65294 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

1As part of this submittal, CARB also submitted 

3 CCR section 6400 (Restricted Materials), 6446 

(Methyl Iodide Field—General Requirements) and 

section 6446.1 (Methyl Iodide Field Fumigation 

Methods) and methyl-iodide related portions of 

provisions 6452.2(a)(4)(Annual Volatile Organic 

Compound Emissions Inventory Report) and 6624(f) 

(Pesticide Use Records). We are deferring action on 

these provisions due to California’s cancellation, 

effective March 21, 2012, of the registration of all 

products containing the active ingredient methyl 

iodide. 

2Air Division, EPA Region 9; Technical Support 

Document—Final Rule Approval of Revisions to the 

Pesticide Element of the California State 

Implementation Plan; August 14, 2012. The TSD 

can be found in the docket for this rulemaking. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0194; FRL–9723–1] 

Approval and Promulgation of 

Implementation Plans; California; 

Revisions to the California State 

Implementation Plan Pesticide Element 

AGENCY: U.S. Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving several 

revisions to the Pesticide Element of the 

California state implementation plan 

(SIP). These revisions include 

regulations adopted by the California 

Department of Pesticide Regulation 

(CDPR) that: Reduce volatile organic 

compound (VOC) emissions from the 

application of agricultural field 

fumigants in the South Coast, Southeast 

Desert, Ventura County, San Joaquin 

Valley (SJV), and Sacramento Metro 

ozone nonattainment areas by restricting 

fumigant application methods; establish 

a fumigant emission limit and allocation 

system for Ventura County; require 

CDPR to prepare and make available to 

the public an annual pesticide VOC 

emissions inventory report; and require 

recordkeeping and reporting of pesticide 

usage. EPA is also approving CDPR’s 

commitments to manage VOC emissions 

from the use of agricultural and 

commercial structural pesticides in the 

SJV to ensure that they do not exceed 

18.1 tons per day and to implement 

restrictions on VOC emissions in the 

SJV from non-fumigant pesticides by 

2014. We are approving these 

regulations and commitments as 

complying with applicable requirements 

of the Clean Air Act. Lastly, EPA is 

finalizing its response to remands by the 

Ninth Circuit Court of Appeals of EPA’s 

previous approvals of the California SIP 

Pesticide Element. 

DATES: The rule is effective November 

26, 2012. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2012–0194 for 

this action. The index to the docket is 

available electronically at 

www.regulations.gov and in hard copy 

at EPA Region 9, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some may be publicly 

available only at the hard copy location 

(e.g., copyrighted material) and some 

may not be publicly available at either 

location (e.g., CBI). To inspect the hard 

copy materials, please schedule an 

appointment during normal business 

hours with one of the contacts listed in 

the FOR FURTHER INFORMATION CONTACT

section below. 

FOR FURTHER INFORMATION CONTACT: For 

information on the approval of CDPR’s 

regulations: Nancy Levin, Rules Office 

(AIR–4), (415) 972–3848, 

levin.nancy@epa.gov. For information 

on the approval of CDPR’s commitments 

and the response to the Ninth Circuit 

remands: Frances Wicher, Air Planning 

Office (AIR–2), (415) 972–3957, 

wicher.frances@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we’’, ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Summary and Background 

II. Responses to Public Comments on the 

Proposed Action 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Summary and Background 

This action deals with revisions to 

California’s federally-approved program 

to reduce volatile organic compound 

(VOC) emissions from the use of 

agricultural and structural pesticides to 

improve ozone air quality in five areas 

of the State: the South Coast, Southeast 

Desert (SED), Ventura County, San 

Joaquin Valley (SJV), and Sacramento 

Metro ozone nonattainment areas. VOC 

from pesticides and other sources react 

in the atmosphere with nitrogen oxides 

(NOX) from mobile and other 

combustion sources in the presence of 

sunlight to form ozone. 

EPA is approving as revisions to 

California state implementation plan 

(SIP) regulations and commitments 

adopted by the California Department of 

Pesticide Regulation (CDPR). These 

CDPR regulations and commitments 

were submitted by the California Air 

Resources Board (CARB) to EPA as 

follows: 

1. October 12, 2009 submittal of the 

following CDPR regulations: 

• Title 3 California Code of 

Regulations (3 CCR), sections 6447 (first 

paragraph) and 6447.3–6452 pertaining 

to field fumigation methods; 

• Portions of 3 CCR sections 6452.1– 

6452.4 and sections 6624 and 6626 

pertaining to emissions inventory; 

• 3 CCR sections 6452.2 and 6452.3 

pertaining to field fumigation limits and 

allowances in the Ventura County ozone 

nonattainment area. 

2. October 12, 2009 submittal of 

CDPR’s revised SIP commitment for the 

San Joaquin Valley (adopted by the 

CDPR Director, April 17, 2009). This 

submittal limits VOC emissions from 

the use of agricultural and commercial 

structural pesticides in the SJV to 18.1 

tons per day (tpd) and commits CDPR to 

implement restrictions on non-fumigant 

pesticides in the SJV by 2014. 

3. August 2, 2011 submittal of the 

following CDPR regulations that revised 

in part and added to the October 12, 

2009 submittal: 1

• 3 CCR sections 6448.1, 6449.1, and 

6450.1 pertaining to fumigation method 

restrictions. 

• Portions of 3 CCR sections 6452.2 

and 6452.3 pertaining to field 

fumigation limits and allowances in the 

Ventura County ozone nonattainment 

area. 

• 3 CCR section 6452.4 pertaining to 

the annual VOC emissions inventory 

report. 

• 3 CCR section 6626 pertaining to 

pesticide use reports. 

EPA proposed to approve these 

submittals as revisions to the California 

SIP on April 24, 2012 at 77 FR 24441. 

A detailed discussion of these submitted 

revisions, the Clean Air Act (CAA) and 

EPA requirements applicable to them, 

and our evaluation can be found in the 

proposed rule and the technical support 

document (TSD) for this final action.2 In 

this final rule, EPA is approving these 

revisions to the California SIP based on 

our conclusion that they comply with 

applicable CAA and regulatory 

requirements for SIP revisions. We are 

also finding that the fumigant 

regulations meet the CAA section 

182(b)(2) requirement to provide for 

reasonably available control technology 

on the application of fumigants in the 

SJV. 

In the April 24, 2012 proposal, EPA 

also provided its preliminary response 

to the remand by the Ninth Circuit 

Court of Appeals in Association of 

Irritated Residents v. EPA, 632 F.3d 584 

(9th Cir. 2011), revised January 27, 2012 

(AIR). This remand required EPA to 

evaluate the California SIP Pesticide 

Element for enforceability under the 

CAA. See 77 FR 24441, 24447. In this 

action, we are finalizing that response 

without change. 

Lastly, in our April 24, 2012 proposed 

rule, we referred to another Ninth 


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3The Ninth Circuit issued its remand order in El 

Comite ́ on dated July 2, 2012. 

4Fixed, that is, without the State first seeking and 

EPA approving through notice and comment 

rulemaking a revision to the SIP. To be approved, 

such a SIP revision would need to meet all 

applicable CAA requirements and not be barred 

under the section 110(l) non-interference 

provisions. 

5The Neal memorandum is the memorandum 

from Rosemary Neal, Ph.D., CDPR to Randy Segawa, 

CDPR, November 5, 2008; Subject: Update to the 

Pesticide Volatile Organic Inventory. Estimated 

Emissions 1990–2006, and Preliminary Estimates 

for 2007. This memorandum is being included in 

the SIP in this action. 

Circuit petition for review, El Comite 

Para El Bienestar De Earlimart v. EPA 

(No. 08–74340) (‘‘El Comite ́’’). 77 FR 

24441 at 24448. In El Comite ́, various 

environmental and community groups 

challenged EPA’s 1997 approval (62 FR 

1150, Jan. 8, 1997) of the 1994 SIP for 

the 1-hour ozone standard for various 

California nonattainment areas (‘‘1994 

California Ozone SIP’’), which included 

approval of the California SIP Pesticide 

Element, on the basis of the same 2008 

Ninth Circuit decision, El Comite ́ Para 

El Bienestar De Earlimart v. 

Warmerdam, 539 F.3d 1062) 

(‘‘Warmerdam’’), that was the basis for 

the remand in Association of Irritated 

Residents. At the time of our April 24, 

2012 proposed rule, the Ninth Circuit 

had not issued its decision in El Comite ́. 

Since then, the Ninth Circuit has 

issued a remand order to EPA in El 

Comite ́ to reconsider its approval of the 

1994 California Ozone SIP in light of the 

Warmerdam decision, as required by the 

remand in Association of Irritated 

Residents.3 The remands in both 

Association of Irritated Residents and El 

Comite ́ necessitate the same evaluation 

(i.e., for CAA enforceability) for the 

same portion of the California SIP (i.e., 

the California SIP Pesticide Element). 

Thus, our decision not to rescind or 

amend our 2009 re-approval of the 

California SIP Pesticide Element, in 

light of today’s action approving the 

CDPR’s revised SIP commitment for the 

San Joaquin Valley and fumigant 

regulations, finalizes not only our 

response to the remand in Association 

of Irritated Residents, but it also 

finalizes our response to the remand in 

El Comite ́. 

II. Responses to Public Comments on 

the Proposed Action 

A. Comments Received on the Proposed 

Action 

EPA provided the public an 

opportunity to comment on its proposal 

to approve the revisions to the 

California SIP Pesticide Element for 30 

days following the proposal’s April 24, 

2012 publication in the Federal 

Register. We received one comment 

letter on the proposed approval. This 

letter was submitted by the Center on 

Race, Poverty and the Environment on 

behalf of itself and 41 California 

environmental and community 

organizations (collectively ‘‘El Comite ́’’). 

See letter, Brent Newell, General 

Counsel, Center on Race, Poverty & the 

Environment, May 24, 2012. We 

summarize our response to El Comite ́’s 

main comments below. Our complete 

responses to all comments received can 

be found in section III of the TSD. A 

copy of the comment letter and its 

attachments can be found in the docket 

for this rule. 

B. Enforceability of CDPR’s Revised SIP 

Commitment for San Joaquin Valley 

Comment: El Comite ́ argues that 

CDPR’s revised SIP commitment to limit 

pesticide VOC emissions in the SJV to 

no more than 18.1 tpd is not enforceable 

because citizens may not enforce the 

manner in which the Department 

calculates the baseline inventory and 

subsequent years’ inventories as a 

means to challenge a failure to adopt 

regulations or otherwise to limit 

pesticide VOC emissions in the SJV. 

They (El Comite ́) also argue that 

including the inventory calculation 

procedures in the SIP would not make 

the revised commitment enforceable. 

Response: Except for the analysis 

required by CAA section 110(l), the SJV 

baseline (that is, the 1990 baseline used 

to calculate the required level of 

emissions reductions) is no longer at 

issue now that the State has fixed the 

maximum level of pesticide VOC 

emissions allowed in the SJV at a fixed 

18.1 tons per day (tpd).4 Once this 

limitation is incorporated into the SIP, 

the 1990 baseline inventory will be of 

only historical interest and neither it 

nor the calculation procedures used for 

it need to be enforceable. Therefore, in 

addressing El Comite ́’s comments, we 

will focus 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 inventories that are required 

by specific sections of the CAA, such as 

sections 172(c)(3) and 182(a)(1). They 

are not the same in either scope or 

purpose. CAA section 172(c)(3) requires 

SIPs to ‘‘include a comprehensive, 

accurate, current inventory of actual 

emissions from all sources of the 

relevant pollutant or pollutants in such 

[nonattainment] area. * * *’’ The 

purpose of the comprehensive 

inventories required by this and similar 

CAA sections is to provide the basis for, 

among other things, the demonstrations 

of attainment and progress toward 

attainment required, for example, by 

CAA sections 182(c)(2)(A), 182(b)(1), 

and 182(c)(2)(B). Emissions inventories 

submitted to meet the CAA’s specific 

inventory requirements are intended to 

describe but not control emissions from 

sources and source categories in the 

inventory and thus are not enforceable 

emission limitations as defined by CAA 

section 302(k). 

In contrast, the ‘‘emissions inventory’’ 

called for in the revised SIP 

commitment and fumigant regulations is 

not a specific requirement of the CAA. 

It is instead an emissions estimation for 

a single emissions source—pesticide 

usage in the SJV—for the sole purpose 

of ‘‘evaluat[ing] compliance with the 

1994 SIP pesticide element for SJV.’’ 

Revised SIP commitment for the SJV, p. 

2. Together with the calculation 

methodology in the Neal 

memorandum,5 the annual inventory 

requirement in 3 CCR section 

6452.4(a)(1), and the reporting and 

recordkeeping requirements in sections 

6624 and 6626, it is the means for 

monitoring compliance of this 

emissions source (pesticide usage in the 

SJV) with its applicable emission limit 

of not more than 18.1 tons of VOC per 

day. 

Under the CAA and EPA regulations, 

a wide range of data and means of 

collecting data qualify as methods to 

monitor compliance. CDPR’s procedures 

for monitoring compliance with the 18.1 

tpd emission limit for VOC emissions 

from pesticides in the SJV fall squarely 

within this range. See, for example, 40 

CFR 64.1 (defining compliance 

monitoring to include emission 

estimation and calculation procedures). 

EPA considers the compliance 

monitoring associated with an emission 

limitation to be part of that limitation 

and, once incorporated into the SIP, 

enforceable under CAA sections 113 

and 304. Therefore, including the 

inventory calculation procedures along 

with the requirements for an annual 

emissions inventory report and 

recordkeeping and reporting by 

pesticide users (which collectively 

constitute the compliance monitoring 

procedures for the 18.1 tpd emission 

limit), in the SIP will make CDPR’s 

revised commitment for the SJV fully 

enforceable under CAA sections 113 

and 304. 

We also note that citizens seeking to 

enforce the revised commitment for the 

SJV under CAA section 304 are not 


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6These other provisions included the annual 

emissions inventory requirements in section 6452.4; 

the emissions inventory calculation methodology in 

section 6452.4(a)(1) and recordkeeping and 

reporting requirements for pesticide users in 

sections 6624 and 6626. We are approving each of 

these provisions into the California SIP. 

7The ‘‘General Preamble for the Implementation 

of Title I of the Clean Air Act Amendments of 

1990,’’ published at 57 FR 13498 on April 16, 1992, 

describes EPA’s preliminary view on how we 

would interpret various SIP planning provisions in 

title I of the CAA as amended in 1990, including 

those planning provisions applicable to the 1-hour 

ozone national ambient air quality standard 

(NAAQS). EPA continues to rely on certain 

guidance in the General Preamble to implement the 

8-hour ozone NAAQS under title I. 

8CDPR, ‘‘Staff Report on the Department of 

Pesticide Regulation’s Proposed SIP Commitment 

for San Joaquin Valley,’’ (‘‘CDPR staff report’’), p. 

4. 

restricted to using CDPR’s inventory 

procedures or CDPR-generated 

inventories to demonstrate a violation. 

Under the CAA and EPA regulations, 

citizens may use any credible evidence 

of violation to enforce a SIP-approved 

emission limitation under CAA section 

304. See CAA section 113, 40 CFR 

51.212(c) and 40 CFR 52.12 and 52.30. 

Comment: El Comite ́ comments that 

EPA proposes to find that the revised 

SIP commitment for the SJV is 

enforceable based on the Neal 

memorandum, citing to the proposed 

rule at 77 FR 24441, 24444. It then 

claims that EPA contradicts itself by 

stating the SIP revision is unenforceable 

because it does not commit to specific 

measures to ensure that the 18.1 tpd 

limit is not exceeded, citing to the 

proposed rule at 77 FR 24441, 24450. 

Response: We did not propose to find 

that the revised commitment for the SJV 

is enforceable based solely on the Neal 

memorandum. In the proposed rule, we 

cite not only to the Neal memorandum 

but also to several other provisions in 

CDPR’s submitted regulations 6 and to 

the fumigant application method 

regulations to find that the 18.1 tpd 

emission limit for the SJV is 

enforceable: 

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. 

This statement is consistent with the 

one later in the proposed rule that El 

Comite ́ claims contradicts it: 

Considered in isolation, the revised 

commitment for San Joaquin Valley changes 

the form of the commitment in the 1994 

Pesticide Element for the SJV but does not 

represent an enforceable measure for SIP 

purposes. However, when viewed in light of 

the CDPR’s regulations, the combination of 

the commitment and fumigant regulations 

does meet the minimum requirements for 

enforceability of SIP measures and 

reasonably ensures that the 12 percent 

emissions reduction target from the 1994 

Pesticide Element would be achieved in San 

Joaquin Valley. 

77 FR 24441, 24450. 

Comment: El Comite ́ argues that 

EPA’s proposal to approve the revised 

SIP commitment for SJV as enforceable 

conflicts with the Ninth Circuit’s 

decision in Warmerdam. They assert 

that in this decision, the Ninth Circuit 

did not allow citizens to ‘‘bootstrap’’ 

arguments of inventory manipulation to 

enforce a commitment to adopt 

regulations, citing Warmerdam at 1072– 

73. El Comite ́ argues that the revised SIP 

commitment is a discretionary 

commitment and that the CAA does not 

allow such discretionary commitments. 

Response: Our finding that the revised 

commitment for SJV is enforceable does 

not conflict with Warmerdam. In 

Warmerdam, the Ninth Circuit ruled 

that the baseline inventory could not be 

turned into an enforceable emission 

limitation by ‘‘bootstrapping it to the 

commitment to adopt regulations.’’ 

As explained above, except for the 

analysis required by CAA section 110(l), 

the SJV baseline (that is, the 1990 

baseline used to calculate the required 

level of emissions reductions) no longer 

has a purpose now that the State has set 

the maximum level of pesticide VOC 

emissions allowed in the SJV at a fixed 

18.1 tpd. Once that limitation is 

incorporated into the SIP, the 1990 

baseline inventory will be of historical 

interest only and neither it nor the 

calculation procedures used for it need 

to be enforceable in the future. We note 

that this will also be true for the 1990 

baseline inventory for Ventura County 

once we approve the fumigant 

regulations. 

CDPR’s revised SIP commitment for 

the SJV is not a discretionary 

commitment. As discussed above and in 

the proposed rule, the commitment 

(including the fixed 18.1 tpd limitation 

on pesticide VOC emissions in the SJV), 

the monitoring procedures necessary to 

determine compliance with it, and the 

fumigant regulations combine to be a 

fully enforceable program under the 

CAA once approved into the SIP. We 

note again that citizens may use any 

credible evidence to enforce the 

commitment and are not restricted to 

using inventories generated by the State. 

Comment: El Comite ́ argues that the 

revised commitment by CDPR to 

manage pesticides emissions in the SJV 

is unenforceable because it is 

impractical to determine whether 

emissions levels are exceeded because 

inventories are only available two years 

after the fact. They further argue that the 

emission controls should constantly 

limit pesticide VOC emissions and ‘‘not 

lag two years behind.’’ To support these 

arguments, El Comite ́ cites to the 

discussion of the fundamental 

principles for SIPs and control strategies 

found in the General Preamble at 

13567–13568,7 noting in particular the 

second principle relating to enforceable 

measures. They also cite to the General 

Preamble’s discussion of enforceability 

of SIP regulations at 13502. 

Response: El Comite ́ confuses two 

requirements: the requirement that an 

emission limitation assures continuous 

emissions reductions and the 

requirement for a practical means of 

determining compliance with that 

emission limitation. The cited sections 

of the General Preamble all address the 

latter requirement. We have reviewed 

CDPR’s revised SIP commitment for the 

SJV against the criteria for enforceability 

given in the General Preamble and 

determined that it meets them. See TSD, 

section III.B., Response B–6. 

As to the requirement for continuous 

emissions reductions, we cannot 

consider the 18.1 tpd emission limit for 

the SJV as unrelated to the fumigant 

regulations. Not only do the fumigant 

regulations contain the reporting and 

recordkeeping requirements necessary 

for monitoring compliance with the 

limit, they also contain the principal 

control requirements for maintaining 

pesticide VOC emissions in the SJV 

under that limit. CDPR considers the 1.5 

tpd in emissions reductions from the 

application method restrictions in the 

fumigant regulations to be sufficient to 

meet the SJV limit in a typical year.8

These restrictions apply throughout the 

May 1 to October 30 regulatory season 

and thus provide for continuous 

emissions reductions during that 

season. 

As a practical matter, CDPR produces 

the inventories as soon as practicable 

given the size and complexity of the 

source at hand (pesticide usage in the 

SJV), the sheer amount of data that must 

be evaluated, and the requirement in 3 

CCR section 6452.4(b) that the public be 

given 45 days to comment on the draft 

inventories. 

C. Approval of the Revised Pesticide 

Element for SJV Under CAA Section 

110(I) 

Comment: El Comite ́ comments that 

the commitment in the existing 1994 

Pesticide Element is both a tonnage 

commitment in an areas’ attainment 

year and a percentage commitment: 13 


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9As these terms are used in this document, the 

‘‘1994 Pesticide SIP’’ is the State Implementation 

Plan for Agricultural and Commercial Structural 

Pesticides, November 15, 1994 which was 

submitted as part of the 1994 California State 

Implementation Plan for Ozone (‘‘1994 California 

Ozone SIP’’). The 1994 Pesticide SIP is incorporated 

at 40 CFR 52.220(c)(204)(i)(A)(6). The 1994 

California Ozone SIP was approved at 62 FR 1150 

(January 8, 1997). The ‘‘Boyd Letter’’ is the letter 

from James Boyd, CARB’s Executive Officer to 

David Howekamp, Air and Toxics Division 

Director, EPA Region 9, June 13, 1996. This letter 

and its appendices are incorporated at 40 CFR 

52.220(c) (236). The 1994 Pesticide SIP and the 

Boyd Letter collectively constitute the ‘‘1994 

Pesticide Element.’’ 

tpd reduction by 1999 and 20 percent 

reduction from 1990 by 2005 in the SJV. 

Response: We agree that the 

commitment in the 1994 Pesticide 

Element 9 is both a tonnage commitment 

and a percentage commitment, and we 

agree that the ton per day reduction 

called for in the Element is 13 tpd. 

Where EPA disagrees with El Comite ́ is 

that EPA has concluded that the 

percentage commitment corresponds to 

the tonnage commitment in that they 

both relate directly to the attainment 

needs of SJV in achieving the 1-hour 

ozone standard by 1999 as anticipated 

by California in 1994 and 1996 in 

developing its Ozone SIP, and approved 

by EPA in 1997 when EPA approved 

that plan. 

We explained the basis for our 

conclusion in this regard on pages 

24446–24447 of the proposed rule. First, 

we note that the Boyd Letter, while 

clarifying certain other aspects of the 

Pesticide Element, introduced an 

ambiguity in the percentage 

commitment for SJV by stating, in the 

same paragraph, that the commitment in 

each SIP area (which in this context 

presumably includes SJV) is for a 20 

percent reduction from 1990 to 2005 

and that the credit taken in SJV is 12 

percent. 

To resolve this ambiguity, EPA is 

taking into account the words of the 

1994 Pesticide Element itself and the 

words of EPA’s final rule approving the 

1994 California Ozone SIP, including 

this Element. 

First, the 1994 Pesticide SIP 

committed CDPR to a ‘‘maximum of 20 

percent’’ reduction in pesticide VOC 

emissions from 1990 baseline levels in 

areas ‘‘which reference VOC 

reductions’’ from the element in their 

plans. See 1994 Pesticide SIP, p.1. In the 

case of SJV, the ‘‘plan’’ that references 

VOC reductions from the Pesticide 

Element is the attainment 

demonstration plan for SJV in the 1994 

California Ozone SIP, and it took credit 

for a 12 percent (not a 20 percent) 

reduction in baseline emissions from 

1990. 

Second, the Pesticide SIP states: 

‘‘[t]he plan offers the flexibility to 

achieve reductions of less than 20 

percent by the year 2005 in air districts 

if less pesticide VOC emission 

reductions are needed.’’ Id. At the time 

when the 1994 California Ozone SIP 

was adopted and approved, the 

applicable attainment date for SJV was 

1999, and the 1994 California Ozone 

SIP, as ultimately approved, took credit 

for only a 12 percent reduction in 

pesticide VOC emission in that area 

because that was all that the attainment 

demonstration at the time called for 

from that source category. By its terms, 

the 1994 Pesticide SIP was developed 

specifically to be flexible enough to 

provide for a less-than-20 percent 

reduction in areas that did not need the 

full 20 percent to meet attainment 

needs. 

Third, in EPA’s final rule approving 

the 1994 California Ozone SIP (and the 

related 1994 Pesticide Element), we 

summarized our understanding of the 

emissions reduction commitments in 

the Pesticide Element as follows: ‘‘As 

described in the SIP, California has 

committed to adopt and submit to U.S. 

EPA by June 15, 1997, any regulations 

necessary to reduce VOC emissions 

from agricultural and commercial 

structural pesticides by 20 percent of 

the 1990 base year emissions in the 

attainment years for Sacramento, 

Ventura, Southeast Desert, and the 

South Coast, and by 12 percent in 1999 

for the San Joaquin Valley.’’ See 62 FR 

at 1150, at 1170 (January 8, 1997). 

Therefore, in view of the overall design 

and purpose of the 1994 Pesticide 

Element and EPA’s understanding of the 

commitments in the Element at the time 

of the approval of the Element into the 

California SIP, we have concluded that 

the approved Pesticide Element 

includes a 12 percent emissions 

reduction commitment in SJV, not a 20 

percent emissions reduction 

commitment. 

Comment: El Comite ́ comments that 

the plain language of the 1994 Pesticide 

SIP and the [Boyd] Letter together 

commit to achieve a 20 percent 

reduction of pesticide VOC from 1990 

levels by 2005, and EPA’s approval of 

the revised SIP commitment for SJV will 

violate section 110(l) because CDPR and 

CARB have failed to demonstrate the 

change in the commitment to 12 percent 

will not interfere with attainment, 

reasonable further progress (RFP), or 

any other requirements of the CAA. 

They also comment that EPA’s finding 

that the existing commitment is for 12 

percent (rather than 20 percent) and 

that, as a result, approval of the revised 

SIP commitment for SJV would not 

violate section 110(l), has no basis in the 

plain language of the SIP, and is 

contrary to the Ninth Circuit’s decision 

in Safe Air for Everyone v. EPA, 488 

F.3d 1088 (9th Cir. 2007). 

Response: As discussed above, EPA 

believes that the SIP commitment in the 

1994 Pesticide SIP (as modified by the 

Boyd Letter) for SJV is ambiguous and 

thus subject to interpretation. We have 

interpreted the 1994 Pesticide SIP and 

Boyd Letter, in light of the language of 

both and do not find any one sentence 

of either document to be a definitive 

statement as to the commitment in SJV. 

Rather, in light of CDPR’s stated 

purposes and design of the 1994 

Pesticide Element itself, and the 

reliance on it by California in 

demonstrating attainment of the SJV by 

1999 with respect to the 1-hour ozone 

standard, we have concluded that, 

consistent with EPA’s language in 

approving the 1994 Pesticide Element, 

that the commitment is a 12 percent 

commitment in SJV. Thus, we do not 

view our approval of the revised SIP 

commitment for SJV as a relaxation in 

the California SIP because it would 

result in the same emissions reductions 

as would result under the existing 

approved California SIP Pesticide 

Element. 

Our conclusion in this regard is not 

contrary to the Ninth Circuit’s decision 

in the Safe Air case cited by El Comite ́. 

As noted by El Comite ́, in Safe Air, the 

Ninth Circuit held that the content of a 

SIP is based on its ‘‘plain meaning when 

such a meaning is apparent, not absurd, 

and not contradicted by the manifest 

intent of EPA, as expressed in the 

promulgating documents available to 

the public.’’ Safe Air for Everyone v. 

EPA, 488 F.3d 1088, at 1100 (9th Cir. 

2007). In this instance, the meaning of 

the 1994 Pesticide Element’s percent 

reduction SIP commitment for SJV is 

not ‘‘plain,’’ and even if it were, it is 

‘‘contradicted by the manifest intent of 

EPA, as expressed in the promulgating 

document available to the public,’’ i.e., 

EPA’s 1997 final rule approving the 

1994 Pesticide Element into the 

California SIP. Thus, EPA’s 

interpretation of the Element’s percent 

reduction SIP commitment for SJV in 

the context of this rulemaking is 

consistent with the Ninth Circuit’s 

decision in Safe Air and consistent with 

EPA’s stated interpretation in 1997 of 

this same commitment. 

As to CAA section 110(l), relative to 

California’s and EPA’s interpretation of 

the Pesticide Element to require a 12 

percent reduction in pesticide VOC 

emissions in (rather than 20 percent) 

from a 1990 baseline, we have 

concluded that the revised SIP 


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10See CDPR staff report, p. 4. The 0.7 tpd is 

calculated as 88 percent of 20.6 tpd minus 88 

percent of 19.8 tpd. The value of 20.6 tpd represents 

1990 baseline emissions estimated using 1990 PUR 

data and 19.8 tpd represents 1991 baseline 

emissions estimated using 1991 PUR data. 

11For 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). 

commitment for SJV would result in, at 

a minimum, the same emissions 

reductions that are currently required 

under the approved SIP, and neither the 

approved 8-hour ozone plan nor the 

approved PM2.5 plan for SJV rely on 

emissions reductions due to the 

Pesticide Element. As such, we have 

also concluded, as we did for the 

proposed rule, that our approvals of the 

fumigant regulations and revised SIP 

commitment for SJV will not interfere 

with attainment and RFP or any other 

applicable requirement of the CAA and 

thus comply with the requirements of 

CAA section 110(l). See 77 FR 24441, at 

24447. 

Comment: El Comite ́ comments that 

an approval of the revised SIP revision 

would violate CAA section 110(l) 

because neither CDPR nor CARB has 

demonstrated that the SIP revision does 

not backslide when it changes the 

manner by which the 1990 baseline 

inventory is calculated. They contend 

that the 1994 Pesticide Element 

committed CDPR to using the 1991 

Pesticide Use Report (PUR) data to 

estimate the 1990 baseline inventory 

because ‘‘such data is more accurate 

than 1990 PUR data.’’ 

Response: CAA section 110(l) does 

not prohibit any backsliding and does 

not bar approval of a SIP revision based 

solely on a state’s failure to accompany 

the revision with a demonstration of 

non-interference. Section 110(l) only 

prohibits backsliding that would 

interfere with any applicable 

requirement of the CAA. 

As stated above, we have concluded 

that the emissions reduction 

commitment in SJV under the existing 

SIP is 12 percent from 1990 levels, not 

20 percent, and thus, the establishment 

of a 18.1 tpd limit (which represents a 

12 percent reduction from 1990) 

through this SIP revision would result 

in the same emissions reductions from 

pesticide VOC emissions as required 

under the existing SIP. 

We reviewed the language of the 

existing Pesticide SIP itself to see 

whether it could be reasonably 

interpreted to allow for use of 1990 PUR 

data, rather than 1991 PUR data, to 

determine whether the establishment of 

the 18.1 tpd limit (determined using 

1990 PUR data) represents a revision to 

the SIP that would result in an 

emissions impact. If the existing SIP 

could be reasonably interpreted to allow 

for use of 1990 PUR data, then no 

emission impact would result. 

The 1994 Pesticide SIP requires that 

a 1990 baseline inventory be used to 

determine the level of emissions 

reductions needed: ‘‘[t]his plan is 

designed to reduce volatile organic 

compound (VOC) emissions from 

agricultural and commercial structural 

pesticide applications by a maximum of 

20 percent from the 1990 baseline 

* * *.’’ p. 1. The 1994 Pesticide SIP is 

clear that this 1990 baseline inventory is 

to represent conditions in 1990: 

• ‘‘The base year inventory will be 

created from the 1991 Pesticide Use 

Report and then adjusted by a factor to 

represent the 1990 base year.’’ p. 5; 

• ‘‘In cooperation with DPR, [CARB] 

will develop a baseline inventory of 

estimated 1990 pesticidal VOC 

emissions based on 1991 pesticide use 

data, adjusted to represent the 1990 base 

year.’’ p. 6; 

• ‘‘The baseline inventory will be 

calculated by summing the estimated 

1990 emissions of each agricultural and 

commercial structural use pesticide.’’ p. 

6; 

• ‘‘[Estimated 1990 e]missions will be 

calculated by multiplying the VOC 

Emissions Factor value for each product 

by the adjusted use of that product in 

1990.’’ p. 5. 

The 1994 Pesticide SIP also 

emphasizes the use of the best available 

information to calculate the inventory, 

including in the rationale for using the 

1991 PUR data in lieu of the 1990 data. 

It also allows (on page 6) for ‘‘further 

adjust[ments] by additional VOC 

Emission Factors if additional 

information becomes available.’’ While 

this statement applies to VOC emission 

factors, it would be counter-intuitive to 

limit adjustments to just this type of 

data if the primary interest is to produce 

the best possible assessment of pesticide 

VOC emissions in the 1990 base year. 

In the 1994 Pesticide SIP (page 5), 

CDPR stated it would use the 1991 PUR 

data (backcasted to represent 1990) as 

the starting point for calculating the 

1990 baseline inventory because ‘‘[i]t is 

believed that the 1991 pesticide use 

report would be a more accurate source 

to determine 1990 pesticidal VOC 

emissions.’’ CDPR did not concede that 

the 1991 PUR data was more accurate 

and thus left open the option to use 

1990 PUR data to calculate the 1990 

baseline inventory if that data was 

determined to be more or similarly 

accurate. CDPR would later determine 

that the data for the two years was in 

fact of similar accuracy. This 

determination weakens any reading that 

the SIP mandates the use of the 1991 

PUR data, given the SIP’s emphasis on 

the 1990 baseline inventory reflecting 

1990 conditions and on the use of the 

best available data. 

We also observe that the use of 

unbackcasted 1991 PUR data to 

calculate the baseline inventory results 

in a 1991 baseline inventory. Using a 

1991 baseline inventory to set SJV’s (or 

any area’s) pesticide VOC emission 

limit, as El Comite ́ advocates, would 

conflict with the plain language of the 

1994 Pesticide SIP, which indisputably 

requires that these emission limits be set 

from a 1990 baseline. 

For these reasons, we conclude that 

the existing Pesticide Element does 

allow for the use of 1990 PUR data to 

determine 1990 baseline emissions, and 

thus, the establishment of an 18.1 tpd 

emission limit in the Valley that derives 

from 1990 PUR does not represent a 

revision to the SIP that results in higher 

emissions than would be allowed under 

the existing Pesticide Element. 

For the purposes of this response, we 

have also investigated further the 

possibility that unbackcasted 1991 PUR 

data is required under the existing SIP 

and that use of 1990 PUR data would 

result in a higher limit than one 

resulting from the use of unbackcasted 

1991 PUR data to establish the baseline 

emissions. To do this, we used 

information from the CDPR staff report 

on the revised SIP commitment for SJV 

to isolate the potential emissions impact 

of using 1990 PUR data rather than 

unbackcasted 1991 PUR data and 

calculated the difference to be 0.7 tpd.10

In other words, if unbackcasted 1991 

PUR data were required to be used in 

connection with establishing baseline 

VOC emissions from agricultural and 

commercial structural applications, 

then, based on data in the CDPR staff 

report, the corresponding limit in SJV 

(ensuring a 12 percent reduction) would 

be 17.4 tpd, 0.7 tpd lower than the 18.1 

tpd limit developed using 1990 PUR 

data. 

Alternatively, based on this analysis, 

we find that, even if the existing SIP 

required the use of unbackcasted 1991 

PUR data to calculate the baseline and 

the use of the 1990 PUR data 

represented a revision to the SIP, we 

find that the potential emissions impact 

(0.7 ton per day of VOC higher limit) of 

using 1990 PUR data instead would not 

interfere with RFP or attainment of the 

NAAQS, for the following reasons.11 As 

to ozone, we note that the approved 

1997 8-hour ozone plan for SJV shows 

how the plan provides for VOC and 

NOX reductions that surpass RFP 

requirements and provides for 


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expeditious attainment even without 

considering any VOC reductions from 

pesticides. See 76 FR 57846, 57861 and 

57858 (September 16, 2011) and 77 FR 

12652 (March 1, 2012). The SJV area has 

recently been designated as extreme 

nonattainment for the 2008 8-hour 

ozone NAAQS, but the nonattainment 

plan for that standard is not due until 

2015. See 77 FR 30088 (May 21, 2012) 

and 40 CFR 51.908. 

As to particulate matter (PM), we 

reiterate our observation from our 

proposed rule (at page 24447) that EPA 

has determined that VOC controls are 

not required for PM control in the SJV. 

See 72 FR 20586, 20589 (April 25, 

2007); 69 FR 30006, 30007 (May 26, 

2004); and 76 FR 69896, 69924 

(November 9, 2011). In addition, we 

note that while the EPA-approved PM 

plans do not address the 2006 PM2.5

NAAQS for which the SJV has also been 

designated as ‘‘nonattainment,’’ 74 FR 

58688 (November 13, 2009), the 

nonattainment plan for the 2006 PM2.5

NAAQS is not due until December 2012. 

Comment: El Comite ́ asserts that 

because the 1994 Pesticide Element 

calls for year-round reductions, 

approval of the revisions would violate 

CAA section 110(l) because neither 

CDPR nor CARB has demonstrated that 

the SIP revision does not backslide 

when the SIP revision only calls for 

seasonal (May through October) 

controls. 

Response: CAA section 110(l) does 

not prohibit any backsliding and does 

not bar approval of a SIP revision based 

solely on a state’s failure to accompany 

the revision with a demonstration of 

non-interference. Section 110(l) only 

prohibits backsliding that would 

interfere with any applicable 

requirement of the CAA. 

El Comite ́ provides no support for 

their position that the 1994 Pesticide 

Element requires year-round reductions. 

They do not cite to specific language in 

the Element and make no arguments as 

to why it should be interpreted to 

require year-around reductions. In our 

review of the 1994 Pesticide Element, 

we find nothing in it that directly 

addresses the issue of year around 

versus seasonal controls. Even with the 

most generous reading, the 1994 

Element is at best ambiguous on the 

subject. This issue is also not directly 

addressed in EPA’s rulemakings on the 

1994 Ozone Plan. For these reasons, we 

have looked to California’s stated 

purpose for including the 1994 Pesticide 

Element in its SIP and how the State 

relied on the emissions reductions from 

the Element to discern the best 

interpretation of its requirements 

regarding seasonality. 

California submitted the 1994 

Pesticide Element as part of its 

comprehensive plan to meet the 1-hour 

ozone standard and included reductions 

from this measure in the attainment 

demonstrations for the South Coast, 

Southeast Desert, Ventura County, SJV, 

and Sacramento nonattainment areas. 

From the language of the 1994 Pesticide 

Element itself, the reason for including 

a measure to reduce pesticide VOC 

emissions in the SIP was to address 

pesticide’s contribution to ozone 

formation. See 1994 Pesticide SIP, p. 1. 

Ozone is a seasonal pollutant with 

unhealthy levels being recorded mainly 

in the summer months when conditions 

are most conducive to its formation. The 

seasonality of ozone standard 

exceedances is reflected in EPA’s 

policies and regulations that require 

ozone SIPs to include summer season 

inventories. See, for example, EPA’s 

General Preamble at 57 FR 13498, 

13502. 

We described California’s definition 

of its ‘‘summer season’’ (that is, its 

ozone season) in our proposed approval 

of the 1994 Ozone SIP as being from 

May through October. See 61 FR 10920, 

10937. Consistent with the summer 

season being the period of concern for 

ozone, all the emissions inventories, the 

rate of progress demonstrations, and the 

attainment demonstrations in the 1994 

Ozone SIP are expressed in tons per 

summer day. See, for example, 61 FR 

10920, 10943–44. Estimates of 

emissions reductions from measures are 

also expressed in tons per summer day. 

Taken together, these facts argue that 

the 1994 Pesticide Element as approved 

can be reasonably interpreted to apply 

only to the ozone season. As we noted 

above, this ozone season was defined by 

California in its 1994 Ozone SIP as 

being from May to October, the exact 

period that the fumigant regulations and 

the revised pesticide commitment for 

SJV cover. We, therefore, find that 

approval of these SIP revisions does not 

violate CAA section 110(l) on the basis 

that they provide for seasonal controls 

only. 

D. Enforceability of the Fumigant 

Regulations 

Comment: El Comite ́ alleges that the 

fumigant regulations are not enforceable 

because they do not guarantee that 

citizens and EPA have access to data to 

evaluate pesticide users’ compliance 

with the fumigant application methods 

or permits issued by County 

Agricultural Commissioners (CAC). 

Response: Under the fumigant 

regulations, applicators (farm operators 

or pest control businesses) are required 

to limit their use of fumigant-specific 

application methods during May 1- 

October 31 to those methods specified 

in the regulations. An applicator 

demonstrates compliance with the 

regulations by reporting the details of 

each fumigant application (e.g. the 

permittee/property operator, operator 

ID/permit number, acres planted, acres 

treated, application method, crop, date, 

time, and location) to the CAC, which 

in turn, provides the data to CDPR. As 

El Comite ́ acknowledges, the public can 

obtain PUR data by making a California 

Public Records Act (CPRA) request to 

the CAC or CDPR. In addition, CDPR 

makes the PUR data available 

electronically to the public for free at 

the California Pesticide Information 

Portal (CalPIP) Web site at http:// 

calpip.cdpr.ca.gov/main.cfm. The fact 

that the public has free online access to 

individual and summary PUR data 

enhances enforceability as compared to 

other SIP regulations, for which the data 

may be only accessible through a CPRA 

request. 

We note again that citizens are not 

limited to enforcing based solely on 

records reported by sources. Under 

applicable CAA and regulatory 

provisions, any credible evidence of 

violation may be used. Such credible 

evidence might include, for example, 

photographs of a fumigant application 

taken from a public road. 

Comment: El Comite ́ states that the 

two-year record retention time in 3 CCR 

section 6624(g) severely undermines 

enforceability of the fumigant 

regulations because PUR data may no 

longer be available by the time CDPR 

publishes its Annual Emissions 

Inventory Report, up to two years later. 

Response: The PUR data used to 

determine compliance with the 

fumigant regulations and to support 

enforcement is available to regulators 

and the public well before the two-year 

user retention provision ends. The 

fumigant regulations require the 

property operator to submit a PUR to the 

CAC by the 10th of the month following 

each fumigant application. Pest control 

businesses must submit the PUR to the 

CAC within 7 days of the application. 

See 3 CCR section 6626(a) and (b). The 

public can request PUR data from the 

CAC as soon as the PUR is submitted. 

The CAC must submit to CDPR a copy 

of each PUR received, and any other 

relevant information required by CDPR, 

within one calendar month after the 

CAC receives it. See California Food and 

Agricultural Code (CFAC) section 

14012(b). CDPR publishes the PUR data 

online approximately one year after the 


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12Memorandum, Nancy Levin, EPA Region 9, to 

Docket EPA–R09–OAR–2012–0194, August 10, 

2012, Subject: Summary of July 16, 2012 conference 

call between EPA and California Department of 

Pesticide Regulation. 

13CAA section 302(k) defines the terms 

‘‘emission limitation’’ and ‘‘emission standard’’ to 

include a design, equipment, work practice or 

operational standard. 

14See, for example, SJVUAPCD Rule 4622 

Gasoline Transfer Into Motor Vehicle Fuel Tanks 

(amended December 20, 2007), approved 74 FR 

56120 (October 30, 2009). 

15See, for example, SJVUAPCD Rule 4570 

Confined Animal Facilities (amended October 21, 

2010), approved 77 FR 2228 (January 17, 2012); 

Rule 4103 Open Burning (amended May 14, 2010), 

approved, 77 FR 214 (January 4, 2012); Rule 4550 

Conservation Management Practices (amended 

August 19, 2004), approved 71 FR 7683 (February 

14, 2006). 

16EPA Region 9, Guidance Document for 

Correcting Common VOC & Other Rule 

Deficiencies, (a.k.a., Little Bluebook), August 21, 

2001. 

17We note that EPA has approved a limited 

number of other SIP rules addressing similar 

regulatory programs allowing for director’s 

discretion to approve alternate methods of 

compliance, provided that emissions are no greater 

than other approved methods. See, for example, 

SJVUAPCD Rule 4550 Conservation Management 

Practices (amended August 19, 2004), Section 

6.2.3.2; approved 71 FR 7683 (February 14, 2006). 

18Usually there are several different types of 

application methods used for a particular fumigant 

in any particular NAA. Each method of use (e.g. 

drip, sprinkler, shank, tarp, etc.) represents a 

growing season ends.12 The PUR data, 

which is an input to the Annual 

Emissions Inventory Report, is not 

destroyed after two years, but rather it 

is retained and available on an on-going 

basis in CDPR’s publicly-available, free 

and online PUR database at http:// 

calpip.cdpr.ca.gov/main.cfm. 

Comment: El Comite ́ states that there 

are no monitoring provisions that would 

allow for an evaluation of whether the 

pesticide user met the emissions 

reductions specified for each fumigant 

application method or whether the user 

complied with a fumigant VOC 

emission limit. 

Response: No such monitoring 

provisions are needed because the 

fumigant regulations do not require that 

an individual pesticide user meet either 

specific emissions reductions or the 

fumigant emission limit. Rather, they 

prohibit the use of certain fumigant 

application methods during the peak 

ozone season. In this way the fumigant 

regulations are similar to other 

regulations that require (or prohibit) use 

of certain control measures or work/ 

management practices but do not 

otherwise require the source to meet 

specific numerical emission limits.13

EPA has approved many regulations 

that require the use of specific control 

methods, rather than a specific emission 

limit. For example, SIP regulations 

require gasoline stations to install preapproved vapor recovery devices but do 

not concurrently require them to meet 

an emission limit.14 SIP rules for 

confined animal feeding operations, 

open burning, and agricultural fugitive 

dust are examples of regulations that 

require the use of specific management 

practices rather than compliance with a 

specific emission limit, similar to 

CDPR’s pesticide regulations.15

Under the SIP, fumigant VOC 

emission limits will apply only in 

Ventura County. 3 CCR section 6452.2. 

Ventura County’s overall pesticide VOC 

emission limit is monitored through the 

annual emissions inventory that is 

calculated by CDPR and not by 

individual pesticide users. Section 

6452.4(a)(2). If pesticide VOC emissions 

in a given year approached or exceeded 

the limit, then CDPR and Ventura 

County CAC are required to implement 

a fumigant limit/allowance system and 

to condition or deny restricted use 

permits to limit fumigant VOC 

emissions until overall pesticide VOC 

emissions, as reported in the annual 

emissions inventory, fall back below the 

limit for two consecutive years. Id. 

Comment: El Comite ́ states that the 

regulations are not federally enforceable 

because they fail to require sources to 

comply with new permit conditions 

should the fumigant VOC emission limit 

and allowance system be triggered 

under 3 CCR section 6452.2. 

Response: The requirement to 

condition permits to comply with a 

fumigant VOC emission limit is only 

applicable to Ventura County under the 

SIP. Section 6452.2(e) prohibits a person 

from applying a field fumigant during 

the ozone period once the fumigant 

VOC emission limit is established 

unless their restricted material permit 

includes a field fumigant emission 

allowance or the notice of intent (NOI) 

to apply a fumigant is approved in 

writing. In addition, section 6452.2(c) 

requires that if Ventura County’s 

fumigant VOC limit is triggered, the 

CAC must condition or deny permits in 

such a manner to assure that the 

fumigant VOC emission limit is not 

exceeded. These sections, which are 

being incorporated into the SIP, are 

sufficient for federal enforceability. 

Comment: El Comite ́ argues that 3 

CCR section 6452(b) provides for 

improper director’s discretion for 

alternative methods, noting, in 

particular, the lack of explicit and 

replicable procedures for determining 

whether the scientific data demonstrates 

that the alternative method’s emissions 

rates are no greater than other methods 

allowed under the regulations. 

Response: EPA has determined that 

the director discretion in section 

6452(b) is not a basis for disapproval 

given the restrictions placed on the 

CDPR Director’s ability to approve 

alternative methods and given the 

limited history of regulating fumigant 

application methods to reduce VOC 

emissions. See TSD, section II.E. 

EPA’s general policy regarding 

director’s discretion is stated in 52 FR 

45109 (November 24, 1987). Provisions 

allowing for a degree of state director 

discretion may be considered 

appropriate if explicit and replicable 

procedures within the rule tightly 

define how the discretion will be 

exercised to assure equivalent emissions 

reductions.16 Under section 6452(b), a 

request for approval of an alternative 

application method must be 

accompanied by scientific data 

documenting the VOC emissions 

reductions (section 6452(b)(1)) and no 

alternative method may be approved if 

its emission rate and the maximum 

emission rate are greater than those for 

any method already specified in the 

regulations for use in the area for that 

fumigant (section 6452(b)(1)(A) and (B)). 

Section 6452(c) also explicitly requires 

the CDPR Director to evaluate the 

submitted scientific data to determine 

whether: (1) The data and information 

provided are sufficient to estimate 

emissions; (2) the results are valid as 

indicated by the quality control data; 

and (3) the conditions studied represent 

agricultural fields fumigated. A notice of 

interim approval of an alternative 

method must be published on CDPR’s 

Web site (section 6452(d)) and interim 

approvals expire after three years 

(section 6452(e)). In addition, we note 

that all pesticide users are required by 

law to follow the federal label, state 

regulations, and permit conditions at 

the county level (CFAC section 12973). 

These provisions appropriately limit the 

CDPR director’s discretion.17

E. Pesticide Emissions Inventories 

Comment: El Comite ́ comments the 

Method Usage Fractions (MUF) for the 

1991 and 2004 inventories do not have 

a factual foundation in the PUR. They 

also comment that the validity of the 

MUF for the 1991 inventory for all 

fumigants but 1,3-dichloropropene are 

not verifiable and that CDPR has not 

presented any evidence supporting its 

estimates of historical fumigant 

application methods, nor has it made 

public the details of the process by 

which this information was obtained. 

Response: The PUR reports were not 

required to list the fumigation 

application method prior to 2008; 

therefore, it is not possible to base the 

MUF of the PUR prior to that year.18 We 


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fraction of the total number of methods used and 

is referred to as the Method Use Fraction (MUF). 

The sum of all MUFs for any particular (NAA/ 

fumigant AI) combination is one. See Rosemary 

Neal, Ph.D., Frank Spurlock, Ph.D., and Randy 

Segawa, California Department of Pesticide 

Regulation, ‘‘Annual Report on Volatile Organic 

Compound Emissions from Pesticides: Emissions 

For 1990—2010,’’ Revised, June, 2012 (‘‘Revised 

2010 Pesticide VOC Emissions Report’’), p. 13. 

19Memorandum, Terrell Barry, Ph.D., et al., 

CDPR, to John Sanders, Ph.D., CDPR; ‘‘Pesticide 

Volatile Organic Compound Emission Adjustments 

for Field Conditions and Estimated Volatile Organic 

Compound Reductions-Revised Estimates;’’ 

September 29, 2007. 

20See CDPR, Rulemaking File For Regulations 

Filed and in Effect on January 8, 2008; Final 

Statement of Reasons, Attachment A: Summary of 

Comments Received During the 45-Day Comment 

Period and DPR’s Response. 

21CARB, Environmental Analysis for the 

Proposed Revision to the Pesticide Commitment of 

the 1994 Ozone SIP for the Ventura County 

Nonattainment Area, Revised August 13, 2007 

(‘‘CARB August 2007 Environmental Analysis’’). 

22CDFA, Disbursement of Residual Mill 

Assessment Funds To Enhance Local Pesticide 

Enforcement Programs, May 2006, found at http:// 

www.cdfa.ca.gov/exec/county/documents/

DISBURSMENT_OF_RESIDUAL_

MILL_ASSESSMENT_FUNDS_TO_ENHANCE.pdf. 

23Email and attachment from Ken Everett, CDPR 

to Nancy Levin, EPA, August 1, 2008. 

note that the 1990, 1991 and 2004 

inventories do not have any relevance to 

today’s action. 

CDPR has provided a detailed 

explanation of its process for 

determining the frequency of use of 

historical fumigant methods for the 

1991 inventory as well as the 1990 

inventory (which is the basis for 

calculating reductions) in the Barry 

memorandum.19 Prior to 2008, the MUF 

were based on grower/applicator 

surveys, use data, expert opinion, and 

regulatory history. Since 2008, 

applicators have been required to report 

application methods on the PUR, so 

recent MUF calculations are based on 

empirical data. EPA has been presented 

with no evidence to dispute that CDPR 

used best available data to develop the 

MUF for the baseline inventory. 

Comment: El Comite ́ comments that 

CDPR’s Application Method Adjustment 

Factors (AMAF) are based on 

unrepresentative field fumigation 

studies conducted in other states under 

cool soil conditions and therefore do not 

provide an accurate estimate of 

emissions from California fumigations 

conducted at high temperatures in the 

Central Valley during the peak ozone 

season from May to October. They also 

comment that studies conducted under 

worst-case scenarios have been 

excluded from the group of studies on 

which the fumigant application 

regulations are based. 

Response: Similar comments were 

raised to CDPR during the comment 

periods prior to the adoption of the 2008 

fumigant regulations and to CARB 

during the comment period prior to the 

adoption of the 2007 State Strategy 

(specifically on the revisions to the 1994 

Pesticide Element for Ventura County 

that were included as Appendix H to 

the State Strategy). CDPR responded to 

these comments in the final Barry 

Memorandum (pp. 15–17) and in its 

response to comments on its proposed 

regulations.20 CARB also provided 

responses.21 Both stated that the studies 

included had been reviewed and 

accepted as sufficient to provide reliable 

data and were conducted under a 

variety of conditions and locations. 

Comment: El Comite ́ comments that 

(1) the field studies of AMAF have 

highly variable results even among 

similar studies and are therefore highly 

uncertain and that previous reviews 

have noted uncertainties in AMAF 

estimates and concluded that some 

AMAF proposed by CDPR were not 

conservative enough. They also 

comment that because the natural 

variability in flux rates (the rate at 

which the fumigant escapes from the 

soil) is large, a single study (or even 

several studies) will not provide an 

accurate estimate of actual emissions. 

Response: CDPR responded to similar 

comments made during the 45-day 

comment period on the initial proposal 

of the fumigant regulations in July 2007. 

It agreed that flux rates vary and that the 

Department has chosen to average flux 

rates to get the most accurate picture of 

overall emissions. Their response, 

which is supported by CARB, is as 

follows: 

DPR agrees that the variability in flux rates 

(emissions) between applications is large. For 

fumigants and application methods with 

multiple studies, the standard deviations of 

the emissions are approximately 50 percent. 

DPR has chosen to use the average flux rates 

to estimate emissions for three reasons. First, 

the emissions inventory represents the 

aggregate emissions from all agricultural and 

structural pesticide applications within a 

region over several months. The average flux 

rates represent the most accurate estimate of 

aggregate emissions. Second, all pesticide 

applications included in DPR’s inventory 

represent its most accurate and consistent 

estimate of emissions, for both the base year 

and subsequent years. Using a consistent 

method to estimate emissions is essential for 

making relative comparisons and 

determining compliance with the SIP 

commitments. Using the most accurate 

estimates for some applications and high-end 

estimates for other applications would skew 

the inventory and make relative comparisons 

unreliable. Third, even if DPR were to use 

high-end emission estimates, they would 

affect both current emissions and emissions 

for the 1991 base year. Estimates of the 1991 

base year emissions are generally more 

uncertain, than current emissions. DPR 

would likely apply a larger uncertainty factor 

to the 1991 base year than current emissions, 

and the emissions reductions achieved 

would be larger than currently estimated 

using the average flux rates. 

See CDPR, Rulemaking File For 

Regulations Filed and in Effect on 

January 8, 2008; Final Statement of 

Reasons, Attachment A: Summary of 

Comments Received During the 45-Day 

Comment Period and DPR’s Response. 

Therefore, we conclude that CDPR 

took a reasoned approach to establishing 

AMAF based on the available science. 

F. Necessary Assurances Under CAA 

Section 110(a)(2)(e) 

Comment: El Comite ́ states that the 

fumigant regulations are unenforceable 

because they do not provide a funding 

mechanism, and because CDPR has not 

demonstrated under CAA section 

110(a)(2)(E) that the state and CAC have 

adequate personnel, funding and 

authority to implement and enforce the 

regulations. 

Response: We disagree that the 

fumigant regulations are unenforceable 

if they do not provide a mechanism to 

fund enforcement. Nothing in the CAA 

or EPA regulations require a SIP rule to 

include a rule-specific funding 

mechanism in order to be enforceable. If 

that were so, every SIP-approved rule 

would need to contain a specific 

funding mechanism before EPA could 

incorporate into SIP, which is not the 

case. 

CAA section 110(a)(2)(e) requires 

states to provide ‘‘necessary assurances 

that the State * * * will have adequate 

personnel, funding, and authority under 

State (and, as appropriate, local) law to 

carry out such implementation plan.’’ 

CDPR has provided sufficient assurance 

that it has adequate funding (as well as 

personnel and authority) to implement 

the regulations. 

CDPR funds CAC on an annual basis 

to conduct inspections and enforcement 

activities. Funding derives from an 

assessment on pesticide sales. CDPR 

collects 21 mill (or 2.1 cents) per dollar, 

of which approximately 7.6 mill is 

designated for CAC pesticide use 

inspection and enforcement activities (3 

CCR section 6386; CFAC sections 12841 

and 12841.3). In 2006 CDPR and the 

California Agricultural Commission and 

Sealers Association entered into a 

Memorandum of Understanding that 

explains the process for distributing 

funds.22

The CAC have conducted 3,154 field 

fumigant inspections since January 1, 

2008.23 In 2010–2011, CAC made 724 

field fumigant inspections and 2,130 

structural fumigation inspections 


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24See 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. 

25See CDPR, California Statewide Pesticide 

Regulatory Activities Summary Between July 2010 

and June 2011, pp. 31 and 33 (found at http:// 

www.cdpr.ca.gov/docs/enforce/prasr/10- 

11prasr.pdf). 

26CDPR describes its authorities on page 1 of the 

revised SIP commitment for the SJV. 

27Title VI of the Civil Rights Act of 1964 

prohibits discrimination by entities receiving 

federal funds. 42 U.S.C. 2000d. Section 601 

provides that no person shall, ‘‘on the ground of 

race, color, or national origin, be excluded from 

participation in, be denied the benefits of, or be 

subjected to discrimination under any program or 

activity’’ covered by Title VI. Id. Section 602 

authorizes federal agencies that provide federal 

funding assistance to issue regulations to effectuate 

the anti-discrimination provisions of Title VI. Id. at 

2000d–1. Pursuant to section 602, EPA promulgated 

regulations prohibiting EPA funding recipients from 

engaging in discrimination. See 40 CFR 7.30 and 

7.35. 

28 It is also worthy of note that, to EPA’s 

knowledge, none of the groups that signed the El 

Comite ́ letter raised Title VI concerns during 

CDPR’s rulemaking process to adopt and amend the 

fumigant regulations or adopt the revised SIP 

commitment for SJV nor did they raise any Title VI 

concerns to EPA while CDPR and CARB were going 

through their respective rulemaking processes. 

29For a list of these, see TSD, Section III.F. 

Response F–2. 

30See, for example, EPA Form 4700–4, Preaward 

Compliance Review Report for All Applicants and 

Recipients Requesting EPA Financial Assistance for 

CDPR, May 10, 2010 and EPA Form 4700–4, 

Preaward Compliance Review Report for All 

Applicants and Recipients Requesting EPA 

Financial Assistance for CARB, August 13, 2010. 

31Letter, 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. 

statewide.24 In addition, CAC must 

conduct pre-application site evaluation 

inspections for at least 5 percent of all 

sites identified in permits or notices of 

intent (NOI) to apply pesticides for 

agricultural use (3 CCR section 6436). In 

2010–2011, CAC’s conducted a total of 

7,941 pre-application inspections out of 

a total of 136,491 NOI,25 or 5.8 percent 

of NOI reviewed. 

Both CDPR and CAC enforcement 

authority is derived from State law and 

regulation. See CFAC section 14004; see 

also, CFAC section 2281 and 11501.5 

and 3 CCR sections 6140 and 6128. 

Beyond its enforcement authorities, 

California law provides CDPR with the 

authority to place limitations on the 

quantity, area, and manner of 

application to reduce pesticide 

emissions through restricted materials 

permit conditions. See CFAC section 

14006.5 and 3 CCR section 6412. 

Permits to use restricted materials are 

issued by the CAC, who has broad 

discretion to condition the permits on 

additional use restrictions. See CFAC 

section 14006. CDPR has oversight of 

the permit process and recommends 

conditions to be included in the CAC’s 

permits. It can also enact use 

restrictions by regulation. See CFAC 

section 14005. In addition, for products 

containing a new active ingredient, 

CDPR may place appropriate restrictions 

on a product’s use, including limitations 

on the quantity, area, and manner of 

application, and require low VOC 

formulations as a condition of 

registration. See CFAC section 12824.26

Comment: El Comite ́ asserts that 

approval of the revised SIP commitment 

for the SJV and the fumigant regulations 

would be arbitrary and capricious and a 

violation of CAA section 110(a)(2)(E) 

because neither CDPR nor CARB have 

provided a demonstration that the 

commitment and regulations are not 

prohibited by Title VI of the Civil Rights 

Act and EPA’s regulations 

implementing Title VI. 

Response: In addition to requiring a 

state to provide necessary assurances 

regarding adequate resources and 

authority for implementation, CAA 

section 110 (a)(2)(E) also requires a state 

to provide ‘‘necessary assurances that 

the State * * * is not prohibited by any 

provision of Federal or State law from 

carrying out such [SIP].’’ 

El Comite ́ asserts that California failed 

to provide a ‘‘demonstration’’ that its 

proposed revisions are not prohibited by 

Title VI of the Civil Rights Act.27

Section 110(a)(2)(E), however, does not 

require a state to ‘‘demonstrate’’ it is not 

prohibited by Federal or State law from 

implementing its proposed SIP revision. 

Rather, this section requires a state to 

provide ‘‘necessary assurances’’ of this. 

Courts have given EPA ample discretion 

in deciding what assurances are 

‘‘necessary’’ and have held that a 

general assurance or certification is 

sufficient. (‘‘EPA is entitled to rely on a 

state’s certification unless it is clear that 

the SIP violates state law and proof 

thereof * * * is presented to EPA.’’ 

BCCA Appeal Group v. EPA, 355 F.3d 

817, 830 fn 11 (5th Cir. 2003)). 

El Comite ́ does not allege a violation 

of Title VI by either CDPR or CARB nor 

does it provide evidence that either the 

revised SIP commitment for the SJV 

and/or the fumigant regulations would 

result in any adverse environmental 

impacts. While El Comite ́ includes in 

their letter several statements on 

fumigant usage and fumigant VOC 

emissions in Ventura County and the 

SJV (citing various CDPR documents as 

the sources), it provides no evidence 

that these usage rates or pesticide VOC 

emissions rates are either the result of 

implementing the revised SIP 

commitment and/or fumigant 

regulations or would not have resulted 

absent the implementation of the 

commitment and regulations.28

On the other hand, California has 

provided multiple evaluations that 

show the revised SIP commitment for 

SJV and the fumigant regulations will 

improve California’s air quality by 

reducing VOC emissions from 

pesticides, will not result in any 

significant adverse environmental 

impacts, and in fact, by reducing VOC, 

will improve air quality and assist the 

areas in their progress toward 

attainment of the ozone standards.29

Both CDPR and CARB receive annual 

grants from EPA and have done so for 

many years. As grant recipients, both 

agencies must certify their compliance 

with Title VI and have done so in every 

year since the revised commitment and 

fumigant regulations were first adopted 

by CDPR in 2007 and submitted by 

CARB in 2009.30 In addition, by letter 

dated August 7, 2012, CDPR provided 

EPA a further description of the ways in 

which its pesticide regulatory program, 

including the VOC rule EPA is 

approving today, complies with sections 

601 and 602 of Title VI of the Civil 

Rights Act of 1964 (Title VI) that govern 

recipients of federal financial 

assistance.31 Thus, EPA concludes 

California has provided the necessary 

assurances pursuant to 110(a)(2)(e). 

G. EPA’s Response to the Ninth Circuit 

Court of Appeals Remand in 

Association of Irritated Residents Case 

Comment: El Comite ́ asserts that EPA 

offered no factual basis or reasoned 

explanation for concluding that, with 

the addition of the fumigant regulations, 

the revised SIP commitment for SJV is 

sufficiently enforceable, and because 

EPA has failed to provide an 

explanation, its approval of the 

fumigant regulations and the revised SIP 

commitment as enforceable in tandem is 

arbitrary and capricious. 

Response: On page 24450 of our April 

24, 2012 proposed rule, we concluded 

that: 

* * * there is no need to rescind or 

otherwise modify our 1997 approval of the 

Pesticide Element or our 2009 approval of 

PEST–1 notwithstanding the deficiencies in 

enforceability in the Pesticide Element due to 

the absence of an enforceable mechanism like 

the Wells Memorandum. In short, this is 

because CDPR’s regulations and revised 

commitment for San Joaquin Valley provide 

the enforceable mechanism that would 

otherwise be lacking in the Pesticide 

Element. If EPA approves the regulations and 

commitment, as proposed herein, then the 

Pesticide Element would be fulfilled. If, after 

consideration of comments, EPA concludes 

that the regulations and commitment do not 


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Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65303 

meet the applicable CAA requirements, then 

the decision regarding EPA’s previous 

actions on the Pesticide Element would need 

to be reconsidered. 

As explained further here and in other 

sections of this document, EPA is 

concluding CDPR’s regulations and the 

commitment meet the applicable CAA 

requirements, and thus, we are 

finalizing our determination that the 

commitments in the 1994 Pesticide 

Element have been fulfilled, which in 

turn, forms the basis for our final 

decision not to rescind or otherwise 

modify our 1997 approval of the 

Pesticide Element or our 2009 approval 

of PEST–1. Specifically, as to SJV, we 

stated: 

For San Joaquin Valley, CDPR’s regulations 

restricting fumigant application methods and 

establishing requirements on CDPR to 

inventory and report VOC emissions from 

pesticide use apply just as they do in the 

other four nonattainment areas. While these 

regulations and other measures have 

decreased VOC emissions from pesticide use 

in San Joaquin Valley such that current VOC 

emissions are approximately 18 percent less 

than 1990 levels, CDPR concluded that a 

mechanism was needed to supplement the 

regulations to ensure that the 12 percent 

emissions reduction target would be met in 

the San Joaquin Valley. The supplemental 

mechanism chosen by CDPR is the adoption 

of a commitment, which we are proposing to 

approve in today’s action, to manage VOC 

emissions from commercial structural and 

agricultural pesticide use, such that the 

related VOC emissions do not exceed 18.1 

tons per day in the San Joaquin Valley. This 

level of emissions reflects a 12 percent 

emissions reduction from 1990 level of VOC 

emissions from pesticide use. The specific 

measures that CDPR would undertake to 

bring emissions back down to that level in 

the event that the annual inventory reveals 

that the 18.1 tons per day emissions level had 

been exceeded are vague. Considered in 

isolation, the revised commitment for San 

Joaquin Valley changes the form of the 

commitment in the Pesticide Element for the 

valley but does not represent an enforceable 

measure for SIP purposes. However, when 

viewed in light of the CDPR’s regulations, the 

combination of the commitment and 

fumigant regulations does meet the minimum 

requirements for enforceability of SIP 

measures and reasonably ensures that the 12 

percent emissions reduction target from the 

Pesticide Element would be achieved in San 

Joaquin Valley. 

77 FR 24441, 24450. 

Factual support for our conclusion is 

found in the CDPR staff report on the 

revised SIP commitment for SJV which 

provides a table of baseline pesticide 

emissions in SJV (19.3 tpd) and an 

estimate of the VOC emissions 

reductions (1.5 tpd) due to CDPR’s 

fumigant regulations (that are being 

approved as part of this action). Based 

on the data in CDPR’s table, the 

fumigant regulations reduce baseline 

pesticide emissions to 17.8 tpd, which 

is 0.3 tpd less than the 18.1 tpd 

emissions cap (that derives from the 12 

percent emissions reduction 

commitment from the existing 

California SIP Pesticide Element). 

Therefore, in most years, CDPR’s 

fumigant regulations alone would 

safeguard the emission limit. 

CDPR acknowledges, however, that 

fumigant use varies from year to year 

and could in some years be unusually 

high, raising the potential for the 

emission limit to be exceeded. This is 

why CDPR commits (1) to implement 

restrictions to reduce VOC emissions 

from non-fumigant pesticides by 2014 

and (2) to commit to manage pesticide 

VOC emissions in SJV through annual 

emissions inventories and take further 

steps to reduce pesticide VOC emissions 

if necessary to bring such emissions 

back down below the emission limit. 

Comment: El Comite ́ argues that 

EPA’s rationale for finding the 

combination of the revised SIP 

commitment for SJV and the fumigant 

regulations enforceable is unfounded 

because three quarters of all adjusted 

pesticide VOC emissions in the SJV in 

2010 came from non-fumigants and SJV 

exceeded the 18.1 tpd emissions cap in 

2005 and 2006 ‘‘despite CDPR’s use of 

an adjusted inventory for fumigants in 

the Valley.’’ They argue further that 

controlling only one-quarter of the 

pesticide VOC inventory in the Valley 

with the fumigant regulations does not 

ensure that the revised SIP commitment 

meets the CAA requirement for 

enforceability. 

Response: El Comite ́ cites CDPR’s 

2010 annual inventory of pesticide VOC 

emissions as the source for their claim 

that VOC emissions in SJV exceeded the 

18.1 tpd limit in 2005 and 2006 and that 

fumigant VOC emissions represent only 

25 percent of the overall total pesticide 

emissions in SJV. Based on our review 

of CDPR’s Revised 2010 Pesticide VOC 

Emissions Report, we confirm El 

Comite ́’s factual statements but believe 

that the report supports EPA’s 

conclusion that the combination of the 

commitment and fumigant regulations 

does meet the minimum requirements 

for enforceability of SIP measures and 

reasonably ensures that the 12 percent 

emissions reduction target from the 

Pesticide Element would be achieved in 

SJV. This is because (1) the emissions 

cap of 18.1 tpd has not been exceeded 

since adoption of CDPR’s fumigant 

regulations in 2008; and (2) the 

percentage of pesticide VOC emissions 

due to fumigant use has declined from 

an average of 34 percent during the 3- 

year period (2005–2007) prior to 

implementation of CDPR’s fumigant 

regulations to an average of 24 percent 

during the 3-year period (2008–2010) 

after implementation. See tables 5 and 

6a of CDPR’s Revised 2010 Pesticide 

VOC Emissions Report. This decline in 

the percentage of pesticide VOC 

emissions due to fumigant use is exactly 

the effect that would be expected in 

light of the implementation of CDPR’s 

restrictions on the use of higheremitting application methods, and it 

demonstrates that CDPR’s fumigant 

regulations are effective at reducing 

pesticide VOC emissions in the SJV and 

to maintaining in compliance with the 

18.1 tpd emission limit. 

Comment: El Comite ́ argues that 

because the SIP revision lacks a 

commitment to retain the fumigant 

regulations, EPA’s rationale for using 

the fumigant regulations as its basis for 

finding the SIP revision enforceable is 

‘‘illusory.’’ El Comite ́ asserts that CDPR 

could rescind the fumigant regulations 

and CARB could offer new VOC 

controls applicable to other sources to 

support a section 110(l) demonstration. 

Response: The SIP revision does not 

need to include a commitment to retain 

the fumigant regulations. If CDPR were 

to rescind the fumigant regulations, 

such rescission must be approved by 

EPA as a SIP revision to be rescinded as 

a part of the California SIP. The CAA 

does not allow unilateral changes to 

SIPs by states. Moreover, EPA has 

determined that the fumigant 

regulations are required to meet the 

section 182(b)(2) reasonably available 

control technology (RACT) requirement 

in the SJV, so for at least for SJV, 

California would need to demonstrate 

that the SIP still provides for RACT in 

SJV absent the fumigant regulations. 

Simple substitution of the fumigant 

regulations with new VOC emissions 

controls may not suffice in SJV due to 

the RACT requirement for the pesticide 

use source category. 

In addition, to approve any rescission 

of CDPR’s fumigant regulations 

submitted as a SIP revision, we would 

need to find that such rescission would 

not interfere with RFP and attainment of 

the NAAQS or any other applicable 

requirement of the Act pursuant to CAA 

section 110(l), and would therefore need 

to consider the effect of the rescission 

on the continued enforceability of the 

California SIP Pesticide Element and 

would need to consider the emissions 

impacts in the context of the RFP and 

attainment needs of the areas for which 

the regulations provide emissions 

reductions. Lastly, we note that any 

action EPA would take on such a 

rescission of the fumigant regulations 

would be subject to the normal public 


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32Our final response to the remand in 

Association of Irritated Residents also represents 

our final response to the Ninth Circuit’s July 2, 2012 

remand order in El Comite ́ Para El Bienestar De 

Earlimart v. EPA (No. 08–74340). Because both 

remands necessitate the same type of evaluation for 

the same portion of the California SIP, our rationale 

for our response to both remands is the same. 

notice and comment procedures that 

EPA follows for all actions on SIPs and 

SIP revisions. 

III. Final Action 

EPA is approving under CAA section 

110(k)(3) the revisions to the California 

SIP Pesticide Element submitted by 

CARB on October 12, 2009 and August 

2, 2011 (with the exception of the 

provisions related to methyl iodide). 

These revisions include CDPR’s 

fumigant regulations and its revised SIP 

commitment for the SJV. Our approval 

will incorporate these revisions into the 

California’s federally-enforceable SIP. 

This approval also satisfies California’s 

obligation to implement RACT for field 

fumigation operations in the SJV under 

CAA section 182(b)(2) for the 1-hour 

ozone and 1997 8-hour ozone standards 

and thereby terminates both the 

sanctions clocks and the Federal 

Implementation Plan clock for this 

source category triggered by our January 

10, 2012 partial disapproval action. See 

77 FR 1417 (January 10, 2012). 

EPA provided its preliminary 

response to the remands by the Ninth 

Circuit Court of Appeals in Association 

of Irritated Residents v. EPA, 632 F.3d 

584 (9th Cir. 2011), revised January 27, 

2012 (AIR) in the proposal for this rule. 

See 77 FR 24441, 24447. The 

Association of Irritated Residents 

remand required EPA to evaluate the 

California SIP Pesticide Element for 

enforceability under the CAA. In the 

proposed rule, EPA found that there is 

no need to either rescind or modify our 

prior approvals of the Pesticide Element 

because it had concluded that the SIP 

revisions fulfilled the commitments of 

the original Pesticide Element, thus 

obviating the need to address the 

deficiencies in enforceability of those 

original commitments. We are finalizing 

our response from the proposal without 

change.32

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the EPA 

Administrator is required to approve a 

SIP submittal that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submittals, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the CAA. Accordingly, 

this action merely approves State law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by State law. For 

that reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by December 26, 

2012. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: August 14, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region 9. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraphs (c)(413) and (c)(414) 

to read as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(413) The following plan revisions 

were submitted on October 12, 2009, by 

the Governor’s designee. 

(i) Incorporation by reference. 

(A) California Department of Pesticide 

Regulation. 

(1) California Code of Regulations, 

Title 3 (Food and Agriculture), Division 

6 (Pesticides and Pest Control 

Operations), Chapter 2 (Pesticides), 

Subchapter 4 (Restricted Materials), 

Article 4 (Field Fumigation Use 


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Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65305 

Requirements), sections 6447, ‘‘Methyl 

Bromide-Field Fumigation—General 

Requirements,’’ the undesignated 

introductory text (operative January 25, 

2008; as published in Register 2010, No. 

44); 6447.3, ‘‘Methyl Bromide-Field 

Fumigation Methods’’ (operative 

January 25, 2008); 6448, ‘‘1,3, 

Dichloropropene Field Fumigation— 

General Requirements’’ (operative 

January 25, 2008); 6449, ‘‘Chloropicrin 

Field Fumigation—General 

Requirements’’ (operative January 25, 

2008); 6450, ‘‘Metam-Sodium, 

Potassium N-methyldithiocarbamate 

(metam-potassium), and Dazomet Field 

Fumigation—General Requirements’’ 

(operative January 25, 2008); 6450.2, 

‘‘Dazomet Field Fumigation Methods’’ 

(operative January 25, 2008); 6451, 

‘‘Sodium Tetrathiocarbonate Field 

Fumigation—General Requirements’’ 

(operative January 25, 2008); 6451.1, 

‘‘Sodium Tetrathiocarbonate Field 

Fumigation Methods’’ (operative 

January 25, 2008); 6452, ‘‘Reduced 

Volatile Organic Compound Emissions 

Field Fumigation Methods’’ (operative 

January 25, 2008); 6452.1, ‘‘Fumigant 

Volatile Organic Compound Emission 

Records and Reporting’’ (operative 

January 25, 2008). 

(ii) Additional material. 

(A) California Department of Pesticide 

Regulation. 

(1) Decision, ‘‘In the Matter of 

Proposed Ozone SIP Commitment for 

the San Joaquin Valley,’’ signed by 

Mary-Ann Warmerdam, April 17, 2009, 

including Exhibit A, ‘‘Department of 

Pesticide Regulation Proposed SIP 

Commitment for San Joaquin Valley.’’ 

(2) Memorandum, Rosemary Neal, 

Ph.D., California Department of 

Pesticide Regulation to Randy Segawa, 

California Department of Pesticide 

Regulation, November 5, 2008; Subject: 

Update to the Pesticide Volatile Organic 

Inventory. Estimated Emissions 1990– 

2006, and Preliminary Estimates for 

2007. 

(414) The following plan revisions 

were submitted on August 2, 2011, by 

the Governor’s designee. 

(i) Incorporation by reference. 

(A) California Department of Pesticide 

Regulation. 

(1) California Code of Regulations, 

Title 3 (Food and Agriculture), Division 

6 (Pesticides and Pest Control 

Operations), Chapter 2 (Pesticides), 

Subchapter 4 (Restricted Materials), 

Article 4 (Field Fumigation Use 

Requirements), sections 6448.1, ‘‘1,3- 

Dichloropropene Field Fumigation 

Methods’’ (operative April 7, 2011); 

6449.1, ‘‘Chloropicrin Field Fumigation 

Methods’’ (operative April 7, 2011); 

6450.1, ‘‘Metam-Sodium and Potassium 

N-methyldithiocarbamate (MetamPotassium) Field Fumigation Methods’’ 

(operative April 7, 2011); 6452.2, 

‘‘Fumigant Volatile Organic Compound 

Emission Limits’’ (excluding 

benchmarks for, and references to, 

Sacramento Metro, San Joaquin Valley, 

South Coast, and Southeast Desert in 

subsection (a) and excluding subsection 

(d))(operative April 7, 2011); 6452.3, 

‘‘Field Fumigant Volatile Organic 

Compound Emission Allowances’’ 

(operative April 7, 2011); 6452.4, 

‘‘Annual Volatile Organic Compound 

Emissions Inventory Report’’ (excluding 

reference to section 6446.1 in 

subsection(a)(4))(operative April 7, 

2011). 

(2) California Code of Regulations, 

Title 3 (Food and Agriculture), Division 

6 (Pesticides and Pest Control 

Operations), Chapter 3 (Pest Control 

Operations), Subchapter 2 (Work 

Requirements), Article 1 (Pest Control 

Operations Generally), sections 6624, 

‘‘Pesticide Use Records’’ (excluding 

references in subsection (f) to methyl 

iodide and section 6446.1) (operative 

December 20, 2010); section 6626, 

‘‘Pesticide Use Reports for Production 

Agriculture’’ (operative April 7, 2011). 

* * * * * 

[FR Doc. 2012–26311 Filed 10–25–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0408; FRL–9726–3] 

Approval of Air Quality Implementation 

Plans; California; San Joaquin Valley 

Unified Air Pollution Control District; 

Prevention of Significant Deterioration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action 

under section 110 of the Clean Air Act 

(CAA or Act) to approve a State 

Implementation Plan (SIP) revision for 

the San Joaquin Valley Unified Air 

Pollution Control District (District) 

portion of the California SIP. This SIP 

revision incorporates District Rule 

2410—Prevention of Significant 

Deterioration (PSD)—into the California 

SIP to establish a PSD permit program 

for pre-construction review of certain 

new and modified major stationary 

sources in attainment or unclassifiable 

areas. EPA is approving this SIP 

revision because Rule 2410 provides an 

adequate PSD permitting program as 

required by section 110 and part C of 

title I of the CAA. 

DATES: This rule is effective on 

November 26, 2012. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2012–0408 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at www.regulations.gov 

and in hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California. Some docket materials, 

however, may be publicly available only 

at the hard copy location (e.g., 

voluminous records, maps, copyrighted 

material), and some may not be publicly 

available in either location (e.g., CBI). 

To inspect the hard copy materials, 

please schedule an appointment during 

normal business hours with the contact 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Lisa 

Beckham, EPA Region IX, (415) 972– 

3811, beckham.lisa@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we’’, ‘‘us’’, 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

II. EPA’s Evaluation of the SIP Revision 

A. What action is EPA finalizing? 

B. Public Comments and EPA Responses 

III. EPA’s Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

Section 110(a) of the CAA requires 

states to adopt and submit regulations 

for the implementation, maintenance 

and enforcement of the primary and 

secondary national ambient air quality 

standards (NAAQS). Specifically, CAA 

sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 

and 110(a)(2)(J) require the State’s plan 

to meet the applicable requirements of 

section 165 relating to a preconstruction permit program for the 

prevention of significant deterioration of 

air quality and visibility protection. The 

purpose of District Rule 2410— 

Prevention of Significant Deterioration, 

is to implement a pre-construction PSD 

permit program as required by section 

165 of the CAA for certain new and 

modified major stationary sources 

located in attainment areas. EPA is 

currently the PSD permitting authority 

within the District because the State 

does not currently have a SIP-approved 

PSD program within the District. 

Inclusion of this revision in the SIP will 

mean that the District has an approved 

PSD permitting program and will 

transfer PSD permitting authority from 

EPA to the District. EPA would then 

assume the role of overseeing the 

District’s PSD permitting program, as 


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