Technical Support Document

Final Rule

Approval of

Revisions to the Pesticide Element

of the California State Implementation Plan

Air Division

Environmental Protection Agency Region 9

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

Fumigant Regulations:

Nancy Levin

Rules Office (AIR-4)

(415) 972-3848

levin.nancy@epa.gov

Revised State Implementation Plan Commitment for the San Joaquin Valley:

Frances Wicher

Office of Air Planning (AIR-2)

(415) 972-3957

wicher.frances@epa.gov

Air Division

U.S. Environmental Protection Agency-Region 9

75 Hawthorne Street

San Francisco, California 94105

Most documents referenced in this technical support document may be found on 

www.regulations.gov in the docket for this rulemaking, docket no. EPA-R09- OAR-2012-0194. 

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

i

I. Summary and Background Information................................................................................ 1

A. Submitted Revisions to the California SIP Pesticide Element.............................................. 1

1. CDPR Regulations............................................................................................................. 2

2. CDPR’s Revised SIP Commitment for the San Joaquin Valley......................................... 3

B. Currently-Approved Provisions of the California SIP Pesticide Element ............................ 4

C. Areas Affected by the Revisions to the California SIP Pesticide Element ........................... 5

D. Pesticide Emissions Inventory ............................................................................................ 10

E. History of the California SIP Pesticide Element ................................................................. 12

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

2. “PEST -1” Measure in the 2003 State Strategy ............................................................... 18

3. 2007 Revisions to the Pesticide Element for Ventura County......................................... 19

F. Proposed Action and Comments Received on the Proposed Action................................... 20

II. Evaluation of the Revisions to the California SIP Pesticide Element.............................. 21

A. Clean Air Act Procedural Requirements Applicable to SIP Submittals and Revisions. .... 21

1. Requirements for Public Notice and Hearing for SIP Submittals.................................... 21

2. Completeness Determinations ......................................................................................... 21

B. Enforceability...................................................................................................................... 23

1. CAA Requirements for Enforceability of Rules and Commitments ............................... 23

2. Evaluation and Conclusions............................................................................................. 24

a. CDPR Regulations....................................................................................................... 24

b. Revised SIP Commitment for the San Joaquin Valley ................................................ 25

C. Reasonably Available Control Measures/Reasonably Available Control Requirements 

(RACM/RACT) ........................................................................................................................ 25

1. Requirements for RACM/RACT..................................................................................... 25

2. RACM/RACT Evaluation and Conclusion...................................................................... 26

a. Field Fumigant Regulations: South Coast, Ventura County, Southeast Desert, San 

Joaquin Valley, and Sacramento Metro ............................................................................ 26

b. Revised SIP Commitment for the San Joaquin Valley ................................................ 28

D. Finding of Non-Interference with Applicable Requirements of the CAA under Section 

110(l)......................................................................................................................................... 28

1. CAA Section 110(l) Requirements.................................................................................. 28

2. Evaluation and Conclusion .............................................................................................. 29
Table of Contents

ii

a. Attainment and Reasonable Further Progress for Ozone and Particulate Matter ........ 29

b. RACM for Ozone and Particulate Matter.................................................................... 32

c. Air Toxics/Stratospheric Ozone................................................................................... 33

E. Additional Recommendations for the Next Rule Revision ................................................. 33

III. Responses to Comments ..................................................................................................... 35

A. Comments Received on the April 24, 2012 Proposed Approval of the Revision to the 

California SIP Commitment for the San Joaquin Valley.......................................................... 35

B. Enforceability of CDPR’s Revised SIP Commitment for San Joaquin Valley................... 36

C. Approval of the Revised Pesticide Element for SJV under CAA Section 110(l) ............... 45

D. Enforceability of the Fumigant Regulations....................................................................... 54

E. Pesticide Emissions Inventories.......................................................................................... 57

F. Necessary Assurances under CAA Section 110(a)(2)(e)..................................................... 63

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

Residents Case .......................................................................................................................... 67
List of Acronyms

iii

μ: micron (one millionth)

AMAF: application method adjustment factor 

ARB: California Air Resources Board (also CARB)

APCD: air pollution control district

AQMD: air quality management district

AQMP: Air Quality Management Plan

BACM: best available control measure

CAA: Federal Clean Air Act as amended in 1990

CAC: County Agricultural Commissioners

CARB: California Air Resources Board (also ARB)

CCR: California Code of Regulations

CDPR: California Department of Pesticide Regulation

CFAC: California Food and Agriculture Code

CFR: Code of Federal Regulations

CPRA: California Public Records Act

CTG: control techniques guideline

DPR: California Department of Pesticide Regulation

EP: emission potential

EPA: United States Environmental Protection Agency

Fine particulate: PM2.5

FR: Federal Register

N/A: not applicable

MeI: methyl iodide (a fumigant)

NAA: nonattainment area

NAAQS: national ambient air quality standard

NOx: oxides of nitrogen

NPRM: notice of proposed rulemaking

O3: ozone

PM: particulate matter

PM10: particulate matter with a diameter of 10 μm or less, includes PM2.5

PM2.5: particulate matter with a diameter of 2.5 μm or less

ppm: parts per million

RACM: reasonably available control measures

RACT: reasonably available control technology

RFP: reasonable further progress

ROP: rate of progress

SC: South Coast 

SED: Southeast Desert 

SIP: state implementation plan

SJV: San Joaquin Valley

SJVAPCD/SJVUAPCD: San Joaquin Valley (Unified) Air Pollution Control District

tpd: tons per day

TSD: technical support document

VOC: volatile organic compounds
Air Division EPA- Region 9 Page 1

I. Summary and Background Information

This document provides supporting information and analysis for EPA’s approval of 

revisions to the provisions of California state implementation plan (SIP) for controlling volatile 

organic compounds (VOC) from pesticide usage in five California ozone nonattainment areas: 

South Coast, Southeast Desert (SED), Ventura County, San Joaquin Valley (SJV), and 

Sacramento Metro. These provisions are referred to collectively as the California SIP Pesticide 

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

A. Submitted Revisions to the California SIP Pesticide Element 

EPA is approving the following submittals made by the California Air Resources Board 

(CARB) as revisions to the California SIP:

1. October 12, 2009 submittal of regulations adopted by the California Department of Pesticide 

Regulation (CDPR):1

 Title 3 California Code of Regulations (3 CCR), sections 6447 (first paragraph) and 

6447.3-6452 pertaining to field fumigation methods;

 Portions of 3 CCR sections 6452.1 and 6452.4 and sections 6624 and 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

2. October 12, 2009 submittal of a revised SIP Commitment for the San Joaquin Valley,3

adopted by CDPR director on April 17, 2009. This submittal limits VOC emissions from the use 

of agricultural and commercial structural pesticides in the SJV to 18.1 tpd and commits CDPR to 

implement restrictions on non-fumigant pesticides in the SJV by 2014. 

 

1

 As part of this submittal, CARB withdrew its January 28, 2008 submittal of an earlier version of the field 

fumigant regulations. See letter, James N. Goldstene, Executive Officer, CARB to Laura Yoshii, Acting Regional 

Administrator, EPA Region 9, October 12, 2009 and State of California, Air Resources Board, Executive Order S09-011 Relating to Approval of Regulations to Achieve Pesticide Volatile Organic Compound Emission Reductions, 

October 12, 2009. 

2

 CARB did not submit for inclusion into the SIP those portions of 3 CCR sections 6452.2 and 6452.3 

pertaining to field fumigation limits and allowances in the South Coast, SED, SJV, and Sacramento Metro ozone 

nonattainment areas.

3

 As part of this submittal, CARB withdrew the SIP commitment for the SJV that was included on page 

131 of the CARB’s Proposed State Strategy for California’s 2007 State Implementation Plan (as adopted 

September 27, 2007) (“2007 State Strategy”) that it submitted on November 15, 2007. See letter, James N. 

Goldstene, Executive Officer, CARB to Laura Yoshii, Acting Regional Administrator, EPA Region 9, October 12, 

2009 and State of California, Air Resources Board, Executive Order S-09-005 Relating to Approval of Amendments 

to the 2007 Ozone Plan for the San Joaquin Valley to Achieve Pesticide Emission Reductions, October 12, 2009.
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3. August 2, 2011 submittal of revisions to CDPR regulations.4This submittal revised and added 

to the October 12, 2009 submittal, and included the following:

5

 3 CCR sections 6448.1, 6449.1, and 6450.1 pertaining to fumigation method restrictions.

 Portions of 3 CCR sections 6452.2 and 6452.3 pertaining to field fumigation limits and 

allowances in the Ventura County ozone nonattainment area. 

 3 CCR section 6452.4 pertaining to the annual VOC emissions inventory report.

 3 CCR section 6626 pertaining to pesticide use reports.

1. CDPR Regulations

The submitted CDPR regulations can be divided into four distinct but related parts. The 

first part (revisions to 3 CCR sections 6447 through 6452) establishes standards for fumigant 

application and restricts the use of certain higher-emitting application methods in the five 

nonattainment areas between May 1 and October 31 of each year. The second part (3 CCR 

sections 6452.2 and 6452.3) provides a contingency mechanism to limit VOC emissions from 

field fumigant applications in the Ventura County nonattainment area to ensure that the area’s 

overall limit on pesticide VOC emission limit is not exceeded. The third part (3 CCR section 

6452.4) requires CDPR to annually report on pesticide VOC emissions in each of the five 

nonattainment areas and establishes requirements for the report. The fourth part (3 CCR sections 

6624 and 6626) establishes the recordkeeping and reporting requirements necessary to ensure 

compliance with the other parts. EPA describes each part in more detail below.

The first part of the submitted regulations establishes, by fumigant and method, 

requirements for the field application of seven fumigants and restricts to the lowest-emitting 

ones, the methods that may be used to apply field fumigants in the in the South Coast, SED, 

Ventura County, SJV, and Sacramento Metro ozone nonattainment areas during the period May 

1 to October 31. Requirements are described for the field fumigants: methyl bromide (sections 

6447 and 6447.3); 1,3-dichloropropene (sections 6448 and 6448.1); chloropicrin (sections 6449 

and 6449.1); metam-sodium, potassium N-methyldithiocarbamate and dazomet (sections 6450, 

6450.1 and 6450.2); and sodium tetrathiocarbonate (sections 6451 and 6451.1).

Specific requirements for applying these fumigants include, for example, limiting 

fumigant application rates (pounds/acre); specifying application methods (e.g., minimum 

injection depth below soil surface, number of water treatments, minimum hours to leave 

tarpaulin in place); and requiring plans to address damaged tarpaulins). 3 CCR section 6452 

 

4

 See letter, James N. Goldstene, Executive Officer, CARB to Jared Blumenfeld, Regional Administrator, 

EPA Region 9, August 2, 2011 and State of California, Air Resources Board, Executive Order S-11-015, Relating to 

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

5

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

General Requirements) and section 6446.1 (Methyl Iodide Field Fumigation Methods) and related portions of 

provisions section 6452.2 (a)(4) (Annual Volatile Organic Compound Emissions Inventory Report) and section 6624 

(f) (Pesticide Use Records). EPA is deferring action on these provisions due to California’s cancellation, effective 

March 21, 2012, of the registration of all products containing the active ingredient methyl iodide. CDPR adopted 

this set of methyl iodide-related regulations on May 11, 2011, after and separately from its April 7, 2011 regulations 

that are also included in CARB’s August 2, 2011 submittal.
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Air Division EPA- Region 9 Page 3

allows CDPR to approve alternative fumigation methods under certain conditions and based on 

specific criteria.

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

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

for Ventura County in its annual VOC emissions inventory report if overall pesticide emissions 

(not just fumigant emissions) in the Ventura County nonattainment area are found to be within 5 

percent of or exceed the listed benchmark. The benchmark is equivalent to the 20 percent 

reduction in pesticide VOC emissions from 1990 emissions levels that is required in the area by 

the California SIP Pesticide Element. This part further requires that the county agricultural 

commissioner add conditions to field fumigation permits or other take other actions that will 

prevent the field fumigant limit from being exceeded.

The third part of the submitted regulations requires that CDPR to issue an annual 

emissions inventory report which reports the total agricultural and commercial structural 

(fumigant and nonfumigant) pesticide VOC emissions for the previous years in each of the five 

nonattainment areas and evaluates compliance with the emissions reduction limits in each area. 

These regulations specify the method for calculating emissions and require that CDPR make a 

draft emissions inventory available to the public for 45-day comment period and post the final 

report on its website.

The fourth part of the submitted regulations establish the pesticide use recordkeeping and 

reporting requirements needed to assure compliance with the other parts. This part requires 

anyone using pesticides in specific applications to maintain certain records for two years and 

requires operators of property which produce an agricultural commodity and agricultural pest 

control businesses to report the use of pesticides to the county agricultural commissioner. These 

regulations require the recording and reporting of the method for fumigant application in the five 

nonattainment areas.

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

CDPR has revised its previous commitments to limit VOC emissions from commercial 

structural and pesticides in the SJV. Specifically, it is now committing to 

 use the specified emissions estimation methodology6to establish the 1990 pesticide VOC 

emission levels and evaluate compliance with the provisions in the 1994 Pesticide 

Element for SJV;

 implement restrictions on agricultural fumigation methods and by 2014 implement 

restrictions on VOC emissions of non-fumigant pesticides; and

 manage VOC emissions from agricultural and commercial structural pesticide use to 

ensure that they do not exceed 18.1 tons-per-day in the SJV area (which is equivalent to a 

12 percent reduction in pesticide VOC emissions from 1990 levels).

 

6

 For tracking compliance with the overall VOC limit in the SJV, CDPR proposes to use the emissions 

estimation methodology described on page 2-4 (in the section “Procedure for Calculating Unadjusted and Adjusted 

Volatile Organic Compound Emissions) of the November 5, 2008 memorandum from Rosemary Neal, CDPR to 

Randy Segawa, CDPR, Subject: Update to the Pesticide Volatile Organic Inventory. Estimated Emissions 1990-

2006, and Preliminary Estimates for 2007” (“Neal memorandum”).
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B. Currently-Approved Provisions of the California SIP Pesticide Element

Prior to today’s action, EPA has taken three actions to either approve or revise provisions 

of the California SIP Pesticide Element. EPA briefly describes each action below and discusses

each action and its background in more detail in section I.E. of this TSD.

 1994 Pesticide Element –The 1994 Pesticide Element was submitted by California in 

November 1994 as part of the State’s comprehensive 1-hour ozone attainment plan and 

included, among other things, a commitment by CDPR to reduce VOC emissions from 

agricultural and structural pesticide emissions in five ozone nonattainment areas by a 

maximum of 20 percent from 1990 baseline levels. EPA approved the 1994 Pesticide 

Element on January 8, 1997 (62 FR 1150) and codified it at 40 CFR § 

52.220(c)(204)(i)(A)(6) and § 52.220(c)(236).

7

 PEST-1 Measure in CARB’s 2003 State Strategy – In 2003, CARB updated the statewide 

strategy that was part of the 1994 Ozone SIP. One of the measures in the 2003 State 

Strategy was PEST-1 (“Implement Existing Pesticide Strategy”), which retained the 

provisions of the 1994 Pesticide Element. EPA approved PEST-1 into the SIP as part of 

its action to approve in part and disapprove in part the 2003 South Coast Air Quality 

Management Plan (AQMP). See 74 FR 10176 (March 10, 2009), codified at 40 CFR § 

52.220(c)(339)(ii)(A)(1).8

 

7

 In 2004, litigation was brought against CDPR in federal district court to enforce the 1994 Pesticide 

Element. In 2006, the District court ordered the Department to adopt, implement regulations to achieve the 

emissions reduction goals as set forth in the May 9, 1995 memorandum from James Wells to James Boyd (“Wells 

memorandum”). See El Comité Para el Bienestar de Earlimart v. Helliker, 416 F. Supp. 2d 912 [E.D. Cal. 2006]. In 

its review of District court’s decision and order, the 9th Circuit Court of Appeals determined that the Wells 

memorandum relied on by El Comité and the subsequently by the District court in its decision was not included in 

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

F.3d 1062, 1069-1072 (Warmerdam). 

8

 As part of its decision in Association of Irritated Residents v. EPA, No. 09-71383, the 9th Circuit Court of 

Appeals determined that EPA had erred in approving the PEST-1 measure without first evaluating the approved 

1994 Pesticide Element, particularly as to whether the Element had sufficient enforcement mechanisms to satisfy the 

requirements of the CAA. In the April 24, 2012 proposal, EPA provided its preliminary response to the remand by 

the Ninth Circuit Court of Appeals in Association of Irritated Residents. This remand required EPA to evaluate the 

California SIP Pesticide Element for enforceability under the CAA. See 77 FR 24441, 24447. In this action, we are 

finalizing that response without change.

In the proposed rule, we also referred to another Ninth Circuit petition for review, El Comité Para El 

Bienestar De Earlimart v. EPA (No. 08-74340) ("El Comité"). 77 FR 24441 at 24448. In El Comité, various 

environmental and community groups challenged EPA’s 1997 approval (62 FR 1150, Jan. 8, 1997) of the 1994 SIP 

for the 1-hour ozone standard for various California nonattainment areas ("1994 California Ozone SIP"), which 

included approval of the California SIP Pesticide Element, on the basis of the same 2008 Ninth Circuit decision, El 

Comité 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 proposed rule, the Ninth Circuit had not issued its 

decision in El Comité. Since then, the Ninth Circuit has issued a remand order to EPA in El Comité to reconsider its 

approval of the 1994 California Ozone SIP in light of the Warmerdam decision, as required by the remand in 

Association of Irritated Residents.

8

The remands in both Association of Irritated Residents and El Comité necessitate 

the same evaluation (i.e., for CAA enforceability) for the same portion of the California SIP (i.e., the California SIP 

Pesticide Element). Thus, our decision not to rescind or amend our 2009 re-approval of the California SIP Pesticide 

Element, in light of our approval of CDPR’s revised SIP commitment for the SJV and fumigant regulations, 
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 2007 Ventura County Pesticide Element – In 2007, CARB submitted a revision to the 

1994 Pesticide Element that reduced in part and temporally the emissions reduction 

commitments in Ventura County. EPA approved this revision in 2008. See 73 FR 41277 

(July 18, 2008), codified at 40 CFR § 52.220(c)(355)(i)(A)(1).

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

The field fumigant regulations pertaining to restricted materials and fumigation methods 

restrictions (3 CCR sections 6447.3, 6448.1, 6449.1, 6450.1, 6450.2, 6451.1, 6452), to annual 

VOC emissions inventory report requirement (3 CCR section 6452.4); and to the pesticide use 

reports requirements (3 CCR sections 6452.1, 6624 and 6626) apply to the following five 

California ozone nonattainment areas:

9

South Coast

 Orange County

 Los Angeles County (part)

 Riverside County (part)

 San Bernardino County (part)

Southeast Desert (SED)

 Riverside County (Coachella Valley portion)

 San Bernardino County (part)

 Los Angeles County (Lancaster/Palmdale)

Ventura County  Ventura County

San Joaquin Valley

 San Joaquin County 

 Stanislaus County

 Merced County 

 Madera County 

 Fresno County 

 Tulare County 

 Kings County 

 Kern County ( valley portion)

Sacramento Metro

 Sacramento County

 Yolo County

 

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

to the remand in El Comité.

9

 CDPR’s regulations establishing the parameters for field fumigant application methods (but not the 

restrictions on which methods may be used during certain periods of the year) and pesticide use recordkeeping and 

reporting requirements apply statewide; however, EPA is limiting its approval of these provisions to just the five

listed nonattainment areas.
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 El Dorado County (part)

 Placer County (part)

 Solano County (part)

 Sutter County (part)

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

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

nonattainment area. 

The revised SIP commitment for the SJV applies solely to the San Joaquin Valley 1-hour 

ozone nonattainment area, as described above.

In Table 1 below, EPA lists the current attainment status for the national ambient air 

quality standards for ozone and particulate matter of the five areas that are affected by the 

revisions to the California SIP Pesticide Element. EPA also lists the current status of each area’s 

ozone and (if applicable) particulate matter plans. It provides information for both the ozone and 

particulate matter standards because VOC emissions are considered precursors emissions for 

both pollutants; however, we note that not all areas are required to control VOC for particulate 

matter attainment. 

The applicable standards are:

1-hour ozone standard

 0.12 parts per million (ppm)

 40 CFR § 50.9

 Revoked, effective June 15, 2005; 69 FR 23951 

(April 30, 2004)

1997 8-hour ozone standard

 0.08 ppm

 40 CFR § 50.10

 62 FR 38894 (July 18, 1997)

2008 8-hour ozone standard

 0.075 ppm

 40 CFR § 50.15

 73 FR 16511 (March, 27, 2008)

1997 PM2.5 standards

 15.0 micrograms per cubic meter (μg/m3) 

annual arithmetic mean and 

 65 μg/m3 24-hour average

 40 CFR § 50.7

 62 FR 38711 (July 18, 1997)

2006 PM2.5 standards

 15.0 micrograms per cubic meter (μg/m3) 

annual arithmetic mean concentration, and 

 35 μg/m324-hour average concentration
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 40 CFR §50.13

 71 FR 61224 (October 17, 2006)

PM-10 standard

 150 (μg/m3) 24-hour average concentration

 40 CFR § 50.6

 52 FR 24663 (July 1, 1987) as amended at 62 

FR 38711 (July 18, 1997), 65 FR 80779 

(December 22, 2000) and 71 FR 61224 

(October 17, 2006)
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TABLE 1 - ATTAINMENT AND PLAN STATUS OF AREAS SUBJECT TO THE PESTICIDE ELEMENT

OZONE AND PARTICULATE MATTER NAAQS

STANDARD 1-HOUR OZONE 8-HOUR OZONE PARTICULATE MATTER

AREA

ATTAINMENT 

STATUS

PLAN STATUS

ATTAINMENT 

STATUS

PLAN STATUS

ATTAINMENT 

STATUS

PLAN STATUS

South Coast

Nonattainment/

Finding of failure to 

attainment

Approved

Nonattainment/

extreme Approved 1997: Nonattainment 1997: Approved

2008: Nonattainment N/A

2006: Nonattainment 2006: Due 

December 14, 2012

PM10: Redesignation 

to attainment

requested

PM10: Approved

Southeast 

Desert

Nonattainment/

Finding of failure to 

attainment

Approved

Nonattainment/

pending severe 

classification per 

State’s request

Pending action 1997: Attainment/ 

unclassifiable 1997: N/A

2008: Nonattainment N/A

2006: Attainment/ 

unclassifiable 2006: N/A

PM10: Redesignation 

to attainment 

requested (Coachella 

Valley) 

PM10: Approved 

(Coachella Valley)

Ventura 

County

Nonattainment/

Finding of 

attainment 

Approved

Nonattainment/

severe

Pending action 1997: Attainment/ 

unclassifiable 1997: N/A

2008: proposed 

Nonattainment N/A 2006: Attainment/ unclassifiable 2006: N/A

San Joaquin

Valley

Nonattainment/

Finding of failure to 

attainment

Approved

Nonattainment/

extreme Approved 1997 PM2.5: Nonattainment

1997 PM2.5: 

Approved

2008: Nonattainment N/A

2006 PM2.5: 

Nonattainment

2006 PM2.5: Due 

December 14, 2012

PM10: attainment PM10: Approved
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TABLE 1 - ATTAINMENT AND PLAN STATUS OF AREAS SUBJECT TO THE PESTICIDE ELEMENT

OZONE AND PARTICULATE MATTER NAAQS

STANDARD 1-HOUR OZONE 8-HOUR OZONE PARTICULATE MATTER

AREA

ATTAINMENT 

STATUS

PLAN STATUS

ATTAINMENT 

STATUS

PLAN STATUS

ATTAINMENT 

STATUS

PLAN STATUS

Sacramento 

Metro

Nonattainment/

Finding of 

attainment 

Approved

1997: 

Nonattainment/

severe

Pending action 1997: Attainment/ 

unclassifiable 1997 PM2.5: N/A

2008: Nonattainment N/A

2006: Nonattainment 2006 PM2.5: Due 

December 14, 2012

PM10: redesignation 

to attainment 

requested

PM10: pending 

action
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D. Pesticide Emissions Inventory

As required by 3 CCR section 6452.4(a), CDPR annually reports on VOC emissions from 

agricultural and commercial structural pesticide applications in the five areas subject to the 

provisions of the California SIP Pesticide SIP. The most recent report, with emissions estimates 

for 1990 and 2004 through 2010, was issued on March 29, 2012 and revised on June 17, 2012.

10

Table 2 shows the estimates of VOC emissions from pesticides in each area as well as the SIP 

target level from this report. The inventory represents daily average emissions for period May 1 

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

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

TABLE 2 – ADJUSTED VOC EMISSIONS FROM PESTICIDES 

TARGET LEVEL AND EMISSIONS IN 1990 AND 2004-2010

TONS PER AVERAGE DAY MAY 1-OCTOBER 31

1990 GOAL 2004 2005 2006 2007 2008 2009 2010

SJV 20.5 18.1 17.3 20.7 21.3 17.1 14.5 13.2 15.5

Ventura 3.8 3.0 3.9 3.6 3.7 3.4 1.7 2.1 2.6

South Coast 10.8 8.7 1.9 2.0 1.5 1.5 1.3 1.2 1.7

SED 1.2 0.9 1.0 0.7 0.6 0.8 0.3 0.3 0.5

Sacramento 

Metro 2.8 2.2 1.2 1.2 1.4 1.0 0.9 0.9 1.0

Source: Revised 2010 Pesticide VOC Emissions Report, Table 5, p. 20.

 

10

 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,” March 29, 2012 (“2010 Pesticide VOC Emissions Report”) and Rosemary Neal, Ph.D., Frank Spurlock, Ph. 

D., and Randy Segawa, California Department of Pesticide Regulation, “Annual Report on Volatile Organic 

Compound Emissions from Pesticides: Emissions For 1990 – 2010,” Revised, June, 2012 (“Revised 2010 Pesticide 

VOC Emissions Report”). 
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TABLE 3 - PESTICIDE EMISSIONS AS PERCENT OF OVERALL VOC EMISSIONS

2010 PESTICIDE VOC

EMISSIONS

TONS PER SUMMER DAY

TOTAL 2011 VOC

INVENTORY 

TONS PER SUMMER DAY

PESTICIDE AS PERCENT 

OF TOTAL VOC

EMISSIONS

SJV 16.8 354 4.7%

Ventura 2.6 48.3 5.3%

South Coast 1.2 580 0.2%

SED 0.5 88.1 0.6%

Sacramento 

Metro 1.1 121 0.9%

Source: Total 2011 VOC inventory for SJV and SC: CARB, 8-Hour Ozone State Implementation Plan Revisions 

for the South Coast and San Joaquin Valley Air Basins, July 21, 2011, Appendix B. Total 2011 VOC inventory for 

Ventura County, SED, and Sacramento Metro: 2007 State Strategy, Appendix A.

CDPR Procedures for Calculating VOC Emissions from Pesticides

Section 3 CCR section 6452.4(a)(1) as amended in May 2011 establishes the basic 

procedures for calculating pesticide VOC emissions for the annual report and thus for 

determining compliance with the SIP pesticide reduction goals: 

(1) report the total agricultural and structural (fumigant and nonfumigant) 

pesticide volatile organic compound (VOC) emissions for the previous years. 

Nonfumigant pesticide product emissions will be the summation of the pounds of 

each pesticide product used multiplied by the VOC content (emission potential) 

for the specific product. Fumigant product emissions will be the summation of the 

pounds of each pesticide product used multiplied by the emission potential for 

that specific product and VOC emission rating for the application method, as 

specified in (5).11

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

assumed to contribute to atmospheric VOC. The procedure that CPDR uses to determine EP is 

documented in the memorandum, Frank Spurlock, CDPR to John Sanders, CDPR, January 7, 

2002, subject: Methodology for determining VOC emission potential of pesticide products 

(http://www.cdpr.ca.gov/docs/emon/vocs/vocproj/intro.pdf). The VOC emission ratings for the 

fumigant application methods (the application method adjustment factor (AMAF)) are 

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

emissions. See 3 CCR section 6452.4(a)(4) and Revised 2010 Pesticide VOC Emissions Report, 

p. 14 and Appendix 1a. 

In its revised SIP commitment for the SJV, CDPR proposes to track compliance with the 

overall VOC limit in the SJV by using the emissions estimation methodology described on page 

2-4 (in the section “Procedure for Calculating Unadjusted and Adjusted Volatile Organic 

Compound Emissions) in the memorandum, Rosemary Neal, CDPR to Randy Segawa, CDPR, 

 

11

 Subsection (5) of 3 CCR 6452.4(a) was renumbered to (4) in the May 2011 revisions to this section.
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November 5, 2008, Subject: Update to the Pesticide Volatile Organic Inventory. Estimated 

Emissions 1990-2006, and Preliminary Estimates for 2007 (“Neal memorandum”).12 The 

emission calculation procedures in 3 CCR section 6452.4(a)(1) and the Neal memorandum are 

essentially the same and follow standard inventorying practice. See, for example,

http://www.epa.gov/ttn/chief/ap42/index.html.

EPA interprets CDPR’s regulations in CCR section 6452.4(a) and commitment to use the 

emissions estimation methodology in the Neal memorandum to calculate base year VOC 

emission levels and compliance to replace the calculation methodology in the 1994 Pesticide 

Element.

E. History of the California SIP Pesticide Element

Prior to the submittals that are the subject to this final action, California has made five 

submittals and EPA has taken three rulemaking actions related to the California SIP Pesticide 

Element. These submittals and actions are listed below in Table 4. In this section, EPA provides

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

TABLE 4 – PREVIOUS SUBMITTALS AND ACTIONS ON THE CALIFORNIA SIP

PESTICIDE ELEMENT

DATE SUBMITTAL/ACTION

November 15, 1994

California submits “The State Implementation Plan for Agricultural and 

Commercial Structural Pesticides,” November 15, 1994 as part of the 

1994 California State Implementation Plan for Ozone (“1994 Pesticide 

SIP”)

May 11, 1995

California submits the memorandum, James W. Wells, Director, CDPR 

to James D. Boyd, Executive Officer, CARB, May 9, 1995, re: 1994 

State Implementation Plan (“Wells memorandum”) which clarifies and 

revises certain aspects of the 1994 Pesticide SIP document.

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

measure. 61 FR 10920.

June 13, 1996

California submits additional information including emissions reductions 

credit taken for the pesticide measure. See, letter, James D. Boyd, 

Executive Officer, CARB to David Howekamp, Air Division Director, 

EPA Region 9, June 13, 1996 (“Boyd/Howekamp letter”).

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

Pesticide Element. 62 FR 1150.

 

12

 The Neal memorandum was included as part of October 12, 2009 submittal of the revised SIP

commitment for the SJV, and EPA has included it as additional material in the California SIP.
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TABLE 4 – PREVIOUS SUBMITTALS AND ACTIONS ON THE CALIFORNIA SIP

PESTICIDE ELEMENT

DATE SUBMITTAL/ACTION

January 9, 2004

California submits the 2003 State Strategy which includes the PEST-1 

measure. PEST-1 continues implementation of the 1994 Pesticide 

Element.

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

County.

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

Ventura County. 73 FR 21885.

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

Ventura County. 73 FR 41277. 

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

the PEST-1 measure. 74 FR 10176.

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

the PEST-1 measure. 75 FR 10420.

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

CDPR’s fumigant regulations. 77 FR 24441. 

1. The 1994 Pesticide Element in the 1994 Ozone SIP13

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

ozone standard in the State. As part of this comprehensive SIP, the State included a plan to 

reduce VOC emissions from agricultural and commercial structural pesticide applications in five 

California ozone nonattainment areas by a maximum of 20 percent from 1990 baseline emissions 

by 2005.14 Under this plan, known as the 1994 Pesticide SIP, the reductions in VOC emissions 

were to occur on a linear basis from the 1990 baseline emissions inventory. The plan also offered 

the flexibility to achieve reductions of less than 20 percent by the year 2005 in air districts if less 

pesticidal VOC emissions reductions were needed. See 1994 Pesticide SIP, p. 1. The 1994 

Pesticide SIP was to be implemented in several steps: 1) re-evaluation of pesticide products; 2) 

establishment of a 1990 pesticidal VOC base year inventory and emissions tracking program; 

and 3) development of a program to reduce pesticide VOC emissions if necessary. 

The first step of the 1994 Pesticide SIP “Re-evaluation of Pesticide Products” was 

designed to determine the amount of VOC in each pesticide product by requiring registrants of 

 

13

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

submittal, however, was preceded by an EPA proposal to regulate pesticide VOC emissions statewide as part of a 

federal implementation plan (FIP) for the South Coast, Ventura, and Sacramento Metro 1-hour ozone nonattainment 

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

14

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

1994.
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agricultural and structural pesticides to submit data on the VOC Emission Factor of their 

products. This step was begun in April 1994.

The second step of the 1994 Pesticide SIP “Establishing the 1990 Base Year Inventory 

and Tracking” included using the 1991 Pesticide Use Report and then adjusting it to 1990. The 

1991 PUR were proposed to be used instead of the 1990 because they were then believed to be 

more accurate than the 1990 PUR reports. The SIP outlined the methodology that would be used 

to develop the baseline inventory and stated that this methodology would be used for subsequent 

years. 

The third step of the 1994 Pesticide SIP “Reducing Pesticide VOC Emissions” included 

analysis of the 1990 and subsequent annual emissions inventories to develop detailed pesticidal 

VOC emissions inventories over time, encouraging reductions in pesticidal VOC emissions 

through a series of non-regulatory steps, and development of regulatory measures as necessary to 

ensure that reductions in pesticidal VOC were achieved. The decision whether additional 

regulatory measures were needed was to be made by 1997. 

After reviewing the initial submittal, EPA requested CDPR clarify and revise certain 

aspects of the 1994 Pesticide SIP including to identify the percent reductions in emissions 

expected in specific years for each nonattainment area and the date by which CDPR would adopt 

any additional regulations that might be needed to achieve those reductions.15 California 

responded with the requested clarifications and revisions.16 These revisions including a 

commitment from California to adopt and submit to EPA by June 15, 1997 any regulations 

necessary to reduce VOC emissions from agricultural and commercial pesticides by specific 

percentages of the 1990 base year emissions, by specific years in five nonattainment areas.

CDPR listed these percentage reductions in a table:

REDUCTIONS FROM 1990 BASELINE

Ozone nonattainment area 1996 1999 2002 2005 

Sacramento Metro 8% 12% 16% 20%

San Joaquin Valley 8% 12% 16% 20%

South Coast 8% 12% 16% 20%

Southeast Desert 8% 12% 16% 20%

Ventura 8% 12% 16% 20%

Source: Wells memorandum, p. 1.

EPA proposed to approve the 1994 California Ozone SIP on March 18, 1996 (61 FR 

10920, 10935). In its proposal, EPA stated in regard to the pesticides measure: 

 

15

 See letters, David P. Howekamp, EPA to James W. Wells, Director, California Department of Pesticide

Regulation, March 20, 1995 and April 21, 1995.

16

 See letter, James W. Wells to David P. Howekamp, March 31, 1995 and letter, James D. Boyd to Felicia 

Marcus, Regional Administrator, EPA Region 9, May 11, 1995 transmitting memorandum, James W. Wells, 

Director, CDPR to James D. Boyd, Executive Officer, CARB, May 9, 1995, re: 1994 State Implementation Plan 

(“Wells memorandum”).
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4. Pesticides

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

to reduce VOC emissions from the application of agricultural and structural 

pesticides. The submittal describes relevant authority in Section 6220 of Title 3 of 

the California Code of Regulations that has been granted to the California 

Department of Pesticide Regulation (DPR). However, since CARB has overall 

responsibility for developing the SIP, California’s pesticide commitment is 

described in a letter from DPR to CARB, (Ftn. 4: James Wells (DPR) to James Boyd 

(CARB), dated November 15, 1994) which CARB then submitted to EPA with the 

balance of the 1994 SIP. In May 1995, California used a similar mechanism to 

clarify technical details of the pesticide commitment. (Ftn. 5: May 9, 1995 letter from 

Wells to Boyd under a May 11, 1995 cover letter from Boyd to Felicia Marcus (EPA)). This 

clarification is considered part of California’s SIP

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

adopt and submit to U.S. EPA by June 15, 1997, any regulations necessary to

reduce VOC emissions from agricultural and commercial structural pesticides by

specific percentages of the 1990 base year emissions, (Ftn 6: In a March 31, 1995 letter 

from Wells to David Howekamp (EPA), California clarified its commitment to limit future VOC 

emissions from pesticides to the target percentages of the 1990 base year emissions, regardless of 

future growth in emissions that might otherwise occur. “Therefore, the proposed 20 percent 

reduction goal could be considered to be greater than 20 percent if one includes growth in 

pesticidal VOC emissions.”(March 31 letter, page 2.) by specific years, and in specific 

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

Pesticide Emissions Baselines.” The table labeled “Reductions from Pesticides 

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

each area.

REDUCTIONS FROM 1990 PESTICIDE EMISSIONS BASELINE

Ozone nonattainment area 1996 

(percent)

1999 

(percent)

2002 

(percent)

2005 

(percent)

Sacramento Metro 8 12 16 20

San Joaquin Valley 8 12 16 20

South Coast 8 12 16 20

Southeast Desert 8 12 16 20

Ventura 8 12 16 20

REDUCTIONS FROM PESTICIDES MEASURE

(Tons per day of ROG)

1999 ( 2002 2005 2007 2008 2010

South Coast 1.5 1.6 1.3 1.6 1.7

Southeast Desert 0 0 1.2 1.5

Ventura 0 0 2.4

Sacramento Metro 0 0 2.7

San Joaquin Valley 13

San Diego 0.2
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The pesticide component of California’s SIP also describes education and 

outreach programs intended to achieve these emission reductions voluntarily. 

EPA strongly encourages these programs, and hopes to work with DPR and the 

affected industries to make them successful. In the event, however, that additional 

control strategies are needed, California’s commitment to adopt and submit any 

necessary pesticide regulations is sufficient to ensure those emission reductions

described in the table labeled, ‘‘Reductions from 1990 Pesticide Emissions 

Baselines.” (Ftn 7: Note that for purposes of ROP and attainment demonstrations in the SIPs, 

California has not claimed emission reduction credit for the 8% pesticide emission reductions 

planned for 1996.)

c. EPA Action. EPA is proposing to approve the Pesticides measure under

sections 110(k)(3) and 301(a) of the Act, and assign credit to the measure as part

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

nonattainment areas. EPA will take regulatory action on the State’s Pesticides 

regulations, if any regulations are required and are submitted, in separate 

rulemakings.

In its May 2, 1996 comment letter on the proposed approval, California stated that it took 

SIP credit for pesticide reductions only in the applicable attainment year for the San Joaquin 

Valley, Sacramento Metro, Ventura County, the Southeast Desert and the South Coast and that 

EPA’s action “should reflect this information.”

17 CARB subsequently submitted additional 

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

the State’s formal May 2 comment letter.18

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

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

Emissions Baseline table, stating that the commitment is for 20 percent reduction from 1990 

levels in each SIP area, except SD and that CARB only took credit in the attainment year, giving 

these years and percent values as SJV 1999 = 12%; Sac 2005 = 20%; Ven 2005 – 20%, SED 

2007 – 20%; and SC 2010 = 20%.19 Id. CARB also requested that no credit be assigned the 

pesticide measure prior to attainment. Id. Finally, CARB provided specific emissions reduction 

credits from the Pesticide Element for each area in their attainment year. Id., Attachment C. EPA 

listed these credit (which are all expressed in the 1994 SIP currency20) in its final rule approving 

 

17

 Letter, James M. Strock, Secretary for Environmental Protection, to Felicia Marcus, Regional 

Administrator, EPA Region 9, May 2, 1996, Attachment 1, p. A-3.

18

 See letter, James D. Boyd, Executive Officer, CARB to David Howekamp, Air Division Director, EPA 

Region 9, June 13, 1996, Attachment A, p. A-2 and Attachment C.

19

 These dates corresponded to the applicable attainment date for each area’s then-current classification for 

the 1-hour ozone standard: SJV was classified as serious with an attainment date of November 15, 1999; Ventura 

and Sacramento Metro were classified as severe-15 with an attainment date of November 15, 2005; SED was 

classified as severe-17 with an attainment date of November 15, 2007, and the South Coast was classified as 

extreme with an attainment date of November 15, 2010. See 61 FR 10920, 10925.

20

 A SIP’s “currency” is the emissions inventory on which it is based. An emissions reduction expressed in 

a particular “SIP currency” is an emissions reduction calculated using the inventory included in that particular SIP. 

Because inventories vary from SIP to SIP for reasons unrelated to controls (e.g., improved activity estimates or

emissions factors), the estimated emissions reductions from a control measure in tons per day can change from SIP 

to SIP even if the effectiveness of the control measure as a percentage of the emissions category does not change. 
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the 1994 Ozone SIP in the table entitled “REDUCTIONS FROM PESTICIDES MEASURE” at 62 FR 

1150, 1170 (January 8, 1997). In that final rule, EPA provided the following discussion on the 

1994 Pesticide Element:

4. Pesticides

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

to reduce VOC emissions from the application of agricultural and structural 

pesticides. The submittal describes relevant authority in Section 6220 of Title 3 of 

the California Code of Regulations that has been granted to the California 

Department of Pesticide Regulation (DPR).

b. Response to Comments. The Environmental Defense Center (EDC)

questioned whether the pesticides measure should be granted credit. EDC stated 

that pest management research alone will not create any reductions and the SIP is 

entirely vague as to how these air quality benefits will be accomplished. While the 

NPRM refers to a June 1997 date for promulgation of regulations should the 

voluntary measures fail, the SIP itself recites a possible, not obligatory, 1998 date.

Finally, EDC recommends that the rule that was included in EPA’s 1995 

Federal Implementation Plan (or some comparable rule) must be included in the 

SIP.

On May 11, 1995, CARB submitted a clarification by the California

Department of Pesticide Regulation (Memo from James W. Wells to James D.

Boyd) to the pesticide element of the SIP, submitted on November 15, 1994. This 

SIP clarification, which was cited in the NPRM, states, in part, that “The

Department of Pesticide Regulation commits to adopt and submit to U.S. EPA by 

June 15, 1997, any regulations necessary to reduce volatile organic compound 

emissions from agricultural and commercial structural pesticides by specific 

percentages of the 1990 base year emissions, by specific years, and in specific 

nonattainment areas * * * as listed in the following table * * *.” California assigns 

to the pesticides measure less emission reductions than were associated with 

EPA’s proposed FIP rule but the SIP reductions are sufficient to meet progress 

and attainment requirements in each area for this control category.

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

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 

Metro, Ventura County, Southeast Desert, and the South Coast, and by 12 percent

in 1999 for the San Joaquin Valley. The table labeled “Reductions from Pesticides 

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

revised the table to reflect CEPA’s request that emission reductions for interim 

years be excluded from the SIP, since CARB elects not to assign credit to the 

 

Here, the 1994 SIP currency for the pesticide reductions includes, unusually, anticipated growth in pesticide 

emissions from the base year of 1990 to the applicable attainment year. As a result, to compare whether emissions 

reductions are equivalent between different SIPs for here, the emissions increases due to growth would need to be 

removed first.
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pesticides measure except for purposes of attainment. If reductions from the 

measure are, in the future, needed to meet ROP milestones, CARB must resubmit 

the measure and interim reduction estimates as an SIP revision.

REDUCTIONS FROM PESTICIDES MEASURE

(Tons per day of ROG)

1999 2002 2005 2007 2008 2010

South Coast 0 0 0 0 0 1.7

Southeast Desert 0 0 0 1.5

Ventura 0 0 2.4

Sacrament 0 0 2.7

San Joaquin Valley 13

d. EPA Action. EPA is approving the Pesticides measure under sections

110(k)(3) and 301(a) of the Act, and assigning credit to the measure as part of the 

attainment demonstrations for appropriate nonattainment areas. EPA will take 

regulatory action on the State’s Pesticides regulations, if any regulations are 

required and are submitted, in separate rulemakings.

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

the 1994 California Ozone SIP, it was not included in the materials that were incorporated by 

reference into the California SIP. While EPA’s failure to approve and incorporate the Wells 

memorandum into the SIP may have been inadvertent, California’s May 2, 1996 comment letter 

and the Boyd Letter made such approval and incorporation (i.e., without modification) 

problematic because the Wells memorandum contained interim year emissions reduction 

commitments that the California comment letter and Boyd Letter specifically excluded.

2. “PEST -1” Measure in the 2003 State Strategy 

On October 23, 2003, CARB adopted the “2003 State and Federal Strategy for the 

California State Implementation Plan” (adopted October 23, 2003 and submitted January 9, 

200421) (“2003 State Strategy”). 22 The 2003 State Strategy identified California’s regulatory 

agenda to reduce ozone and PM10 levels. It was submitted to update and replace the State’s 

control measure commitments in the 1994 Ozone SIP (as modified in 1999 for the South Coast).

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

of defined near-term statewide control measures and several emissions reduction commitments 

specific to attainment of the 1-hour ozone standard and the PM10 standards in the South Coast 

and the PM10 standards in the SJV. One of these defined measures was PEST-1 (“Implement

Existing Pesticide Strategy”), which retained the provisions of the 1994 Pesticide Element. As 

 

21

 See CARB Board Resolution 03-22 (October 23, 2003) and letter, Catherine Witherspoon, Executive 

Officer, CARB, to Wayne Nastri, Regional Administrator, EPA Region 9, January 9, 2004.

22

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

South Coast Air Basin in the 2003 State Strategy. These withdrawals did not affect the measure in the 2003 State 

Strategy related to VOC controls for pesticides. See letter, James N. Goldstene, Executive Officer, CARB to Wayne 

Nastri, Regional Administrator, EPA Region 9, February 13, 2008.
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submitted in January 2004, the 2003 State Strategy only described the measure as it applied to 

the South Coast. See 2003 State Strategy, section III-C.

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

and SJV PM10 plans, the 2003 State Strategy was also intended to provide state strategies and 

emissions reductions for the SJV’s then-under development 1-hour ozone plan. This plan was 

initially required by the area’s reclassification to severe as a result of its failure to attain by its 

serious attainment date of November 15, 1999 and then required as a result of its voluntary 

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

2004).

In 2004, CARB submitted the 2004 Extreme [1-hour Ozone] Attainment Plan for the SJV 

which, as anticipated, relied in part on the 2003 State Strategy for the reductions needed for 

attainment. On page 27 of its staff report for that plan,23 CARB discusses the measures in the 

2003 State Strategy and provides an interpretation of the PEST-1 measures as it related to the 

SJV: 

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

obligation to reduce volatile emissions from pesticides. For the San Joaquin 

Valley, this means a pesticide VOC emissions target of 12 percent less than 

1990 levels.

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

PEST-1 as part of its proposed partially approval/partially disapproval of the 2003 South Coast 

Air Quality Management Plan. See 73 FR 63408 (October 24, 2008). EPA noted in that proposal 

that it interpreted its approval of PEST-1 as maintaining the status quo with respect to the 

existing pesticide strategy, that is, the California SIP would continue to reflect the strategy as 

approved by EPA in 1997. Id at 63413. After reviewing and responding to comments received on 

the proposal (including comments on the proposed approval of PEST-1e), EPA finalized the 

approval of the PEST-1 measure. 74 FR 10176 (March 10, 2009). In acting on PEST-1, EPA 

reasoned that approval or disapproval of PEST-1 amounted to the same thing from the standpoint 

of the California SIP, namely the 1994 Pesticide Element. See 74 FR 10176 (March 10, 2009).

EPA’s approval of PEST-1 was challenged and the Ninth Circuit disagreed with EPA’s 

decision that approval or disapproval of PEST-1 amounted to the same thing and remanded the 

approval of PEST-1 back to EPA for an evaluation of the Pesticide Element for enforceability. 

See Association of Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011), revised January 27, 

2012 (AIR). Specifically, the Ninth Circuit held, given its earlier finding in El Comité para el 

Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062 (9th Cir. 2008) (Warmerdam) that the 

Wells memorandum was not approved and incorporated into the California SIP, that EPA must 

determine whether the approved 1994 Pesticide Element has sufficient enforcement mechanisms 

to satisfy the requirements of the CAA. 

3. 2007 Revisions to the Pesticide Element for Ventura County

In 2007, California revised the Pesticide Element for Ventura County to reduce in part, 

and temporarily, the VOC emissions reduction commitments for Ventura County to avoid short-

 

23

 CARB, Staff Report, Proposed 2004 State Implementation Plan For Ozone in the San Joaquin Valley, 

Release Date: September 28, 2004 (“CARB staff report”).
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term, but potentially significant, economic losses by strawberry farmers in the area and the 

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

submitted the Proposed Revision to the Pesticide Element of the 1994 Ozone SIP for the Ventura 

County Nonattainment Area (August 13, 2007)” (“Revised Pesticide Element for Ventura 

County”) to EPA for approval as a revision to the existing Pesticide Element in the California 

SIP.

Under the 1994 Pesticide Element, CDPR had committed to reduce VOC emissions

resulting from agricultural and commercial structural pesticides in Ventura County by 20 percent 

of the 1990 base year emissions and by 2.4 tpd (in 1994 SIP currency) by 2005. Under the 

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

emissions reductions from California’s ongoing mobile source emission control program for a 

portion of the 1994 Pesticide Element commitment for Ventura County. See Table 3 of the 

Revised Pesticide Element for Ventura County. Under the Revised Pesticide Element for 

Ventura County, CARB reduced the amount of the substitution each year until 2012, resulting in 

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

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

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

PHASE IN OF PESTICIDE VOC LIMITS FOR THE VENTURA OZONE 

NONATTAINMENT AREA

Tons per Day

2008 2009 2010 2011 2012+

4.3 4.0 3.6 3.3 3.0

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

approved the Revised Pesticide Element for Ventura County. See 73 FR 21885 (April 23, 2008) 

(proposed rule) and 73 FR 41277 (July 18, 2008) (final rule).

F. Proposed Action and Comments Received on the Proposed Action

On April 24, 2012, EPA proposed to approve CDPR’s revised SIP commitment for the 

SJV submitted on October 12, 2008 and CDPR’s Fumigant Regulations submitted on October 2, 

2008 and August 2, 2011. See 77 FR 24441. We provided a 30 day public comment period and 

received one comment letter. We respond to the comments in this letter in Section III of this 

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

Element

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

Revisions. 

1. Requirements for Public Notice and Hearing for SIP Submittals

CAA sections 110(a) and (l) require a state to provide reasonable public notice and 

hearing prior to the adoption and submittal of a SIP or SIP revision. To meet this requirement, 

every SIP submittal should include evidence that adequate public notice was given and a public 

hearing was held consistent with EPA’s implementing regulations in 40 CFR § 51.102.

CDPR has satisfied applicable statutory and regulatory requirements for reasonable 

public notice and hearing prior to adoption and submittal (thorough CARB) of its field fumigant 

regulations and revisions to its revised SIP commitment for San Joaquin Valley. Each SIP submittal 

contains evidence of adequate public notice and public hearing. See memorandum, Christopher 

Reardon, Chief Deputy Director, CDPR to James Goldstene, Executive Officer, CARB, October 

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

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

Executive Officer, CARB, October 5, 2009, Subject: Amendment to the Pesticide Element of the 

Ozone State Implementation Plan, Enclosures 3 and 4; and memorandum, Christopher Reardon, 

Chief Deputy Director, CDPR to James Goldstene, Executive Officer, CARB, July 20, 2011, 

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

2. Completeness Determinations

CAA section 110(k)(1)(B) requires EPA to determine whether a SIP submittal is 

complete within 60 days of receipt. This section also provides that any SIP submittal that EPA 

has not affirmatively determined to be complete or incomplete will become complete by 

operation of law six months after the day of submittal. A completeness review allows EPA to 

determine if the submittal includes all the necessary items and information it needs to act on it.

EPA makes completeness determinations using criteria that it established in 

40 CFR part 51, Appendix V. These criteria fall into two categories: administrative information 

and technical support information. The administrative information provides documentation that 

the state has followed basic administrative procedures during the SIP-adoption process and thus 

EPA has a legally-adopted SIP revision in front of it. The technical support information provides 

the information EPA needs to determine the impact of the proposed revision on attainment and 

maintenance of the air quality standards.

EPA notifies a state of its completeness determination by letter unless the submittal 

became complete by operation of law. A finding of completeness does not approve the submittal 

as part of the SIP nor does it indicate that the submittal is approvable. It does start the 12-month 

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

The October 12, 2009 submittals of the field fumigant regulations and the revised SJV 

Pesticide commitment became complete by operation of law on April 12, 2010. The August 2, 
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2011 submittal of revisions to the field fumigant regulations became complete by operation of 

law on February 2, 2012. 

TABLE 5 – ADOPTION, SUBMITTAL, AND COMPLETENESS TIMELINE FOR 

REVISIONS TO THE CALIFORNIA SIP PESTICIDE ELEMENT

DATE ACTION

September 27, 

2007

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

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

November 16, 

2007

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

Joaquin Valley. (CARB withdrew this version of CDPR SIP commitment for San 

Joaquin Valley on October 12, 2009.)

January 25, 

2008

CDPR revises title 3 of the California Code of Regulations to incorporate regulations 

to limit emissions of VOC from the application of fumigants in five California ozone 

nonattainment areas. This regulations include 3 CCR section 6447 (first paragraph 

only) and sections 6447.3—6452 pertaining to field fumigation methods. (CDPR 

refers to this set of regulations as VOC-1.)

January 28, 

2008

CARB submits portions of CDPR’s adopted fumigant regulations (VOC-1) for 

inclusion in California’s State Implementation Plan (SIP). (CARB withdrew these 

regulations on October 12, 2009.)

September 3, 

2008

CDPR revises the fumigant regulations (3 CCR section 6452.2) to phase-in the 

fumigant VOC emission allocation system applicable in Ventura County. (CDPR 

refers to this set of revisions as VOC-2.)

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

April 20, 

2009

CDPR revises the fumigant regulations (3 CCR section 6452.2) to recalculate the 

emission benchmarks for each of the five applicable nonattainment areas. (CDPR 

refers to this set of revisions as VOC-3.)

October 12, 

2009

CARB submitted portions of the fumigant regulations to EPA (VOC-1, VOC-2, and 

VOC-3). This submittal superseded the January 28, 2008 submittal, and included:

• 3 CCR section 6447 (first paragraph only) and 3 CCR sections 6447.3-6452 

pertaining to field fumigation methods.

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

to the emissions recordkeeping, reporting, and inventory.

• Portions of 3 CCR sections 6452.2 and 6452.3 pertaining to field fumigation 

limits and allowances only as applicable to the Ventura County ozone 

nonattainment area.

October 12, 

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

April 12, 2010 CARB’s October 12, 2009 submittals became complete by operation of law pursuant 

to CAA section 110(k)(1)(B).
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TABLE 5 – ADOPTION, SUBMITTAL, AND COMPLETENESS TIMELINE FOR 

REVISIONS TO THE CALIFORNIA SIP PESTICIDE ELEMENT

DATE ACTION

April 7, 2011 CDPR adds or revises these fumigant regulations: 3 CCR sections 6448.1, 6449.1, 

6450.1 (fumigation method restrictions); section 6452.2 (fumigant VOC emission 

limits); section 6452.3 (field fumigant VOC emission allowances); section 6452.4 

(annual VOC emissions inventory report); and section 6626 (pesticide use reports for 

production agriculture). (CDPR refers to this set of revisions as VOC-4.)

May 11, 2011 CDPR adds or revises these fumigant regulations: 3 CCR section 6400 (restricted 

materials); section 6446 (general requirements); section 6446.1 (methyl iodide field 

fumigation methods); section 6452.4 (annual VOC emissions inventory report); and 

section 6624 (pesticide use records). (CDPR refers to this set of revisions as VOC-5.)

August 2, 2011 CARB submitted portions of the fumigant regulations (VOC-4 and VOC-5). This 

submittal revised and added to the October 12, 2009 submittal, and included the 

following:

• 3 CCR section 6400 pertaining to restricted materials.

• 3 CCR sections 6446, 6446.1, 6448.1, 6449.1, and 6450.1 pertaining to 

fumigation method restrictions.

• Portions of 3 CCR sections 6452.2 and 6452.3 pertaining to field 

fumigation limits and allowances in the Ventura County federal ozone 

NAA. The portions of sections 6452.2 and 6452.3 pertaining to field 

fumigation limits and allowances in the Sacramento Metro, San Joaquin 

Valley, South Coast, and Southeast Desert federal ozone NAAs are not 

included for submittal to U.S. EPA.

• 3 CCR section 6452.4 pertaining to the annual VOC emissions inventory 

report.

• 3 CCR sections 6624 and 6626 pertaining to pesticide use records and 

reports.

February 2,

2012

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

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

B. Enforceability

1. CAA Requirements for Enforceability of Rules and Commitments

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

emission limitations, and such other control measures, means or techniques (...) as well as 

schedules and timetables for compliance, as may be necessary or appropriate for attainment....”

In order to be enforceable, SIP regulations and commitments must be clear regarding, for 

example, who must comply, by what date, the standard of compliance, the methods used to 

determine compliance, and the process and criteria for obtaining any variation from the normal 
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mode of compliance.

24 Guidance used to help evaluate enforceability includes the “Bluebook”

and “the Little Bluebook.”

25

2. Evaluation and Conclusions 

a. CDPR Regulations

CDPR’s regulations are clear and specific. They describe the specific requirements 

related to field fumigation and methods, by fumigant, for five ozone nonattainment areas during 

May 1- October 31, the peak ozone season. See portions of 3 CCR sections 6447.3 – 6452. For 

example, section 6447.3 (Methyl Bromide Field Fumigation Methods) specifies that of six 

allowable methyl bromide application methods, the Nontarpaulin/Shallow Bed; 

Nontarpaulin/Deep Broadcast; Tarpaulin/Shallow/Bed; Drip System and, in specific 

circumstances, Tarpaulin/Shallow/Broadcast and Tarpaulin/Deep Broadcast methods are 

prohibited in the SJV, SED and Ventura County nonattainment areas from May 1 through 

October 31. Provisions for each fumigant specify maximum application rates, and, as applicable, 

soil moisture requirements, minimum injection depths and spacing, type of equipment used, post 

water treatment rates and timing, tarpaulin application requirements, and “tarpaulin repair 

response plans.”

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

method on a 3-year interim basis. The request to implement a method not described in the 

regulations must be accompanied by scientific data documenting the VOC emissions, and that 

the method will not result in emissions greater than any one of the methods described and 

permitted in the regulations. The director must consider criteria such as data sufficiency and 

validity, and representativeness of field conditions studied. 

The regulations include recordkeeping requirements in section 6624 (Pesticide Use 

Records) and the reporting requirements in section 6626 (Pesticide Use Reports for Production 

Agriculture). Among these recordkeeping and reporting requirement is the provision that 

requires any person who uses a fumigant in any of the five ozone nonattainment areas must 

record and report a description of the application method. See sections 6624(f) and 6626(d). The 

requirements for methods used, alternate methods, recordkeeping and report requirements and 

other rule provisions in the submitted regulations are clear and adequate to ensure that 

California’s submitted fumigant regulations are enforceable as required by of CAA section 

110(a)(2)(A).

We received several comments on our proposed conclusion that the fumigant regulations 

met the CAA requirement for enforceable emission limitations. We respond to these comments 

in Section III.D. None of these comments revised our initial conclusion that the regulations are 

enforceable. 

 

24

 “Review of State Implementations Plans and Revisions for Enforceability and Legal Sufficiency” 

(Enforceability Guidance), Craig Potter, EPA, September 23, 1987. http://www.epa.gov/compliance/resources/ 

policies/civil/caa/stationary/review-enf-rpt.pdf. See also General Preamble for the Implementation of Title I of the 

Clean Air Act Amendments of 1990. 57 FR 13498, 13502 and 13541 (April 16, 1992) (General Preamble) and CAA 

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

25

 “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” U.S. EPA, OAQPS, May 

25, 1988 (The Bluebook) and “Guidance Document for Correcting Common VOC and Other Rule Deficiencies,” 

U.S. EPA Region IX, August 21, 2001 (the Little Bluebook).
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b. Revised SIP Commitment for the San Joaquin Valley

CDPR’s commitment to ensure that VOC emissions from commercial structural and 

agricultural pesticide use do not exceed 18.1 tpd in the SJV is clear. The mechanism to track 

compliance with the limits is an annual emissions inventory report which is required by both the

commitment and 3 CCR section 6452.4. (Annual Volatile Organic Compound Emissions 

Inventory Report). Procedures for calculating emissions are included in the Neal memorandum 

and 3 CCR section 6452.4(a)(1) and the requirement for sources (e.g., pesticide applicators) to 

keep and report the data necessary for preparing the annual emissions inventory report is 

required by 3 CCR section 6624 (Pesticide Use Records) and section 6626 (Pesticide Use 

Reports for Production Agriculture) These provisions are adequate in combination with the 

fumigant regulation and the to ensure the limit for the SJV is enforceable as required by CAA 

section 110(a)(1)(A).

CDPR has also committed to implement restrictions on VOC emissions from nonfumigant regulations by 2014. EPA interprets “by 2014” to mean by May 1, 2014 given that 

CDPR projects emissions reductions from these restrictions in 2014. See revised SIP 

commitment for SJV, page 2. To achieve reductions in 2014, the restriction would need to be 

implemented by the beginning of summer ozone season (May 1) in that year. CDPR does not 

commit to a specific emissions reduction from the additional restrictions on non-fumigant 

pesticide; however, the restrictions are part of CDPR’s regulatory program to ensure that the 

inventory target of 18.1 tpd in the SJV is not exceeded (Id. at page 1), which effectively defines 

the needed stringency. This commitment is sufficiently clear and adequate to ensure that is 

enforceable as required by CAA section 110(a)(1)(A).

We received several comments on our proposed conclusion that the revised commitment 

for SJV meets the CAA requirement for enforceable emission limitations. We respond to these 

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

commitment is enforceable.

C. Reasonably Available Control Measures/Reasonably Available Control 

Requirements (RACM/RACT)

1. Requirements for RACM/RACT

CAA section 172(c)(1) requires that each attainment plan “provide for the 

implementation of all reasonably available control measures as expeditiously as practicable 

(including such reductions in emissions from existing sources in the area as may be obtained 

through the adoption, at a minimum, of reasonably available control technology), and shall 

provide for attainment of the national primary ambient air quality standards.”RACM is a 

requirement only for nonattainment areas. 

EPA defines RACM as any potential control measure for application to point, area, onroad and non-road emissions source categories that meets certain criteria. These criteria include 

whether the measure is technologically and economically feasible and either individually or 

collectively with other such measures can advance the attainment date by at least one year. See
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57 FR 13498, 13560 (April 16, 1992).

26 The determination as to whether a SIP provides for the 

implementation of RACM as required by CAA section 172(c)(1) is done as part of an area’s 

attainment and reasonable further progress plans and not on a rule-by-rule basis.

For ozone nonattainment areas classified as moderate or above, CAA section 182(b)(2) 

requires the implementation of reasonably available control technologies (RACT) on all major 

sources of VOC and for each VOC source category for which EPA has issued a Control 

Techniques Guideline (CTG). CAA section 182(f) requires that RACT under section 182(b)(2) 

also apply to major stationary sources of NOx. In areas classified as severe (such as SED 

(classification pending), Ventura County, and Sacramento), a major source is a stationary source 

that emits or has the potential to emit at least 25 tons of VOC or NOx per year. See CAA sections 

182(d) and (f). For areas classified as extreme (South Coast and SJV), a major stationary sources 

is one that emits or has the potential to emit at least 10 tons of VOC or NOx per year. See CAA 

sections 182(e) and (f).

The revisions to the California SIP Pesticide Element that we evaluate here are intended 

to reduce VOC emissions in the South Coast, SED, Ventura County, SJV, and Sacramento Metro 

ozone nonattainment areas. VOC emissions contribute to the formation of ozone and secondary 

particulate matter. EPA, though, has determined by rule that states do not need to address 

controls for sources of VOC emissions for PM2.5 standard attainment unless the state and/or EPA 

make a technical demonstration that such controls would significantly contribute to reducing 

PM2.5 concentrations in the nonattainment area. See 40 CFR § 51.1002(c)(3). Such a 

determination would be made in the context of each area’s plan for attainment of the PM2.5

standards.

2. RACM/RACT Evaluation and Conclusion

a. Field Fumigant Regulations: South Coast, Ventura County, Southeast Desert, San Joaquin 

Valley, and Sacramento Metro

CARB’s 2009 submittal of the field fumigant regulations did not include a demonstration 

of how the field fumigation methods implement reasonably available control technology 

(RACT).27 Subsequently, CDPR provided a document containing more detailed information on 

its RACT evaluation of fumigation methods.28 This document contains a general discussion of 

strategies for controlling VOC emissions from fumigants and an evaluation of field fumigation 

method options, including the basis for those accepted and those rejected by CDPR for inclusion 

in its regulations. It discusses current research on fumigant VOC emissions reduction methods, 

 

26

 See also “State Implementation Plans; General Preamble for Proposed Rulemaking on Approval of Plan 

Revisions for Nonattainment Areas,” 44 FR 20372 (April 4, 1979); memorandum, John Seitz, Director, OAQPS to 

Regional Air Directors, November 30, 1999, subject: Guidance on the Reasonably Available Control Measure 

Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas; and memorandum, John 

S. Seitz, Director, Office of Air Quality Planning and Standards, EPA, subject: Additional Submission on RACM 

from States with Severe One-Hour Ozone Nonattainment Area SIPs, December 14, 2000.

27

 See letter, Andrew Steckel, EPA Region 9 to Frank Spurlock, CDPR and Mike Guzzetta, CARB, 

November 2, 2010.

28

 See letter and attachments, Randy Segawa, CDPR to Andrew Steckel, EPA-Region 9, Reducing Volatile 

Organic Compound Emissions from Pesticides: Analysis of Alternatives for Field Fumigation Methods, June 28,

2011.
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including a reevaluation of fumigants to obtain additional data to replace surrogate data used in 

developing the adopted regulations. 

Field fumigation emissions are considered fugitive emissions because they are emissions 

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

opening.”

29 As noted above, CAA section 182(b)(2) requires RACT be applied to all major 

stationary sources in an ozone nonattainment area. EPA has not yet defined by rule whether 

fugitive emissions must be included in determination of major source status for the purposes 

determining the application of section 182(b)(2) RACT requirement; however, EPA believes, 

based on the information provided in the CDPR’s alternatives analysis, and the research cited to 

support it, that CDPR has demonstrated that the proposed regulations are stringent enough to 

implement RACT-level controls on the application of pesticides.

On January 10, 2012, EPA partially approved and partially disapproved the section 

182(b)(2) RACT SIP submitted by California on June 18, 2009 for the SJV ozone nonattainment 

area. The partial disapproval was based in part on our conclusion that the State had not fully 

satisfied CAA section 182(b)(2) RACT requirements for the application of fumigants. See 77 FR 

1417, 1425 (January 10, 2012). Based on our finding here that CDPR’s field fumigant 

regulations provide RACT-level controls on this source category, the approval of these 

regulations would satisfy California's obligation to implement RACT under CAA section 

182(b)(2) for this source category for the 1-hour ozone and 1997 8-hour ozone standards for the 

SJV RACT SIP and thereby terminates both the sanctions clocks and the Federal Implementation 

Plan clock for this source category triggered by our January 10, 2012 partial disapproval action.

77 FR 1417 (January 10, 2012).

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

ozone SIPs for the South Coast and SJV and the PM2.5 SIP for the South Coast (which did 

include VOC reductions in its RFP and attainment demonstrations). 30 These demonstrations 

relied in part on VOC control measures in the 2007 State Strategy; however, EPA’s approval of 

these demonstrations did not rely on emissions reductions from CDPR’s field fumigant 

regulations. Therefore, their approval into the SIP is consistent with the approved RACM 

demonstrations.

CARB has submitted SIPs to address attainment of the 1997 8-hour ozone standard in the 

SED, Ventura County, and Sacramento Metro nonattainment. EPA has not yet acted on these 

plans although we note that none rely on reductions from controls on pesticides.

We received no comments on our proposed finding that the fumigant regulations met the 

CAA section 182(b)(2) RACT requirement.

 

29

 See 40 CFR 70.2 (Definitions).

30

 See 76 FR 69928 (November 9, 2011) (South Coast PM2.5 Plan), 77 FR 12652 (March 1, 2012) (SJV 

2007 8-hour Ozone SIP), and 77 FR 12674 (March 1, 2012) (South Coast 8-hour Ozone Plan). EPA has also 

recently approved the SJV 2008 PM2.5 SIP which relied in part on measures in the 2007 State Strategy. In approving 

that SIP, EPA concurred with the State’s determination that VOC did not need to be controlled for PM2.5 attainment 

in the SJV and therefore the plan did not include did not need to evaluate VOC control measures as part of its 

RACM demonstration. See 76 FR 69896, 69924 (November 9, 2011). The PM2.5 plan for the Sacramento Metro area 

is not due until late 2012.
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b. Revised SIP Commitment for the San Joaquin Valley

As noted above, the demonstration that a SIP provides for the implementation of RACM 

as required by CAA section 172(c)(1) is done as part of an area’s attainment and reasonable 

further progress plans and not on an individual rule or commitment basis. 

EPA recently approved the 2007 8-hour ozone SIP for the SJV, including the SIP’s 

RACM demonstration. See 77 FR 12652 (March 1, 2012). To demonstrate that the SIP provided 

for RACM, California relied in part on measures in the 2007 State Strategy, including the revised 

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

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

reductions credit to the commitment in either the RFP or attainment demonstration, nor did it

rely on the commitment to make the determination that the 2007 SIP provided for RACM.31

Because EPA’s approvals of the attainment, RFP, and RACM demonstrations in the SJV 2007 8-

hour ozone SIP did not rely on emissions reductions from CDPR’s commitment to limit pesticide 

VOC emissions in the SJV to 18.1 tpd, its approval into the SIP is consistent with the approved 

RACM demonstration.

We received no comments on our proposed finding that an approval of the revised SIP 

commitment for SJV is consistent with the approved RACM demonstrations for the SJV.

D. Finding of Non-Interference with Applicable Requirements of the CAA 

under Section 110(l)

1. CAA Section 110(l) Requirements

Revisions to the SIP, including revisions to SIP-approved control measure, must meet the 

requirements of CAA section 110(l) to be approved by EPA. CAA section 110(l) “Plan 

Revisions” provides in relevant part: 

“The Administrator shall not approve a revision of a plan if the revision 

would interfere with any applicable requirement concerning attainment and 

reasonable further progress (as defined in [section 171]) or any other applicable 

requirement of [the CAA].”

32

EPA interprets section 110(l) to apply to all requirements of the CAA and to all areas of 

the country, whether attainment, nonattainment, unclassifiable, or maintenance for one or more 

of the six criteria pollutants. It also interprets section 110(l) to require a demonstration 

addressing all pollutants whose emissions and/or ambient concentrations may change as a result 

of the SIP revision. The scope and rigor of an adequate section 110(l) demonstration of 

noninterference depends on the air quality status of the area, the potential impact of the revision 

on air quality, the pollutant(s) affected, and the nature of the applicable CAA requirements.

 

31 See Air Division, EPA Region 9, “Final Technical Support Document and Response to Comments Final 

Rule on the San Joaquin Valley 2007 Ozone Plan and the San Joaquin Valley Portions of the 2007 State Strategy,” 

December 15, 2011, p. 51-57.

32

 CAA section 110(l) also provides that each SIP revision submitted by a state must be adopted by the 

state after reasonable notice and public hearing. EPA addresses this provision in section II.A. of this TSD.
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In reviewing a modification to an approved SIP provision, EPA looks to see to what 

extent the existing SIP has relied on that provision to meet applicable CAA requirements. For 

emissions reduction measures, its generally concludes that the revision will not interfere with any 

applicable requirement related to attainment or RFP if the revised SIP will provide the same or 

more emissions reductions on the same or similar schedule as the existing SIP. EPA notes, 

however, that CAA section 110(l) does not bar approval of SIP revisions that may result in 

higher levels of emissions than would potentially occur under the unrevised SIP; only that such 

revisions do not result in the applicable SIP no longer providing for expeditious attainment or 

RFP or complying with any other applicable requirements of the CAA.

2. Evaluation and Conclusion

The SIP submittals that are being approved and incorporated into the California SIP 

control VOC emissions in five California areas: South Coast, Southeast Desert, Ventura County, 

SJV, Sacramento Metro ozone nonattainment areas. Neither the field fumigant regulations nor 

the SJV revised SIP commitment explicitly regulated any other pollutant besides VOC. VOC is a 

precursor pollutant for ozone as well as for both fine (PM2.5) and coarse (PM10) particulate 

matter.33 At this time only the South Coast’s SIPs rely on VOC controls for PM2.5 or PM10 

attainment and none of its adopted particulate matter plans rely on reductions from the California 

SIP Pesticide Element to demonstrate attainment, RFP, or RACM or to meet any other 

requirement of the CAA. 

Each area’s current attainment designation for the current ozone and particulate matter 

(PM) standards is shown on Table1 above. This table also provides information on the current 

status of the areas’ implementation plans for the current ozone and particulate matter standards

and the revoked 1-hour ozone standard.

34 In section I.F, EPA provides a more detailed discussion 

of the relationship (or lack thereof) of the California SIP’s Pesticide Element to each area’s 

nonattainment area plans. 

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

i. Field Fumigant Regulations

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

California SIP. Their approval will strengthen the SIP by providing SIP-enforceable measures 

and compliance procedures to reduce emissions from the application of fumigants in the five 

ozone nonattainment areas covered by the regulations. Their approval will also aid compliance 

with the approved California SIP Pesticide Element’s provisions for reducing VOC emissions by 

20 percent from 1990 baseline levels in the South Coast, Southeast Desert, Ventura County and 

Sacramento Metro ozone nonattainment areas. Their approval will also aid compliance with the

proposed 18.1 tpd limit on pesticide VOC emissions in the San Joaquin. Therefore, EPA finds

 

33

 While EPA considers VOC to be a precursor to PM, it does not require control of VOC emissions for 

PM standard attainment in most instances. See 72 FR 20586, 20589 (April 25, 2007) and 57 FR 13498, 13538 (April 

16, 1992).

34

 EPA revoked the 1-hour ozone standard in all areas of the country, including the five areas subject to the 

pesticide element, effective 2005. See 69 FR 23951 (April 30, 2004). Under EPA’s implementation rule for the 8-

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

requirements continue to apply to 8-hour ozone nonattainment areas. See 40 CFR § 51.900(f). The 1994 Pesticide 

Element is not one of the applicable requirements under the 8-hour implementation rule.
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that approving the field fumigant regulations into the California SIP will not interfere with any 

applicable requirement concerning attainment and reasonable further progress or with any other 

applicable requirement of the CAA.

We received no comments on our proposed finding that approval of the fumigant 

regulations would not violate section 110(l).

ii. Revised SIP Commitment for the San Joaquin Valley

In 1997, EPA approved the 1994 Pesticide Element into the California SIP. See 62 FR 

1150, 1170 (January 8, 1997). As approved, the 1994 Pesticide Element was to reduce VOC 

emissions from agricultural and commercial structural pesticide applications by a maximum of 

20 percent from the 1990 baseline emissions inventory by 2005 in areas that relied on VOC 

reductions from pesticides in their attainments plans with reductions occurring linearly from 

1990 to 2005 but it allowed for less than 20 percent if fewer VOC reductions from pesticide were 

needed. See 1994 Pesticide SIP, p. 1.

The attainment demonstration for the SJV in the 1994 Ozone SIP relied in part on 

reductions of 12 percent from 1990 emissions levels from the 1994 Pesticide Element to 

demonstrate attainment by the area’s then-applicable attainment deadline of November 15, 1999. 

In approving the 1994 Pesticide Element and the SJV ozone attainment demonstration, EPA 

credited the element with 13 tpd (in 1994 SIP currency) in VOC emissions reductions in 

1999.35,36 At the same time, EPA noted that California had committed to adopt and submit any 

regulations necessary to reduce VOC emissions from agricultural and commercial structural 

pesticides by 12 percent in 1999.

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

In 2003, CARB updated the strategy that was part of the 1994 Ozone SIP. One of the 

measures in the 2003 State Strategy was PEST-1 (“Implement Existing Pesticide Strategy”), 

which retained the provisions of the 1994 Pesticide Element. In 2004, CARB submitted the 2004 

Extreme [1-hour Ozone] Attainment Plan for the SJV which relied in part on the 2003 State 

Strategy for the reductions needed to demonstrate attainment by SJV’s new applicable attainment 

date of November 15, 2010. On page 27 of its staff report for that plan, CARB discusses the 

measures in the 2003 State Strategy and provides an interpretation of the PEST-1 measures as it 

related to the SJV including PEST-1. It described the measure as a “[c]ontinuation of the 

Department of Pesticide Regulation’s approved SIP obligation to reduce volatile emissions from 

pesticides [which f]or the San Joaquin Valley, ...means a pesticide VOC emissions target of 12 

percent less than 1990 levels.”

 

35

 The 13 tpd figure was provided by CARB on page A-2 and in Attachment C of the June 18, 1996 Boyd 

Letter. EPA incorporated the Boyd/Howekamp letter into the SIP. See 40 CFR § 52.220(c)(236).

36

 The 13 tpd figure was provided by CARB on page A-2 and in Attachment C of the Boyd Letter. For the 

1994 Ozone SIP, the State estimated that VOC emissions from pesticide use in 1990 in the SJV were 62.5 tpd. A 12 

percent reduction from this level would require reducing overall pesticide emissions to be no more than 55.0 tpd in 

1999. The State further estimated that without controls, VOC emissions from pesticides in the SJV would increase to 

67.9 tpd by 1999, thereby requiring a reduction of 12.9 tpd (67.9 tpd minus 55.0 tpd, rounded to 13 tpd) in 1999 in 

order to meet the target level for a 12 percent reduction. See CDPR, Staff Report on the Department of Pesticide 

Regulation’s Proposed SIP Commitment for San Joaquin Valley,” undated, p. 1, ftn 1.

37

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

accrue reductions at a rate of 1.33 percent per year (20 percent divided by 15 years) resulting in a 12 percent 

reduction by 1999 (9 years times 1.33 percent per year) .
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EPA approved PEST-1 as it relates to the South Coast into the SIP as part of its action to 

approve in part and disapprove in part the 2003 South Coast AQMP. See 74 FR 10176 (March 

10, 2009), codified at 40 CFR § 52.220(c)(339)(ii)(A)(1). 

EPA has not approved other changes to the SJV-related provisions of 1994 Pesticide 

Element nor has it granted any emissions reductions credit for the 1994 Pesticide Element 

beyond the 13 tpd (in 1994 SIP currency) approved as part of its action on the 1994 Ozone SIP.38

On October 12, 2008, California submitted revisions its SIP Pesticide Element for the 

SJV to replace the requirement to achieve a reduction in VOC emissions from pesticides with a 

limit on overall VOC emissions from pesticides in the SJV of 18.1 tpd of VOC during the high 

ozone season of May 1 and October 30. The 18.1 tpd emission limit equates to a reduction of 12 

percent from the current estimate of 1990 pesticide VOC emissions in the SJV.

39

Based on its review of the submitted revision, EPA finds that the revision will result in, at 

minimum, the same emissions reductions that are currently required by the approved SIP and 

will not delay those reductions given that the limit is currently effective. EPA, therefore, finds

that approving CDPR’s commitment to manage VOC emissions from commercial structural and 

agricultural pesticide use to ensure that they do not exceed 18.1 tpd in into the California SIP 

will not interfere with any applicable CAA requirement concerning attainment and reasonable 

further progress or any other applicable requirement of the CAA.

In comments that EPA received on its proposed approval of the SJV 2004 Extreme ozone 

Attainment Plan (74 FR 33933 (July 14, 2009)), several non-governmental organizations argued 

that the 1994 Pesticide Element requires a 20 percent reduction in VOC emissions from 1990 

levels by 2005 in the SJV40 citing to the Boyd/Howekamp letter on page A-2. In the 

Boyd/Howekamp letter, CARB provided EPA with suggested revisions to its March 18, 1996 

(61 FR 10920, 10935) proposed approval of the 1994 Ozone SIP. In reference to the Pesticide 

Element, CARB stated that the “commitment is for a 20% reduction from 1990 levels by 2005 in 

each SIP area, except [San Diego]. [CARB] only took credit in the attainment year: SJV 1999 = 

12%; Sac 2005 = 20%; Ven 2005 = 20%; SED 2007 = 20%; SC 2010 = 20%.”

EPA does not find the “commitment is for a 20% reduction” statement determinative as 

to the State’s commitment for SJV, not only because it is immediately contradicted by the 

statement that a 12 percent credit was taken only in the attainment year of 1999 but also because 

it is not entirely consistent with the more extensive language describing the emissions reductions 

target in other parts of the approved 1994 Pesticide Element and does not reflect the reductions 

relied on in the SIP.

The 1994 Pesticide Element committed CDPR to a “maximum of 20 percent” reduction 

in pesticide VOC emissions from 1990 baseline levels in areas “which reference VOC 

 

38

 We have approved two ozone plans for the SJV since the 1997: the 2004 Ozone Plan in 2010 and the 

2007 8-hour Ozone Plan in 2012. See 75 FR 10420 (March 8, 2010) and 77 FR 12652 (March 1, 2012). Neither plan 

nor our approval of them relied on reductions in pesticide VOC emissions to meet any applicable CAA requirement.

39

 See CDPR, Staff Report on the Department of Pesticide Regulation’s Proposed SIP Commitment for 

San Joaquin Valley,” undated.

40

 See letter, Brent Newell, Legal Director, Center on Race, Poverty & the Environment, August 31, 2009, 

“Comments on Approval and Promulgation of Implementation Plans: 1-Hour Ozone Extreme Area Plan for San 

Joaquin Valley, CA (Docket No. EPA-R09-OAR-2008-0693),” pp. 16-20. 
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reductions” from the element in their plans. See 1994 Pesticide SIP, p. 1. With this language, the 

percent reduction required in an area is tied to the emissions reductions referenced, that is, relied 

on, in that area’s plan. As approved, the 1994 Pesticide Element also allowed for reductions of 

less than 20 percent if fewer VOC reductions from pesticide were needed. Id. As noted above, 

the reductions relied on in the 1994 Ozone SIP in its attainment demonstration for SJV in 1999 

were 13 tpd (in 1994 SIP currency) which equates to 12 percent reduction from 1990 baseline in 

1999 (when anticipated growth in pesticide VOC emissions between 1990 and 1999 is excluded) 

and no additional reductions have been relied on in any SIP for SJV subsequent to the 1994 one. 

Approval of the revised SIP commitment for the SJV (submitted in 2009) will not 

interfere with any applicable requirement related to attainment or reasonable further progress for 

any PM2.5 or PM10 standard in the SJV. EPA has determined that VOC controls are not required 

for particulate matter control in the SJV. See 72 FR 20586, 20589 (April 25, 2007), 69 FR 

30006, 30007 (May 26, 2004), and 76 FR 69896, 69924 (November 9, 2011).

Approval of the revised SIP commitment for the SJV will not interfere with any 

applicable requirement related to attainment or reasonable further progress for any PM2.5 or PM10

standard in the SJV. EPA has determined that VOC controls are not required for particulate 

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

20589 (November 9, 2011).

We received several comment on whether approval of the revised SIP commitment for 

SJV would violate CAA section 110(l). We have fully responded to each of these comments in 

section III.C. of this TSD. None of these comments revised our initial conclusion that approval 

of the revised commitment would not violate section 110(l).

b. RACM for Ozone and Particulate Matter

EPA has approved the RACM demonstrations in the 8-hour ozone PM2.5 SIP for the 

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

demonstrations in the PM10 SIPs for South Coast and SED.41 The approval of the fumigant 

regulations is consistent with these approved RACM/BACM demonstrations and therefore will 

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

EPA has approved the 8-hour ozone SIP for SJV.

42 The approvals of the fumigant 

regulations and the revised SIP commitment for the SJV are consistent with these approved 

RACM demonstration and therefore will not interfere these SIP’s compliance with the RACM 

requirements.

CARB has submitted SIPs to address attainment of the 1997 8-hour ozone standard in 

Sacramento Metro, SED, and Ventura County. EPA has yet to act on these plans. Because there 

is no approved RACM demonstration for the 8-hour SIP and approval of the fumigant 

regulations will strengthen the SIP, its approval does not interfere with the applicable 

requirement for RACM in these areas. 

 

41

 76 FR 69928 (November 9, 2011) (South Coast PM2.5); and 77 FR 12674 (March 1, 2012) (South Coast 

8-hour ozone); and 70 FR 69081 (November 14, 2005) (South Coast and Coachella (SED) PM10).

42 77 FR 12652 (March 1, 2012) (SJV 8-hour ozone).
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c. Air Toxics/Stratospheric Ozone

Since the CAA does not have ambient air quality standards for air toxics, EPA's 

interpretation of section 110(l) is that an area’s compliance with any applicable Maximum 

Achievable Control Technology (MACT) standards, as well as any applicable Federal Motor 

Vehicle Control Programs (FMVCP) air toxic requirements under CAA sections 112 or 202(l) 

constitutes an acceptable demonstration of noninterference for air toxics. 

There are no MACT standards applicable to pesticide application and pesticides43 are not 

regulated under the air toxic component of the FMVCP; therefore, these SIP revisions will not 

interfere with any MACT or FMVCP that apply in of these areas affected by these SIP revisions. 

For these reasons, the EPA find that this these approvals do not interfere with any applicable 

CAA requirements relative to air toxics.

d. Other Applicable CAA Requirement

EPA is unaware of any other CAA requirements that would be adversely affect by its 

approval of these SIP revisions. 

E. Additional Recommendations for the Next Rule Revision

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

recommended for the next time the rule is amended.

1. We recommend inserting language in the next field fumigant rule revision clarifying that, 

in case of conflict between federal (e.g., labels), state, or local requirements, those 

requirements that result in the lowest VOC emissions apply.

2. In future revisions of the rule, EPA recommends that CDPR consider expanding the 

period for requirements from May-October to include the full year even though there are 

few exceedances of the ozone standards in March-April timeframe.44 EPA bases its

recommendation on the following: 1) Ozone standards are more stringent now than when 

the 1994 SIP was approved, so there is a potential for more exceedances in the “shoulder”

months and 2) expanding the restrictions outside the May-October time period could lead 

to additional VOC reductions. 

3. 3 CCR section 6452.4(b) provides for a 45-day public comment period on the draft 

annual emissions report, which may include modified emission ratings (section 

6452.4(c)). The rule is not clear as to how the public will be notified that the draft report 

and ratings are available for comment. EPA recommends that CDPR explain the process 

 

43

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

Subpart MMM – National Emission Standards for Hazardous Air Pollutants for Pesticide Active Ingredient 

Production. This MACT standard applies to the production of pesticide active ingredients, which is not regulated by 

the proposed revisions to the California SIP Pesticide Element, and not to their application to agricultural fields and 

products or their commercial application to structures, which is regulated by the 1994 Pesticide Element. See 40 

CFR § 63.1360.

44

 About 3 percent of total exceedance days during the period 2005 to 2011 in Ventura and SJV occurred 

outside of the May 1 to October 31 period. See Environmental Protection Agency, Violation Day Count Report 

(Ventura County 2005-2011), April 16, 2012 and Environmental Protection Agency, Violation Day Count Report 

(San Joaquin Valley 2005-2011), April 16, 2012.
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for notifying the public of this availability and the 45-day public comment period. EPA

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

issued. 

4. The 2011 submittal eliminated the “ribbon” test for soil moisture in fine texture soils that 

was present in the 2009 submittal (see sections 6448.1, 6449.1, and 6450.1) but did not 

replace it with another test. Other soil types listed have associated tests. We recommend 

including a test for fine textured soil when the rule is amended.

5. Several terms used in the fumigant rules are neither defined nor referenced within the 

submittal. Section 6000 defines some of these (e.g., application block and restricted-entry 

interval), so this issue could be partly addressed by submitting section 6000 for SIP 

approval and referencing it within the fumigant requirements. Other terms are also not 

defined in section 6000 (e.g., air fan dilution system, broadcast, closing shoes, 

fumigation-handling activities, hot gas, raised-tarpaulin, soil capping, and tarpaulin 

cutting). EPA recommends adding definitions for all these terms in the SIP to improve 

clarity. However, these terms are generally understood by the regulated community, and 

EPA does not believe this omission significantly undermines rule enforceability at this 

time.

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

e.g., sections 6447.3(a)(3)(F) and (5)(F) reference section 6784(b)(4) regarding tarpaulin 

cutting; section 6447.3(b) references section 6770 regarding field entry after pesticide 

applications; sections 6447.3(c), 6448.1(e), 6449.1(e), 6450.1(e), 6450.2(c) and 6451.1(b) 

reference section 6260 regarding research authorizations; section 6452.1 reference 

section 6624 regarding reporting information; section 6624(a)(1) references sections

11408 and 18663 regarding definitions of agricultural use and livestock, and section 

6624(a)(2) references section 6400 regarding restricted materials. EPA recommends

including all referenced sections in the SIP to improve clarity. However, these sections

are generally not critical to implementation of the fumigant regulations, and EPA does

not believe this omission significantly undermines rule enforceability at this time.

7. Consistent with CAA Title V and the federal statute of limitations, EPA recommends that 

section 6624(g) require that records be maintained for five years instead of two years.
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III. Responses to Comments

A. Comments Received on the April 24, 2012 Proposed Approval of the 

Revision to the California SIP Commitment for the San Joaquin Valley.

EPA received one comment letter on its proposed approval of the fumigant regulations

and CDPR’s revised commitment for the SJV:

Brent Newell, General Counsel, Center on Race, Poverty and the Environment, May 24, 2012, 

re: Comments on Approval and Promulgation of Implementation Plans; California; Revisions to 

the California State Implementation Plan Pesticide Element (Docket No. EPA–R09-OAR–2012–

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

1. El Comité para el Bienestar de Earlimart, 

2. Association of Irritated Residents, 

3. Action Now, 

4. Bay Area Healthy 880 Communities, 

5. Bayview Hunters Point Community Advocates, 

6. Breast Cancer Action, 

7. Breast Cancer Fund, 

8. Californians for Pesticide Reform, 

9. California Rural Legal Assistance Foundation, 

10. California Healthy Nail Salon Collaborative, 

11. California Institute for Rural Studies, 

12. California Church IMPACT, 

13. California Environmental Health Initiative, 

14. Center for Environmental Health, 

15. Central Valley Air Quality Coalition, 

16. Clean Water Action, 

17. Clínica Sierra Vista, 

18. Coalition for Clean Air, 

19. Comité Civico del Valle, 

20. Commonweal, 

21. El Quinto Sol de América, 

22. Food & Water Watch, 

23. Fresno Metro Ministry, 

24. Grayson Neighborhood Council, 

25. Healthy Child Healthy World, 

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

27. Just Transition Alliance, 

28. Medical Advocates for Healthy Air, 

29. MOMS Advocating Sustainability,

30. Natural Resources Defense Council, 

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

32. Pesticide Action Network, 

33. Pesticide Watch, 

34. Physicians for Social Responsibility-Los Angeles, 
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35. San Joaquin Valley Latino Environmental Advancement and Policy Project, 

36. Sierra Club California, 

37. TriCounty Watchdogs, 

38. Tri-Valley CAREs, 

39. Ventura CoastKeeper, 

40. Wishtoyo Foundation, and

41. Worksafe, Inc. 

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

Valley 

Comment B-1: El Comité 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. They (El Comité) also argue that including the inventory calculation 

procedures in the SIP would not make the revised commitment enforceable.

Response B-1: Except for the analysis required by CAA section 110(l), the 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).

45 Once that limitation is incorporated into the SIP, the 

1990 baseline inventory will be of only historical interest and neither it nor the calculation 

procedures used for it need to be enforceable.46 Therefore, in addressing El Comité’s arguments, 

we will 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 

 

45

 Fixed, that is, without the State first seeking and EPA approving through notice and comment 

rulemaking a revision to the SIP. To be approved, such a SIP revision would need to meet all applicable CAA 

requirements and not be barred under the section 110(l) non-interference provisions. CDPR makes the same point in 

its responses to comments on 2009 revisions to the fumigant regulations:

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

absent a SIP revision. Similarly, regarding nonfumigant pesticides, DPR will not revise the 

emission potentials (VOC content) of formulations that were used in the base year, absent a SIP 

revision. This was not specifically referenced in the Neal memorandum, but follows from the 

decision to freeze the baseline.

CDPR, “Final Statement of Reasons and Public Report, CDPR, Title 3, California Code of Regulations, 

Amend Section 6452.2, Pertaining to Field Fumigant Emission Limits,” undated (for rule amendment originally 

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

46

 This holds true for Ventura County also because CPDR has effectively fixed the maximum level of 

pesticide VOC emissions allowed in Ventura County at 3 tpd. See 3 CCR sections 6452.2.
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inventories required by this and similar CAA sections are to provide the basis for, among other 

things, the demonstrations of attainment and progress toward attainment required (for extreme 

ozone nonattainment such as the SJV area) by CAA sections 182(c)(2)(A), 182(b)(1), and 

182(c)(2)(B).47 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 emission

estimation for a single emissions source—pesticide usage in the SJV—for the sole purpose of 

“evaluat[ing] compliance with the 1994 SIP pesticide element for SJV.”

48 Together with the 

calculation methodology in the Neal memorandum,

49 the annual inventory requirement in 3 CCR 

section 6452.4(a)(1), and the reporting and recordkeeping requirements in 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, the definition of monitoring in EPA’s compliance assurance 

monitoring regulations: 

[Compliance] Monitoring means any form of collecting data on a routine basis to 

determine or otherwise assess compliance with emission limitations or standards. 

Recordkeeping may be considered monitoring where such records are used to 

determine or assess compliance with an emission limitation or standard.... 

Monitoring may include one or more than one of the following data collection 

techniques, where appropriate for a particular circumstance.... (3) Emission 

estimation and calculation procedures.

40 CFR 64.1(emphasis added).

EPA considers the compliance monitoring associated with an emission limitation to be 

part of that limitation and, once incorporated into the SIP, enforceable under CAA sections 113 

and 304. Therefore, including in the SIP the calculation procedures along with the requirements 

for an annual pesticide VOC emissions inventory report and recordkeeping and reporting by 

pesticide users (which collectively constitute the compliance monitoring procedures for the 18.1 

 

47 For further information on CAA-required inventories and their purposes, See EPA, Emissions Inventory 

Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) 

and Regional Haze Regulations, EPA–454/R–05–001, November 2005, pp. 7-8.

48

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

49

 Memorandum, Rosemary Neal, Ph.D., CDPR to Randy Segawa, CDPR, November 5, 2008; Subject: 

Update to the Pesticide Volatile Organic Inventory. Estimated Emissions 1990-2006, and Preliminary Estimates for 

2007.
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tpd emission limit) will make CDPR’s revised commitment for the SJV fully enforceable under 

CAA sections 113 and 304.50

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

CAA section 304 are not restricted 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 52.30.51

Comment B-2: El Comité claims that the alleged inability of citizens to enforce the emission 

calculation methodology as a means to challenge a failure to adopt regulations would allow 

CDPR to change pesticide products’ emission potentials and fumigant application methods’ 

emission ratings in order to produce an inventory that “magically” complies with the constant 

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

SJV or Ventura County. They cite to a recent change that CDPR made to the 2010 inventory for 

SJV as support for this claim. 

Response B-2: As discussed Response B-1, citizens may enforce the emission calculation 

methodology (because they will be the measure’s approved compliance assurance monitoring 

provisions) as a means to challenge a failure to adopt regulations. Citizens may also use any 

credible evidence to enforce a SIP-approved emission limitation. Should CDPR make 

unsupported changes to emissions potentials and/or emissions ratings, a citizen could bring suit 

to enforce the emission limitation by arguing that, but for these unsupported changes, the 

inventory would have shown a violation. 

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

that the Department can and will “produce an inventory that magically complies with the 

constant tons per day target.”

52 El Comité, however, makes no specific allegations as to why this 

particular revision is evidence of CDPR inappropriately manipulating the inventory to show 

compliance with the tons per day limit. A review of cited email shows that CDPR fully 

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

 

50

 Again, this also holds true for Ventura County although for Ventura County the calculation procedures 

are in section 6425.2(a)(1) and not the Neal memorandum.

51

 From the preamble to the credible evidence rule which promulgated these sections of the CFR: 

EPA, states and citizens will be able to use credible evidence to assess a 

source’s compliance status and respond to noncompliance. This will help ensure 

that the government and citizens alike can respond to sources that are not 

complying with air pollutant emission standards on an ongoing basis, thus 

furthering the protection of public health and the environment. 

62

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

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

52 See El Comité letter, footnote 3, citing the email, Randy Segawa, CDPR to Brent Newell, May 17, 2012, 

Subject: Use and VOC emissions error for bifenthrin. See also, Revised 2010 Pesticide VOC Emissions Report, p. 

15.
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used to calculate the initial inventory.53 We note in addition that even before this revision, the 

inventory showed compliance with the 18.1 tpd emission limit for the SJV. Id. 

Comment B-3: El Comité states that EPA should include the Barry memorandum in the SIP 

because it contains the methods by which CDPR estimates the Method Use Fraction (MUF) and 

the Application Method Adjustment Factor (AMAF).

Response B-3: The Barry memorandum is a memorandum from Terrell Barry, Ph.D., et al.,

CDPR, to John Sanders, Ph.D., CDPR, September 29, 2007, Subject: Pesticide Volatile Organic 

Compound Emission Adjustments for Field Conditions and Estimated Volatile Organic 

Compound Reductions-Revised Estimates. It documents the process, data, and assumptions 

CDPR used to develop the historical MUF as well as currently-established AMAF. The 

memorandum does not contain any generic procedures for calculating historical MUF54 or new 

AMAF and does not provide additional information or data that is not already in the Neal 

memorandum and/or the fumigant regulations. The Neal memorandum contains the same AMAF 

and MUF that are in the Barry memorandum.

55 Procedures for establishing new AMAF are now 

contained in the fumigant regulations at 3 CCR section 6452.4(a)(4). In 2008, CDPR started 

requiring the reporting of the fumigant application method on the PUR.

56 For inventory years 

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

emissions from fumigants.57

Unlike the Neal memorandum, CDPR does not reference the Barry memorandum in 

either its revised SIP commitment for SJV or the fumigant regulations. As we stated in our 

proposal, we intend to include the Neal memorandum in the SIP and appreciate El Comité’s 

reminder to do so. 

For these reasons, EPA has determined that the Barry memorandum does not need to be 

incorporated into the California SIP.

 

53

 The revision affected emissions from one pesticide product, Fanfare 2EC, which contains the active 

ingredient, bifenthrin. As documented in its email, during a review of the inventory CDPR, with the assistance of the 

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

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

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

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

data sheet). A density of 67.7 lb per gallon is improbable because it would mean that a gallon of FanFare 2EC, 

which is mostly water, would weigh more than an equal volume of solid iron (65.5 pounds). By comparison, a 

gallon of water weighs 8.3 pounds. Density figures for iron and water from http://www.simetric.co.uk/siinfo.htm, 

values converted from kg/m3to lb/gallon.

54

 As we have discussed in Response B-1, now that the emission limits for SJV and Ventura County have 

been set at fixed numbers, neither the 1990 baseline inventories nor the data used to calculate them (including the 

historical MUF) have any current relevance to enforcing these emission limits. 

55

 Neal memorandum, Table A1-1: Application Method Adjustment Factors (p. 23) and Tables A1-2 

through A1-6: 1990 frequency of fumigation methods used (MUFs) (pp. 24-28).

56

 Section 6626(d).

57 See section 6452.4(a)(1): “Fumigant product emissions will be the summation of the pounds of each 

pesticide product used multiplied by the emission potential for that specific product and VOC emissions rating for 

the application method as specified in section 6452.4(5).”
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Comment B-4: El Comité claims that EPA proposes to find that the revised SIP commitment for 

the SJV is enforceable based on the Neal 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 B-4: We did not propose to find that the revised commitment for the SJV is 

enforceable based solely on the Neal memorandum. In the proposal, we cite not only to the Neal 

memorandum but also to several other provisions in CDPR’s submitted regulations58 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 (emphasis added).

This statement is consistent with the one later in the proposal that El Comité 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 (emphasis added).

Comment B-5: El Comité argues that EPA’s proposal to approve the revised commitment for 

SJV as enforceable conflicts with the Ninth Circuit’s decision in El Comité para el Bienestar de 

Earlimart v. Warmerdam, 539 F.3d 1062 (9th Cir. 2008) (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. Warmerdam, 539 F. 3d at 1072-73. 

According to El Comité, a plaintiff attempting to enforce the revised SIP commitment would 

face the same argument made in Warmerdam: “we get to decide how and whether we met the 

commitment and there is nothing you can do about it.” El Comité argues that the CAA does not 

allow discretionary commitment and that EPA should not approve “CDPR’s and CARB’s latest 

attempt to achieve a reduction goal based on discretionary actions.”

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

with Warmerdam. In Warmerdam, 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.” While the court “acknowledged that the baseline was a critical foundation,” it 

 

58 These other provisions included the annual emissions inventory requirements in section 6452.4; the 

emissions inventory calculation methodology in section 6452.4(a)(1) and recordkeeping and reporting requirements 

for pesticide users in sections 6624 and 6626. We are approving each of these provisions into the California SIP.
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found that this did not “change [the court’s] view that neither the baseline nor the methodology 

qualify as independently enforceable aspects of the SIP.” Warmerdam, 539 F. 3d at 1072-73.

As explained in Response B-1., 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 proposal for this action, the commitment, including the fixed 18.1 tpd 

limitation on pesticide VOC emissions in the SJV, the monitoring procedures necessary to 

determine compliance with it and the fumigant regulations combine to be a fully enforceable 

program under the CAA once approved into the SIP.

No citation is given for the quote included in this comment, so we are unable to

determine whether this is an accurate statement of California’s position or El Comité’s 

interpretation of California’s position and, therefore, cannot respond. As discussed above, we 

find that the compliance monitoring requirements for the commitment are fully enforceable. We 

also note again that citizens may use any credible evidence to enforce the commitment and are 

not restricted to using inventories generated by the State.

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

emissions in the SJV is unenforceable because it is impractical to determine whether emissions 

levels are exceeded because inventories are only available 2 years after the fact. They further 

argue that the emission controls should constantly limit pesticide VOC emissions and “not lag 

two years behind.” To support these arguments, El Comité cites to the discussion of the 

fundamental principles for SIPs and control strategies found in the General Preamble at 13567-

13568,

59 noting in particular the second principle relating to enforceable measures. They also cite 

to the General Preamble’s discussion of enforceability of SIP regulations at 13502.

Response B-6: El Comité confuses two requirements: the requirement that an emission 

limitation assures continuous emissions reductions60 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. CDPR’s revised SIP commitment for the SJV meets 

the criteria for enforceability as given in the General Preamble. However, before we discuss this, 

we will first address the commenters’ concern about continuous emissions reductions.

 

59

 The “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 

published at 57 FR 13498 on April 16, 1992, describes EPA’s preliminary view on how we would interpret various 

SIP planning provisions in title I of the CAA as amended in 1990, including those planning provisions applicable to 

the 1-hour ozone standard. EPA continues to rely on certain guidance in the General Preamble to implement the 8-

hour ozone standard under title I.

60

 See, for example, CAA section 302(k): The terms “emission limitation” and “emission standard” mean 

a requirement...which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous 

basis.... 
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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.61 These 

restrictions apply throughout the May 1 to October 30 regulatory season and thus provide for 

continuous emissions reductions during that season.

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

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

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

measure or limit. We have evaluated CDPR’s commitment against each section criteria as 

discussed below. In this discussion, we do not consider the portion of CDPR’s commitment that 

provides for implementing restrictions on fumigant application methods. This portion is now 

moot because CDPR has already adopted and submitted—and we are approving in this rule—the 

regulations needed to meet it.

The General Preamble at 13567-13568 discusses several fundamental principles for SIPs 

and control strategies. The second principle is that measures in the SIP must be enforceable and 

to be enforceable, measures should have the following characteristics:

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

 CDPR adopted the revised SIP commitment for the SJV following state rulemaking 

procedures and the CAA’s requirements for public hearing. The commitment is 

consistent with the Department’s statutory authorities. See CDPR revised SIP 

commitment for SJV, p. 1. 

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

emissions from commercial structural and agricultural pesticide use, to ensure that they 

do not exceed 18.1 tpd in the SJV area.” See, CDPR Revised SIP commitment for the 

SJV, p. 2. 

 The limitation is measurable using compliance monitoring procedures spelled out in the 

commitment and in the accompanying duly-adopted fumigant regulations. CDPR has 

demonstrated that VOC emissions from pesticide use in the SJV are indeed measurable 

by having developed and published over the last several years annual emissions inventory 

reports documenting these emissions. See Exhibits 5-14 of the El Comité letter. It also 

specifies a clear, unambiguous, and measurable requirement for CDPR to implement 

restrictions on VOC emissions from non-fumigant pesticides. (“Measureable” here means 

that it is easily determined if CDPR has adopted regulations that implement restrictions 

on VOC emissions from non-fumigant pesticides.) 

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

 Once approved into the SIP, both the commitment to manage pesticide VOC emissions to 

ensure they do not exceed 18.1 tpd in the SJV area and the commitment to implement 

 

61 CDPR, Staff Report on the Department of Pesticide Regulation’s Proposed SIP Commitment for San 

Joaquin Valley, (“CDPR staff report”), p. 4.
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restrictions on VOC emissions from non-fumigant pesticides become enforceable by EPA 

under CAA section 113 and by citizens under CAA section 304. EPA may also enforce 

the commitment through a finding of failure to implement under CAA section 179(a)(4). 

A finding of failure to implement initiates sanctions clocks under the same section.

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

 As described in Responses B-1 and 2, the commitment to limit VOC emissions from 

pesticide in the SJV is accompanied by enforceable compliance monitoring procedures

(including those in the fumigant regulation) which we are approving into the SIP. CDPR 

has proven that it is practicable to determine compliance with the limitation by 

developing and publishing numerous annual emissions inventory reports. See Exhibits 5-

14 of the El Comité letter. CDPR provides current information on its regulatory program, 

including its progress in adopting regulations to restrict VOC emissions from nonfumigants in the SJV on its website at http://www.cdpr.ca.gov/docs/legbills/rulepkgs.htm.

The second section of the General Preamble (p. 13502) cited by the commenter addresses 

the enforceability of SIP regulations (specifically RACT rules under CAA sections 182(a)(2)(A) 

and 182(b)(2)) rather than SIP commitments. However, CDPR’s revised SIP commitment for the 

SJV also meets the standards for enforceability listed here. These standards are that a SIP 

regulation must clearly state: 

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

 For the 18.1 tpd emission limit, the sources subject to the limitation are commercial and 

structural pesticide usage in the SJV.62 For the commitment for non-fumigants, the 

sources subject to the commitment are non-fumigant pesticide usage in the SJV. 

2. The control requirements.

 For the 18.1 tpd emission limit, the control requirement is to manage VOC emissions 

from commercial and structural pesticide use in the SJV from pesticide to ensure they do 

not exceed 18.1 tpd in the SJV area. For the commitment for non-fumigants, the control 

requirement is to implement restrictions on VOC emissions from non-fumigant pesticides 

in the SJV by 2014. 

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

 For the 18.1 tpd emission limit, the time period is defined by the period required to be 

inventoried, which is May 1 to October 31 of each year. See Neal memorandum, p. 3. 

The limitation is currently in effect under the approved 1994 Pesticide Element. For the 

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

commitment for the SJV, p. 1.

4. Recordkeeping and monitoring requirements appropriate to the type of sources being 

regulated and sufficient to allow determinations on a continuing basis whether sources are 

complying. An SIP regulation must also contain test procedures in order to determine 

whether sources are in compliance. 

 

62

 From the Revised SIP commitment for SJV, p. 2: CDPR commitments “to manage VOC emissions 

from commercial structural and agricultural pesticide use, to ensure that they do not exceed 18.1 tons-per-day in the 

SJV area.” 
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 For the 18.1 tpd emission limit, recordkeeping and monitoring requirements are defined 

by the Neal memorandum, the requirement for CDPR to prepare and provide to the 

public the annual emissions inventory report in 3 CCR section 6452.4 and recordkeeping 

and reporting requirements for pesticide users in sections 6624 and 6626. All these 

provisions are being approved into the SIP in this rule. “Test procedures” in this instance 

are the inventory calculation methodologies contained in the Neal memorandum and the 

emissions inventory calculation methodology in section 6452.4(a)(1).

For the commitment for non-fumigants, CDPR’s compliance with this commitment can 

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

We note that CDPR has already proposed these regulations.63 The regulation adopted to 

meet this commitment will need to include appropriate recordkeeping, monitoring, and 

testing requirements.

As a practical matter, CDPR produces the inventories as soon as practicable given the 

size and complexity of the source at hand (pesticide usage in the SJV), the sheer amount of data 

that must be evaluated, and the requirement in section 6452.4(b) that the public be given 45 days 

to comment on the draft inventories.

For Ventura County, should the annual pesticide VOC emissions inventory report show 

that the difference between emissions in the annual VOC emissions inventory report and the 3 

tpd limit for the area is five percent or less of the limit or exceeds the limit, the regulations’ 

provisions in sections 6452.2 and 6452.3 go into place. These provisions require CDPR to 

establish a separate VOC emission limit for fumigants and require the county agricultural 

commissioner to take certain steps to assure that VOC emissions from fumigants do not exceed 

this fumigant VOC emission limit. These additional provisions must stay in place for a minimum 

of two seasons and continue until pesticide VOC levels in the area are no longer predicted to 

exceed the limit.

64

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

emissions in the SJV is not enforceable because the SIP revision does not commit CDPR or 

CARB to adopt any specific regulations to achieve SJV pesticide VOC emission limit. They 

argue that under the terms of the SIP revision, the emission limit “commitment” is not an

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

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

77 FR 24441, 24450. 

Response B-7: CDPR has already adopted regulations to manage pesticide VOC emissions in the 

SJV. We are approving these regulations today. CDPR has also committed to adopted 

restrictions on VOC emissions from non-fumigant pesticides, which have already been proposed 

 

63 CDPR, Volatile Organic Compounds in the San Joaquin Valley Ozone Nonattainment Area, DPR 

Regulation No. 12-001, Notice of Proposed Regulatory Action and Notice of Public Hearing on a Proposed Ozone 

State Implementation Plan Amendment Regarding Pesticide Emissions in the San Joaquin Valley Nonattainment 

Area, April 20, 2012.

64

 3 CCR section 6452.2. CDPR has similar regulatory provisions for SJV, South Coast, SED, and 

Sacramento, at the State level. It did not submit these provisions as a SIP revision because it found that only in 

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

VOC emission limit. 
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for adoption. See footnote 63. For reasons described in Response B-6, this commitment is 

enforceable. 

We have already discussed the enforceability of the commitment to limit VOC emissions 

from commercial structural and agricultural pesticides to 18.1 tpd in combination with the 

fumigant regulations in Responses B-1, B-2, and B-6.

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

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

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

commitment in isolation. As we stated in the proposal and have discussed above, the 

combination of the commitment and fumigant regulations does meet the minimum requirements 

for enforceability of SIP measures. See 77 FR 24441, 24450.

C. Approval of the Revised Pesticide Element for SJV under CAA Section 

110(l) 

Comment C-1: El Comité 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 

tons per day reduction by 1999 and 20 percent reduction from 1990 by 2005 in the SJV.

Response C-1: We agree that the commitment in the 1994 Pesticide Element65 is both a 

percentage commitment and a tonnage commitment, and we agree that the ton per day reduction 

called for in the Element is 13 tpd. Where EPA disagrees with El Comité is that we have

concluded that the percentage commitment corresponds to the tonnage commitment in that they 

both relate directly to the attainment needs of SJV in achieving the 1-hour ozone standard by 

1999 as anticipated by the State of California in 1994 and 1996 in developing the California 

Ozone SIP, and approved by EPA in 1997 when EPA approved that plan. 

We explained the basis for our conclusion in this regard on pages 24446-24447 of the 

proposed rule. First, we note that the Boyd Letter,66 while clarifying certain other aspects of the 

Pesticide Element, introduced an ambiguity in the percentage commitment for SJV by stating, in 

the same paragraph, that the commitment in each SIP area (which in this context presumably 

 

65

 As these terms are used in this preamble, the “1994 Pesticide SIP” is the State Implementation Plan for 

Agricultural and Commercial 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.”

66

 El Comité recommends that we refer to the “Boyd letter” as the “Howekamp Letter” because the courts 

in Warmerdam and AIR used this convention and being consistent with the courts would “ensure clarity and 

eliminate confusion should the Ninth Circuit review this rulemaking.” In previous rule actions and in our proposal 

for today’s action, we have consistently referred to this letter as the “Boyd Letter” See, e.g., 73 FR 41277, 41281 

(July 18, 2008) and 77 FR 24441, 24446. In addition, the convention we find more useful in referring to letters, 

where a person's name is used, is to use the name of the author of a letter, not the recipient. So, we continue to refer 

to this letter as the “Boyd Letter” in this document.
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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: “The 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 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.” (emphasis added) 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 existing, approved

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

percent emissions reduction commitment. 

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

reveal that agency's belief that the commitment for SJV under the Pesticide Element is for a 20

percent emissions reduction from pesticidal VOC emissions. EPA's statements too in connection 

with approval of the revised Pesticide Element for Ventura County highlight a 20 percent

commitment. 

Response C-2: With respect to CDPR's own statements, El Comité refers to a CDPR Workshop 

Document and CDPR inventory memoranda, which are attached to El Comité's comment letter, 

prior to 2005 (when El Comité brought suit against the State of California to enforce aspects of 

the Pesticide Element). We have reviewed the documents attached to El Comité's letter and 

confirm that they refer to a goal of 20 percent emissions reduction in SJV. The Pesticide Element 
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itself refers to the same general goal of reducing pesticidal VOC emissions by 20 percent from 

the 1990 baseline to the year 2005. 

However, as further discussed above in Response C-1, other language in the Pesticide 

Element, together with the Boyd letter, converted the 20 percent aspirational goal set forth in the 

Pesticide Element into definitive 20 percent emissions reduction commitments (and associated 

tonnage reduction commitments) in four California ozone nonattainment areas and a definitive 

12 percent commitment in SJV, based on the needs of the attainment demonstrations for these 

areas at the time. Such an interpretation is further supported by EPA's statements at the time of 

approval of the Pesticide Element (as clarified by the Boyd letter) in 1997. 

Furthermore, the inconsistent descriptions by CDPR of the commitment for SJV is not 

surprising given that the Boyd letter, which links the commitments to the attainment needs of the 

nonattainment areas was not authored by CDPR, but by CARB, and given the mistaken 

impression by various parties, including EPA, concerning the approval status of the Wells 

Memorandum in the SIP.67 Thus, in summary, we view the post-approval statements to carry 

much less weight in interpreting the Pesticide Element than the language of the Pesticide 

Element itself, the Boyd letter, and EPA's language in approving those two items as part of the 

California SIP. 

As to El Comité's reference to EPA statements referring to a 20 percent commitment in 

the rulemaking approving the revised Pesticide Element for Ventura County, we note that EPA's 

statements were made specifically in regards to the commitment for Ventura County, which 

unambiguously is 20 percent. EPA statements in the context of a rulemaking on the Pesticide 

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

commitment in the Pesticide Element for SJV.

Comment C-3: El Comité 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 C-3: As discussed in detail in Response C-1, 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 

 

67

 We note here that EPA could not have listed the Wells Memorandum as part of the SIP in 1997 without 

amendment by California given California's request to delete the milestone-year commitments contained therein. 
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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 Comité. As noted by El Comité, 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 SJV in the context of this rulemaking is consistent 

with the Ninth Circuit's decision in Safe Air and consistent with EPA's stated interpretation in 

1997 of this same commitment.

To the extent that El Comité is asserting that our approval of the revised SIP commitment 

for SJV is prohibited by CAA section 110(l) because it represents a relaxation of the SIP, we 

note that a relaxation of the SIP (i.e., backsliding) is not by itself prohibited by CAA section 

110(l). This CAA section requires a broader enquiry into the effect of such a relaxation on other 

provisions of the SIP and a determination as to whether the relaxation adversely affects the SIP’s 

compliance with other CAA requirements. El Comité does not provide any evidence that this 

claimed relaxation of the Pesticide Element for SJV would interfere with the California SIP’s 

compliance with other CAA requirements. 

To the extent that El Comité also asserts that our approval of the revised SIP commitment 

for SJV is prohibited by CAA section 110(l) because neither CDPR nor CARB provided a 

demonstration that the changed commitment does not interfere with existing SIP, we note that 

approval of SIP revisions is not barred by section 110(l) solely on the basis of a state failing to 

accompany the SIP revision with a demonstration of non-interference. Section 110(l) places an 

affirmative duty on EPA and not on the states to make this determination. States, however, must 

provide sufficient information in their SIP submissions for EPA to determine compliance with 

section 110(l) or risk a finding of incompleteness under CAA section 110(k)(1) or disapproval 

under section 110(l).

As to CAA section 110(l), relative to California's and EPA's interpretation of the 

Pesticide Element to require a 12 percent reduction in pesticide VOC emissions in SJV (rather 

than 20 percent) from a 1990 baseline, we have concluded that the revised SIP 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.
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We note that CARB and CDPR did evaluate the effect of changing the reduction target 

for SJV from 20 percent to 12 percent on the RFP and attainment demonstrations for the 1997 8-

hour ozone NAAQS in the submitted (but not yet approved) 2007 SJV Ozone Plan and 2007 

State Strategy.68 In its initial November 2007 submittal of the 2007 State Strategy, California had 

included a CDPR’s SIP commitment for a 20 percent reduction off a 1991 baseline inventory in 

the SJV as interpreted by a U.S. District Court decision. See El Comité para El Bienestar De 

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

decision in Warmerdam, CDPR revised its commitment for SJV to reflect a 12 percent reduction 

off a 1990 baseline and CARB submitted this revised commitment and withdrew the previous 

commitment in October 2009. We are approving the revised commitment in this action. In their 

evaluation, CDPR and CARB estimated that revising the SIP commitment for SJV could 

potentially result in up to 2.3 tpd in additional pesticide VOC emissions, but also concluded that 

this potential increase would not interfere with the submitted RFP and attainment demonstrations 

in the 2007 SJV Ozone Plan. See CDPR staff report, p. 4 and of E.O. S-09-005, p. 3. 

Comment C-4: El Comité asserts that EPA has never approved PEST-1 as it relates to the SJV

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

if EPA had approved PEST-1 for the SJV, it does not change the original 20 percent commitment 

for SJV. EPA has never approved the CARB staff report69 cited at footnote 24 in the April 24, 

2012 proposed rule and cannot claim that approval of the CARB staff report changes the Valley's 

commitment to 12 percent. 

Response C-4: In approving the remnants of the 2003 State Strategy that had not been 

withdrawn by CARB and the 2003 South Coast Air Quality Management Plan (AQMP) at 74 FR 

10176 (March 10, 2012), EPA approved PEST-1 as part of the California SIP. PEST-1 was not 

written to apply only to the South Coast but was intended to continue (unchanged) the existing 

Pesticide Element that was approved by EPA in 1997. 

In our April 24, 2012 proposed rule, we mistakenly stated that, after approval of PEST-1, 

we “have not approved any other changes to the SJV-related provisions of 1994 Pesticide 

Element,” implying that our approval of PEST-1 did in fact change the SJV-related provisions of 

the 1994 Pesticide Element. This is not correct. The approval of PEST-1 changed nothing, but 

continued the commitments contained in the existing Pesticide Element (as clarified by the Boyd 

Letter) in the various nonattainment areas, including SJV. In other words, we do not believe 

approval of PEST-1 changed the percent commitment from 20 percent to 12 percent; rather, we 

believe it simply brought forward the existing 12 percent commitment.

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

do not claim that the CARB staff report changes the Valley's commitment to 12 percent, but 

rather we believe it simply describes the commitment as approved by EPA in 1997.

Comment C-6: El Comité comments that an approval of the revised SIP revision would violate 

CAA section 110(l) because neither CDPR nor CARB has demonstrated that the SIP revision 

does not backslide when it changes the manner by which the 1990 baseline inventory is 

 

68

 See CDPR staff report, p. 4 and CARB Executive Order (E.O.) S-09-005, October 12, 2009, p. 2.

69

 CARB, Staff Report, Proposed 2004 State Implementation Plan for Ozone in the San Joaquin Valley,

Release Date: September 28, 2004 (“CARB staff report”). CARB’s interpretation of PEST-1 as it relates to the SJV 

2004 1-Hour Ozone Plan is given on page 27.
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calculated. They contend that the 1994 Pesticide Element committed CDPR to using the 1991 

PUR data to estimate the 1990 baseline inventory because “such data is more accurate than 1990 

PUR data.” Finally, El Comité comments that EPA did not consider the change in PUR data on 

the 1990 baseline inventory and whether that change reduces the actual tonnage commitment (in 

1994 SIP currency) or allows a higher level of pesticide VOC emissions.

Response C-6: CAA section 110(l) does not prohibit any backsliding and does not bar approval 

of a SIP revision based solely on a state’s failure to accompany the revision with a demonstration 

of non-interference. Section 110(l) only prohibits backsliding that would interfere with any 

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 an 18.1 tpd limit (which represents a 12 percent reduction from 1990) through this SIP 

revision would result in the same emissions reductions from 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: “This plan is designed to reduce volatile organic 

compound (VOC) emissions from agricultural and commercial structural pesticide applications 

by a maximum of 20 percent from the 1990 baseline ....” p. 1. The SIP is clear that this 1990 

baseline inventory is to 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. 

(emphasis added to all). 

The 1994 Pesticide SIP also emphasizes the use of the best available information to 

calculate the inventory, including in the rationale for using the 1991 PUR data in lieu of the 1990 

data. It also allows (on page 6) for “further 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. 
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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.70

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

baseline inventory and whether that change reduces the actual tonnage commitment or allows a 

higher level of pesticide VOC emissions. We believe that El Comité here is referring to the 1990 

baseline pesticide VOC inventory and 13 tpd (in 1994 Ozone SIP currency) pesticide VOC 

reduction for the SJV that were approved as part of the 1994 Ozone SIP. The 1990 baseline 

pesticide VOC inventory in the1994 Ozone SIP was not derived from PUR data, so any change 

to PUR data would not affect it, the tonnage reductions derived from it, or increase the level of 

pesticide emissions allowed. We are not revising the 1990 baseline inventory or the 13 tpd credit 

(in 1994 SIP currency) that we approved as part of the 1994 Ozone SIP in January 1997. 

Finally, we observe that the use of 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 Comité advocates, would conflict with the plain 

language of the 1994 Pesticide SIP which indisputably requires that these emission limits be set 

from a 1990 baseline.

For these reasons, we conclude that the existing Pesticide Element does allow for the use 

of 1990 PUR data to determine 1990 baseline emissions, and thus, the establishment of an 18.1 

tpd emission limit in the Valley that derives from 1990 PUR does not represent a revision to the 

SIP that results in higher emissions than would be allowed under the existing Pesticide Element. 

For the purposes of this response, we have investigated further the possibility that 

unbackcasted 1991 PUR data is required under the existing SIP and that use of 1990 PUR data 

would result in a higher limit than one resulting from the use of unbackcasted 1991 PUR data to 

establish baseline 1990 emissions. To do this, we used information in the CDPR staff report to

isolate the potential emissions impact of using 1990 PUR data rather than unbackcasted 1991 

PUR data and determined that the calculated difference would be 0.7 tpd.

71 In other words, if 

 

70

 This determination of similar accuracy also effectively makes the issue of the 1991 PUR data moot. 

Even if we read the1994 Pesticide SIP to mandate the use of 1991 PUR data, we would also have to read it to 

mandate that this data be adjusted to represent 1990. The SIP does not say what information would be used to make 

this adjustment; however, given that CDPR has on hand reasonably accurate data on the use of each product in 1990 

(i.e., the 1990 PUR data), it would be arbitrary for it not to rely on the 1990 PUR data (either directly or to adjusted 

the 1991 PUR data to reflect 1990) in its calculation of the 1990 baseline. Hence, whether or not we start with the 

premise that the 1994 Pesticide SIP required the use of the 1991 PUR data, we end up in the same place: the 1990 

baseline inventory would be calculated using the 1990 PUR data.

71

 CDPR staff report, p. 4. The 0.7 tpd is calculated as 88 percent of 20.6 tpd minus 88 percent of 19.8 tpd. 

The value of 20.6 tpd represents 1990 baseline emissions estimated using 1990 PUR data and 19.8 tpd represents 

1991 baseline emissions estimated using unbackcasted 1991 PUR data.
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unbackcasted 1991 PUR data were required to be used in connection with establishing baseline 

1990 emissions from agricultural and commercial structural applications, then, based on CDPR's 

data in the CDPR staff 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) would not interfere with RFP or attainment of the NAAQS, for the following 

reasons.72 As to ozone, we note that the approved 1997 8-hour ozone plan for SJV shows how 

the plan provides for VOC and NOx reductions that surpass RFP requirements and provides for 

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 the April 24, 2012 

proposed rule (at page 24447) that EPA has determined that VOC controls are not required for 

PM control in the SJV. See 72 FR 20586, 20589 (April 25, 2007), 69 FR 30006, 30007 (May 26, 

2004), and 76 FR 69896, 69924 (November. 9, 2011). In addition, we note that while the EPAapproved 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.

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

and CARB concluded that the 18.1 tpd emission limit could potentially be as much as 2.3 tpd

higher than would an emission limit for the SJV established consistent with the interpretation of 

the U.S. District Court (revised in Warmerdam) and initially submitted in the 2007 SJV Ozone 

Plan and 2007 State Strategy. The calculated 2.3-ton-per-day difference reflects the use of 

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

reduction commitment (as opposed to a 12 percent commitment). See CDPR staff report, pp. 3 

and 4 and CARB E.O. S-09-005, p. 2. Notwithstanding the conclusion that the revised SIP 

commitment could potentially result in 2.3 tpd greater pesticide [VOC] emissions than assumed 

in the submitted 2007 SJV Ozone Plan and 2007 State Strategy, CARB concluded that such an 

increase would have no impact on the attainment and RFP demonstrations or any other SIP 

requirement in the Plan/Strategy. See CDPR staff report, p.4 and CARB E.O. S-09-005, p. 3.

Comment C-7: El Comité asserts that because the 1994 Pesticide Element calls for year-round 

reductions, approval of the revisions would violate CAA section 110(l) because neither CDPR 

nor CARB has demonstrated that the SIP revision does not backslide when the SIP revision only 

calls for seasonal (May through October) controls. El Comité notes our statement in the TSD that 

identifies the implications of the change, which would allow for unabated pesticide VOC 

emissions at times of the year when ozone violations could occur and avoid VOC reductions year 

round. They cite to the proposal TSD at p. 31.

 

72

 For purposes of comparison, VOC emissions in SJV are expected to decline to 339 tpd by 2023 under 

the EPA-approved 2007 Ozone Plan. See 76 FR 57846, 57850 (September 16, 2011)..
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Response C-7: As discussed in Response C-1, 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 Comité 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, the General Preamble. We described California 

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

Ozone SIP: 

Although EPA recommends a 3 month peak ozone season as the basis for the 

[summer] planning inventory estimates, because of the persistence of ozone 

violations in California from May through October, the CARB uses a 6 month 

average operating day emissions estimate.

61 FR 10920, 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. 

El Comité cites our statement in the proposal TSD that recommends California consider 

expanding the period for the requirements from May-October to include the full year. As we 
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stated in the TSD, these suggested revisions are not currently the basis for rule disapproval but 

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

D. Enforceability of the Fumigant Regulations

Comment D-1: El Comité alleges that the fumigant regulations are not enforceable because they 

do not guarantee that citizens and EPA have access to data to evaluate pesticide users’ 

compliance with the fumigant application methods or permits issued by County Agricultural 

Commissioners (CAC). They acknowledge that a citizen may request PUR under the California 

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

business information (CBI).

Response D-1: Under the fumigant regulations, applicators (farm operators or pest control 

businesses) are required to limit their use of fumigant-specific application methods during May 

1- October 31 (peak ozone season) to those methods specified in the regulations. An 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 Comité acknowledges, the public can obtain PUR data by making a 

CPRA request to the CAC or CDPR. In addition, CDPR makes the PUR data available 

electronically to the public for free at the California Pesticide Information Portal (CalPIP) 

website at http://calpip.cdpr.ca.gov/main.cfm. The fact that the public has free online access to 

individual and summary PUR data enhances enforceability as compared to other SIP regulations, 

for which the data may be only accessible through a CPRA request.

In general, SIP rules do not need to contain specific provisions guaranteeing access to 

data by citizens or EPA in order to be federally enforceable. EPA can access records 

demonstrating compliance with the regulations by demanding them during an inspection or 

through a separate information demand allowed by CAA section 114.73 We note again that

citizens are not limited to enforcing based solely on records reported by sources. Under 

applicable CAA and regulatory provisions, any credible evidence of violation may be used. See

Responses B-1 and B-2. Such credible evidence might include, for example, photographs of a 

fumigant application taken from a public road 

Comment D-2: El Comité states that the two-year record retention time in 3 CCR section 

6624(g) severely undermines enforceability of the fumigant regulations because PUR data may 

no longer be available by the time CDPR publishes its Annual Emissions Inventory Report, up to 

two years later.

Response D-2: The PUR data used to determine compliance with the fumigant regulations and 

to support enforcement is available to regulators and the public well before the two-year user 

retention provision ends. The fumigant regulations require the property operator to submit a PUR 

to the CAC by the 10th of the month following each fumigant application. Pest control 

businesses must submit the PUR to the CAC within 7 days of the application.74 The public can 

 

73

 Any records, reports, or information (except for CBI) that EPA obtains under section 114 is available to 

the public. See CAA section 114(c). 

74

 3 CCR section 6626 (a) and (b).
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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.75 CDPR publishes the PUR data online 

approximately one year after the growing season ends.

76 The PUR data, which is an input to the 

Annual Emissions Inventory Report, is not destroyed after two years, but rather it is retained and 

available on an on-going basis in CDPR’s publicly-available, free and online PUR database.77

The commenter notes that in EPA’s proposal TSD, EPA made a recommendation to 

extend recordkeeping retention to five years, similar to Title V permit retention times, in the next 

revision to the regulations. However, as we stated in the proposal TSD, we do not consider the 

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

not a basis for their disapproval. Further, while Title V permits require five-year record 

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

78 We note 

examples of other SIP rules that require two-year records retention.79

Comment D-3: El Comité states that there are no monitoring provisions that would allow for an 

evaluation of whether the pesticide user met the emissions reductions specified for each fumigant 

application method or whether the user complied with a fumigant VOC emission limit.

Response D-3: No such monitoring provisions are needed because the fumigant regulations do 

not require that an individual pesticide user meet either specific emissions reductions or a 

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.80

EPA has approved many regulations that require the use of specific control methods, rather than 

a specific emission limit. For example, SIP regulations require gasoline stations to install preapproved vapor recovery devices but do not concurrently require them to meet an emission 

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

 

75

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

76

 Memorandum, Nancy Levin, EPA Region 9, to Docket EPA-R09-OAR-2012-0194, August 10, 2012, 

Subject: Summary of July 16, 2012 conference call between EPA and California Department of Pesticide 

Regulation.

77

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

78

 See Guidance Document for Correcting Common VOC & Other Rule Deficiencies (A.K.A., The Little 

Bluebook), U.S. Environmental Protection Agency, Region IX, April 1991(revised, August 21, 2001).

79

 See, for example, Placer County APCD Rule 215 Transfer of Gasoline Into Tank Trucks, Trailers, and 

Railroad Tank Cars at Loading Facilities, approved 76 FR 5277 (January 31, 2011); Placer County APCD Rule 216 

Organic Solvent Cleaning and Degreasing Operations, approved 75 FR 24406 (May 5, 2010); Maricopa County Air 

Quality Department Rule 310 Fugitive Dust from Dust-Generating Operations, approved 75 FR 78167 (December 

15, 2010). 

80

 CAA section 302(k) defines the terms “emission limitation” and “emission standard” to include a 

design, equipment, work practice or operational standard.

81 See, for example, SJVUAPCD Rule 4622 Gasoline Transfer Into Motor Vehicle Fuel Tanks (amended 

December 20, 2007), approved 74 FR 56120 (October 30, 2009).
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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.82

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

83

Ventura County’s overall pesticide VOC emission limit is monitored through the annual 

emissions inventory that is calculated by CDPR and not by individual pesticide users.84 If 

pesticide VOC emissions approached or exceeded the limit, then CDPR and Ventura County 

CAC are required to implement a fumigant limit/allowance system and to condition or deny 

restricted use permits to limit fumigant VOC emissions until overall pesticide VOC emissions, as 

reported in the annual emissions inventory, fall back below the limit for two consecutive years.85

Comment D-4: El Comité states that the regulations are not federally enforceable 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 D-4: 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 D-5: El Comité states that CDPR has not submitted to EPA for inclusion in the SIP 1) 

definitions for key terms, and 2) several key regulatory sections that are referenced in the 

fumigant regulations. They comment that the failure to include these provisions significantly 

undermines enforceability of the fumigant regulations.

Response D-5: As stated in section II.E. of the proposal TSD, EPA does not consider these 

omissions to significantly undermine rule enforceability as the terms are generally understood by 

the regulated community, and the referenced sections are generally not critical to implementation 

of the fumigant regulations. The commenter does not provide evidence of any specific 

enforceability problems created by these omissions. 

Comment D-6: El Comité argues that 3 CCR section 6452(b) provides for improper director’s 

discretion for alternative methods, noting, in particular, the lack of explicit and replicable 

procedures for determining whether the scientific data demonstrates that the alternative method’s 

emissions rates are no greater than other methods allowed under the regulations.

 

82

 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).

83

 3 CCR section 6452.2(a) and (c)

84

 Section 6452.4(a)(2).

85

 Section 6452.2(a)
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Response D-6: EPA has determined that the director discretion in section 6452(b) is not 

currently the basis for disapproval given the restrictions placed on the Director’s ability to 

approve alternative methods and given the limited 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.86 Under section 6452(b), a request 

for approval of an alternative application method must be accompanied by scientific data 

documenting the VOC emissions reductions

87 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.88 Section 6452(b)(1) also 

explicitly requires the CDPR Director to evaluate the submitted scientific data to determine 

whether: 1) the data and information provided are sufficient to estimate emissions; 2) the results 

are valid as indicated by the quality control data; and 3) the conditions studied represent 

agricultural fields fumigated.89 A notice of interim approval of an alternative method must be 

published on CDPR’s web site90 and interim approvals expire after three years.91 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.

92 These provisions appropriately limit the CDPR director’s 

discretion.93

E. Pesticide Emissions Inventories 

Comment E-1: El Comité comments the Method Usage Fractions (MUF) for the 1991 and 2004 

inventories do not have a factual foundation in the PUR.

Response E-1: The PUR reports were not required to list the fumigation application method 

prior to 2008; therefore, it is not possible to base the MUF off the PUR prior to that year. 94 We 

note that the 1990, 1991 and 2004 inventories do not have any relevance to EPA’s action here.

 

86

 EPA Region 9, Guidance Document for Correcting Common VOC & Other Rule Deficiencies, (a.k.a., 

Little Bluebook), August 21, 2001.

87

 Section 6452(b)(1).

88

 Section 6452(b)(1)(A) and (B).

89

 Section 6452(c).

90

 Section 6452(d).

91

 Section 6452(e).

92

 CFAC section 12973

93

 We note that EPA has approved a limited number of other SIP rules addressing similar regulatory 

programs allowing for director’s discretion to approve alternate methods of compliance, provided that emissions are 

no greater than 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).

94

 Usually there are several different types of application methods used for a particular fumigant in any 

particular NAA. Each method of use (e.g. drip, sprinkler, shank, tarp, etc.) represents a fraction of the total number 
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Comment E-2: El Comité comments that the validity of the MUF for the 1991 inventory for all 

fumigants but 1,3-dichloropropene are not verifiable.

Response E-2: CDPR provided a detailed explanation of its process for determining the 

frequency of use of historical fumigant methods for the 1991 inventory as well as the 1990 

inventory (which is the basis for calculating reductions) in the Barry memorandum. Prior to 

2008 the MUF were based on grower/applicator surveys, use data, expert 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.

As we discussed in Response B-1, except for the analysis required by CAA section 

110(l), the SJV and Ventura County 1990 baseline (including the MUF used to calculate them) 

are no longer at issue now that the State has fixed the maximum level of pesticide VOC 

emissions allowed in the SJV at 18.1 tpd and in Ventura County at 3.0 tpd. 

Comment E-3: El Comité comments that the field studies of Application Method Adjustment 

Factor (AMAF) have highly variable results even among similar studies and are therefore highly 

uncertain.

Response E-3: See Response E-6 below.

Comment E-4: El Comité comments that previous reviews have noted uncertainties in AMAF 

estimates and concluded that some AMAF proposed by CDPR were not conservative enough, 

citing a October 17, 2007 letter from Brian Hill and Anne Katten to Brent Newell (included as 

Exhibit 28 to their comment letter). 

Response E-4: See Response E-6 below.

Comment E-5: El Comité comments that CDPR’s AMAF are based on unrepresentative field 

fumigation studies conducted in other states under cool soil conditions and therefore do not 

provide an accurate estimate of emissions from California fumigations conducted at high 

temperatures in the Central Valley during the peak ozone season from May to October. They also 

comment that studies conducted under worst-case scenarios have been excluded from the group 

of studies on which the fumigant application regulations are based. 

Response E-5: 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) including listing studies it did not 

use and the reason for excluding these studies (see Appendix 4 to the memorandum). CARB also 

provided responses.95 Both stated that the studies included had been reviewed and accepted as 

 

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 CDPR’s Revised 2010 Pesticide VOC Emissions Report, p. 13.

95

 CARB, Environmental Analysis for the Proposed Revision to the Pesticide Commitment of the 1994 

Ozone SIP for the Ventura County Nonattainment Area, Revised August 13, 2007 (“CARB August 2007 

Environmental Analysis”).
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sufficient to provide reliable data and were conducted under a variety of conditions and 

locations. 

In particular, El Comité expressed concern that emissions would typically be higher in 

the very hot SJV compared to emissions in much cooler study areas. CDPR and EPA have both 

noted that the effects of temperature on emissions are complex. While evaporation and 

dissipation rates are expected to increase with temperature, thereby increasing emissions, 

chemical degradation rates would also increase, tending to lower emission rates. Temperature 

and humidity have been shown to increase tarp permeability.96 CDPR reports observing high 

flux, high emissions, and high concentrations of methyl bromide from applications of methyl 

bromide in winter. CDPR found no correlation between Julian date and emissions from methyl 

bromide applications.97 EPA reports that in field scale studies of soil fumigations, temperatures 

were observed to fluctuate without discernible differences in emission patterns.98 In a subsequent 

report (see footnote 96), based on new data, EPA established buffer zones based on studies with 

soil temperatures averaging around 70 degrees F. EPA evaluated whether buffer zone credits 

(i.e., reduced emission credits) could be applied for fumigant applications done at soil 

temperatures of 50 degrees F or lower. Methyl bromide applications are not eligible for any 

buffer zone credits based on temperature due to its high vapor pressure, but chloropicrin, metam 

sodium, metam potassium, and dazomet all qualify for a 10 percent buffer zone credit if applied 

at < 50 degrees F. 

The worst-case scenario study cited by El Comité is a 1993 CARB/CDPR study. This 

study was rejected by CDPR because of issues with study design and sample handling. CARB 

August 2007 Environmental Analysis, p. 9.

Comment E-6: El Comité argues that because the natural variability in flux rates (the rate at 

which the fumigant escapes from the soil) is large, a single study (or even several studies) will 

not provide an accurate estimate of actual emissions. They comment that it is not uncommon for 

flux rates for different field fumigation studies, even those conducted under very similar 

application conditions, to vary by a factor of two to four. 

Response: E-6: CDPR responded to this comment, which was also made during the 45-day 

comment period on the initial proposal of the fumigant regulations in July 2007. It agreed that 

flux rates vary and have chosen to average flux rates to get the most accurate picture of overall 

emissions. Their response, which is 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 

 

96

 Memorandum, Jeffrey L. Dawson and Shalu Shelat, EPA to John Leahy, EPA, Subject: Methyl Bromide 

(PC Code 053201), Chloropicrin (PC Code 081501), Dazomet (PC Code 035602), Metam Sodium and Potassium 

(PC Codes 039003 & 039002), MITI (PC Code 068103), DP Barcode 385314, Second Update To Health Effects 

Division Recommendations for Good Agricultural Practices and Associated Buffer Credits, January 11, 2011.

97

 Alternatives Analysis for the Fumigant VOC Regulations, Attachment 3, Evaluation of the Effect of 

Temperature on Fumigant Emissions, p. 6.

98

 Jeffrey L. Dawson and Charles Smith, EPA, to John Leahy, EPA, Factors Which Impact Soil Fumigant 

Emissions - Evaluation For Use In Soil Fumigant Buffer Zone Credit Factor Approach, U.S. EPA Office of 

Prevention, Pesticides, and Toxic Substances, June 9, 2008.
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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 emission 

reductions achieved would be larger than currently estimated using the average flux 

rates.

99

Therefore we conclude that CDPR took a reasoned approach to establishing AMAF based 

on the available science.

Comment E-7: El Comité argues that CDPR has not presented any evidence supporting its 

estimates of historical fumigant application methods nor has it made public the details of the 

process by which this information was obtained.

Response E-7: EPA considered the process described in the Barry memorandum as a reasonable 

basis on which to support estimates of historical fumigant application methods. See also 

Responses E-1 and E-2.

Comment E-8: El Comité comments that the alleged deficiencies in the determination of the 

historical MUF and current AMAF that they have identified are important because CDPR’s 

strategy to meet its VOC reduction obligations rely principally on these inventory adjustments 

and that it has used these adjustments to offset large increases in pesticide use that have occurred 

since 1991, citing to a graph on unadjusted VOC emissions from pesticides in CDPR’s 2010 

Annual Pesticide VOC Emissions Report. They argue that these alleged inventory manipulations 

are problematic given the holding in Warmerdam that prevents citizens and EPA from enforcing 

noncompliance with the California SIP Pesticide Element. We note that CDPR committed to 

reduce VOC emissions from pesticide use and not to reduce pesticide use.

Response E-8: For the reasons discussed above we do not agree that CDPR has inappropriately 

established MUF and AMAF but rather has used the best available data to determine the factors 

that affect VOC emissions from the use of pesticides including fumigants. 

As we have explained previously, now that CDPR has fixed the emission limit in both 

Ventura County and the SJV, the 1990 baseline inventories (including the MUF that are used to 

calculate them) are only relevant to determining whether approvals of these emission limits are

allowed under the non-interference provisions of CAA section 110(l). See Response B-1. Once 

these fixed emission limits are approved, neither the 1990 baselines for these areas nor the 

 

99 Rulemaking File For Regulations Filed and in Effect on January 8, 2008; Final Statement of Reasons 

Attachment A: Summary of Comments Received During the 45-Day Comment Period and DPR's Response.
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calculations procedures used have any continuing relevance and therefore do not need to be 

enforceable.

We have also explained that the calculation procedures for determining the subsequent 

year inventories are part of these emission limits’ compliance monitoring requirements and as 

such are fully enforceable under CAA section 304. We have also noted that citizens are not 

restricted to using either CDPR’s emissions inventories or its calculation methodologies to 

enforce the emission limits but may use any credible evidence to do so. See Response D-1.

Finally, unadjusted pesticide VOC emissions are an incorrect and misleading measure to 

judge progress or lack thereof in reducing VOC emissions from pesticides. Unadjusted pesticide 

VOC emissions are the hypothetical amount of emissions that would be emitted if all of a 

fumigant’s VOC content is emitted to the air. Unadjusted pesticide VOC emissions do not reflect 

actual emissions to the air. El Comité does not object to the basic premise that the method used 

to apply a fumigant affects how much of that fumigant’s VOC is emitted to the air. Both the 

effectiveness of a particular method at reducing VOC emissions and the range of methods used 

must be taken into account to appropriately estimate VOC emissions from fumigants and thus 

pesticides as a whole. CDPR’s adjusted pesticide VOC emissions estimates account for these 

factors and therefore are the appropriate measures to judge progress in reducing VOC emissions 

from pesticides. Adjusted pesticide VOC emissions in all five areas subject to the Pesticide 

Element have shown reductions in VOC emissions from the SIP’s baseline year of 1990.100

Comment E-9: El Comité comments that EPA’s approval of the static baseline inventory from 

which the SJV pesticide VOC emission limit of 18.1 tpd is calculated would be arbitrary and 

capricious because it is allegedly based in part on unsupported assumptions regarding the 

methods of use. In support of their comments, El Comité cites to arguments made earlier in their 

comment letter (p. 15) and the Kegley letter (included as Exhibit 30 to their comment letter).

101

They further comment that EPA should not accept the baseline inventory given CDPR’s alleged 

history of inventory manipulation, citing to a memorandum from Mark Pepple to Paul Gosselin, 

February 13, 1997 and El Comité para el Bienestar de Earlimart v. Helliker, 416 F.Supp.2d 912, 

923, 933-934 (E.D. Cal. 2006) as evidence of this alleged manipulation. 

Response E-9: We believe that by “static baseline inventory” El Comité means the 1990 

baseline inventory from which CDPR calculated the 18.1 tpd emission limit for SJV.

California did not submit for SIP approval, and EPA is not approving, the 1990 baseline 

emissions inventory for SJV (or for any other area). We listed the SIP submittals and the 

provisions in those SIP submittals that it intended to include in the SIP on pages 24442 to 24443 

of our proposal. These SIP submittals do not include the 1990 SJV baseline inventory. To the 

 

100

 See Revised 2010 Pesticide VOC Emissions Report, Table 5, p. 20.

101

 The Kegley Letter is a letter from Susan Kegley, Ph.D., Senior Scientist, Pesticide Action Network et 

al. to Linda Irokawa-Otani, California Department of Pesticide Regulation, July 13, 2007. It conveys comments of 

Californians for Pesticide Reform and others on CDPR’s 2007 proposal to adopt fumigant regulations and a revised 

SIP commitment for SJV. It provides a number of comments and raises a series of issues with the proposed 

regulations and commitment. In their letter here, El Comité references only to the specific comments in the Kegley 

letter on the method use factors. EPA is therefore, limiting its responses to these specific comments (which we note 

closely duplicate the comments on pages 14-16 of their letter). Because El Comité has not referenced any other parts 

of the Kegley letter, it is precluded from raising in any subsequent appeal of this final action, other issues in the 

Kegley letter that are not otherwise specifically raised in their comment letter here.
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extent that this inventory is relevant to today’s action, it is in the context of our CAA section 

110(l) analysis of the SJV emission limit. We addressed comments on this issue in Response C6. We have also addressed El Comité’s comments (including those in the Kegley letter) on the 

historical MUF in Responses E-1 and E-2. 

The evidence the El Comité cites does not support their accusation that CDPR has 

manipulated the baseline inventory to avoid adopting regulations. In the Pepple memorandum, 

CDPR was stating its concerns with the accuracy of the CARB methodology for calculating 

pesticide emissions: “We consider this option because the agricultural use figures determined by 

the ARB methodology appeared to be low compared to successive years (which were all based 

on PUR data) and the commercial structural use figures seems to be too high.”

102 CDPR was also 

stating its concern that the CARB inventory was not available: “In the SIP, we state that the 

1990 figure will be based on a backcast of 1991 data. It is uncertain when the CARB will 

provide the backcasted figure.”

103 The date of the Pepple memorandum is February 13, 1997, 

just a few months before the June 15, 1997 deadline for CDPR to submit regulations to EPA if 

they were needed to achieve the required emissions reduction. It is therefore not surprising that 

CDPR would then be evaluating alternative ways to calculate the 1990 pesticide VOC emissions 

inventory because 1) it lacked the necessary CARB data, 2) did not know when that data would 

be available, and 3) had substantial concerns about accuracy of CARB’s methodology. This is 

not evidence of “inventory manipulation” but a rather of a good faith effort by CDPR to meet 

what it believed to be its SIP obligations. 

We note that the 1990 baseline emissions inventory that CDPR was proposing to replace 

were based on CARB’s “current methodology.” Pepple memorandum, p. 1 (“The 1990 base year 

figures are those estimated by ARB using their current methodology.”) It was not an inventory 

backcasted from 1991 PUR data. Id. (“It is uncertain when the ARB will provide the backcast 

figure.”) It was also not an inventory based on unbackcasted 1991 PUR data.104 In the Pepple 

memorandum, CDPR was proposing to replace the then-existing 1990 baseline inventory with an 

inventory that was calculated using the same methodology (“multiplying the emission factor for 

each pesticide product by the use of that product”) as the successive year inventories. Using 

 

102

 No records seem to exist of the CARB methodology; however, given the language in the Pepple 

memorandum, it can be understood that the CARB methodology did not use PUR data since CDPR was 

recommending, as an alternative, a methodology that was based on PUR data and thus more consistent with 

successive year inventories.

103

 To EPA’s knowledge, CDPR has never prepared a 1990 baseline inventory using1991 PUR data 

adjusted to reflect 1990 usage. While CDPR did developed a 1991 inventory using 1991 PUR data (See, for 

example, memorandum, Tamara L. Roush, CDPR to John S. Sanders, CDPR, October 24, 2006, “2006 Update to 

the Pesticide VOC Inventory Estimated Emissions 1990-2004,” p. 2) , that inventory was not backcasted to 1990. El 

Comité’s comments here assume that this backcasted 1990 emissions inventory, if prepared, would show lower 

emissions levels than the 1990 inventory prepared using 1990 PUR data, resulting in lower emission limits. There is 

nothing in the record that supports this assumption. As we discuss in Response C-6, we do not read the 1994 

Pesticide Element to bar the use of 1990 PUR data to calculate the 1990 baseline.

104

 El Comité’s argument that the Pepple memorandum demonstrates “inventory manipulations” seems to 

rest on the assumption that CDPR was proposing to substitute a different inventory for the one they believe was 

called for in the Pesticide SIP; that is, one calculated by multiplying pesticide usage backcasted to 1990 from 1991 

by the VOC emissions factor. In fact, CDPR was proposing to substitute in an inventory calculated using a 

methodology that more closely followed the SIP for one that was not even based on PUR data.
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consistent methodologies for preparing inventories that are to be compared is sound practice and 

does not constitute “inventory manipulation.”

105

We also note that the “PUR methodology” did not universally make it easier to show 

compliance with the reduction requirements. The PUR methodology decreased estimated 

baseline pesticide VOC emissions levels in both South Coast and Sacramento, making it harder 

to show compliance. See Pepple memorandum, p. 1. 

In El Comité, the District court interpreted the 1994 Pesticide SIP to mandate the use of 

1991 PUR data to calculate the 1990 baseline inventory and found CDPR had not done so. The 

court did not find that if CDPR had used the 1991 PUR data, the results would have shown the 

need for additional regulation. In fact, there is nothing in the record that shows that additional 

regulations would have been needed if CDPR had used 1991 data backcasted to 1990 to 

determine the 1990 baseline inventory.

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

Comment F-1: El Comité states that the fumigant regulations are unenforceable because they do 

not provide a funding mechanism, and because CDPR has not demonstrated under CAA section 

110(a)(2)(E) that the state and CAC have adequate personnel, funding and authority to 

implement and enforce the regulations.

Response F-1: We disagree that the fumigant regulations are unenforceable if they do not 

provide a mechanism to fund enforcement. 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.106 In 2006 CDPR and the California Agricultural Commission and 

Sealers Association entered into a Memorandum of Understanding that explains the process for 

distributing funds.107

 

105

 We also note that the proposed PUR methodology is consistent with the calculation method laid out in 

the SIP: “The baseline inventory will be calculated by summing the estimated 1990 emissions of each agricultural 

and commercial structural use pesticide. Emissions will be calculated by multiplying the VOC Emission Factor 

value for each product by the adjusted use of that product in 1990.” 1994 Pesticide SIP, pp. 5-6.

106

 3 CCR section 6386. Established Rate; CFAC sections 12841 and, 12841.3. See also Memorandum, 

Nancy Levin, EPA Region 9, to Docket EPA-R09-OAR-2012-0194, August 10, 2012, Subject: Summary of July 16, 

2012 conference call between EPA and California Department of Pesticide Regulation.

107

 CDFA, Disbursement of Residual Mill Assessment Funds To Enhance Local Pesticide Enforcement 

Programs, May 2006, found at 
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The CAC have conducted 3,154 field fumigant inspections since January 1, 2008.108 In 

2010-2011, CAC made 724 field fumigant inspections and 2,130 structural fumigation 

inspections statewide.109 In addition, CAC must conduct pre-application site evaluation

inspections for at least 5 percent of all sites identified in permits or notices of intent (NOI) to 

apply pesticides for agricultural use.

110 In 2010-2011, CAC conducted a total of 7,941 preapplication inspections out of a total of 136,491 NOI,

111 or 5.8 percent of NOI reviewed. 

Both CDPR and CAC enforcement authority is derived from State law and regulation. 

See California Food and Agricultural Code (CFAC) section 14004, See also, CFAC section 2281 

and 11501.5; 3 CCR sections 6140 and 6128.112 Beyond its enforcement authorities, California 

law provides CDPR with the authority to place limitations on the quantity, area, and manner of 

application to reduce pesticide emissions through restricted materials permit conditions. See

CFAC sections 14006.5; 3 CCR section 6412. Permits to use restricted materials are issued by 

the CAC, who has broad discretion to condition the permits on additional use restrictions. See

CFAC section 14006. CDPR has oversight of the permit process and recommends conditions to 

be included in the CAC’s permits. It can also enact use restrictions by regulation. See 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 12824.113 See also Response D-4.

Comment F-2: El Comité asserts that approval of the revised SIP commitment for the SJV and 

the fumigant regulations would be arbitrary and capricious and a violation of CAA section 

110(a)(2)(E) because neither 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 F-2: 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].”

 

http://www.cdfa.ca.gov/exec/county/documents/DISBURSMENT_OF_RESIDUAL_MILL_ASSESSMENT_FUND

S_TO_ENHANCE.pdf.

108

 Email and attachment from Ken Everett, CDPR to Nancy Levin, EPA, August 1, 2008.

109 See CDPR, California Statewide Pesticide Regulatory Activities Summary Between July 2010 and June 

2011 ( http://www.cdpr.ca.gov/docs/enforce/prasr/10-11prasr.pdf), page 31.

110

 3 CCR section 6436.

111

 See CDPR, California Statewide Pesticide Regulatory Activities Summary Between July 2010 and June 

2011, pp. 31 and 33 (found at http://www.cdpr.ca.gov/docs/enforce/prasr/10-11prasr.pdf,).

112 The California Food and Agricultural Code can be viewed at http://www.leginfo.ca.gov/cgibin/calawquery?codesection=fac. Title 3 of the California Code of Regulations can be view at 

http://www.cdpr.ca.gov/docs/legbills/calcode/subchpte.htm.

113

 CDPR describes its authorities on page 1 of the Revised SIP Commitment for the SJV.
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El Comité asserts that California failed to provide a “demonstration” that its proposed 

revisions are not prohibited by Title VI of the Civil Rights Act.114 Section 110(a)(2)(E), 

however, does not require a state to “demonstrate” it 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 Comité 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 Comité includes in 

their letter several statements on fumigant usage and fumigant VOC emissions in Ventura 

County and the SJV115 (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. 

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 VOCs, will improve air quality and assist the 

areas in their progress toward attainment of the ozone standards. These evaluations include:

 CDPR’s 2007 identification of no significant adverse environmental effects that can 

reasonably be expected to occur from implementing the fumigant regulations found on 

pages 22-23of the Initial Statement of Reasons and Public Report Pertaining to Field 

Fumigant Reductions.116

 

114

 Title VI of the Civil Rights Act of 1964 prohibits discrimination by entities receiving federal funds. 42 

U.S.C. § 2000d. Section 601 provides that no person shall, “on the ground of race, color, or national origin, be 

excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or 

activity” covered by Title VI. Id. Section 602 authorizes federal agencies that provide federal funding assistance to 

issue regulations to effectuate the anti-discrimination provisions of Title VI. Id. at § 2000d-1. Pursuant to section 

602, EPA promulgated regulations prohibiting EPA funding recipients from engaging in discrimination. See 40 CFR

7.30 and 7.35.

115

 These statements include this misleading one: “[T]otal unadjusted pesticide VOC emissions in the 

Ventura Nonattainment Area is [sic] higher in 2010 than in the years 1995-2001,” citing CDPR 2010 Inventory at 

18, Figure 2. Unadjusted pesticide VOC emissions are the hypothetical amount of emissions that would be emitted if 

all of a fumigant’s VOC content is emitted to the air. Unadjusted pesticide VOC emissions do not reflect actual 

emissions to the air. The method used to apply a fumigant affects how much of that fumigant’s VOC is emitted to 

the air and there are a variety of methods used to apply most fumigants. Both the effectiveness of a particular 

method at reducing VOC emissions and the range of methods used must be taken into account to appropriately 

estimate VOC emissions from fumigants and thus pesticides as a whole. CDPR’s adjusted pesticide VOC emissions 

estimates do account for these factors and therefore are the correct measure to judge progress in reducing VOC 

emissions from pesticides. Adjusted pesticide VOC emissions in Ventura County have show reductions in VOC 

emissions from the SIP’s baseline year of 1990. See CDPR 2010 Inventory, Table 5, p. 19.

116

 This document is on pages 84-104 (pdf count) of enclosure 4 to the memorandum, Christopher 

Reardon, Chief Deputy Director, California Department of Pesticide Regulation to James Goldstene, Executive 
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 CARB’s environmental impact analysis of its 2007 State Strategy which included 

evaluation of the potential environmental impacts of the fumigant regulations and the 

revisions to the Ventura portion of the Pesticide SIP (May 7, 2007).117 

 CARB’s Revised Environmental Analysis for the Proposed Revisions to the Pesticide 

Commitment of the 1994 Ozone SIP for the Ventura County Nonattainment Area 

(August 13, 2007).118

 CDPR’s “Staff Report on the Department of Pesticide Regulation’s Proposed SIP 

Commitment for San Joaquin Valley,”

119

 CDPR’s identification of no significant adverse environmental effect and response to 

comments on fumigants regulations and revised SIP commitment for SJV found in Final 

Statement of Reasons and Public Report, 2009.120

 CARB’s Executive Order S-09-005 relating to Revised Pesticide Commitment for SJV 

(October 12, 2009).121

Both CDPR and CARB receive annual grants from EPA and have done so for many 

years. As grant 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 2009.122 123 In addition, by letter dated August 7, 

2012, CDPR provided EPA a further description of the ways in which its pesticide regulatory 

program, including the VOC rule EPA is approving today, complies with sections 601 and 602 

 

Officer, California Air Resources Board; October 5, 2009, Subject: Fumigant Volatile Organic Compound 

Regulations which can be found in the docket for this rule.

117

 This document is Appendix E to CARB’s Proposed State Strategy for California’s 2007 State 

Implementation Plan (as adopted September 7, 2007) which can be found at 

http://www.arb.ca.gov/planning/sip/2007sip/apr07draft/revdrftappe.pdf and in the docket for this rule. We approved 

the revision to the Ventura portion of the Pesticide SIP in 2008. See 73 FR 41277 (July 18, 2008).

118

 This document can be found at http://www.arb.ca.gov/planning/sip/2007sip/apr07draft/ventanalysis.pdf 

and in the docket for this rule.

119 This document is Enclosure 3 to the memorandum, Christopher Reardon, Chief Deputy Director, 

California Department of Pesticide Regulation, to James Goldstene, Executive Officer, California Air Resources 

Board; October 5, 2009, Subject: Amendment to the Pesticide Element of the Ozone State Implementation Plan 

which can be found in the docket for this rule.

120 This document is Enclosure 5 to the memorandum, Christopher Reardon, Chief Deputy Director, 

California Department of Pesticide Regulation, to James Goldstene, Executive Officer, California Air Resources 

Board; October 5, 2009, Subject: Amendment to the Pesticide Element of the Ozone State Implementation Plan 

which can be found in the docket for this rule. 

121

 This document can be found in the docket for this rule. 

122

 See, for example, EPA Form 4700-4, Preaward Compliance Review Report for All Applicants and 

Recipients 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. 

123 It is also worthy of note that, to EPA’s knowledge, none of the groups that signed the El Comité letter 

raised Title VI concerns during CDPR’s rulemaking process to adopt and amend the fumigant regulations or adopt 

the revised SIP commitment for SJV nor did they raise any Title VI concerns to EPA while CDPR and CARB were 

going through their respective rulemaking processes.
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of Title VI of the Civil Rights Act of 1964 (Title VI) that govern recipients of federal financial 

assistance.124 Thus, EPA concludes California has provided the necessary assurances pursuant to 

110(a)(2)(e).

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

Association of Irritated Residents Case 

Comment G-1: El Comité asserts that EPA offered no factual basis or reasoned explanation for 

concluding that, with the addition of the fumigant regulations, the revised SIP commitment for 

SJV is sufficiently enforceable, and because EPA 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 G-1: 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 

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 emission reduction target would be met in the 

San Joaquin Valley. The supplemental mechanism chosen by CDPR is the adoption of a 

commitment, which we are proposing to approve in today’s action, to manage VOC 

emissions from commercial structural and agricultural pesticide use, such that the related 

VOC emissions do not exceed 18.1 tons per day in the San Joaquin Valley. This level of 

emissions reflects a 12 percent emissions reduction from 1990 level of VOC emissions 

 

124 Letter, Brian R. Leahy, Director, CDPR to Jared Blumenfeld, Regional Administrator, EPA Region 9, 

August 7, 2012, which can be found in the docket for this rule.
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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 limit (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 G-2: El Comité argues that EPA’s rationale for finding the combination of the revised 

SIP commitment for SJV and the fumigant regulations enforceable is unfounded because three 

quarters of all adjusted pesticide VOC emissions in the SJV in 2010 came from non-fumigants 

and SJV exceeded the 18.1 tpd emission limit in 2005 and 2006 “despite CDPR’s use of an 

adjusted inventory for fumigants in the Valley.” They argue further that controlling only onequarter of the pesticide VOC inventory in the Valley with the fumigant regulations does not 

ensure that the revised SIP commitment does not meet the CAA requirement for enforceability.

Response G-2: El Comité cites CDPR's 2010 annual inventory of pesticide VOC emissions as 

the source for their claim that VOC 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 Comité's factual statements but believe that the report supports EPA's 

conclusion that the combination of the commitment and fumigant regulations does meet the 

minimum requirements for enforceability of SIP measures and reasonably ensures that the 12 

percent emissions reduction target from the Pesticide Element would be achieved in SJV. This is 

because (1) the emission limit of 18.1 tpd has not been exceeded since adoption of CDPR's 

fumigant regulations in 2008; and (2) the percentage of pesticide VOC emissions 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 Revised 2010 Pesticide 
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VOC Emissions Report. This decline in the percentage of pesticide VOC emissions due to 

fumigant use is exactly the effect that would be expected in light of the implementation of 

CDPR's restrictions on the use of higher emitting application methods, and it demonstrates that 

CDPR's fumigant regulations are effective at reducing pesticide VOC emissions in the SJV and 

in maintaining compliance with the 18.1 tpd emission limit.

Comment G-3: El Comité claims that EPA cannot rely on CDPR's fumigant regulations as the 

basis to conclude that the revised SIP commitment for SJV is enforceable because the regulations 

themselves are unenforceable. 

Response G-3: As discussed in the proposal (See 77 FR 24441, 24444) and in the responses to 

comments in sections B and D above, we have found the fumigant regulations to be enforceable.

Comment G-4: El Comité argues that because the SIP revision lacks a commitment to retain the 

fumigant regulations, EPA’s rationale for using the fumigant regulations as its basis for finding 

the SIP revision enforceable is “illusory.” El Comité asserts that CDPR could rescind the 

fumigant regulations and CARB could offer new VOC controls applicable to other sources to 

support a section 110(l) demonstration. 

Response G-4: The SIP revision does not need to include a commitment to retain the fumigant 

regulations. If CDPR were to rescind the fumigant regulations, such rescission must be approved 

by EPA as a SIP revision to be rescinded as a 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) 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 notice and comment procedures that EPA 

follows for all actions on SIPs and SIP revisions

.
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Technical Support Document—Final Rule—Approval of Revisions to the Pesticide Element of 

the California State Implementation Plan

Air Division, EPA Region 9 —August 14, 2012