Appendix B. Total 2011 VOC inventory for Ventura County , SED, and Sacramento Met ro: 2007 State Strategy, Appendix A.

CDPR Procedures for Calculating VOC Emissions from Pesticides

Section 3 CCR section 6452.4(a)(1) as amended in May 2011 establishes the basic procedures for calculating pesticide VOC emissions for the annual report and thus for determining compliance with the SIP pesticide reduction goals:

(1) report the total agricultural and structural (fumigant and nonfumigant) pesticide volatile organic compound (VOC) emissions for the previous years. Nonfumigant pesticide product emissions will be the summation of the pounds of each pesticide product used multiplied by the VOC content (emission potential) for the specific product. Fumigant product emissions will be the summation of the pounds of each pesticide product used multipli ed by the emission potential for that specific product and VOC emission rating for the application method, as specified in (5). 11

The emission potential ( EP ) of a pesticide product is th e fraction of the product that is

assumed to contribute to atmospheric VOC

. The procedure that CPDR uses to determine EP is

documented in the memorandum , Frank Spurlock, CDPR to John Sanders, CDPR, January 7, 2002, subject: Methodology for determining VOC emission potential of pesticide products (http://www.cdpr.ca.gov/docs/e mon/vocs/vocproj/intro.pdf). The VOC emission rating s for the fumigant application method s (the application method adjustment factor (AMAF)) are

establish ed in the annual report and based on available scientific data documenting the VOC

emissions

. See 3 CC R section 6452.4(a)(4) and Revised 2010 Pesticide VOC Emissions Report, p. 14 and Appendix 1a.

In it s r evised SIP commitment for the SJV

, CDPR proposes to track compliance with the overall VOC limit in the SJV by using the emissions estimation methodology described on page

2

- 4 (in the section “ Procedure for Calculating Unadjusted and Adjusted Volatile Organic Compound Emissions) in the memo randum

, Rosemary Neal, CDPR to Randy Segawa, CDPR,

11 S ubsection (5) of 3 CCR 6452.4(a) was renumbered to (4) in the May 2011 revisions to this section.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 12 November 5, 2008

, Subject: Update to the Pesticide Volatile Organic Inventory. Estimated

Emissions 1990

- 2006, and Preliminary Estimates for 2007 ( “ Neal m emorandum ” ). 12 The emission calculation procedures in 3 CCR section 6452.4(a)(1) and the Neal m emorandum are essentially the same and follow standard inventorying practice. See, for example, http://www.epa.gov/ttn/chief/ap42/index.html.

EPA interprets CDPR’s regulations in CCR section 6452.4(a) and commitmen t to use the emissions estimation methodology in the Neal memorandum to calculate base year VOC emission levels and compliance to replace the calculation methodology in the 1994 Pesticide

Element.



### E . History of the California SIP Pesticide Element

Prior t o the submittals that are the subject to this final action, California has made five submittals and EPA has taken three rulemaking actions related to the California SIP Pesticide

Element. These submittals and actions are listed below in Table 4. In this se ction, EPA provide s

a summary of the submittals and its actions on them in order to place this final action in context

.



### T ABLE 

### 4

– P REVIOUS 

### S UBMITTALS AND 

### A CTIONS ON THE 

### C ALIFORNIA 

### SIP

P ESTICIDE 

### E LEMENT

D ATE S UBMITTAL /A CTION

November 15, 1994 California submits “ The State Implementation Plan for Agricultural and

Commercial Structural Pesticides, ” November 15, 1994 as part of the 1994 California State Implementation Plan for Ozone ( “ 1994 Pesticide

SIP ” )

May 11, 1995 California submits the memor andum

, James W. Wells, Director, CDPR

to James D. Boyd, Executive Officer, CARB, May 9, 1995, re: 1994 State Implementation Plan ( “ Wells memorandum ” ) which clarifies and revises certain aspects of the 1994 Pesticide SIP document

.

March 18, 1996 EPA proposes to approve 1994 Ozone SIP including the pesticide

measure. 61 FR 10920

.

June 13, 1996 California submits additional information including emissions reductions

credit taken for the pesticide measure. See , letter, James D. Boyd, Executive Officer, CARB to David Howekamp, Air Division Director, EPA Region 9, June 13, 1996 ( “ Boyd /Howekamp letter ” ).

January 8, 1997 EPA finalizes approval of the 1994 Ozone SIP including the 1994

Pesticide Element. 62 FR 1150.

12 The Neal memorandum was included as part of October 12, 2009 subm ittal of the r evised SIP

c ommitment for the SJV, and EPA has include d it as additional material in the California SIP.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 13 

### T ABLE 

### 4

– P REVIOUS 

### S UBMITTALS AND 

### A CTIONS ON THE 

### C ALIFORNIA 

### SIP

P ESTICIDE 

### E LEMENT

D ATE S UBMITTAL /A CTION

January 9, 2004 California submits the 200 3 State Strategy which includes the PEST

- 1

measure. PEST

- 1 continues implementation of the 1994 Pesticide

Element

.

November 30, 2007 California submits revisions to the Pesticide Element for Ventura

County

.

April 23, 2008 EPA proposes to approve the revisions to the Pesticide Element for

Ventura County . 73 FR 21885.

July 18, 2008 EPA finalizes approval of the revisions to the Pesticide Element for

Ventura County . 73 FR 41277.

March 10, 2009 EPA proposes to approve portio ns of the 2003 State Strategy including

the PEST

- 1 measure. 74 FR 10176

.

March 8, 2010 EPA finalizes approval of portions of the 2003 State Strategy including

the PEST

- 1 measure. 75 FR 10420

.

April 24, 2012 EPA proposes to approve the revised SIP commitment for the SJV and

CDPR’s fumigant regulations. 77 FR 24441.

1. The 1994 Pesticide Element in the 1994 Ozone SIP 13

On November 15, 1994, California submitted a comprehensive SIP to attain the 1

- hour ozone standard in the State. As part of this comprehensive SIP, the State included a plan to reduce VOC emissions from agricultural and commercial structural pesticide applications in five California ozone nonattainment areas by a max imum of 20 percent from 1990 baseline emissions by 2005. 14 U nder this plan, known as the 1994 Pesticide SIP, the reductions in VOC emissions were to occur on a linear basis from the 1990 baseline emissions inventory. The plan also offered the flexibility to achieve reductions of less than 20 percent by the year 2005 in air districts if less pesticidal VOC emissions reductions were needed. See 1994 Pesticide SIP, p. 1. The 1994

Pesticide SIP was to be implemented in several steps: 1) re

- evaluation of pestici de products; 2) establishment of a 1990 pesticidal VOC base year inventory and emissions tracking program; and 3) development of a program to reduce pesticide VOC emissions if necessary.

The first step of the 1994 Pesticide SIP “ Re

- evaluation of Pesticide Products ” was designed to determine the amount of VOC in each pesticide product by requiring registrants of

13 EPA starts this history with California’s first submittal of a pesticide measure for SIP approval. This

s ubmittal, however, was preceded by an EPA proposal to regulate pesticide VOC emissions statewide as part of a federal implementation plan (FIP) for the South Coast, Ventura, and Sacramento Metro 1

- hour ozone nonattainment areas. See 59 FR 23263, 23320 (May 5, 1994). This FIP never went into effect.

14 “The State Implementation Plan for Agricultural and Commercial Structural Pesticides,” November 15,

1994.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 14 agricultural and structural pesticides to submit data on the VOC Emission Factor of their products. This step was begun in April 1994.

The second s tep of the 1994 Pesticide SIP “ Establishing the 1990 Base Year Inventory and Tracking ” included using the 1991 Pesticide Use Report and then adjusting it to 1990. The 1991 PUR were proposed to be used instead of the 1990 because they were then believed to be more accurate than the 1990 PUR reports. The SIP outlined the methodology that would be used to develop the baseline inventory and stated that this methodology would be used for subsequent

years.
The third step of the 1994 Pesticide SIP “ Reducing Pesti cide VOC Emissions ” included analysis of the 1990 and subsequent annual emissions inventor ies to develop detailed pesticidal

VOC emissions inventor ies over time, encouraging reductions in pesticidal VOC emissions through a series of non

- regulatory steps, and development of regulatory measures as necessary to ensure that reductions in pesticidal VOC were achieved. The decision whether additional regul atory measures were needed was to be made by 1997.

After reviewing the initial submittal, EPA requested CDPR clarify and revise certain aspects of the 1994 Pesticide SIP including to identify the percent reductions in emissions expected in specific years for each nonattainment area and the date by which CDPR would adopt any additional regulations that might be needed to achieve those reductions. 15 California responded with the requested clarifications and revisions. 16 These revisions including a

commitment f

rom California to adopt and submit to EPA by June 15, 1997 any regulations necessary to reduce VOC emissions from agricultural and commercial pesticides by specific percentages of the 1990 base year emissions, by specific years in five nonattainment areas. CDPR listed these percentage reductions in a table:



### R EDUCTIONS FROM 

### 1990 B ASELINE

Ozone nonattainment area 1996 1999 2002 2005

Sacramento Metro 8% 12% 16% 20% San Joaquin Valley 8% 12% 16% 20%

South Coast 8% 12% 16% 20%

Southeast Desert 8% 12% 16% 20%

Ventura 8% 12% 16% 20%

Source: Wells memorandum, p. 1.

EPA proposed to approve the 1994 California Ozone SIP on March 18 , 1996 (61 FR 10920, 10935). In its proposal

, EPA stated in regard to the pesticides measure:

15 See letters, David P. Howekamp, EPA to James W. Wells, Director, California Department of Pesticide Regulation, March 20, 1995 and April 21, 1995.

16 See letter, James W. Wells to David P. Howekamp, March 31, 1995 and letter, James D. Boyd to Felicia
Marcus, Re gional Administrator, EPA Region 9, May 11, 1995 transmitting memorandum , James W. Wells,

Dire ctor, CDPR to James D. Boyd, Executive Officer, CARB, May 9, 1995, re: 1994 State Implementation Plan (“Wells memorandum”).TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 15 4. Pesticides

a. Review of Measure. California’s 1994 SIP submittal includes a commitment

to reduce VOC emissions from the application of agricultural and structural pesticides. The submittal describes relevant authority in Section 6220 of Title 3 of

the California Code of Regul ations that has been granted to the California Department of Pesticide Regulation (DPR). However, since CARB has overall responsibility for developing the SIP, California’s pesticide commitment is

described in a letter from DPR to CARB, (Ftn. 4: James Wel ls (DPR) to James Boyd
(CARB), dated November 15, 1994) which CARB then submitted to EPA with the

balance of the 1994 SIP. In May 1995, California used a similar mechanism to clarify technical details of the pesticide commitment. (Ftn. 5: May 9, 1995 lett er from
Wells to Boyd under a May 11, 1995 cover letter from Boyd to Felicia Marcus (EPA)) . This

clarification is considered part of California’s SIP

b. Emission Reductions. 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 specific percentages of the 1990 base year emissions, (Ftn 6: In a March 31, 1995 letter from Wells to David Howekamp (EPA), Calif ornia clarified its commitment to limit future VOC emissions from pesticides to the target percentages of the 1990 base year emissions, regardless of future growth in emissions that might otherwise occur. “ Therefore, the proposed 20 percent reduction goal could be considered to be greater than 20 percent if one includes growth in
pesticidal VOC emissions. ” (March 31 letter, page 2.) by specific years, and in specific

nonattainment areas as listed in the table labeled, “ Reductions from 1990

Pesticide Emission s Baselines. ” The table labeled “ Reductions from Pesticides

Measure ” shows reductions counted toward the ROP milestones and attainment in

each area.



### R EDUCTIONS FROM 

### 1990 P ESTICIDE 

### E MISSIONS 

### B ASELINE

Ozone nonattainment area 1996 (percent) 1999

(percent) 2002

(percent) 2005

(percent)

Sacramento Metro 8 12 16 20 San Joaquin Valley 8 12 16 20

South Coast 8 12 16 20

Southeast Desert 8 12 16 20

Ventura 8 12 16 20



### R EDUCTIONS FROM 

### P ESTICIDE S 

### M EASURE

(Tons per day of ROG)

1999 ( 2002 2005 2007 2008 2010

South Coast 1.5 1.6 1.3 1.6 1.7

Southeast Desert 0 0 1.2 1.5

Ventura 0 0 2.4

Sacramento Metro 0 0 2.7 San Joaquin Valley 13 San Diego 0.2TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 16

The pesticide component of California’s SIP also describes education and outreach programs intended to achieve these emission reductions voluntarily. EPA strongly encourages these programs, and hopes to work with DPR and the

affected industries to make them successful. In the event, however, that additional control strategies are needed, California’s commitment to adopt and submit any

necessary pesticide regulations is sufficient to ensure those emission reductions described in the table labeled, ‘‘Reductions from 1990 Pesticide Emissions

Baselines. ” (Ftn 7: Note that for purposes of ROP and attainment demonstrations in the SIPs, California has not claimed emission reduction credit for the 8% pesticide emission reductions planned for 1996.)

c. EPA Action. EPA is proposing to approve the Pesticides measure under sections 110(k)(3) and 301(a) of the Act, and assign credit to the measure as part

of the [rate of progress] and attainment demonstrations for appropriate

nonattainment areas. EPA will take regulatory action on the State’s Pesticides regulations, if any regulations are required and are submitted, in separate rulemakings.

In its May 2, 1996 comment letter on the proposed approval, California stated that it took SIP credit for pesticide reductions only in the applicable attainment year for the San Joaquin Valley, Sacramento Metro, Ventura County, the Southeast Desert and the South Coast and that
EPA’s action “ should reflect this information. ” 17 CARB subsequently submitted additional

detail s in the Boyd Letter that were intended to supplement the technical corrections identified in

th e State’s formal May 2 comment letter. 18

On the specific proposal to approve the pesticide provisions of the 1994 Ozone SIP

, CARB requested that that EPA delete the table showing the reductions from the 1990 Pesticide

Emissions Baseline table , stating that the commitment is for 20 percent reduction from 1990 levels in each SIP area, except SD and that CARB only took credit in the attainment year, giving these years and percent values as SJV 1999 = 12%; Sac 2005 = 20%; Ven 2005

– 20%, SED

2007

– 20%; and SC 2010 = 20%. 19 Id . CARB also requested that no credit be assigned the pesticide measure prior to attainment. Id . Finally, CARB provided specific emissions reduction credits from the Pesticide Element for each area in their attainment year. Id

., Attachment C. EPA listed these credit (which are all expressed in the 1994 SIP currency 20 ) in its final rule approving

17 Letter, James M. Strock, Secretary for Environmental Protection, to Felicia Marcus, Regional Administrator, EPA Region 9, May 2, 1996, Attachment 1, p. A

- 3.

18 See letter, James D. Boyd, Executive Officer, CARB to David Howekamp, Air Division Director, EPA Region 9, June 13, 1996, Attachment A, p. A

- 2 and Attachment C.

19 These dates corresponded to the applicable attainment date fo r each area’s then

- current classification for

the 1

- hour ozone standard: SJV was classified as serious with an attainment date of November 15, 1999; Ventura

and Sacramento Metro were classified as severe

- 15 with an attainment date of November 15, 2005; SE D was

classified as severe

- 17 with an attainment date of November 15, 2007, and the South Coast was classified as extreme with an attainment date of November 15, 2010. See 61 FR 10920, 10925.

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 particular SIP. Because inventories vary from SIP to SIP for reason s unrelated to controls (e.g., improved acti vity 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 change.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 17 the 1994 Ozone SIP in the table entitled “ R EDUCTIONS FROM P ESTICIDES M EASURE ” at 62 FR 1150, 1170 (January 8, 1997). In that final rule, EPA provided the following discussion on the

1994 Pesticide Element:

4. Pesticides

a. Review of Measure. California’s 1994 SIP submittal includes a commitment

to reduce VOC emissions from the application of agricultural and structural pesticides. The submittal describe s relevant authority in Section 6220 of Title 3 of

the California Code of Regulations that has been granted to the California Department of Pesticide Regulation (DPR).

b. Response to Comments. The Environmental Defense Center (EDC) questioned whether the p esticides measure should be granted credit. EDC stated that pest management research alone will not create any reductions and the SIP is entirely vague as to how these air quality benefits will be accomplished. While the

NPRM refers to a June 1997 date for promulgation of regulations should the voluntary measures fail, the SIP itself recites a possible, not obligatory, 1998 date.

Finally, EDC recommends that the rule that was included in EPA’s 1995 Federal Implementation Plan (or some comparable rule) must be included in the

SIP.

On May 11, 1995, CARB submitted a clarification by the California Department of Pesticide Regulation (Memo from James W. Wells to James D. Boyd) to the pesticide element of the SIP, submitted on November 15, 1994. This

SIP clarific ation, which was cited in the NPRM, states, in part, that “ The Department of Pesticide Regulation commits to adopt and submit to U.S. EPA by June 15, 1997, any regulations necessary to reduce volatile organic compound 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 the following table * * *. ” California assigns to the pesticides measure less emission reduc tions than were associated with EPA’s proposed FIP rule but the SIP reductions are sufficient to meet progress

and attainment requirements in each area for this control category.

c. Emission Reductions As described in the SIP, California has committed to

a dopt 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

Metro

, Ventura Count y , Southeast Desert, and the South Coast, and by 12 percent in 1999 for the San Joaquin Valley. The table labeled “ Reductions from Pesticides

Measure ” shows reductions counted toward attainment in each area. EPA has

revised the table to reflect CEPA’s requ est that emission reductions for interim years be excluded from the SIP, since CARB elects not to assign credit to the

Here, the 1994 SIP currency for the pesticide reductions includes, unusually, anticipated growth in pesticide emissions from the base year of 1990 to the applicable attainment year. As a result, to compare whether emissions reductions are equivalent between differe nt SIPs for here, the emissions increases due to growth would need to be

removed first.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 18 pesticides measure except for purposes of attainment. If reductions from the measure are, in the future, needed to meet ROP milestones, CARB must resubmit

the measure and interim reduction estimates as an SIP revision.



### R EDUCTIONS FROM 

### P ESTICIDE S 

### M EASURE

(Tons per day of ROG)

1999 2002 2005 2007 2008 2010

South Coast 0 0 0 0 0 1.7

Southeast Desert 0 0 0 1.5

Ventura 0 0 2.4

Sacrament 0 0 2.7 San Joaquin Valley 13

d. EPA Action. EPA is approving the Pesticides measure under sections 110(k)(3) and 301(a) of the Act, and assigning credit to the measure as part of the

attainment demonstrations for appropriate nonattainment areas. EPA will take regulatory action on the State’s Pesticides regulations, if any regulations are required and are submitted, in separate rulemakings.

Although Wells memorandum was referenced in the preamble to EPA’s final approval of

the 1994 California Ozone SIP , it was not included in the materials that were incorporated by reference into the California SIP. While EPA’s failure to approve and incorporate the Wells memorandum into the SIP may have been inadvertent, California’s May 2, 199 6 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 specif ically excluded.

2. “ PEST

- 1 ” Measure in the 2003 State Strategy

On October 23, 2003, CARB adopted the “ 2003 State and Federal Strategy for the California State Implementation Plan ” (adopted October 23, 2003 and submitted January 9,

2004 21 ) ( “ 2003 State S trategy ” ). 22 The 2003 State Strategy identified California’s regulatory agenda to reduce ozone and PM 10 levels . It was submitted to update and replace the State’s control measure commitments in the 1994 Ozone SIP (as modified in 1999 for the South Coast).

As submitted, the 2003 State Strategy includes State agency commitments to pursue a set
of defined near

- term statewide control measures and several emission s reduct ion commitments specific to attainment of the 1

- hour ozone standard and the PM 10 standards i n the South Coast

and the PM 10 standards in the SJV

. One of these defined measures was PEST

- 1 ( “ Implement Existing Pesticide Strategy ” ), which retain ed the provisions of the 1994 Pesticide Element. As

21 See CARB Board Resolution 03

- 22 (October 23, 2003) and letter, Catherine Witherspoon, Executive Officer, CARB, to Wayne Nastri, Regional Administrator, EPA Region 9, January 9, 2004.

22 On February 13, 2008, CARB withdrew from EPA consideration certain commitments related to the

South Coast Air Basin in the 2003 State S trategy

. These withdrawals d id not affect the measure in the 2003 State Strategy related to VOC controls for pesticides. See l etter, James N. Goldstene, Executive Officer, CARB to Wayne Nastri, Regional Administrator, EPA Region 9, February 13, 2008.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 19 submitted in January 2004, the 2003 State Strategy only described the measure as it applied to

the South Coast. See 2003 State Strategy, section III

- C.

In addition to addressing emissions reductions needed for the South Coast 1

- hour ozone

and SJV PM 10 plans, t he 2003 State Strategy was also intended to provide state strategies and
emissions reductions for the SJV’s then

- under development 1

- hour ozone plan. This plan was initially required by the area’s reclassification to severe as a result of its failure to attain by its serious attainment date of November 15, 1999 and then required as a result of its voluntary

re classification to extreme. See 66 FR 56476 (November 8, 2001) and 69 FR 20550 (April 16, 2004).

In 2004, CARB submitted the 2004 Extreme [1

- hour Ozone] Attainment Plan for the SJV which, as anticipated , relied in part on the 2003 State Strategy for the reductions needed for attainment. On page 27 of its staff report for that plan, 23 CARB discusses the measures in the 2003 State Strategy and provides an interpretation of the PEST

- 1 measures as it related to the

SJV:

• Continuation of the Department of Pesticide Regulation’s approved SIP

obligation to reduce volatile emissions from pesticides. For the San Joaquin Valley, this means a pesticide VOC emissions target of 12 percent less than

1990 levels.

In 2008, EPA proposed to approve the measures in the 2003 State Strategy including

PEST

- 1 as part of its proposed partially approval/partially disapproval of the 2003 South Coast Air Quality Management Plan. See 73 FR 63408 (October 24, 2008) . EPA noted in that proposal

that it interpret ed its approval of PEST

- 1 as maintaining the status quo with respect to the existing pesticide strategy , that is, the California SIP w ould continue to reflect the strategy as approved by EPA in 1997

. Id a t 63413

. After reviewing and responding to comments received on the proposal (including comments on the proposed approval of PEST

- 1e), EPA finalized the approval of the PEST

- 1 measure. 74 FR 10176 (March 10, 2009)

. In acting on PEST

- 1, EPA reasoned that approval o r 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 t hat 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. 201 1), rev ise d January 27, 2012 ( AIR )

. Specifically, the Ninth Circuit held, give n its earlier findin g in El Comité p ara el

Bien e star de Earl i mar t v. Warmerdam

, 539 F.3d 1062 (9th Cir. 2008) ( Warmerdam ) 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.

3. 2007 Revisions to t he Pesticide Element for Ventura County

In 2007, California revised the Pesticide Element for Ventura County to reduce in part, and temporarily, the VOC emissions reduction commitments for Ventura County to avoid short

-

23 CARB, S taff Report, Proposed 2004 State Implementation Plan For Ozone in the San J oaquin Valley

, Release Date: September 28, 2004 (“CARB staff report”).TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 20 term, but potentially significant, ec onomic losses by strawberry farmers in the area and the potential for long

- term loss of farmland to urban development. On November 30, 2007, CARB

submitted the Proposed Revision to the Pesticide Element of the 1994 Ozone SIP for the Ventura County Nonattai nment Area (August 13, 2007) ” ( “ Revised Pesticide Element for Ventura County ” ) to EPA for approval as a revision to the existing Pesticide Element in the California

SIP.

Un der the 1994 Pesticide Element

, C DPR had committed to reduce VOC emissions resulting from agricultural and commercial structural pesticides in Ventura County by 20 percent of the 1990 base year emissions and by 2.4 t pd (in 1994 SIP currency) by 2005. Under the

Revised Pesticide Element for Ventura County , CARB proposed to substitute speci fic “ surplus ”

emissions reductions from California’s ongoing mobile source emission control program for a portion of the 1994 Pesticide Element commitment for Ventura County

. See Table 3 of the

Revised Pesticide Element for Ventura County . Under the Revise d Pesticide Element for Ventura County , CARB reduce d the amount of the substitution each year until 2012 , resulting in

the restoration of the full 20 percent reduction and 2.4 tpd VOC commitment under the 1994

Pesticide Element

. This phase in resulted in a declining overall limit on pesticide VOC emissions

in the Ventura County ozone nonattainment area between 2008 and 2012 as shown below:



### P HASE 

### I N OF 

### P ESTICIDE 

### VOC L IMITS FOR THE 

### V ENTURA 

### O ZONE



### N ONATTAINMENT 

### A REA Tons per Day

2008 2009 2010 2011 2012+

4.3 4.0 3.6 3.3 3.0

After evaluating the revisions for compliance with applicable CAA requirements, EPA

approve d the Revised Pesticide Element for Ventura County

. See 73 FR 21885 (April 23, 2008) (proposed rule) and 73 FR 41277 (July 18, 2008) (final rul e).



### F. Proposed Action and Comments Received on the Proposed Action

On April 24, 2012, EPA proposed to approve CDPR’s revised SIP commitment for the SJV submitted on October 12, 2008 and CDPR’s Fumigant Regulations submitted on October 2, 2008 and August 2, 2011. See 77 FR 24441. We provided a 30 day public comment period and received one comment letter. We respond to the comments in this letter in Section III of this

TSD.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 21 

## II. Evaluation of the Revisions to the California SIP Pesticide

Element

A

. Clean Air Act Procedural Requirements Applicable to SIP Submittals and

Revisions.

1. Requirements for Public Notice and Hearing for SIP Submittals

CAA sections 1 10(a) and (l) require a state to provide reasonable public notice and hearing prior to the ad option and submittal of a SIP or SIP revision. T o meet this requirement

, every SIP submittal should include evidence that adequate public notice was given and a public hearing was held consistent with EPA’s implementing regulations in 40 CFR § 51.102.

CDPR has satisfied applicable statutory and regulatory requirements for reasonable public notice and hearing prior to adoption and submittal (thorough CARB) of its field fumigant regulations and revisions to its revised SIP commitment for San Joaquin Valley . Each SIP submittal contains evidence of adequate public notice and public hearing. See memorandum , Christopher Reardon, Chief Deputy Director, CDPR to James Goldstene, Executive Officer, CARB

, October 5, 2009, Subject: Fumigant Volatile Organic Compound Regulations , Enclosures 2 and 3;

memorandum , Christopher Reardon, Chief Deputy Director, CDPR to James Goldstene

, Executive Officer, CARB

, October 5, 2009, Subject: Amendment to the Pesticide Element of the Ozone State Implementation Plan , Enclosures 3 and 4; and memorandum , Christopher Reardon, Chief Deputy Director, CDPR to James Goldstene, Executive Officer, CARB

, July 20, 2011

, Subject: Additional Fumigant Volatile Organic Compound Regulations , Enclosure 2

- 2.

2. Completeness Determinations

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 EPA

has not affirmatively determined to be complete or incomplete will become complete by operatio n of law six months after the day of submittal. A completeness review allows EPA to determine if the submittal includes all the necessary items and information it need s to act on it.

EPA make s completeness determinations using criteria that it established in

40 CFR part 51, Appendix V

. These criteria fall into two categories: administrative information and technical support information

. The administrative information provides documentation that

the state has followed basic administrative procedures during t he SIP

- adoption process and thus

EPA has a legally

- adopted SIP revision in front of it. The technical support information provides

the information EPA need s to determine the impact of the proposed revision on attainment and maintenance of the air quality standards.

EPA notif

ies a state of its completeness determination by letter unless the submittal

bec a me complete by operation of law

. A finding of completene ss does not approve the submittal as part of the SIP nor does it indicate that the submittal is approvable

. It does start the 12

- month

clock under CAA section 110(k)(2) for final EPA action on the SIP submittal

.
The October 12, 2009 submittal s of the field fumigant regulations and the revised SJV

Pesticide commitment became complete by operation of law on April 12, 2010. The August 2,TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 22 2011 submittal of revisions to the field fumigant regulations became complete by operation of

law on February 2, 2012.



### T ABL E 

### 5

– A DOPTION 

### , S UBMITTAL 

### , AND 

### C OMPLETENESS 

### T IMELINE FOR


### R EVISIONS TO THE 

### C ALIFORNIA 

### SIP P ESTICIDE 

### E LEMENT

D ATE A CTION

September 27,

2007 CARB adopts 2007 State Strategy including the CDPR SIP commitment for San

Joaquin Valley (found on page 131 of the 2007 State Strategy).

November 16,

2007 CARB submits the 2007 State Strategy including the CDPR SIP commitment for San

Joaquin Valley. (CARB withdrew this version of CDPR SIP commitment for San Joaquin Valley on October 12, 2009.)

January 25,

2008 CDPR revises title 3 of the C alifornia C ode of R egulations to incorporate regulations

to limit emission s of VOC from the application of fumigants in five California ozone nonattainment areas. This regulations include 3 CCR section 6447 (first paragraph only) an d sections 6447.3

— 6452 pertaining to field fumigation methods . (CDPR refers to this set of regulations as VOC

- 1 .)

January 28,

2008 CARB submit s portions of CDPR’s adopted fumigant regulations (VOC

- 1) for

inclusion in California’s State Implementation Plan (SIP). (CARB withdrew these regulations on October 12, 2009.)

September 3,

2008 C DPR revise s the fumigant regulations (3 CCR section 6452.2 ) to phase

- in the

fumigant VOC emission allocation system applicable in Ventura County

. (CDPR

refers to this set of revisions as VOC

- 2 .)

April 17, 2009 CDPR adopts revised SIP commitment for San Joaquin Valley.

April 20,

2009 C DPR revise s the fumigant regulations (3 CCR section 6452.2) to recalculate the

emission benchmarks for each of the five applicable nonattainm ent areas

. (CDPR

refers to this set of revisions as V OC

- 3 .)

October 12,

2009 C ARB submitted portions of the fumigant regulations to EPA (VOC

- 1, VOC

- 2, and

VOC

- 3) . This submittal supersede d the January 28, 2008 submittal, and include d :

• 3 CCR section 6447 (first paragraph only) and 3 CCR sections 6447.3

- 6452 pertaining to field fumigation methods.

• 3 CCR sections 6452.1 and 6452.4 and 3 CCR sections 6624 and 6626 pertaining

to the emissions recordkeeping, reporting, and inventory.

• Portions of 3 CCR sect ions 6452.2 and 6452.3 pertaining to field fumigation limits and allowances only as applicable to the Ventura County ozone nonattainment area

. October 12,

2009 CARB submits the CDPR revised SIP commitment for San Joaquin Valley.

April 12

, 2010 C ARB’s October 12, 2009 submittal s became complete by operation of law pursuant

to CAA section 110(k)(1)(B).TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 23 

### T ABL E 

### 5

– A DOPTION 

### , S UBMITTAL 

### , AND 

### C OMPLETENESS 

### T IMELINE FOR


### R EVISIONS TO THE 

### C ALIFORNIA 

### SIP P ESTICIDE 

### E LEMENT

D ATE A CTION

April 7, 2011 C DPR adds or revise s the se fumigant regulations: 3 CCR sections 6448.1, 6449.1,

6450.1 (fumigation method restrictions); section 6452.2 (fu migant VOC emission limits); section 6452.3 (field fumigant VOC emission allowances); section 6452.4 (annual VOC emissions inventory report); and section 6626 (pesticide use reports for production agriculture) . (CDPR refers to this set of revisions as VOC

- 4 .)

May 11, 2011 C DPR adds or revise s the se fumigant regulations: 3 CCR section 6400 (restricted

materials); section 6446 (general requirements); section 6446.1 (methyl iodide field fumigation methods); section 6452.4 (annual VOC emissions inventory report); and

section 6624 (pesticide use records) . (CDPR refers to this set of revisions as VOC

- 5 .)

August 2, 2011 C ARB submitted portions of the fumigant regulations (VOC

- 4 and VOC

- 5). This

submittal revised and add ed to the October 12, 2009 submittal

, and includ ed the following:

• 3 CCR section 6400 pertaining to restricted materials.

• 3 CCR sections 6446, 6446.1, 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 federal ozone NAA. The portions of sections 6452.2 and 6452.3 pertaining to field fumigation limits and allowances in the Sacramento Metro, San Joaquin Valley, South Coa st, and Southeast Desert federal ozone NAAs are not

included for submittal to U.S. EPA

.

• 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.

February 2,

2012 CARB’s August 2, 2011 submittal became complete by operation of law pursuant to

CAA section 110(k)(1)(B ).



### B. Enforceability

1. CAA Requirements for Enforceability of Rules and Commitments

CAA s ection s 110(a)(2)(A) and 172(c)(6) require that SIP “ shall include enforceable

emission limit ations, 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 regulatio ns 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 normalTSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 24 mode of compliance

. 24 Guid ance used to help evaluate enforceability includes the “ Bluebook ”

and “ the Little Bluebook. ” 25

2. Evaluation and Conclusions

a. CDPR Regulations

CDPR ’s regulations are clear and specific. They describe the specific requirements related to field fumigatio n and methods, by fumigant, for five ozone nonattainment areas during May 1

- October 31, the peak ozone season. See portions of 3 CCR sections 6447 .3

– 6452. For example, section 6447 .3 (Methyl Bromide Field Fumigation Methods) specifies that of six

allowa ble methyl bromide application methods, the Nontarpaulin/Shallow Bed; Nontarpaulin/Deep Broadcast; Tarpaulin/Shallow/Bed; Drip System and, in specific circumstances, Tarpaulin/Shallow/Broadcast and Tarpaulin/Deep Broadcast methods are prohibited in the SJV , SED and Ventura County nonattainment areas from May 1 through October 31. Provisions for each fumigant specify maximum application rates, and, as applicable, soil moisture requirements, minimum injection depths and spacing, type of equipment used, post

w ater treatment rates and timing, tarpaulin application requirements, and “ tarpaulin repair response plans. ”

Section 6452 establishes a process and criteria for requesting and approval of an alternate

method on a 3

- year interim basis. The request to implem ent 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 described and permitted in the regulations. The directo r must consider criteria such as data sufficiency and validity, and representativeness of field conditions studied.

The regulations include recordkeeping requirements in section 6624 (Pesticide Use Records) and the reporting requirements in section 6626 ( Pesticide Use Reports for Production Agriculture ). Among these recordkeeping and reporting requirement is the provision that requires any person who use s a fumigant in any of the five ozone nonattainment areas must record and report a description of the ap plication m ethod

. See sections 6624(f) and 6626(d). The requirements for methods used, alternate methods, recordkeeping and report requirements and other rule provisions in the submitted regulations are clear and adequate to ensure that California’s submitted fumigant regulations are enforceable as required by of CAA section 110(a)(2)(A)

. We received several comments on our proposed conclusion that the fumigant regulations met the CAA requirement for enfo rceable emission limitations. We respond to these comments in Section III.D. None of these comments revised our initial conclusion that the regulations are

enforceable.

24 “Review of State Implementations Plans and Revisions for Enforceability and Legal Sufficiency” (Enforceability Guidance), Craig Potter, EPA, September 23, 1987. http://www.epa.gov/co mpliance/resources/ policies/civil/caa/stationary/review

- enf

- rpt.pdf . 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) (General Preamble) and CAA

sections 110 (a)(2) and 172(c)(6).

25 “ Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” U.S. EPA, OAQPS, May 25, 19 8 8 (The Bluebook) and “Guidance Document for Correcting Common VOC and Other Rule Deficiencies,” U.S. EPA Region IX, August 21 , 2001 (the Little Bluebook).TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 25 b. Revised SIP Commitment for the San Joaquin Valley

CDPR’s commitment to ensure tha t VOC emissions from commercial structural and agricultural pesticide use do not exceed 18.1 tpd in the SJV is clear. The mechanism to track compliance with the limits is an annual emissions inventory report which is required by both the

commitment and 3 C CR section 6452.4. ( Annual Volatile Organic Compound Emissions Inventory Report ). Procedures for calculating emissions are included in the Neal memorandum and 3 CCR section 6452.4(a)(1) and the requirement for sources (e.g., pesticide applicators) to keep and report the dat a necessary for preparing the annual emissions inventory report is required by 3 CCR section 6624 (Pesticide Use Records) and section 6626 ( Pesticide Use Reports for Production Agriculture ) These provisions are adequate in combination wit h the fumigant regulation and the to ensure the limit for the SJV is enforceable as required by CAA

s ection 110(a) (1)(A).

CDPR has also committed to implement restrictions on VOC emissions from non

fumigant regulations by 2014. EPA interprets “ by 2014 ” to mean by May 1, 2014 given that CDPR projects emissions reductions from these restrictions in 2014. See revised SIP

commitment for SJV , page 2. To achieve reductions in 2014, the restriction would need to be implemented by the beginning of summer ozone seas on (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 e nsure that the inventory target of 18.1 tpd in t he 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).

We received several comments on our proposed conclusion that the revised commitment for SJV meets the CAA requirement for enforceable emission limitations. We respond to these

comments in Section III.B. None of these comments revised our initial conclusion that the

commitment is enforceable.



### C. Reas onably Available Control Measures/Reasonably Available Control Requirements (RACM/RACT)

1. Requirements for RACM/RACT

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 prim ary 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 emission s s ource categories that meets certain criteria . These c riteria include

whether the measure is technologically and economically feasible and either individually or collectively with other such measures can advance the attainment date by at least one year. SeeTSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 26 57 FR 13498, 13560 (A pril 16, 1992)

. 26 The determinat ion 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 and for each 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 NO

x . In areas classified as severe (such as SED (classification pending), Ventura County , and Sacramento), a major source is a stationary source

that emits or has the potential to emit at least 25 tons of VOC or NO

x per year. See CAA sections 182( d ) and (f) . For areas classified as extreme (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 NO

x per year. See CAA sections 182( e ) and (f)

.
The revisions to the California SIP Pesticide Element that we evaluate here are intended to reduce VOC emissions in the South Coast, SED, Ventura County , SJV, and Sacramento Metro

ozone nonattainment areas. VOC em issions 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 PM 2.5 standard attainment unless the state and/or EPA

make a tec hnical demonstration that such controls would significantly contribute to reducing

PM 2.5 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 PM 2.5 standards.

2. RACM/RACT Evaluation and Conclusion

a. Field Fumigant Regulations: South Coast, Ventura County , Southeast Desert, San Joaquin Valley, and Sacramento Metro

C ARB’s 2009 submittal of the field fumigant regulations did not include a demonstration of how the field fumigation methods implement reasonably available control technology (RACT). 27 Subsequently, C DPR provided a document containing more detailed information on

its RACT evaluation of fumigation methods. 28 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 re search on fumigant VOC emission s reduction methods,

26 See also “State Implementation Plans; General Preamble for Proposed Rulemaking on Approval of Plan Revisions for Nonattainment Areas,” 44 FR 20372 (April 4, 1979) ; memorandum

, John Seitz, Director, OAQPS to Regional Air Directors, November 30, 1999 , subject: Guidance on the Reasonably Available Control Measure Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas ; and memorandum, John S. Seitz, Dir ector, Office of Air Quality Planning and Standards, EPA, subject: Additional Submission on RACM

from States with Severe One

- Hour Ozone Nonattainment Area SIPs, December 14, 2000.

27 See letter, Andrew Steckel, EPA Region 9 to Frank Spurlock, CDPR and Mike Guzzetta, CARB, November 2, 2010.

28 See letter and attachments, Randy Segawa, CDPR to Andrew Steckel, EPA

- Region 9, Reducing Volatile Organic Compound Emissions from Pesticides: A nalysis of Alternatives for Field Fumigation Methods, June 28

, 2011.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 27 including a reevaluation of fumigants to obtain additional data to replace surrogate data used in developing the adopted regulations.

Field fumigation emissions are considered fugitive emissions because the y are emissions

that “ could not reasonably pass through a stack, chimney, vent, or other functionally

- equivalent opening

. ” 29 As noted above, CAA section 182(b)( 2 ) requires RACT be applie d to all major stationary sources in an ozone nonattainment area

. EP A 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)( 2 ) RACT requirement; however, EPA believes,

b ased on the information provided i n the CDPR ’s alternatives analysis, and the research cited to support it, that C DPR has demonstrated that the proposed regulations are stringent enough to implement RACT

- level controls on the application of pesticides

. On January 10, 2012, EPA partially approved and partially disapproved the section 182(b)( 2 ) 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 h ad not fully

satisfied CAA section 182 (b) (2) RACT requirements for the application of fumigants

. See 77 FR 1417, 1425 (January 10, 2012). Based on our finding here that CDPR’s field fumigant regulations provide RACT

- level controls on this source category, the approval of these regulations would satisfy California's obligation to implement RACT under CAA section

182 (b)( 2 ) for this source category for the 1

- hour ozone and 1997 8

- hour ozone standards for the

SJV RACT SIP and thereby terminates both the sanctio ns clocks and the Federal Implementation Plan clock for this source category triggered by our January 10, 2012 partial disapproval action. 77 FR 1417 (January 10, 2012)

. EPA has recently approved the attainment, RFP and RACM demonstrations in the 8

- hour

oz one SIPs for the South Coast and SJV and the PM 2.5 SIP for the South Coast (which did include VOC reductions in its RFP and attainment demonstrations). 30 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.

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.

We received no comments on our proposed finding that the fumigant regulations met the CAA section 182(b)(2) RACT requirement.

29 See 40 CFR 70.2 (Definitions).

30 See 76 FR 69928 (November 9, 2011) (South Coast PM 2.5 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 PM 2.5 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 f or PM 2.5 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 PM 2.5 plan for the Sacramento Metro area

is not due until late 2012.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 28 b. Revised SIP 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 don e 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 SJV , including the SIP’s

RACM demonstration. See 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 revised

SIP commitment for the SJV (as revised April 17, 2009) that is being approved here . However,

because it had not yet approved the commitment into the SIP, EPA did not grant any emissions

reductions credit to the commitment in either the RFP or attainment demonstration

, nor did it rely on the commitment to make the determination that the 2007 SIP provided for RACM. 31
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

. We received no comments on our proposed finding that an approval of the revised SIP commitment for SJV is consistent with the approved RACM demonstrations for the SJV.



### D. Finding of Non

- Interference with Applicable Requirements of the CAA

under Section 110(l)

1. CAA Section 110(l) Requirements

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 A dministrator 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]

. ” 32

EPA interpret s 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 crite ria pollutants. It also interpret s 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.

31 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, p. 51

- 57.

32 C A A section 110(l) also provides that e ach SIP revision submitted by a s tate must be adopted by the

state after reasonable notice and public hearin g. EPA address es this provision in section II.A. of this TSD.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 29 In reviewing a modification to an approved SIP provision, EPA looks to see to what extent the existing SIP has relied on that provision to meet applicable CAA requirements. For emissions reduction measures, its generally concludes that the revision will not interfere with any applicable requirement related to at tainment or RFP if the revised SIP will provide the same or more emissions reductions on the same or similar schedule as the existing SIP. EPA notes, however, that CAA section 110(l) does not bar approval of SIP revisions that may result in higher levels o f 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.

2. Evaluation and Conclusion

The SIP submittals that are being approved and incorporated into the California SIP control VOC emissions in five California areas: South Coast, Southeast Desert, Ventura County

, SJV , Sacramento Metro ozone nonattainment areas. N either the field fumigant regulations nor the SJV revised SIP commitment explicitly regulated any other pollutant besides VOC. VOC is a precursor pollutant for ozone as well as for both fine (PM 2.5 ) and coarse (PM 10 ) particulate

matter. 33 At this time only the South Coast’s SIPs rely on VOC controls for PM 2.5 or PM 10 attainment and none of its adopted particulate matter plans rely on reductions from the California SIP Pesticide Element to demonstrate attainment, RFP, or RACM or to meet any other requirement of the CAA.

Each area’s current attainment designation for the current ozone and particulate matter (PM) standards is shown on Table1 above. This table also provides information on the current

status of the ar eas’ implementation plans for the current ozon e and particulate matter standards

and the revoked 1

- hour ozone standard

. 34 In section I.F, EPA provide s a more detailed discussion of the relationship (or lack thereof) of the California SIP’s Pesticide Element to each area’s nonattainment area plans.

a. Attainment and Reasonable Further Progress for Ozone and Particulate Matter

i. Field Fumigant Regulations

CDPR ’s field fumigant regulat ions are the first such regulations incorporated into the

California SIP. Their approval will strengthen the SIP by pr oviding 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 Pest icide Element’s provisions for reducing VOC emissions by 20 percent from 1990 baseline levels in the South Coast, Southeast Desert, Ventura County and

Sacramento Metro ozone nonattainment areas

. Their approval will also aid compliance with the proposed 18. 1 tpd limit on pesticid e VOC emissions in the San Joaquin

. Therefore, EPA find s

33 While EPA considers VOC to be a precursor to P M, 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).

34 EPA revoked the 1

- hour ozone standard in all areas of the country, including t he five areas subject to the pesticid e element, effective 2005. See 69 FR 23951 (April 30, 2004). Under EPA’s implementation rule for the 8

- hour ozone standard, certain “applicable requirements” that applied under 1

- hour ozone standard planning requirements continue to apply to 8

- hour ozone nonattainment areas. See 40 CFR § 51.900(f). The 1994 Pesticide

Elemen t is not one of the applicable requirements under the 8

- hour implementation rule

.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 30 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.

We received no comments on our proposed finding that approval of the fumigant regulations would not violate section 110(l).

ii. Revised SIP Commitment for the San Joaquin Valley

In 1997, EPA approved th e 1994 Pesticide Element into the California SIP. See 62 FR 1150, 1170 (January 8, 1997) . As approved, the 1994 Pesticide Element was to reduce VOC emissions from agricultural and commercial structural pesticide applications by a maximum of 20 percent from the 1990 baseline emissions inventor y by 2005 in areas that relied on VOC reductions from pesticides in their attainments plans with reductions occurring linearly from 1990 to 2005 but it allowed for less than 20 percent if fewer VOC reductions from pesti cide were

needed

. See 1994 Pesticide SIP

, p. 1.

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 the n

- 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) in VOC emissions reductions in

1999. 35

, 36 At the same time, EPA noted that California ha d committed to adopt and submit any regulations necessary to reduce VOC emissions from agricultural and commercial structural pesticides by 12 percent in 1999

. 37 See 61 FR 10920, 10935 (March 18, 1996).

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 retain ed the provisions of the 1994 Pesticide Element. In 2004, CARB submitte d the 2004 Extreme [1

- hour Ozone] Attainment Plan for the SJV 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 f or that plan, CARB discusses the measures in the 2003 State Strategy and provides an interpretation of the PEST

- 1 measures as it related to the SJV including PEST

- 1. It described 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 target of 12 percent less than 1990 levels. ”

35 The 13 tpd figure was provided by CARB on pa ge A

- 2 and in Attachment C of the June 18, 1996 Boyd Letter. EPA incorporated the Boyd/Howekamp letter into the SIP. See 40 CFR § 52.220(c)(236).

36 The 13 tpd figure was provided by CARB on page A

- 2 and in Attachment C of the Boyd Letter. For the

1994 Ozo ne SIP, the State estimated that VOC emissions from pesticide use in 1990 in the SJV 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 t hat 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.

37 A 20 percent reduction that was to occur linearly over the fifteen years between 1990 and 2005 would

accrue reducti ons 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) .TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 31 EPA approved PEST

- 1 as it relates to the South Coast 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)(339)( i i)(A)( 1 )

. EPA has not approved other changes to the SJV

- related provisions of 1994 Pesticide

Element nor has it granted any emissions reductions credit for the 1994 Pesticide Element beyond the 13 tpd (in 1994 SIP currency) approved as part of its action on the 1994 Ozone SIP. 38

On October 12, 2008, California submitted revisions its SIP Pesticide Element for the SJV to replace the requirement to achieve a 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 and October 30. The 18.1 tpd emission limit equates to a reduction of 12 percent from the current estimate of 1990 pesticide VOC emissions in the SJV

. 39

Based on its review of the submitted revision, EPA finds 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. EPA, therefore, find s that approving CDPR’s commitment to manage VOC emissions from commercial structural and agricultural pesticide use to ensure that they do not exceed 18.1 tpd in into the California SIP will not interfere with any applicable CAA requirement concerning attainment and reasonable further progress or any other ap plicable requirement of the CAA.

In comments that EPA receive d on its proposed approval of the SJV 2004 Extreme ozone Attainment Plan (74 FR 33933 (July 14, 2009)), several non

- governmental organization s argued that the 1994 Pesticide Element requires a 20 percent reduction in VOC emissions from 1990 levels by 2005 in the SJV 40 citing to the Boyd /Howekamp lette r on page A

- 2. In the Boyd /Howekamp letter, CARB provided EPA with suggested revisions to its March 18, 1996 (61 FR 10920, 10935) proposed approval of the 1994 Ozone SIP. In reference to the 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 cre dit 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 immed iately contr adicted 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 app roved 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

38 We have approved two ozone plans for the SJV since the 1997: the 2004 Ozone Plan in 2010 and 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 VOC emissions to meet any applicable CAA requirement.

39 See CDPR, Staff Report on the Department of Pesticide Regulation’s Proposed SIP Commitment for San Joaquin Valley,” undated.

40 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.TSD for the Final Approval of

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- Region 9 Page 32 reduc tions ” 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 Ele ment also allowed for r eductions 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 currenc y) 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.

Appr oval of the revised SIP commitment for the SJV (submitted in 2009) will not interfere with any applicable requirement related to attainment or reasonable further progress for any PM 2.5 or PM 10 standard in the SJV. E PA 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, 699 24 (November 9, 2011).

Approval of the r evised SIP commitment fo r the SJV will not interfe re with any applicable requirement related to attainment or reasonable further progress for any PM 2.5 or PM 10 standard in the SJV. E PA has determined that VOC controls are not required for particulate

matter control in the SJV. Se e 69 FR 30006, 30011 (72 FR (May 26, 2004) and 76 FR 20586,

20589 (November 9, 2011 ).

We received several comment on whether approval of the revised SIP commitment for SJV would violate CAA section 110(l). We have fully responded to each of these comments in

section III.C. of this TSD. None of these comments revised our initial conclusion t hat approval of the revised commitment would not violate section 110(l).

b. RACM for Ozone and Particulate Matter

EPA has approved the RACM demonstrations in the 8

- hour ozone PM 2.5 SIP for the

South Coast. EPA has also approved RACM/best available control measure (BACM)

demonstrations in the PM 10 SIPs for South Coast and SED. 41 The approval of the fumigant regulations is consistent with these approved RACM /BACM demonstrations and therefore will

not interfere with these SIPs’ compliance with the RACM/BACM requirements.

EPA has approved the 8

- hour ozone SIP for SJV

. 42 The approvals of the fumigant regulations and th e r evised SIP commitment for the SJV are consistent with these approved

RACM demonstration and therefore will not interfer e these SIP’s compliance with the RACM requirements.

CARB has submitted SIPs to address attainment of the 1997 8

- hour ozone standard in Sacramento Metro, SED, and Ventura County. EPA has yet to act on these plans. Because there is no approved RACM demonstration for the 8

- hour SIP and approval of the fumigant regulations will strengthen the SIP, its approval does not interfere with the applicable requirement for RACM in these areas.

41 76 FR 69928 (November 9, 2011) (South Coast PM 2.5 ); and 77 FR 12674 (March 1, 2012) (South Coast

8

- hour ozone); and 70 FR 69081 (November 14, 2005) (South Coast and Coachella (SED) PM 10 ).

42 77 FR 12652 (March 1, 2012) (SJV 8

- hour ozone)

.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 33 c . Air Toxics

/Stratospheric Ozone

Since the CAA does not have ambient air quality standards for ai r toxics, EPA's interpretation of section 110(l) is that an area ’ s compliance with any applicable M aximum Achievable Control Technology (M ACT ) standards, as well as any applicable Federal Motor Vehicle Control Programs (FMVCP) air toxic requirements under CAA sections 112 or 202(l) constitutes an acceptable demonstration of noninterference for air toxics.

There are no MA CT standards applicable to pesticide application and pesticides 43 are not regulated under the air toxic component of the FMVCP; therefore, these SIP r evision s will not interfere with any MACT or FMVCP that apply in of these area s affected by these SIP revisions

. For these reasons, the EPA find that this these approvals do not interfere with any applicable CAA requirements relative to air toxi cs.

d. Other Applicable CAA Requirement

EPA is unaware of any other CAA requirements that would be adversely affect by its approval of these SIP revisions.



### E. Additional Recommendations for the Next Rule Revision

The following revisions are not currently the basis for rule disapproval, but are

recommended for the next time the rule is amended.

1. We recommend insert ing language in the next field fumigant rule revision clarifying that, in case of conflict between federal (e.g., labels), state, or lo cal requirements, those requirements that result in the lowest VOC emissions apply.

2. In future revisions of the rule, EPA recommend s that CDPR consider expanding the period for requirements from May

- October to include the full year even though there are

few exceedances of the ozone standards in March

- April timeframe. 44 EPA bases its recommendation on the following: 1) Ozone standards are more stringent now than when the 1994 SIP was approved, so there is a potential for more exceedances in the “ shoulder ”

mon ths and 2) expanding the restrictions outside the May

- October time period could lead

to additional VOC reductions.

3. 3 CCR s ection 6452.4(b) provides for a 45

- day public comment period on the draft annual emissions report, which may include modified emissio n ratings ( section

6452. 4(c)). The rule is not clear as to how the public will be notified that the draft report and ratings are available for comment. EPA recommend s that CDPR explain the process

43 EPA has promulgated a MACT standard for pesticide active ingredient production at 40 CFR part 63, Subpart MMM

– National Emission Standards for Hazardo us Air Pollutants for Pesticide Active Ingredient Production. This MACT standard applies to the production of pesticide active ingredients, which is not regulated by the proposed revisions to the California SIP Pesticide Element, and not to their applicati on to agricultural fields and products or their commercial application to structures, which is regulated by the 1994 Pesticide Element. See 40 CFR § 63.1360.

44 About 3 percent of total exceedance days during the period 2005 to 2011 in Ventura and SJV o ccurred outside of the May 1 to October 31 period. See Environmental Protection Agency, Violation Day Count Report (Ventura County 2005

- 2011), April 16, 2012 and Environmental Protection Agency, Violation Day Count Report (San Joaquin Valley 2005

- 2011), Ap ril 16, 2012.TSD for the Final Approval of

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- Region 9 Page 34 for notifying the public of this availability and the 45

- da y public comment period. EPA

also recommend s that the rule specify the annual date by which the final report will be

issued.

4. The 2011 submittal eliminated the “ ribbon ” test for soil moisture in fine texture soils that was present in the 2009 submittal ( see s ections 6448.1, 6449.1, and 6450.1) but did not replace it with another test. Other soil types listed have associated tests . We recommend including a test for fine textured soil when the rule is amended.

5. Several terms used in the fumigant rules are ne ither defined nor referenced within the submittal. Section 6000 defines some of these (e.g., application block and restricted

- entry interval), so this issue could be partly addressed by submitting s ection 6000 for SIP approval and referencing it within the fumigant requirements. Other terms are also not

defined in s ection 6000 (e.g., air fan dilution system, broadcast, closing shoes, fumigation

- handling activities, hot gas, raised

- tarpaulin, soil capping, and tarpaulin cutting). EPA recommend s adding defini tions for all these terms in the SIP to improve clarity. However, these terms are generally understood by the regulated community, and

EPA do es not believe this omission significantly undermines rule enforceability at this

time.

6. The submitted fumigation me thods reference other provisions which are not submitted,

e.g., sections 6447.3(a)(3)(F) and (5)(F) reference section 6784(b)(4) regarding tarpaulin cutting; section 6447.3(b) references section 6 770 regarding field entry after pesticide applications; sect ions 6 447.3(c), 6448.1(e), 6449.1(e), 6450.1(e), 6450.2(c) and 6451.1(b)

reference section 6 260 regarding research authorizations; section 6 452.1 reference section 6624 regarding reporting information; section 6 624(a)(1) references section s 11408 and 18663 regarding definitions of agricultural use and livestock, and section

6 624(a)(2) references section 6 400 regarding restricted materials. EPA recommend s including all referenced sections in the SIP to improve clarity. However, these sections are generally not critical to implementation of the fumigant regulations, and EPA do es not believe this omission significantly undermines rule enforceability at this time.

7. Consistent with CAA Title V and the federal statute of limitations, EPA recommends that section 6624(g) require that records be maintained for five years instead of two years.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

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## III. Response s to Comments

A. Comments Received on the April 24, 2012 Proposed Approval of the
Revision to the California SIP Commitment for the San Joaquin Valley.

EPA received one comment letter on its proposed approval of the fumigant regulation s and CDPR’s revised commitment for the SJV :
Brent Newell, General Counsel, Center on Race, Poverty and the Environment, May 24, 2012,

re: Comments on Approval and Promulgation of Implementation Plans; California; Revisions to the California State Implementation Plan Pesticide Element (Docket No. EPA

– R09

- OAR

– 2012

– 0194). These comments were submitted on behalf of (collectively “ El Comité ” ) :

1. El Comité para el Bienestar de Earlimart,

2. Association of Irritated Residents,

3. Action Now,

4. Bay Area Healthy 880 Communities,

5. Bayview Hunters Point Community Advocates,

6. Breast Cancer Action,

7. Breast Cancer Fund,

8. Californians for Pesticide Reform,

9. Cali fornia Rural Legal Assistance Foundation,

10. California Healthy Nail Salon Collaborative,

11. California Institute for Rural Studies,

12. California Church IMPACT,

13. California Environmental Health Initiative,

14. Center for Environmental Health,

15. Central Valley Air Q uality Coalition,

16. Clean Water Action,

17. Clínica Sierra Vista,

18. Coalition for Clean Air,

19. Comité Civico del Valle,

20. Commonweal,

21. El Quinto Sol de América,

22. Food & Water Watch,

23. Fresno Metro Ministry,

24. Grayson Neighborhood Council,

25. Healthy Child Healthy World,

26. Institute of Popular Education of Southern California (IDEPSCA),

27. Just Transition Alliance,

28. Medical Advocates for Healthy Air,

29. MOMS Advocating Sustainability,

30. Natural Resources Defense Council,

31. Organización en California de Líderes Campesinas, Inc.,

32. Pesticide Action Network,

33. Pesticide Watch,

34. Physicians for Social Responsibility

- Los Angeles,TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 36 35. San Joaquin Valley Latino Environmental Advancement and Policy Project,

36. Sierra Club California,

37. TriCounty Watchdogs,

38. Tri

- Valley CAREs,

39. Ventura CoastKeeper,

40. Wishtoyo Foundation, and

41. Worksafe, Inc.



### B

. E nforceability of CDPR ’s Revised SIP Commitment for San Joaquin Valley

Comment B

- 1 : El Comité argues that CDPR’s revised SIP commitment to limit pesticid e 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 otherw ise to limit pesticide VOC emissions. The y (El Comité) also argue that including the inventory calculation procedures in the SIP would not make the revised commitment enforceable.

Response B

- 1 : Except for the analysis required by CAA section 110(l), the S JV 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 t ons per day (tp d )

. 45 Once that 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. 46 Therefore, in addressing El Comité’s arguments,

we will f ocus on the enforceability of the calculation procedures for the subsequent years’

inventories.

The “ emissions inventories ” required by both the revised SIP commitment for the SJV and the fumigant regulations should not be confused with the emissions inven tories that are required by specific section s of t h e CAA, such as section s 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 emi ssions from all sources of the relevant pollutant or pollutants in such [nonattainment] area.... ” The purpose of the comprehensive

45 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 t he section 110(l) non

- interference provisions. CDPR makes the same point in its responses to comments on 2009 revisions to the fumigant regulations:

To clarify, emission ratings for application methods that were used in 1990 may not be modified,

absent a S IP revision. Similarly, regarding nonfumigant pesticides, DPR will not revise the emission potentials (VOC content) of formulations that were used in the base year, absent a SIP revision. This was not specifically referenced in the Neal memorandum, but fol lows from the

decision to freeze the baseline.

CDPR, “ Final Statement of Reasons and Public Report, CDPR, Title 3, California Code of Regulations, Amend Section 6452.2, Pertaining to Field Fumigant Emission Limits, ” undated (for rule amendment originally

n oticed in the California Regulatory Notice Register on November 28, 2008) , p. 18.

46 This holds true for Ventura County also because CPDR has effectively fixed the maximum level of pesticide VOC emissions allowed in Ventura County at 3 tpd. See 3 CCR secti ons 6452.2.TSD for the Final Approval of

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- Region 9 Page 37 inventories required by this and similar CAA section s are to provide the basis for, among other things, the demonstrations of a ttainment and progress toward attainment required (for extreme ozone nonattainment such as the SJV area) by CAA sections 1 8 2(c)( 2 ) ( A ), 182(b)(1), and

18 2(c)(2) (B). 47 Emissions inventories submitted to meet the CAA ’s specific i nventory requirements are intended to describe but not control emissions from source s 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 emission

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. ” 48 Together with the calculation methodology in the Neal memorandum

, 49 the annual inventory requirement in 3 CCR

section 6452.4(a)(1 ), and the reporting and recordkeeping requirements in se ctions 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.

Under the CAA and EPA regulations, a wide range of data and means of collecting data

qu alify 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, the definition of monitoring in EPA’s c ompliance assurance monitoring regulations:

[Compliance] Monitoring means any form of collecting data on a routine basis to determine or otherwise assess compliance with emission limitations or standards. Recordkeeping may be considered monitoring where s uch records are used to determine or assess compliance with an emission limitation or standard.... Monitoring may include one or more than one of the following data collection techniques, where appropriate for a particular circumstance.... (3) Emission

estimat ion and calculation procedures

. 40 CFR 64.1(emphasis added).

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. There fore, including in the SIP the calculation procedures along with the requirements

for an annual pesticide VOC emissions inventory report and recordkeeping and reporting by pesticide users ( which collectively constitute the compliance monitoring procedures for the 18.1

47 For further information on CAA

- required inventories and their purposes, See EPA, Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations, EPA

– 454/R

– 05

– 001, November 2005, pp. 7

- 8.

48 CDPR Revised SIP Commitment for the SJV, p. 2.

49 Memorandum, Rosemary Neal, Ph.D., CDPR to Ran dy Segawa, CDPR , November 5, 2008; Subject: Update to the Pesticide Volatile Organic Inventory. Estimated Emissions 1990

- 2006, and Preliminary Estimates for

2007.TSD for the Final Approval of

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- Region 9 Page 38 tpd emission limit ) will make CDPR’s revised commitment for the SJV fully enforceable under

CAA sections 113 and 304. 50

We also note that citizens seeking to enforce the revised commitment for the SJV under

CAA section 304 are not restricted t o 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 limitati on under CAA

section 304. See CA A section 113, 40 CFR 51.212(c) and 40 CFR 52.12 and 52.30. 51

Comment B

- 2 : El Comité claims that the alleged inability of citizen s to enforce the emission

calculation methodology as a means to challenge a failure to adopt regulations would allow CDPR to change pesticide products’ emission potential s and fumigant application methods’ emission ratings in order to produce an inventory that “ magically ” complies with the constant

tons per day target if the unchanged values would result in an emissions reduction shortfall in the

SJV or Ventura County

. They cite to a recent change that CDPR made to the 2010 inventory for

SJV as support for this claim.

Response B

- 2 : As discussed R esponse B

- 1, citizens may enforce the emission calculation methodology (because they will be the measure’s approved compliance assurance monitoring provisions) as a means to challenge a failure to adopt regulations. C itizen s may also use any

credible evide nce to enforce a SIP

- approved emission limitation. Should CDPR make unsupported change s to emissions potentials and / or emissions ratings, a citizen could bring suit

to enforce the emission limit ation by arguing that

, but for these unsupported changes

, the inventory would have shown a violation.

El Comité alleges that a recent revision to the SJV 2010 inventory by CDPR i s evidence

that the Department can and will “ produce an inventory that magically complies with the constant tons per day target

. ” 52 El Comité , however, makes no specific allegations as to why this particular revision is evidence of CDPR inappropriately manipulating the inventory to show compliance with the tons per day limit. A review of cited email shows that CDPR fully

documented th e reason for the revision and that it was warranted by a significant error in the data

50 Again, this also holds true for Ventura County although for Ventura County the calculation procedures are in section 6425.2(a)(1) and not the Neal memorandum

.

51 Fr om the preamble to the credible evidence r ule which promulgated these sections of the CFR:

EPA, states and citizens will be able to use credible evidence to assess a source’s compliance status and respond to noncompliance. This will help ensure that the government and citizens alike can respond t o sources that are not complying with air pollutant emission standards on an ongoing basis, thus furthering the protection of public health and the environment.

62 FR 8314, 8315 (February 2, 1997). This preamble has two examples of citizens successfully enforcing

an emission limit based on creditable evidence. Id . at 8318.

52 See El Comité letter, footnote 3, citing the email, Randy Segawa, CDPR to Brent Newell , May 17, 2012, Subject: Use and VOC emissions error for bifenthrin. See also, Revised 2010 Pest icide VOC Emissions Report, p.

15.TSD for the Final Approval of

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- Region 9 Page 39 used to calculate the initial inventory. 53 We note in addition that even before this revision, the inventory showed compliance with the 18.1 tpd emission limit for the SJ V. Id

.
Commen t B

- 3 : El Comité states that EPA should include the Barry m emorandum in the SIP

because it contains the methods by which C DPR estimates the Method Use Fraction (MUF) and the Application Method Adjustment Factor (AMAF)

. Response B

- 3 : The Barry m emorandum is a m emorandum from Terrell Barry, Ph.D., et al

. , CDPR, to John Sanders, Ph.D., CDPR

, September 29, 2007

, Subject: Pesticide Volatile Organic Compound Emission Adjustments for Field Conditions and Estimated Volatile Organic Compound Reductions

- Revised Estimates

. It documents the process, data, and assumptions CDPR used to develop the historical MUF as well as currently

- established AMAF. The memorandum does not contain any generic procedures for calcul ating historical MUF 54 or new AMAF and does not provide additional information or data that is not already in the Neal

m emorandum and/or the fumigant regulations. The Neal m emorandum contains the same AMAF and MUF that are in the Barry memorandum

. 55 Procedures for establishing new AMAF are n ow contained in the fumigant regulations at 3 CCR section 6452.4(a)(4). In 2008, CDPR started requiring the reporting of the fumigant application method on the PUR

. 56 F or inventory years

2008 and later , CDPR will use the data from the PUR and not calculated MUF to estimate VOC emissions from fumigants. 57

Unlike the Neal m emorandum

, CDPR does not reference the Barry m emorandum in

either its revised SIP commitment for SJV or the fumigant regulations. As we stated in our proposal, w e intend to includ e the Neal memorandum in the SIP and appreciate El Comité’s

reminder to do so

. For these reasons, EPA has determined that the Barry m emorandum does not need to be incorporated into the California SIP.

53 Th e revision affected emissions from one pesticide product, Fanfare 2EC, which contains the active ingredient, bifenthrin. As documented in its email, during a review of the inventory CDPR, with the assistance of the

C alifornia Department of Food and Agriculture, found an error in the value used to convert gallons of FanFare 2EC

used (as reported on the PUR) to pounds of product used , a step in the procedure for calculating the product’s VOC

emissions . This value, the p roduct’s density in pounds per gallon, was an improbably high 67.739 pounds ( lb ) per gallon

. The correct density value for FanFare 2EC is 8.13 lb per gallon (which is listed on the product ’ s material

data shee t)

. A density of 67.7 lb per gallon is improbable because it would mean that a gallon of FanFare 2EC, which is mostly water, would weigh more than an equal volume of solid iron (65.5 pounds). By comparison, a gallon of water weighs 8.3 pounds. Density figures for iron and water from http://www.simetric.co.uk/siinfo.htm

, values converted from kg/m 3 to lb/gallon.

54 As we have discussed in R esponse B

- 1, now that the emission limits for SJV and Ventura County have

been set at fixed number s , neither the 1990 basel ine inventories nor the data used to calculate them (including the historical MUF) have any current relevance to enforcing these emission limits.

55 Neal m emorandum, Table A1

- 1: Application Method Adjustment Factors (p. 23) and Tables A1

- 2 through A1

- 6: 1 990 frequency of fumigation methods used (MUFs) (pp. 24

- 28).

56 Section 6626(d).

57 See s ection 6452.4(a)(1) : “Fumigant product emissions will be the summation of the pounds of each pesticide product used multiplied by the emission potential for that spec ific product and VOC emissions rating for the application method as specified in section 6452.4(5).”TSD for the Final Approval of

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- Region 9 Page 40 Comment B

- 4 : El Comité claims that EPA proposes to find that the revised SIP commitment for

the SJV is enforceable based on the Neal m emorandum , citing to the propos ed 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 exceed ed , citing to the propos ed rule at 77 FR 24441, 24450

. Response B

- 4 : We did not propose to find that the revised c ommitment for the SJV i s enforceable based solely on the Neal m emorandum

. In the proposal, w e cite not only to the Neal

m emorandum but also to several other provisions in CDPR’s submitted regulations 58 and to the fumigant application method regulations to find that the 18.1 tpd emission limit for the SJV i s enforceable:

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 110(a)(2)(A).

77 FR 24441, 24444 (emphasis ad ded)

.
This statement is consistent with the one later in the proposal that El Comité claims

contradic ts 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 re asonably ensures that the 12 percent emissions reduction target from the 1994 Pesticide Element would be achieved in San Joaquin Valley.

77 FR 24441, 24450 (emphasis added).

Comment B

- 5 : El Comité argues that EPA’s propos al to approve the revised commitment for

SJV as enforceable conflicts with the Ninth Circuit’s decision in El Comité p ara el Bien e star de

Earl i mar t v. Warmerdam

, 539 F.3d 1062 (9th Cir. 2008) ( Warmerdam )

. They assert that in this

decision

, the Ninth Circuit did not allo w citizens to “ bootstrap ” arguments of inventory manipulation to enforce a commitment to adopt regulations. Warmerdam , 539 F. 3d at 1072

- 73.

A ccording to El Comité, a plaintiff attempting to enforce the revis ed SIP commitment w ould face the same argument m ade in Warmerdam : “ we get to decide how and whether we met the commitment and there is nothing you can do about it. ” El Comité argues that the CAA does not

allow discretionary commitment and that EPA should not approve “ C DPR’s and C ARB’s latest
attempt to achieve a reduction goal based on discretionary actions. ”

Response B

- 5 : Our finding that the revised commitment for SJV is enforceable does not conflict

with Warmerdam

. In Warmerdam , t he Ninth Circuit rule d that the baseline inventory could not

be turned into an enforceable emission limitation by “ bootstrapping it to the commitment to adopt regulations

. ” While t he court “ acknowledged that the baseline was a critical foundation

, ” it

58 T hese other provisions included the annual emissions inventory requirements in section 6452.4 ; the emissions inventory calculation methodology in sectio n 6452.4(a)(1 ) an d recordkeeping and reporting requirements for pesticide users in sections 6624 and 6626. We are approving each of these provisions into the California SIP.TSD for the Final Approval of

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- Region 9 Page 41 found that this did not “ change [the court’s] view that neither the baseli ne nor the methodology qualify a s independently enforceable aspects of the SIP. ” Warmerdam , 539 F. 3d at 1072

- 73

. As explained in Response B

- 1

. , e xcept 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 th at 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 in to the SIP, the 1990 baseline inventory will be of historic al 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 Coun ty 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 proposal for this action, 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

.

N o citation is given for the quote included in this c omment , so w e are unable to
determine whether this is an accura te statement of California’s position or El Comité’s interpretation of California’s position and, therefore

, cannot respond

. As discussed above, we find that the compliance monitoring requireme nts for the commitment are fully enforceable. We also 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 B

- 6 : El Comité argues that the revised commitment by CDPR to manage pesticides

emissions in the SJV is unenforceable becau se it is impractical to determine whether emissions levels are exceeded because inventories are only available 2 years after the fact. They further argue that the e mission c ontrols should constantly limit pesticide VOC emiss ions and “ not lag two years behind

. ” To support these arguments, El Comité cites to the discussion of the fundamental principles for SIPs and control strategies found in the General Preamble at 13567

- 13568

, 59 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

. Response B

- 6 : El Comité confuses two requirements: the requirement that an e mission

limitation assures continuous emissions reductions 60 and the requirement for a practical means of determining compliance with th at emission limitation . The cited sections of the General

Preamble all address the latter requirement. CDPR’s r evised SIP c ommitment for the SJV meets

the criteria for enforceability as given in the General Preamble

. However, before we discuss this,
we will first address the commenters’ concern about continuous emissions reduction s.

59 Th e “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” published at 57 FR 13498 on A pril 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

- h our ozone standard. EPA continues to rely on certain guidance in the General Preamble to implement the 8

- hour ozone standard under title I.

60 See, for example, CAA section 302(k): The terms “emission limitation” and “emission standard” mean a requirement ...which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous
basis....TSD for the Final Approval of

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- Region 9 Page 42 We cannot consider the 18.1 tpd emission l imit 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 fo r maintaining pesticide VOC emissions in the SJV under th at 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. 61 These

rest rictions apply throughout the May 1 to October 30 regulatory season and thus provide for continuous emissions reductions during that season.

El Comité cites two separate discussions of enforceability criteria in the General

Preamble

. As noted above, these criteria address the practical enforceability of a measure or

limit ; that is, whether it is possible to determine whether a source is in compliance with that

measure or limit. We have evaluate d CDPR ’s commitment against each section criteria as discussed below. In this discussion, we do not consider the portion of CDPR’s commitment that provides for implementing restrictions on fumigant application methods. This portion is now moot because CDPR has already adopted and submitted

— and we are app roving in this rule

— the regulations needed to meet it.

The General Preamble at 13567

- 13568 discusses several fundamental principles for SIPs and control strategies. The second principle is that measures in the SIP must be enforceable and to be enforceable, measures should have the following characteristics:

1. The measure is duly adopted and specifies clear, unambiguous, and measurable requirements.

 CDPR adopted the revised SIP commitment for the SJV following state rulemaking procedures and the CAA’s require ments for public hearing. The commitment is consistent with the Department’s statutory authorities. See CDPR r evised SIP

c ommitment for SJV, p. 1.

 It describes clearly and unambiguously the requirement for CDPR to manage VOC

e missions from commercial structural and agricultural pesticide use, to ensure that they do not exceed 18.1 tpd in the SJV area. ” See , CDPR Revised SIP commitment for the SJV, p. 2.

 Th e limit ation is measurable using compliance monitoring procedures spelled out in the

commitment and in the accompanying duly

- adopted fumigant regulat ions. CDPR has demonstrated that VOC emissions from pesticide use in the SJV are indeed measurable by having developed and published over the last several years annual emiss ions inventory reports documenting these emissions. See Exhibits 5

- 14 of the El Comité letter. It also specifies a clear, unambiguous, and measurable requirement for CDPR to implement

restrictions on VOC emissions from non

- fumigant pesticides. ( “ Measureabl e ” here means that it is easily determined if CDPR has adopted regulations that implement restrictions

on VOC emissions from non

- fumigant pesticides.)

2. There exist a legal means for ensuring compliance for the measure.

 Once approved into the SIP, both the commitment to manage pesticide VOC emissions to ensure they do not exceed 18.1 tpd in the SJV area and the commitment to implement

61 C DPR, 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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- Region 9 Page 43 restrictions on VOC emissions from non

- fumigant pesticides become enforceable by EPA under CAA section 113 and by citizens u nder CAA section 304. EPA may also enforce

th e commitment through a finding of failure to implement under CAA section 179(a)(4). A finding of failure to implement initiates sanctions clocks under the same section.

3. There is a practical method to determine c ompliance with the measure.

 As described in Respons es B

- 1 and 2, t he commitment to limit VOC emissions from pesticide in the SJV is accompanied by enforceable compliance monitoring procedures (including those in the fumigant regulation) which we are appro ving into the SIP. CDPR has proven that it is practicable to determine compliance with the limitation by developing and publishing numerous annual emissions inventor y reports

. See Exhibits 5

- 14 of the El Comité letter. CDPR provides current information on its regulatory program, including its progress in adopting regulations to restrict VOC emissions from non

fumigants in the SJV on its website at http://www.cdpr.ca.gov/docs/legbil ls/rulepkgs.htm

. The second section of the General Preamble (p. 13502) cited by the commenter addresses the enforceability of SIP regulations (specifically RACT rules under CAA sections 182(a)(2)(A) and 182(b)(2)) rather than SIP commitments. However, CDPR ’s revised SIP commitment for the SJV also meets the standards for enforceability listed here. These standards are that a SIP regulation must clearly state :

1. The sources or source types that are subject to its requirements

.

 For the 18.1 tpd emission limit

, the sources subject to the limitation are commercial and structural pesticide usage in the SJV. 62 For the commitment for non

- fumigants, the sources subject to the commitment are non

- fumigant pesticide usage in the SJV.

2. The control requirements.

 For the 18 .1 tpd emission limit , the control requirement is to manage VOC emissions

from commercial an d structural pesticide use in the SJV from pesticide to ensure they do not exceed 18.1 tpd in the SJV area. For the commitment for non

- fumigants, the control requirement is to implement restrictions on VOC emissions from non

- fumigant pesticides

in the SJV by 2014

.
3. The time frames within which these requirements must be met.

 For the 18.1 tpd emission limit , the time period is defined by the period required to be inventoried, which is May 1 to October 31 of each year. See Neal m emorandum , p. 3. The limitation is currently in effect under the approved 1994 Pesticide Element. For the

commitment for non

- fumigants, implementation is required by 2014. See Revised SIP

commitment for the SJV, p. 1.

4. Recordkeeping and monitoring r equ irements appropriate to the type of sources being regulated and sufficient to allow determinations on a continuing basis whether sources are complying. A n SIP regulation must also contain t est procedures in order to determine whether sources are in compliance.

62 Fro m the Revised SIP c ommitment for SJV, p. 2: CDPR commitments “to manage VOC emissions from commercial structural and agricultural pesticide use, to ensure that they do not exceed 18.1 tons

- per

- day in the

SJV area.”TSD for the Final Approval of

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- Region 9 Page 44  For the 18.1 tpd emission limit , recordkeeping and monitoring requirements are defined by the Neal m emorandum , the requirement for CDPR to prepare and provide to the public the annual emissions inventor y rep ort in 3 CCR section 6452.4 and recordkeeping and reporting requirements for pesticide users in sections 6624 and 6626. All these provisions are being approved into the SIP in this rule

. “ Test procedures ” in this instance

are the inv entory calculation methodologies contained in the Neal m emorandum and the emissions inventory calculation methodology in section 6452.4(a)(1 )

.
For the commitment for non

- fumigants, CDPR’s compliance with this commitment can

be monitored through its website at http://www.cdpr.ca.gov/docs/legbills/ rulepkgs.htm

. We note that CDPR has already proposed these regulations. 63 The regulation adopted to meet this commitment will need to include appropriate recordkeeping, monitoring, and testing re quirements

. 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 section 6452.4 (b) that the public be given 45 days

to comment on the draft inventories.

For Ventura County, should the annual pesticide VOC emissions inventory report show that the difference between emissions in the annual VOC emissions inventory report and the 3 tpd limit for the area is five percent or less of the limit or exceeds the limit, the regulations’ provisions in sections 6452.2 and 6452.3 go into place. These provisions require CDPR to establish a separate VOC emission limit for fumigants and require the co unty agricultural commissioner to take certain steps to assure that VOC emissions from fumigants do not exceed

this fumigant VOC emission limit

. These additional provisions must stay in place for a minimum of two seasons and continue until pesticide VOC le vels in the area are no longer predicted to

exceed the limit

. 64

Comment B

- 7 : El Comité argues that the revised commitment by CDPR to manage pesticides

emissions in the SJV is not enforceable becaus e the SIP revision does not commit CDPR or CARB to adopt any specific regulations to achieve SJV pesticide VOC emission limit . They argue that u nder the terms of the SIP revision, the emission limit “ commitment ” is not an

enforceable commitment but rather a goal to cap emissions. They again ass ert that EPA

concede d that the SIP revision is not enforceable in its proposed rule, citing EPA’s statement at

77 F R 24441, 24450

. Response B

- 7 : CDPR has already adopted regulations to manage pesticide VOC emissions in the SJV. We are approving these reg ulations today . CDPR has also committed to adopted

restrictions on VOC emissions from non

- fumigant pesticides, which have already been proposed

63 CDPR, Volatile Organic Compounds in the San Joaquin Valley Ozone Nonattainment Area, DPR Regulation No. 12

- 001, Notice of Proposed Regulatory Action and Notice of Public Hearing on a Proposed Ozone State Implementation Plan Amendment Regarding Pesticide Emissions in the San Joaquin Valley No nattainment Area, April 20, 2012.

64 3 CCR section 6452.2. CDPR has similar regulatory provisions for SJV , South Coast, SED, and Sacramento, at the State level. It did not submit these provisions as a SIP revision because it found that only in

Ventura Coun ty would excess VOC emissions from fumigants be likely lead to an exceedance of total pesticide

VOC emission limit

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- Region 9 Page 45 for adoption. S ee f

ootnote 6 3

. For reasons described in Response B

- 6, this commitment is

enforceable.

We have already discussed the enforceability of the commitment to limit VOC emissions from commercial structural and agricultural pesticides to 18.1 tpd in combination with the fumigant regulations in Responses B

- 1, B

- 2, and B

- 6.

Finally, we did not concede in the proposed rule that the revised SIP commitment for SJV

revision is un enforceable . We stated that when considered in isolation , the revised commitment

does not represent an enforceable measure for SIP purposes ; however, we are not acting on the

commitment i n isolation. As we stated in the proposal and have discussed above, the combination of the commitment and fumigant regulations does meet the minimum requirements for enforceability of SIP measures

. See 77 F R 24441, 24450

.



### C

. Approval of the Revised Pesticide Element for SJV under CAA Section 110(l)

Comment C

- 1 : El Comité comments that t he commitment in the existing 1994 Pesticide Element is both a tonnage commitment in an areas' attainment year and a percentage commitment : 13 tons per day reduction by 1999 and 20 percent reduction from 1990 by 2005 in the SJV

. Response C

- 1 : We agree that the commitment in the 1994 Pesticide Element 65 is both a percentage commitment and a tonnage commitment, and we agree that the ton per day reduction

called for in the Element is 13 tpd . Where EPA disagrees with El Comité is that we have 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 the State of California in 1994 and 1996 in developing the California Ozone SIP, and approved by EPA in 1997 when EPA approved that plan.

We explain ed the basis for our conclusion in this r egard on pages 24446

- 24447 of the proposed rule. First, we note that the Boyd L etter, 66 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

65 As these terms are used in this preamble, the “1994 Pesticide SIP” is the State Implementation Plan for Agricultural and Commercial Stru ctural 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 i s 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.”

66 E l Comité recommends that we refer to th e “Boyd letter ” as the “ Howekamp L etter ” because the courts

in Warmerdam and AIR used this convention and being consistent with the courts would “ ensure clarity and eliminate confusion should the Ninth Circuit review this rulemaking. ” In previous rule actions and in our proposal for today’s action, we have consistently referred to this letter as the “Boyd Letter” See , e.g., 73 FR 41277, 41281 (July 18, 2008) and 77 FR 24441, 24446. In addition, the convention we find more useful in referring to letters, where a person's name is used, is to use the name of the author of a letter, not the recipient. So, we continue to refer to this letter as the “Boyd Letter” in this document

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- Region 9 Page 46 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 Pestici de Element itself and the words of EPA's final rule approving the 1994 California Ozone SIP, including th is Element

. First, the 1994 Pesticide SIP committed CDPR to a “ maximum of 20 percent ” reduction in pesticide VOC emissions from 1990 baseline levels i n 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 P esticide E lement is the attainment demonstration plan for SJV in the 1994 Califor nia 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: “ The plan offers the flexibility to achieve reductions of less than 20 percent by the year 2005 in air distri cts if less pesticid e 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 pesticid e 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 related 1994 Pesticide Element), we summarized our under standing 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 an d 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

. ” (emphasis added) See 62 FR at

11 50, 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 existing , approved

Pesticide Element includes a 12 percent emissions reduction commitment in SJV , not a 20
percent emissions reduction commitment.

Comment C

- 2 : El Comité comments that CDPR's own statements prior to the onset of litigation

revea l that agency's belief that the commitment for SJV under the Pesticide Element is for a 20
percent emissions reduction from pesticidal VOC emissions. EPA's statements too in connection with approval of the revised Pesticide Element for Ventura County highl ight a 20 percent
commitment.

Response C

- 2 : With respect to CDPR's own statements, El Comit é refers to a CDPR Workshop Document and CDPR inventory memoranda, which are attached to El Comit é 's comment letter, prior to 2005 (when El Comité brought suit aga inst the State of California to enforce aspects of the Pesticide Element). We have reviewed the documents attached to El Comit é 's letter and confirm that they refer to a goal of 20 percent emissions reduction in SJV . The Pesticide ElementTSD for the Final Approval of

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- Region 9 Page 47 itself refers to the same general goal of reducing pesticidal VOC emissions by 20 percent from the 1990 baseline to the year 2005.

However, as further discussed above in R esponse C

- 1, other language in the Pesticide Element, together with the Boyd letter, converted the 20 percent aspirational goal set forth in the

Pesticide Element into definitive 20 percent emissions reduction commitments (and associated tonnage reduction commitments) in four California ozone nonattainment areas and a definitive

12 percent commitment in SJV , based on the needs of the attainment demonstrations for these areas at the time. Such an interpretation is further supported by EPA's statements at the time of approval of the Pesticide Element (as clarified by the Boyd letter) in 1997.

Furthermore, the inconsistent descriptions by CDPR of the commitment for SJV is not surprising given that the Boyd letter, which links the commitments to the attainment needs of the nonattainment areas was not authored by CDPR, but by CARB, and given the mistaken impre ssion by various parties, including EPA, concerning the approval status of the Wells

Memorandum in the SIP. 67 Thus, in summary, we view the post

- approval statements to carry much less weight in interpreting the Pesticide Element than the language of the Pes ticide Element itself, the Boyd letter, and EPA's language in approving those two items as part of the

California SIP.

As to El Comité's reference to EPA statements referring to a 20 percent commitment in the rulemaking approving the revised Pesticide Ele ment for Ventura County, we note that EPA's statements were made specifically in regards to the commitment for Ventura County, which unambiguously is 20 percent . EPA statements in the context of a rulemaking on the Pesticide

Element SIP Revision for Ventur a County therefore do not speak to the emissions reduction

commitment in the Pesticide Element for SJV

.
Comment C

- 3 : El Comité comments that t he plain language of the 1994 Pesticide SIP and the [Boyd] Letter together commit to achieve a 20 percent reducti on 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 attainmen t, 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 w ould 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 C

- 3 : As discussed in detail in Response C

- 1 , EPA beli eves 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

67 We note here that EPA could not have listed the Wells Memorandum as part of the SIP in 1997 without amendment by California given California's request to delete the milestone

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- Region 9 Page 48 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 E lement.

Our conclusion in this regard is not contrary to the Ninth Circuit's decision in the Safe Air case cited by El Comit é . As noted by El Comit é , 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

a pproving the 1994 Pesticide Element into the California SIP. Thus, EPA's interpretation of the
Element’s percent reduction SIP commitment 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.

To the extent that El Comité is asserting that our approval of the revised SIP commitment for SJV is prohibited by CAA section 110(l) because it represents a relaxation of the SIP, we

note that a relaxation of the SIP ( i.e. , backsliding) is not by itself prohibited by CAA section 110(l). This CAA section requires a broader enquiry into the effect of such a relaxation on other provisions of the SIP and a determination as to whether the relaxation a dversely affects the SIP’s compliance with other CAA requirements. El Comité does not provide any evidence that this
claimed relaxation of the Pesticide Element for SJV would interfere with the California SIP’s compliance with other CAA requirements.

To t he extent that El Comité also asserts that our approval of the revised SIP commitment for SJV is prohibited by CAA section 110(l) because neither CDPR nor CARB provided a

demonstration that the changed commitment does not interfere with existing SIP, we no te that approval of SIP revisions is not barred by section 110(l) solely on the basis of a state failing to accompany the SIP revision with a demonstration of non

- interference. Section 110(l) places an affirmative duty on EPA and not on the states to make this determination. States, however, must provide sufficient information in their SIP submissions for EPA to determine compliance with section 110(l) or risk a finding of incompleteness under CAA section 110(k)(1) or disapproval under section 110(l).

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 SJV (rather than 20 percent) from a 1990 baseline, we have concluded that the revised SIP commit ment 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 PM 2.5 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 an y other applicable requirement of the CAA and thus comply with the requirements of CAA section 110(l). See 77 FR 24441, at 24447.TSD for the Final Approval of

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- Region 9 Page 49 We note that CARB and CDPR did evaluate the effect of changing the reduction target for SJV from 20 percent to 12 percent on t he RFP and attainment demonstrations for the 1997 8

- hour ozone NAAQS in the submitted (but not yet approved) 2007 SJV Ozone Plan and 2007 State Strategy. 68 In its initial November 2007 submittal of the 2007 State Strategy, California had
included a CDPR’s S IP commitment for a 20 percent reduction off a 1991 baseline inventory in the SJV as interpreted by a U.S. District Court decision. See El Comité p ara El Bienestar De

Earlimart v. Helliker , 416 F. Supp. 2d 912 (E.D. Cal. 2006). After the Ninth Circuit reve rsed this

decision in Warmerdam

, CDPR revised its commitment for SJV to reflect a 12 percent reduction off a 1990 baseline and CARB submitted this revised commitment and withdrew the previous commitment in October 2009. We are approving the revised commitm ent in this action. In their evaluation, CDPR and CARB estimated that revising the SIP commitment for SJV could potentially result in up to 2.3 tpd in additional pesticide VOC emissions, but also concluded that this potential increase would not interfere w ith the submitted RFP and attainment demonstrations

in the 2007 SJV Ozone Plan. See CDPR staff report, p. 4 and of E.O. S

- 09

- 005 , p. 3.

Comment C

- 4 : El Comité asserts that EPA has never approved PEST

- 1 as it relates to the SJV

and cannot now claim that the approved SIP for the Valley includes a 12 percent reduction. Even if EPA had approved PEST

- 1 for the SJV , it does not change the original 20 percent commitment

for SJV . EPA has never approved the CARB staff report 69 cited at footnote 24 in the April 24, 2012 proposed rule and cannot claim that approval of the CARB staff report changes the Valley's

commitment to 12 percent

. Response C

- 4 : In approving the remnants of the 2003 State Strategy that had not been withdrawn by CARB and the 2003 South Coast Air Quality Management Plan (AQMP) at 74 FR 10176 (March 10, 2012), EPA approved PEST

- 1 as part of the California SIP. PEST

- 1 was not written to apply only to the South Coast but was intended to continue (unchanged) the existing Pesticide Element that was app roved by EPA in 1997.

In our April 24, 2012 proposed rule, we mistakenly stated that, after approval of PEST

- 1,

we “ have not approved any other changes to the SJV

- related provisions of 1994 Pesticide Element, ” implying that our approval of PEST

- 1 did in fact change the SJV

- related provisions of the 1994 Pesticide Element. This is not correct. The approval of PEST

- 1 changed nothing, but

continued the commitments contained in the existing Pesticide Element (as cl arified by the Boyd Letter) in the various nonattainment areas, including SJV . In other words, we do not believe approval of PEST

- 1 changed the percent commitment from 20 percent to 12 percent ; rather, we believe it simply brought forward the existing 12 p ercent commitment.

As to the CARB staff report cited in footnote 24 of the April 24, 2012 proposed rule, we

do not claim that the CARB staff report changes the Valley's commitment to 12 percent , but rather we believe it simply describes the commitment as a pproved by EPA in 1997.

Comment C

- 6 : El Comité 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 wh ich the 1990 baseline inventory is

68 S ee CDPR staff report, p. 4 and CARB Executive Order (E.O.) S

- 09

- 005, October 12, 2009, p. 2

.

69 CARB, Staff Report, Proposed 2004 State Implementation Plan for Ozone in the San Joaquin Valley, Release Date: September 28, 2004 (“CARB staff report”) . CARB’s interpretation of PEST

- 1 as it relates to the SJV

2004 1

- Hour Ozone Plan is given on page 27.TSD for the Final Approval of

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Air Divisi on EPA

- Region 9 Page 50 calculated. They contend that the 1994 Pesticide Element committed CDPR to using the 1991 PUR data to estimate the 1990 baseline inventory because “ such data is more accurate than 1990

PUR data. ” Finally, El Comité commen ts that EPA did not consider the change in PUR data on the 1990 baseline inventory and whether that change reduces the actual tonnage commitment (in 1994 SIP currency) or allows a higher level of pesticide VOC emissions.

Response C

- 6 : 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 appl icable 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 an 18.1 tpd limit (which represents a 12 percent reduction from 1990) through this SIP

revision would result in the same emissions reductions from pesticid e VOC emissions as required under the existing SIP.

W e 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: “ This 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 SIP is clear that this 1990 baseline inventory is to rep resent 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 estima ted 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.

(emph asis added to all).

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 adjus t[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 produ ce the best possible assessment of pesticide VOC emissions in the 1990 base

year.TSD for the Final Approval of

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Air Divisi on EPA

- Region 9 Page 51 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 invento ry 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 accura cy . This determination

weakens any reading that the SIP mandates th e 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. 70

El Comité also comments that EPA did not consider the change in PUR data on the 1990

baseline inven tory and whether that change reduces the actual tonnage commitment or allows a higher level of pesticide VOC emissions. We believe that El Comité here is referring to the 1990 baseline pesticide VOC inventory and 13 tpd (in 1994 Ozone SIP currency) pestici de VOC reduction for the SJV that were approved as part of the 1994 Ozone SIP. The 1990 baseline pesticide VOC inventory in the1994 Ozone SIP was not derived from PUR data, so any change to PUR data would not affect it, the tonnage reductions derived from it, or increase the level of pesticide emissions allowed. We are not revising the 1990 baseline inventory or the 13 tpd credit (in 1994 SIP currency) that we approved as part of the 1994 Ozone SIP in January 1997.

Finally, we observe that the use of un backcasted 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 Comité 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 r esponse, we have 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 baseline 1990 emissions. To do this, we used information in the CDPR s taff report to isolate the potential emissions impact of using 1990 PUR data rather than unbackcasted 1991

PUR data and determined that the calculated differen ce would be 0.7 tpd

. 71 In other words, if

70 This determination of similar accuracy also effectively makes the issue of the 1991 PUR data mo ot. Even if we read the1994 Pesticide SIP to mandate the use of 1991 PUR data, we would also have to read it to mandate that this data be adjusted to represent 1990. The SIP does not say what information would be used to make this adjustment; however, give n that CDPR has on hand reasonably accurate data on the use of each product in 1990 (i.e., the 1990 PUR data), it would be arbitrary for it not to rely on the 1990 PUR data (either directly or to adjusted the 1991 PUR data to reflect 1990) in its calculati on of the 1990 baseline. Hence, whether or not we start with the premise that the 1994 Pesticide SIP required the use of the 1991 PUR data, we end up in the same place: the 1990 baseline inventory would be calculated using the 1990 PUR data.

71 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

199 1 baseline emissions estimated using unbackca sted 1991 PUR data.TSD for the Final Approval of

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Air Divisi on EPA

- Region 9 Page 52 unbackcasted 1991 PUR data were required to be used in connection with establishing baseline 1990 emissions from agricultural and commercial structural applications, then, based on CDPR 's

data in the CDPR staff repo rt, 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 develop ed using 1990 PUR data.

Alternatively, based on this analysis, we find that, even if the existing SIP required the

use of u nbackcasted 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) would not interfere with RFP or attainment of the NAAQ S, for the following

reasons. 72 As to ozone, we note that the approved 1997 8

- hour ozone plan for SJV shows how the plan provides for VOC and NO

x reductions that surpass RFP requirements and provides for expeditious attainment even without considering any V OC 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.

As to particulate matter (PM), we reiterate our observation from the April 24, 2012 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, 30 007 (May 26, 2004), and 76 FR 69896, 69924 (Nov ember . 9, 2011). In addition, we note that while the EPA

approved PM plans do not address the 2006 PM 2.5 NAAQS for which the SJV has also been designated as “ nonattainment, ” 74 FR 58688 (Nov ember 13, 2009), th e nonattainment plan for

the 2006 PM 2.5 NAAQS is not due until December 2012.

We note that i n documents submitted with the revised SIP commitment for SJV , CDPR

and CARB concluded that the 18.1 tpd emission limit could potentially be as much as 2.3 tpd high er than would an emission limit for the SJV established consistent with the interpretation of the U.S. District Court (revised in Warmerdam ) and initially submitted in the 2007 SJV Ozone Plan and 2007 State Strategy. The calculated 2.3

- ton

- per

- day differen ce reflects th e use of

unbackcasted 1991 PUR data (as opposed to 1990 PUR data) and a 20 percent emissions

reduction commitment (as opposed to a 12 percent commitment). See CDPR staff report, pp

. 3

and 4 and CARB E .O. S

- 09

- 005, p. 2

. Notwithstanding the co nclusion that the revised SIP commitment could potentially result in 2.3 tpd greater pesticide [VOC] emissions than assumed in the submitted 2007 SJV Ozone Plan and 2007 State Strategy, CARB concluded that such an increase would have no impact on the attainment and RFP demonstrations or any other SIP requirement in the Plan/Strate gy. See CDPR staff report, p

. 4 and CARB E .O. S

- 09

- 005, p. 3

.
Comment C

- 7 : El Comité 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. El Comité notes our statement in the TSD that identifies the implications of the change, which would allow for unabated pesticide VOC emissions at times of the year when ozone violations could occur and avoid VOC reductions year round. They cite to the proposal TSD at p. 31.

72 F or 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).

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- Region 9 Page 53 Response C

- 7 : As discussed in Response C

- 1, CAA section 110(l) does not prohibit any backsliding an d 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 Co mité pro vides 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 dir ectly 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 disce rn 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

demonstra tions 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 re quire ozone SIPs to include

summer season inventories. See , for example, the General Preamble. We described California

definition of its “ summer season ” (that is, its ozone season) in our proposed approval of the 1994

Ozone SIP:

Although EPA recommends a 3 month peak ozone season as the basis for the [summer] planning inventory estimates, because of the persistence of ozone violations in California from May through October, the CARB uses a 6 month average operating day emissions estimate.

61 FR 10920, 1093 7.

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 the se SIP revisions does not violate CAA section 110(l) on the basis that they provide for seasonal controls only.

El Comité cites our statement in the proposal TSD that recommends California consider expanding the period for the requirements from May

- Octobe r to include the full year. As weTSD for the Final Approval of

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Air Divisi on EPA

- Region 9 Page 54 stated in the TSD, these suggested revisions are not currently the basis for rule disapproval but

are recommended for the next time the rule is amended. See Proposal TSD, p. 31.



### D. Enforceability of the Fumigant Regulatio ns

Comment D

- 1 : El Comité 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) . The y acknowledge that a citizen may request PUR under the California

Public Records Act (CPRA) but may be subject to copying fees and unable to access confidential

business information (CBI)

. Response D

- 1 : Under the fumigant regulations , applicators (farm operator s or pest control

business es ) are required to limit their use of fumigant

- specific application methods during May

1

- October 31 (peak ozone season) to those methods specified in the regulations. An applicato r demonstrates compliance with the regulations by reporting the details of each fumigant application ( e.g. the permittee/property operator, operator ID /permit numbe r , acres planted, acres treated, application method, crop, date

, time, and location) to the CAC, which in turn, provides

the data to CDPR . As El Comité acknowledges, the public can obtain PUR data by making a

CPRA request to the CAC or CDPR. In addition, CDPR makes the PUR data available electronically to the public for free at t he California Pesticide Information Portal (CalPIP)

website 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

. In general, SIP rules do not need to contain specific provisions guaranteeing access to data by citizens or EPA in order to be federally enforceable. E PA can access records demonstrating compliance with the regulations by demanding them during an inspection or through a separate information demand allowed by CAA section 114. 73 We note again that citizens are not limited to enforcing based solely on record s reported by sou rces. Under applicable CAA and regulatory provisions, any credible evidence of violation may be used. See Responses B

- 1 and B

- 2. Such credible evidence might include , for example, photographs of a fumigant application taken from a public r oad

Comment D

- 2 : El Comité 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 D

- 2 : 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. 74 The public can

73 Any records, reports, or information (except for CB I) that EPA obtains under section 114 is available to the public. See CAA section 114(c).

74 3 CCR s ection 6626 (a) and (b)

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- Region 9 Page 55 request PU R 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 mont h after the CAC receives it. 75 CDPR publishes the PUR data online

appr oximately one year after the growing season ends

. 76 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 a nd online PUR database. 77

The commenter notes that in EPA’s proposal TSD , EPA made a recommendation to extend recordkeeping retention to five years , similar to Title V permit retention times, in the next revision to the regulations. However, as we stated in the proposal TSD, we do not consider the

two

- year user retention time to significantly undermine enforceability of these regulations and is

not a basis for their disapproval

. Further, while Title V permits require five

- year record maintenance, SIP rules in general need only require two

- year record maintenance

. 78 We note examples of other SIP rules that require two

- year records retention. 79

Comment D

- 3 : El Comité states that there are no monitoring provisions that would allow for an evaluation of whether the pesticide user met the emissions reduction s specified for each fumigant application method or whether the user complied with a fumigant VOC emission limit

. Response D

- 3 : No such monitoring provisions are needed because t he fumig ant regulations do not require that an individual pesticide user meet either specific emissions reduction s or a fumigant emission limit . Rather, they prohibit the use of certain fumigant application methods during the peak ozone season. In this way the fum igant 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. 80
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 requir e them to meet an emission

limit. 81 SIP rules for confined animal feeding operations, open burning, and agricultural fugitive

75 California Food and Agricultural Code (CFAC) section 14012(b).

76 Memorandum, Nancy Levin, EPA Region 9, to Docket EPA

- R09

- OAR

- 2012

- 0194 , A ugust 10, 2012, Subject: Summary of July 16, 2012 conference call between EPA and California Department of Pesticide Regulation.

77 http://calpip.cdpr.ca.gov/main.cfm.

78 See Guidance Document for Correcting Common VOC & Other Rule Deficiencies (A.K.A., The Little Bluebook), U.S. Environmental Protection Agency, Region IX, April 1991(revised, August 21, 2001).

79 See, for example, P lacer County APCD Rule 215 Transfer of Gasoline Into Tank Trucks, Trailers, and Railroad Tank Cars at Loading Facil ities, approved 76 FR 5277 (January 31, 2011); Placer County APCD Rule 216 Organic Solvent Cleaning and Degreasing Operations, approved 75 FR 24406 (May 5, 2010); Maricopa County Air Quality Department Rule 310 Fugitive Dust from Dust

- Generating Operations , approved 75 FR 78167 (December 15, 2010)

.

80 CAA section 302(k) defines the terms “emission limitation” and “emission standard” to include a design, equipment, work practice or operational standard.

81 See, for example, S JVUAPCD Rule 4622 Gasoline Transfer Into Motor Vehicle Fuel Tanks (amended December 20, 2007), approved 74 FR 56120 ( October 30, 20 09)

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- Region 9 Page 56 dust are examples of regulations that require the use of specific management practices rather than compliance with a specific emiss ion limit, similar to CDPR’s pesticide regulations. 82

Under the SIP, fumigant VOC emission limits will apply only in Ventura County

. 83
Ventura County’s overall pesticide VOC emission limit is monitored through the annual emissions inventory that is calculat ed by CDPR and not by individual pesticide users. 84 If pesticide VOC emissions 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. 85

Comment D

- 4 : El Comité states that the regulations are not federally enforceable beca use 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 s ection 6452.2.

Response D

- 4 : The requirement to condition permits to comply with a fumigant VOC emi ssion limit is only applicable to Ventura County under the SIP

. S ection 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, s ection

6 452. 2 (c) require s that if Ventura County’s f umigant 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.

Co mment D

- 5 : El Comité states that CDPR has not submitted to EPA for inclusion in the SIP 1 )

definitions for key terms , and 2) several key regulatory sections that are referenced in the fumigant regulations . They comment that the failure to include these pr ovisions significantly

undermine s enforceability of the fumigant regulations

. Response D

- 5 : As stated in section II.E. of the proposal TSD, EPA does not consider these

omissions to significantly undermine rule enforceability as the terms are generall y und erstood by the regulated community, and the referenced sections are generally not critical to implementation of the fumigant regulations . The comment er does not provide evidence of any specific enforceability problems created by the se omissions.

Comment D

- 6 : El Comité 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.

82 SJVUA P CD Rule 4570 Confined Animal Facilities (amended October 21, 2010)

, approved 77 FR 2228 (January 17, 2012) ; Rule 4103 Open Burning (amende d 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).

83 3 CCR section 6452.2(a) and (c)

84 Section 6452.4(a)(2).

85 Section 6452.2(a)TSD for the Final Approval of

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- Region 9 Page 57 Response D

- 6 : EPA has determined that the director discretion in section 6452(b) is not currently the basis for disapproval given the restrictions placed on the Director’s ability to approve alternative methods and given the limited h istory 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 reduc tions. 86 Under section 6452(b), a request for approval of an alternative application method must be accompanied by scientific data documenting the VOC emissions reduction s 87 and no alternative method may be approved if its

emission rate and the maximum emiss ion rate are greater than those for any method already specified in the regulations for use in the area for that fumigant. 88 Section 6452(b)(1) 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. 89 A notice of interim approval of an alternative method must be published on CDPR’s web site 90 and interim approvals expire after three years. 91 In addition, we note that all pesticide users ar e required by law to follow the federal label, state regulations, and permit conditions at the county level

. 92 These provisions appropriately limit the CDPR director’s

discretion. 93



### E. Pesticide Emissions Inventories

Comment E

- 1 : El Comité comments the Method Usage Fractions (MUF) for the 1991 and 2004

inventories do not have a factual foundation in the PUR.

Response E

- 1 : The PUR reports were not required to list the fumigation application method prior to 2008; therefore, it is not possible to base the MUF off the PUR prior to that year. 94 We note that the 1990, 1991 and 2004 inventories do not have any relevance to EPA’s action here

.

86 EPA Region 9, Guidance Document for Correcting Common VOC & Other Rule Deficiencies, (a.k.a., Little Bluebook), August 21, 2001.

87 Section 6452(b)(1).

88 Section 6452(b)(1)(A) and (B).

89 Section 6452(c).

90 Section 6452(d).

91 Section 6452(e).

92 CFAC section 12973

93 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 othe r 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).

94 Usually there are several different types of application methods used for a p articular fumigant in any particular NAA. Each method of use (e.g. drip, sprinkler, shank, tarp, etc.) represents a fraction of the total numberTSD for the Final Approval of

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- Region 9 Page 58 Comment E

- 2: El Comité comments that t he validity of the MUF for the 1991 inventory for all fumigants but 1,3

- dichloropropene are not verifiable.

Response E

- 2 : CDPR provided a detailed explanation of its process for determining the frequency of use of historical fumigant methods for t he 1991 inventory as well as the 1990

inventor y (which is the basis for calculating reductions) in the Barry memorandum. Prior to 2008 the MUF were based on grower/applicator surveys, use data, expert op inion, and regulatory history. Since 2008, applicators have been required to report application methods on the PUR, so

recen t 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.

As we discussed in Response B

- 1, e xcept for the analysis required by CAA se ction 110(l), the SJV and Ventura County 1990 baseline (including the MUF used to calculate them )

are no longer at issue now that the State has fixed the maximum level of pesticide VOC

emissions allowed in the SJV at 18.1 tp d and in Ventura County at 3.0 t pd.

Comment E

- 3 : El Comité comments that t he field studies of Application Method Adjustment Factor (AMAF) have highly variable results even among similar studies and are therefore highly

uncertain.

Response E

- 3 : See Response E

- 6 below.

Comment E

- 4 : El Comité comments that previous reviews have noted uncertainties in AMAF estimates and concluded that some AMAF proposed by CDPR were not conservative enough, citing a October 17, 2007 letter from Brian Hill and Anne Katten to Brent Newell (included as Exhibit 28 to their comment letter).

Response E

- 4 : See Response E

- 6 below.

Comment E

- 5 : El Comité comments that CDPR’s 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 excl uded from the group of studies on which the fumigant application regulations are based

. Response E

- 5 : Similar comments were raised to C DPR during the comment period s prior to the adoption of the 2008 fumigant regulations and to CARB during the comment pe riod 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 (p p. 15

- 17) including listing studies it did not

use and th e reason for excluding the se studies ( s ee Appendix 4 to th e memorandum ). CARB also provided respon ses. 95 Both stated that the studies included had been reviewed and accept ed as

of methods used and i s referred to as the Method Use Fraction (MUF). The sum of all MUFs for any particular (NA A/fumigant AI) combination is one. See CDPR’s Revised 2010 Pesticide VOC Emissions Report, p. 13.

95 CARB, Environmental Analysis for the Proposed Revision to the Pesticide Commitment of the 1994

Ozone SIP f

or the Ventura County Nonattainment Area, Revise d August 13, 2007 (“CARB August 2007 Environmental Analysis”)

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locations

. In particular, El Comité expressed concern that emissions would typically be higher in the very hot SJV compared to emissions in much cooler study areas. CDPR and EPA have both noted that the effects of temperature on emissions are complex. While evaporation and dissipation rates are expected to increase with temperature, thereby increasing emissions, chemical degradation rates would also increase, tending to lower emission rates . Temperature and humidity have been shown to increase tarp permeability. 96 CDPR reports observing high flux, high emissions, and high concentrations of methyl bromide from applications of methyl

bromide in winter. CDPR found no correlation between Julian d ate and emissions from methyl bromide applications. 97 EPA report s that in field scale studies of soil fumigations, temperatures were observed to fluctuate without discernible differences in emission patterns. 98 In a subsequent report ( s ee footnote 9 6 ) , based on new data, EPA established buffer zones based on studies with soil temperatures averaging around 70 degrees F. EPA evaluated whether buffer zone credits (i.e., reduced emission c redits) could be applied for fumigant applications done at soil temperatures of 50 degrees F or lower. Methyl bromide applications are not eligible for any buffer zone credits based on temperature due to its high vapor pressure, but chloropicrin, metam sodium, metam potassium, and dazomet all qualify for a 10 percent b uffer zone credit if applied

at < 50 degrees F.

The worst

- case scenario study cited by El Comité is a 1993 CARB/CDPR study. This study was rejected by CDPR because of issues with study design and sample handling. CARB August 2007 Environmental Analysis, p . 9.

Comment E

- 6 : El Comité argues 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. They comment that it is not uncommon for flux rates for different field fumigation studies, even those conducted under very similar application conditions, to vary by a factor of two to four.

Response: E

- 6 : C D PR responded to this comment, which was also 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 have chosen to average flux rates to get the most accurate picture of overall

emissions. Their response , which is support ed 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

96 Memorandum, Jeffrey L. Dawson and Shalu Shelat, EPA to John Leahy, EPA, Subject: Methyl Bromide (PC Code 053201), Chloropicrin (PC Code 081501), Dazomet (PC Code 035602), Metam Sodium and Po tassium (PC Codes 039003 & 039002), MITI (PC Code 068103), DP Barcode 385314, Second Update To Health Effects Division Recommendations for Good Agricultural Practices and Associated Buffer Credits, January 11, 2011

.

97 Alternatives Analysis for the Fumigan t VOC Regulations, Attachment 3, Evaluation of the Effect of Temperature on Fumigant Emissions, p

. 6

.

98 Jeffrey L. Dawson and Charles Smith, EPA, to John Leahy, EPA, Factors Which Impact Soil Fumigant

Emissions

- Evaluation For Use In Soil Fumigant Buffer Zone Credit Factor Approach, U.S. EPA Office of Prevention, Pesticides, and Toxic Substances, June 9, 2008

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- Region 9 Page 60 estimate emissions for three reasons. First, the emissions inventor y represents the aggregate emissions from all agricultural and structural pesticide applications within a region over several months. The average fl ux 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 cons istent 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 inven tory 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 emission reductions achieved would be larger than currently estimated using the average flux

rates

. 99

Therefore we conclude th at CDPR took a reasoned approach to establishing AMAF based

on the available science.

Comment E

- 7 : El Comité argues that CDPR has not presented any evidence supporting its estimates of historical fumigant application methods nor has it made public the deta ils of the process by which this information was obtained.

Response E

- 7 : EPA considered the process described in the Barry memorandum as a reasonable basis on which to support estimates of historical fumigant application methods. See also Responses E

- 1 and E

- 2.

Comment E

- 8 : El Comité comments that the alleged deficiencies in the determination of the

historical MUF and current AMAF that they have identified are important because CDPR’s strategy to meet its VOC reduction obligations re ly princip al ly on these inventory adjustments and that it has used these adjustments to offset large increases in pesticide use that have occurred

since 1991 , citing to a graph on unadjusted VOC emissions from pesticides in CDPR’s 2010

Annual Pesticide VOC Emissions Report . They argue that these alleged inventory manipulation s

are problematic given the holding in Warmerdam that prevents citizens and EPA from enforcing noncompliance with the California SIP Pesticide Elemen t

. We note that CDPR committed to

re duce VOC emissions from pesticide use and not to reduce pesticide use.

Response E

- 8 : For the reasons discussed above we do not agree that CDPR has inappropriately

established MUF and AMAF but rather has used the best available data to determine the factor s that affect VOC emissions from the use of pesticides including fumigants.

As we have explained previously, now that CDPR has fixed the emission limit in both Ventura County and the SJV , the 1990 baseline inventories (including the MUF that are used to calculate them) are only relevant to determining whether approval s of these emission limit s are allowed under the non

- interference provisions of CAA section 110(l). See R esponse B

- 1 . Once

these fixed emission limit s are approved

, neither the 1990 baselines for these areas nor the

99 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

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enforceable.

We have also explained that the calculation procedures for determining the subsequent year inventories are part of these emission limit s’ compliance monitoring requirements and as such are fully enforceable under CAA section 304. We have also noted that ci tizens are not restricted to using either CDPR’s emissions inventories or its calculation methodologies to

enforce the emission limit s but may use any credible evidence to do so. See R esponse D

- 1.

Finally, unadjusted pesticide VOC emissions are a n incorre ct and misleading measure to judge progress or lack thereof in reducing VOC emissions from pesticides. Unadjusted pesticide VOC emissions are the hypothetical amount of emissions that would be emitted if all of a fumigant’s VOC content is emitted to the ai r. Unadjusted pesticide VOC emissions do not reflect actual emissions to the air. El Comité does not object to the basic premise that the method used to apply a fumigant affects how much of that fumigant’s VOC is emitted to the air. Both the

effectiveness of a particular method at reducing VOC emissions and the range of methods used must be taken into account to appropriately estimate VOC emissions from fumigants and thus pesticides as a whole. CDPR’s adjusted pesticide VOC emissions estimates account for t hese factors and therefore are the appropriate measures to judge progress in reducing VOC emissions from pesticides. Adjusted pesticide VOC emissions in all five areas subject to the Pesticide
Element have shown reductions in VOC emissions from the SIP’s b aseline year of 1990. 100

Comment E

- 9 : El Comité comments that EPA’s approval of the static baseline inventory from

which the SJV pesticide VOC emission limit of 18.1 tpd is calculated would be arbitrary and capricious because it is allegedly based in part on unsupported assumptions regarding the

methods of use. In support of their comments, El Comité cites to arguments made earlier in their comment letter (p. 15) and the Kegley letter (included as Exhibit 30 to their comment letter)

. 101
They further comment t hat EPA should not accept the baseline inventory given CDPR’s alleged history of inventory manipulation, citing to a memorandu m from Mark Pepple to Paul Gosselin, February 13, 1997 and El Comité para el Bienestar de Earlimart v. Helliker , 416 F.Supp.2d 912

, 923, 933

- 934 (E.D. Cal. 2006) as evidence of this alleged manipulation.

Response E

- 9 : We believe that by “ static baseline inventory ” El Comité means the 1990 baseline inventory from which CDPR calculated the 18.1 tpd emission limit for SJV.

California did not submit for SIP approval, and EPA is not approving, the 1990 baseline emissions inventory for SJV (or for any other area). We listed the SIP submittal s and the provisions in those SIP submittal s that it intended to include in the SIP on pages 24442 to 24443 of our proposal. These SIP submittal s do not include the 1990 SJV baseline inventory. To the

100 See Revised 2010 Pesticide VOC Emissions Repor t

, Table 5, p. 20

.

101 The Kegley Letter is a letter from Susan Kegley, Ph.D., Senior Scientist, Pesticide Action Network et

al. to Linda Irokawa

- Otani, California Departmen t of Pesticide Regulation, July 13, 2007 . It conveys comments of

Californians for Pest icide Reform and others on CDPR’s 2007 proposal to adopt fumigant regulations and a revised SIP commitment for SJV. It provides a number of comments and raises a series of issues with the proposed regulations and commitment. In their letter here, El Comité references only to the sp ecific comments in the Kegley letter on the method use factors. EPA is therefore, limiting its responses to these specific comments (which we note closely duplicate the comments on pages 14

- 16 of their letter). Because El Comité h as not referenced any other parts of the Kegley letter, it is precluded from raising in any subsequent appeal of this final action, other issues in the Kegley letter that are not otherwise specifically raised in their comment letter here.TSD for the Final Approval of

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- Region 9 Page 62 extent that this inventory is relevant to today’s action, it is in the context of our CAA section 110(l) analysis of the SJV emission limit

. We addressed comments on this issue in Response C

6. We have also addressed El Comité’s comments (including those in the Kegley letter) on the historical MUF in Responses E

- 1 and E

- 2.

The evidence the El Comité cites does not support their accusation that CDPR has

man ipulated the baseline inventory to avoid adopting regulations. In the Pepple memorandum

, CDPR was stating its concerns with the accuracy of the CARB methodology for calculating pesticide emissions: “ We consider this option because the agricultural use fig ures determined by the ARB methodology appeared to be low compared to successive years (which were all based on PUR data) and the commercial structural use figures seems to be too high. ” 102 CDPR was also stating its concern that the CARB inventory was not av ailable: “ In the SIP, we state that the 1990 figure will be based on a backcast of 1991 data. It is uncertain when the CARB will provide the backcasted figure. ” 103 The date of the Pepple memorandum is February 13, 1997, just a few months before the June 15, 1997 deadline for CDPR to submit regulations to EPA if they were needed to achieve the required emissions reduction. It is therefore not surprising that CDPR would then be evaluating alternative ways to calculate the 1990 pesticide VOC emissions inventory because 1) it lacked the necessary CARB data, 2) did not know when that data would be available, and 3) had substantial concerns about accuracy of CARB’s methodology. This is

not evidence of “ inv entory m anipulation ” but a rather of a good faith effort by CDPR to meet what it believed to be its SIP obligations.

We note that the 1990 baseline emissions inventory that CDPR was proposing to replace
were based on CARB’s “ current methodology. ” Pepple m emorandum, p. 1 ( “ The 1990 base year figures are those estimated by ARB using their current methodology. ” ) It was not an inventory

backcasted from 1991 PUR data. Id . ( “ It is uncertain when the ARB will provide the backcast figure. ” ) It was also not an inve ntory based on unbackcasted 1991 PUR data. 104 In the Pepple memorandum, CDPR was proposing to replace the then

- existing 1990 baseline inventory with an inventory that was calculated using the same methodology ( “ multiplying the emission factor for each pestic ide product by the use of that product ” ) as the successive year inventories. Using

102 No records see m to exist of the CARB methodology; however, given the language in the Pepple memorandum, it can be understood that the CARB methodology did not use PUR data since CDPR was recommending, as an alternative, a methodology that was based on PUR data and thus more consistent with successive year inventories.

103 To EPA’s knowledge, CDPR has never prepared a 1990 baseline inventory using1991 PUR data adjusted to reflect 1990 usage. While CDPR did developed a 1991 inventory using 1991 PUR data ( See , for example, m emorandum, Tamara L. Roush, CDPR to John S. Sanders, CDPR, October 24, 2006, “2006 Update to the Pesticide VOC Inventory Estimated Emissions 1990

- 2004,” p. 2) , that inventory was not backcasted to 1990. El
Comité’s comments here assume that this backcaste d 1990 emissions inventory, if prepared, would show lower emissions levels than the 1990 inventory prepared using 1990 PUR data, resulting in lower emission limits. There is nothing in the record that supports this assumption. As we discuss in Response C

- 6 , we do not read the 1994

Pesticide Element to bar the use of 1990 PUR data to calculate the 1990 baseline.

104 El Comité’s argument that the Pepple memorandum demonstrates “inventory manipulations” seems to

rest on the assu mption that CDPR was proposing to substitute a different inventory for the one they believe was

called for in the Pesticide SIP; that is, one calculated by multiplying pesticide usage backcast ed to 1990 from 1991 by the VOC emissions factor. In fact, CDPR was proposing to substitute in an inventory calculated using a methodology that more closely followed the SIP for on e that was not even based on PUR data.TSD for the Final Approval of

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does not constitute “ inventory manipulation. ” 105

We also note that the “ PUR m ethodology ” did not universally make it easier to show compliance with the reduction requirements. The PUR methodology decreased estimated baseline pesticide VOC emissions levels in both South Coast and Sacramento, making it harder to show compliance. See Pepple memorandum , p. 1.

In El Comité , the District court interpreted the 1994 Pesticide SIP to mandate the use of 1991 PUR data to calculate the 1990 baseline inventory and found CDPR had not done so. The

court did not find that if CDPR had used the 1991 PUR data, the results would have shown the need for additional regulation. In fact, there is nothing in the record that shows that additional regulations would have been needed if CDPR had used 1991 data backcast ed to 1990 to

determine the 1990 baseline i nventory.



### F. Necessary Assurances under CAA Section 110(a)(2)(e)

Comment F

- 1 : El Comité 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 F

- 1 : We disagree that the fumigant regulations are unenforceable if they do not provide a mechanism to fund enforcement. Nothi ng 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 S tate (and, as appropriate, local) la w to carry out such implementation plan. ” CDPR h as provided sufficient assurance that it has adequate funding (as well as personnel and authority ) to implement the regulations.

C DPR funds CAC on an annual basis to conduct inspections and enforcement activities. Funding derives from an assessment on pe sticide sales. C DPR 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. 106 In 2006 CDPR and the California Agricultural Commission and

Sealers Association ente red into a Memorandum of Understanding that explains the process for distributing funds. 107

105 We also note that the proposed PUR methodology is consistent with the calculation method laid out in
the SIP: “The baseline invent ory will be calculated by summing the estimated 1990 emissions of each agricultural and commercial structural use pesticide. Emissions will be calculated by multiplying the VOC Emission Factor value for each product by the adjusted use of that product in 1 990.” 199 4 Pesticide SIP, pp. 5

- 6.

106 3 CCR section 6386. Established Rate; CFAC sections 12841 and, 12841.3. See also Memorandum, Nancy Levin, EPA Region 9, to Docket EPA

- R09

- OAR

- 2012

- 0194 , A ugust 10, 2012, Subject: Summary of July 16,

2012 conference cal l between EPA and California Department of Pesticide Regulati on.

107 CDFA, Disbursement of Residual Mill Assessment Funds To Enhance Local Pesticide Enforcement Programs, May 2006, found atTSD for the Final Approval of

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2010

- 2011, CA C made 724 field fumigant inspections and 2,130 structural fumigation inspections statewide. 109 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

. 110 In 2010

- 2011, CAC conducted a total of 7,941 pre

application inspections out of a total of 136,491 NOI

, 111 or 5.8 percent of NOI reviewed.

Both CDPR and CAC enforcement authority is derived from State law and regulation.

See California Food and Agricultural Code (C FAC) section 14004, See also , CFAC section 2281 and 11501.5; 3 CCR sections 6140 and 6128. 112 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 sections 14006.5; 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 C FAC section 14005. In addition, for products containing a new active ingr edient, 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

C FAC section 12824. 113 See also Response D

- 4.

Comm ent F

- 2 : El Comité 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 C DPR nor CARB have provided a demonstration that the

commitment and re gulations are not prohibited by Title VI of the Civil Rights Act and EPA’s regulations implementing Title VI.

Response F

- 2 : In addition to requiring a state to provide necessary assurance s regarding adequate resources and authority for implementation , CAA s ection 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]. ”

http://www.cd fa.ca.gov/exec/county/documents/DISBURSMENT_OF_RESIDU AL_MILL_ASSESSMENT_FUND S_TO_ENHANCE.pdf

.

108 Email and attachment from Ken Everett, CDPR to Nancy Levin, EPA, August 1, 2008

.

109 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

.

110 3 CCR section 6436

.

111 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/enforc e/prasr/10

- 11prasr.pdf ,).

112 The California Food and Agricultural Code can be viewed at http://www.leginfo.ca.gov/cgi

bin/calawquery?codesection=fac. Title 3 of the California Code of Regulations can be view at http://www.cdpr.ca.gov/docs/legbills/calcode/ subchpte.htm.

113 CDPR describes its authorities on page 1 of the Revised SIP Commitment for the SJV.TSD for the Final Approval of

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- Region 9 Page 65 El Comité asserts that Califo rnia failed to provide a “ demonstration ” that its proposed revisions are not prohibited by Title VI of the Civil Rights Act. 114 Section 110 (a)(2)(E), however, does not require a state to “ demonstrate ” it i s not prohibited by Federal or State law from impleme nting 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 (5 th Cir. 2003))

.
El Comité does not allege a violation of T itle 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 Comité includes in

their letter several statements on fumigant usage and fumigant VOC emissions in Ventura County and the SJV 115 (citing various CDPR documents as the sources), it provides no e vidence that these usage rates or pesticide VOC emissions rates are either the result of implement ing th e revised SIP commitment and/or fumigant regulations or would not have resulted absent the implementation of the commitment and regulations.

On the other hand, California has provided multiple evaluations that show the revised SIP

commitment for SJV and t he 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 VOCs, will improve air quality and assist the

areas in thei r progress toward attainment of the ozone standards. These evaluations include:

 CDPR’s 2007 identification of no significant adverse environmental effects that can reasonably be expected to occur from implementing the fumigant regulations found on pages 22

- 23of the Initial Statement of Reasons and Public Report Pertaining to Field Fumigant Reductions. 116

114 T itle 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 regulatio ns prohibiting EPA funding recipients from engaging in discrimination. See 40 C FR

7.30 and 7.35.

115 T hese statements include this misleading one: “[T]otal unadjusted pesticide VOC emissions in the Ventura Nonattainment Area is [sic] higher in 2010 than in the years 1995

- 2001

, ” citing CDPR 2010 Inventory at 18, Figure 2. Unadjusted pesticide VOC emissions are the hypothetical amount of emissions that would be emitted if all of a fumigant’s VOC content is emitted to the air. Unadjusted pesticide VOC emission s do not reflect actual emissions to the air. The method used to apply a fumigant affects how much of that fumigant’s VOC is emitted to the air and there are a variety of methods used to apply most fumigants. Both the effectiveness of a particular

method a t reducing VOC emissions and the range of methods used must be taken into account to appropriately estimate VOC emissions from fumigants and thus pesticides as a whole. CDPR’s adjusted pesticide VOC emissions

estimates do account for these factors and ther efore are the correct measure to judge progress in reducing VOC emissions from pesticides. Adjusted pesticide VOC emissions in Ventura County have show reductions in VOC emissions from the SIP’s baseline year of 1990. See CDPR 2010 Inventory, Table 5, p. 1 9.

116 This document is on pages 84

- 104 (pdf count) of enclosure 4 to the memorandum, Christopher Reardon, Chief Deputy Director, California Department of Pesticide Regulation to James Goldstene, ExecutiveTSD for the Final Approval of

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 CARB’s Revised Environmental Analysis for the Proposed Revisions to the Pesticide Commitment of the 1994 Ozone SIP for the Ventura County Nonattainment Area (August 13, 2007). 118

 CDPR’s “ Staff Report on the Department of Pesticide Regulation’s Proposed SIP Commitment for San Joaquin Valley, ” 119

 CDPR’s identification of no significant adverse environmental effect and response to comments on fumigants regulations and r evised SIP c omm itment for SJV found in Final Statement of Reasons and Public Report, 2009. 120

 CARB’s Executive Order S

- 09

- 005 relating to Revised Pesticide Commitment for SJV (October 12, 2009). 121

Both CDPR and CARB receive annual grants from EPA and have done so for many

years. As grant rec ipients , 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. 122 123 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

Officer, California Air Resources Board; October 5 , 2009, Subject: Fumigant Volatile Organic Compound Regulations which can be found in the docket for this rule.

117 This document is Appendix E to CARB’s Proposed State Strategy for California’s 2007 State Implementation Plan (as adopted September 7, 2007) which can be found at http://www.arb.ca.gov/planning/sip/2007sip/apr07draft/revdrftappe.pdf and in the docket for this rule. We approved

the revision to t he Ventura portion of the Pesticide SIP in 2008. See 73 FR 41277 (July 18, 2008).

118 This document can be found at http://www.arb.ca.gov/planning/sip/2007sip/apr07draft/ventanalysis.pdf

and in the docket for this rule.

119 This document is Enclosure 3 to the memorandum , Christopher Reardon, Chief Deputy Director, California Department of Pesticide Regulation, to James Goldstene, Executive Officer, California Air Resources Board; October 5, 2009, Subject: Amendment to the Pesticide Element of the Ozone State Implementation Plan

which can be found in the docket for this rule.

120 This document is Enclo sure 5 to the memorandum , Christopher Reardon, Chief Deputy Director, California Department of Pesticide Regulation, to James Goldstene, Executive Officer, California Air Resources Board; October 5, 2009, Subject: Amendment to the Pesticide Element of the Ozone State Implementation Plan

which can be found in the docket for this rule.

121 This document can be found in the docket for this rule.

122 See, for example, EPA Form 4700

- 4, Preaward Compliance Review Report for All Applicants and Recipients Requestin g 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.

123 It is also worthy of note that, to EPA’s knowledge , none of the groups that signed the El Comité 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 CD PR and CARB were going through their respective rulemaking processes.TSD for the Final Approval of

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assistance. 124 Thus, EPA concludes California has provided the necessary assurances pursuant to 110(a)(2)(e).



### G. EPA’s Response to the Ninth Circuit Court of Appeals Remand in Association of Irritated Residents Case

Comment G

- 1 : El Comité 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 ha s 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 G

- 1 : On page 24450 of our April 24, 2012 proposed rule, we concluded that:

. .. the re 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 meet the applicable CAA requirements, then the decision regarding EPA’s previous

actions on the Pesticide E lement 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 com mitments 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 stat ed:

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

thes e 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 regulati ons to ensure that the 12 percent emission 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

124 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.TSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 68 from pe sticide 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 revi sed 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 reduction s (1.5 tpd ) due to CD PR'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 limit (that derives f rom 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 m anage 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 G

- 2 : El Comité 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 emission limit 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 f umigant regulations does not ensure that the revised SIP commitment does not meet the CAA requirement for enforceability.

Response G

- 2 : El Comité cites CDPR's 2010 annual inventory of pesticide VOC emissions as

the source for their claim that VOC emission s 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 pestici de

emissions in SJV . Based on our review of CDPR's Revised 2010 Pesticide VOC Emissions Report , we confirm El Comité '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 emi ssions reduction target from the Pesticide Element would be achieved in SJV . This is because (1) the emission limit 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 d ue 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 an d 6a of Revised 2010 PesticideTSD for the Final Approval of

Revisions to the CA SIP Pesticide Element August 14. 2012

Air Divisi on EPA

- Region 9 Page 69 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 emitt ing application methods, and it demonstrates that CDPR's fumigant regulations are effective at reducing pesticide VOC emissions in the SJV and

in maintaining compliance with the 18.1 tpd emission limit

.

Comment G

- 3 : El Comité claims that EPA cannot rely o n CDPR's fumigant regulations as the

basis to conclude that the revised SIP commitment for SJV is enforceable because the regulations

themselves are unenforceable.

Response G

- 3 : As discussed in the proposal ( See 77 FR 24441, 24444) and in the responses to comments in sections B and D above, we have found the fumigant regulations to be enforceable.

Comment G

- 4 : El Comité argues that because the SIP revision lacks a commitment to retain the fumigant regulations, EPA’s rationale for u sing the fumigant regulations as its basis for finding

the SIP revision enforceable is “ illusory. ” El Comité 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 G

- 4 : 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 p art 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) RACT requirement in the SJV , so for at

least for SJV , California w ould 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

s ource 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 N A AQS or any other applicable requirement of t he 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 notice and comment procedures that E PA

follows for all actions on SIPs and SIP revisions

.Blank PageTechnical Support Document

— Final Rule

— Approval of Revisions to the Pesticide Element of

the California State Implementation Plan

Air Division, EPA Region 9

— August 14, 2012