UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION IX AIR DIVISION

Technical Support Document

for

EPA ’ s Proposed Rulemaking

for the California State Implementation Plan Revisions to the Department of Pesticide Regulation

Nonfumigant Regulations

January 20161

RULE IDENTIFICATION Agency: California Department of Pesticide Regulation (CDPR)

Subject of this Technical Support Document (T SD ) May 23, 2013 CDPR a dopts Regulation 12

- 001 (“Nonfumigant Regulations”) adding new

sections and making revisions to Title 3 of the California Code of Regulations (3 CCR) :

 3 CCR s ection 6452 (pertaining to reduced V olatile Organic Compound (VOC) emissions field fumigation methods),

 3 CCR section 6452.2 (pertaining to VOC emission limits and renumbering to 6881 ),

 3 CCR section 6558 ( pertaining to recommendations for use of nonfumigants in the San Joaquin Valley (SJV ) ozone nonattainment area (NAA))

 3 CCR section 6577 ( pertaining to sales of nonfumigants for use in the SJV ozone NAA),

 3 CCR section 6880 (pertaining to criteria to designate low VOC or high VOC nonfumigant pesticide products),

 3 CCR section 6881 (pert aining to annual VOC emissions inventory
report ),

 3 CCR section 6883 (pertaining to annual VOC emissions inventory
report ),

 3 CCR section 6884 (pertaining to SJV ozone nonattainment area (NAA) use prohibitions ),

 3 CCR section 6886 ( pertaining to dealer responsibilities for the SJV ozone NAA )

,

 3 CCR section 6890 (renumbering to 6864 ) (effective November 1, 2013) February 4, 2015 California Air Resources Board ( CARB ) submits Nonfumigant Regulations for

inclusion into the State Implementation Plan (SIP)

. August 4 , 2015 CARB’s February 4, 2015 submittal becomes complete by operation of law

.

SIP Approved Rules On October 26, 2012, EPA approved revisions to the Pesticide Emission Reductions Commitment for the San Joaquin Valley (“ Pesticide Element ”) and fumigant regulations to reduce volatile organic compound ( VOC ) emissions. 1

October 12, 2009 CARB submit s portions of the fumigant regulations to EPA (VOC

- 1, VOC

- 2, and

VOC

- 3) including:

 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.

1 For the detailed timeline, see Table 5, “ Adoption, Submittal, and Completeness Timeline for Revisions to the California SIP Pesticide Element, ” Technical Support Document, Final Rule, Approval of Revisions to the Pesticide Element of the California State Implementation Plan, EPA Region 9, August 14, 2012.2  Portio ns of 3 CCR sections 6452.2 and 6452.3 pertaining to field fumigation limits and allowances only as applicable to the Ventura County

ozone NAA

. October 12, 2009 CARB submits CDPR ’s revised “Pesticide Emission Reductions C ommitment for

the San Joaquin Valley. ” August 2, 2011 CARB submit s portions of the fumigant regulations (VOC

- 4 and VOC

- 5). This

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

 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 pertain ing 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 the EPA.

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

 3 CCR sections 6624 and 6626 pertaining to pesticide use records and
reports. April 24, 2012 EPA propose s to approve CDPR’s revised SIP c ommitment and f umigant

r egulations submitted on October 1 2, 200 9 and August 2, 2011. See 77 FR 24441. October 26, 2012 EPA’s final approval of CARB’s October 12, 2009 and August 2, 2011 submittals

.

See 77 FR 65294

.

BACKGROUND

– On October 26 , 2012, EPA approved fumigant regulations and revisions to the

Pesticide Element into the SIP. See 77 FR 65294. T hese revisions include d regulations adopted by the

CDPR that: r e duce VOC emissions from the application of agricultural field fumigants in the South Coast, Southeast Desert, Ventura County, San Joaquin Valley (SJV), and Sacramento Metro ozone

nonattainment areas (NAA s ) by restricting fumigant application methods; establish a f umigant emission limit and allocation system for Ventura County; require CDPR to prepare and make available to the public an annual pesticide VOC emissions inventory report; and require recordkeeping and reporting of pesticide usage. EPA also approv ed CDPR 's commitments to manage VOC emissions from the use of agricultural and commercial structural pesticides in the SJV ozone NAA to ensure that they do not exceed 18.1 tons per day and to implement restrictions on VO C emissions in the SJV ozone NAA from

non fu migant pesticides by 2014. We approv ed these regulations and commitments as complying with applicable requirements of the Clean Air Act. For information on this submittal please see EPA’s Technical Support Document, Final Rule, Approval of Revisions to the Pesticide Element of the California State Implementation Plan, August 14, 2012

.

The submitted regulations that are the subject of this TSD address the SIP

- approved commitment s made by CDPR to manage VOC emissions from the use of agricultural and commerci al structural pesticides in

the SJV ozone NAA to ensure that they do not exceed 18.1 tons per day and to implement restrictions on

VOC emissions in the SJV ozone NAA from nonfumigant pesticides . N onfumigants account for more3

than 75% of the VOC emissions f rom agricultural and commercial structural pesticides in the SJV ozone

NAA

. 2

RULE SUMMARY

The overall effect of the new and amended regulations is to regulate certain non fumigant pesticide products applied to certain crops in the S JV ozone NAA when VOC emissions meet or exceed 95% of the 18.1 tons per day limit on VOC emissions, or 17.2 tons per day. CDPR added or revised the rules specified below largely to e stablish limits on the sale and use of high

- VOC formulations of nonfumigant pesticide produ cts that contain abamectin, chlorpyrifos, gibberellins, or oxyfluorfen as their primary active ingredient, for use on any of the following seven crops: alfalfa, almond, citrus, cotton, grape, pistachio, and walnut. These restrictions are only triggered whe n the VOC emissions meet or exceed 17.2 tons per day , as reported in the CDPR’s Annual VOC Emissions Inventory Report . They apply only during the May

- October “ozone season.”

O nce high

- VOC product prohibitions are in effect, they must remain in effect until the “hypothetical
emissions” for pesticides in the SJV ozone NAA comply with the 17.2 tons per day limit for at least two consecutive years. The rules include a calculation t o determine the “hypothetical emissions.” The purpose of the “hypothetical emissions” calculation is to provide an estimate of the emissions that would be emitted if the prohibitions were not in effect

.

The rules also require pest control dea lers to provide customers written information about these

restrictions and to indicate on the invoice that the written information was provided. Pest control advisors are prohibited from reco mmending a restricted nonfumigant product , unless it qualifies un der an exception.

A more detailed list of these and other changes are as follows:

3 CCR section 6452 Reduced Volatile Organic Compound Emissions Field Fumigation Methods

 References to section 6452.4 were changed to section 6881.

3 CCR section 6452.2 Fu migant Volatile Organic Compound Emission Limits

 New section (f) applying to the SJV ozone NAA

, establishes a trigger for the new nonfumigant pesticide product restriction s , stating that “if the difference between emissions in the most recent

emissions inv entory report and the 6,700,000 pound (18.1 tons per day) benchmark for this area is five percent or less of the benchmark or exceeds this benchmark during the May 1 through October 31 time period, the provisions of section 6884 shall apply.”

 Title was amended to delete “Fumigant.”

 “pursuant to section 6452.2 for areas...” was amended to read “pursuant to section 6881 for the Sacramento Metro, South Coast, Southeast Desert, and Ventura ozone nonattainment areas...”

 Total Agricultural and Structural VOC Emissions Inventory Benchmarks from May 1 to October 31 was amended to delete “San Joaquin Valley” and “Ventura in 2011” and their associated
limits. “Ventura in 2012 and later” was amended to “Ventura

. ”

 Minor text changes in sections (a)(1) and (e)

.

2 Annual Report on Volatile Organic Compound Emissions from Pesticides: Emissions for 1990

– 2013, March 2015, http://ww w.cdpr.ca.gov/docs/emon/vocs/vocproj/2013annual_rpt_main.pdf

.4

3 CCR section 6558

. Recommendation for Use of Nonfumigants in the San Joaquin Valley Ozone

Nonattainment Area.

 This new section prohibits a licensed pest control advisor from recommending use of a pesticide that violates (new) section 6884. If the adviso r recommends use of a high

- VOC nonfumigant product as an exception under section 6884(b), the advisor must identify the exception and retain the record of the recommendation for at least two years.

3 CCR section 6577. Sales of Nonfumigants for Use in the San Joaquin Valley Ozone

Nonattainment Area.

 This new section states that when a sale of a high

- VOC nonfumigant product is made, the licensed pest control dealer must provide the following VOC information, in writing, at the time of purchase or delivery: “High

- volatile organic compound nonfumigant products containing abamectin, chlorpyrifos, gibberellins, or oxyfluorfen as a primary active ingredient are subject to additional use restrictions during May 1 through October 31 when used in the SJV ozone NAA on the following crops: alfalfa, almond, citrus, cotton, grape, pistachio, and walnut. Use prohibitions that may apply are found in Title 3, California Code of Regulations, section 6884. The operator of the property must obtain a written recommendation of a licensed pest control adviser prior to use on these crops during this time period.”

 The licensed pest control dealer must indicate on the invoice that the information was provided.

6864 . Criteria for Identifying Pesticides as Toxic Air Contaminants.

 This section was formerly numbered 6890.

6880. Criteria to Designate Low

- Volatile Organic Compound (VOC) or High

- VOC Nonfumigant

Pesticide Products.

 This new section requires CDPR to designate in its Annual VOC Emissions Inventory Report all nonfumigant p roducts containing as their primary ingredient Abamectin, Chlorpyrifos, Gibberellins, or Oxyfluorfen as “ low

- VOC ” or “ high

- VOC ,” based on the product VOC emission potential. The maximum emission potential percentages (by weight) for designation as

low

- VOC are as follows: Abamectin (35%), Chlorpyrifos (25%), Gibberellins (25%) and Oxyflu o rfen (15%). Any products with a higher emission potential are to be designated as high

VOC.

6881 . Annual Volatile Organic Compound Emissions Inventory Report.

 The amended sections require that the annual VOC emissions inventory report do the following:

o (a) (5)

– establish prohibitions on high

- VOC nonfumigant products pursuant to section 6452.2(f), and if applicable, determine if prohibitions pursuant to section 6884(c) remai n in effect;

o (a) (6)

– e stablish a list of the nonfumigant products that are designated as low

- VOC pursuant to section 6880;

o (a) (7)

– establish a list of the actively registered nonfumigant products that are designated as high

- VOC pursuant to section 6880

.

 The amended sections also require l ow

- VOC nonfumigant products that are registered after the release of the Annual VOC Emissions Inventory Report to be listed in a supplemental report and posted on the CDPR website

.5

 This section was formerly numbered 6 452.4. It contains minor formatting and editing revisions to improve clarity.

6883. Recommendation Requirements in the San Joaquin Valley Ozone Nonattainment Area.

 This new section requires that, in the SJV ozone NAA , the operator shall not apply a high

- VOC nonfumigant product specified in section 6881 during May 1 through October 31 to one of the following crops unless th e operator obtain s the written recommendation of a licensed agricultural pest control adviser: alfalfa, almond, citrus, cotton, gr ape, pistachio, and walnut. The operator

must retain the written recommendation for at least two years after the application occurs.

6884. San Joaquin Valley Ozone Nonattainment Area Use Prohibitions.

 This new section applies to agricultural uses of cert ain high

- VOC products specified in the Annual VOC Emissions Report containing abamectin, chlorpyrifos, gibberellins, or oxyfluorfen as the primary active ingredient from May 1 through October 31

.

 6884(a) establishes prohibitions to using these high

- VOC pr oducts on seven crops: alfalfa, almond, citrus, cotton, grape, pistachio, and walnut.

 6884(b) provides seven exceptions to 6884(a)

.

 6884 (c) establishes that once high

- VOC product prohibitions are in effect, they must remain in effect until the “hypothetic al emissions” comply with the 17.2 tons per day limit (95% of 18.1 tons per day) for at least two consecutive years. This section includes a calculation to determin e the “hypothetical emissions.” The purpose of the “hypothetical emissions” calculation is t o provide an estimate of what the emissions would be emitted i f the prohibitions were not in effect

. Hypothetical emissions are determined for each pesticide

- crop combination. Total hypothetical

emissions are the sum of these combination s, plus actual emissions for remaining pesticides and

crops no t listed in 6880.

 6884(d) allows C DP R , on an interim basis, to remove an active ingredient designated as a high

VOC in section 6880, remove a crop in subsection (a) or add an exception in subsection (b) provi ded that the CDPR makes a determination that the change(s) would not affect the San Joaquin Valley’s ability to comply with the 17.2 tpd limit in section 6452.2(f). This section provides criteria upon which the Director must base the determination , includi ng a decrease in use that is likely to persist and a calculation of the inventory using the assumption that the applications for the most recent two years would have resulted in the highest VOC emissions.

 6884(e) requires CDPR to publish the proposed inter im removal o f an active ingredient or crop, or the addition of an exception in the draft Annual VOC Emissions Inventory Report ( see Section 6881) . The report must describe the calculations used to determine that the limit would

no t have been exceeded in th e two most recent years with the removal or addition. CDPR must provide a 45

- day public comment period before finalizing the Annual VOC Emissions Inventory Report. The report will be posted on the CDPR website. The interim removal or addition must be

evalu ated each year in the Report and may only remain in effect for up to three years.

6886. Dealer Responsibilities for the San Joaquin Valley Ozone Nonattainment Area

 This new section requires each licensed pest control dealer of a high

- VOC nonfumigant prod uct specified in the Annual VOC Emissions Inventory Report to provide written VOC information to the purchaser (pursuant to section 6577) if the sale is made to or for the property operator with an operator identification number issued by a county agricult ural commissioner in the SJV ozone NAA

.6

ALTERNATIVES ANALYSIS

In addition to these regulatory changes, CDPR submitted to EPA a detailed evaluation of alternatives

that CDPR considered when developing these regulations, entitled “Reducing Volatile Organic Compound Emissions from Pesticides: Analysis of Alternatives for Nonfumigant Pesticide Products (October 15, 2014).” Section 4 of the document

, “Options Considered for Reducing Pesticide VOC Emissions,” ( see pages 11

- 18)

, discuss es eight techniques that CDPR considered for controlling VOC

emissions : 1 ) reformulating organic solvent

- containing pesticide formulations, 2) reducing fumigant usage, 3) using alternative application methods, 4) applying microencapsulation techniques, 5) using integrated pest management, 6) using alternative active ingredients, 7) reducing the use of crop oils, and 8) reducing acrolein emissio ns

. CDPR concludes that, in addition to the fumigant restriction already in place , “incentivizing reformulation of certain nonfumigant products through the sales and use

restrictions [ of the submitted regulations ] is the best alternative for reducing pesticide VOC emissions. ” The report also includes a process that C DPR will use to evaluate the need for additional rest rictions

. This analy si s would evaluate t he specific products and uses causing the increase in emissions

, whether

the increase is expected to be temporary or permanent, the target pest s, and the feasibility of alternative active ingredients. See page 32.

EVALUATION CRITERIA

- The following criteria were used to evaluate the submitted rule.

1. Enforceability

– The Bluebook ( Issues Relating to VOC Regulation Cutpoints, Deficiencies, and

Deviations , EPA, May 25, 1988) and the Little Bluebook ( Guidance Document for Correcting Common VOC & Other Rule Deficiencies, EPA Region 9, August 21, 2001) were used to help evaluate compliance with the CAA § 110(a)(2)(A) requirement for enforceability.

2. Stringency

– For ozone nonattainment areas classified as moderate or abo ve, 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 s (CTG) document . CAA section 182( f) requires that RACT under section 182(b)(2) also apply to major stationary sources of NOx

.

Nonattainment areas are also required to demonstrate reasonably available control measures (RACM). 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 avai lable control technology) , a nd shall provide for the attainment of the national primary ambient air quality standards.” RACM findings are generally made in context of an overall attainment demonstration. Here, we are evaluating whether this rule implements RACT

- level controls for this area source category to facilitate RACM evaluations in future plan evaluations.

3. SIP Relaxation

– CAA § 110(l) prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attai nment and reasonable further progress (RFP) or any other applicable requirement of the CAA. In addition, CAA § 193 prohibits the modification of any SIP

- approved control requirement in effect before November 15, 1990, in a

nonattainment area.7

EPA EVALUATIO N

- A summary of our evaluation of th ese criteria follows.

1. Enforceability

– In order to be enforceable, SIP regulations and commitments must be clear regarding, for example, who must comply, by what date, the standard of compliance, the

methods used to determine compliance, and the process and criteria for obtaining any variation from the normal mode of compliance. 3 The CDPR rule requirements and applicability are clear

. If the VOC emissions from pesticides exceeds 17.2 tpd, new restrictions become e ffe ctive for the

use of certain nonfumigant pesticides (sections 6452.2 and 6880) on seven specified crops . The nonfumigant prohibitions are not lifted until the CDPR calculates that for two years in a row, the VOC emissions are less than 17.2 tpy and that th ey would remain so if the relative mixtures of high

- and low

- VOC pesticide products from the last pre

- prohibition year were maintained

. The process and calculations for making this determination are specified in section 6884. Annual VOC emissions from pest icides, including nonfumigants, are published in CDPR’s publicly

available Annual VOC Emission s Inventory Report (section 6881)

. 4 The Report must designate

the nonfumigant products containing four specific primary active ingredients as low

- VOC and high

- VOC. Exceptions to these prohibitions are clearly specified (section 6884 (b) ). The rules include specific recordkeeping, reporting and other provisions sufficient to ensure that affected sources and regulators can evaluate and det ermine c ompliance with these regulations consistently.

The CDPR may approve an interim removal of a high

- VOC active ingredient or a crop, or an interim addition of an exception only if the CDPR makes a determination that these changes

would not affect the abilit y to comply with the limit (17.2 tpd). This determination must be based on specific criteria (section 6884(d) )

. For example, to propose an interim removal of an active ingredient, the CDPR must determine that there is a decrease in its use and emissions, a nd that the decrease is caused by fac tors that are likely to persist , and make the most cons ervative assumptions about its e ffect on the inventory. The CDPR must publish any proposed interim removal of an active ingredient or crop, or the ad dition of an ex ception in the draft Annual VOC Emissions Report for a 45

- day public review and comment period. The removal or addition must be evaluated each year in the Annual Report and may only remain in effect up to three years unless submitted to and approved by EPA

.

3 “Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency” (Enforceability Guidance), Craig Potter, EPA, September 23, 1987. See also General Preamble for th e 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).

4 Section 6881 requires CDPR to publish the Annual VOC Emissions Inventory Repo rt. The report for 2013 was finalized in March 2015. As a result, when emissions in calendar year 2013 exceeded the 17.2 tpd threshold, the nonfumigant prohibitions in section 6884 did not go into effect until the 2015 ozone season (May

- October). See CDPR’ s Annual Report on Volatiles Organic Compound Emissions from Pesticides: Emissions for 1990

- 2013, Neal et al., March 2015. We note a similar lag in terminating the nonfumigant prohibitions. For example, even if emissions in calendar year 2014 are below t he 17.2 tpd threshold, this will not be reported until early 2016. However, the current prohibitions cannot not be terminated pursuant to section 6884 until after the 2016 ozone season.8

2. Stringency

– As noted above, CAA section 182(b)( 2 ) requires RACT be applied to all to major stationary sources in a n ozone nonattainment area classified moderate or above or to non

- major sources for which EPA has issued a CTG. To date, EPA has not issued a CTG for VOC

emissions from pesticides . P esticide emissions are considered fugitive emissions because they are emissions that “could not reasonably pass through a stack, chimney, vent, or other functionally

- equivalent opening.” 5 EPA has not yet defined by rule whether fugitive emissions

must be included in a determination of major source status for the purposes of determining the application of section 182(b)( 2 ) RACT requi rement; however, EPA believes, based on the information provided in the alternatives analysis that CDPR submitted

, 6 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. We also note that we are not aware of any more

- stringent State or local regulation adopted elsewhere that is designed to

control VOC emissions from these sources.

3. SIP Relaxation

– We propose to determine that our approval of the submittal would comply

with CAA §§ 110(l) and 193 because (1) the proposed SIP revision would not interfere with the

on

- going process for ensuring that requirements for RFP and attainment of the NAAQS are met, and (2) the emission limit s in the submitted rule are more stringent than the existing SIP

approved control requirements that they would replace.

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. Consistent with CAA Title V and the federal statute of limitations, we recommend th at 3 CCR

section 6558 require that re cords be maintained for five instead of two years.

EPA ACTION

- T he submitted new sections and revisions to 3 CCR made by the Nonfumigant Regulations strengthen the SIP and largely fulfil l the relevant CAA §110 and part D requirements. Therefore, EPA staf

f recommends approval of these rules pursuant to CAA §110(k)(3) and §301(a).

5 See 40 CFR 70.2 (Definitions).

6 “Reducing Volatile Organic Compound Emissions from Pesticides: Analysis of Alternatives for Nonfumigant Pesticide Products (October 15, 2014).”9

REFERENCES

1. “I ssues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations, ” (a.k.a., Bluebook)

EPA OAQPS, May 25, 1988

. 2. “ Guidance Document for Correcting Common VOC & Other Rule Deficiencies, ” (a.k.a., Little Bluebook), EPA Region 9, Augu st 21, 2001

. 3. Technical Support Document, Final Rule, Approval of Revisions to the Pesticide Element of the California State Implementation Plan, EPA Region 9, August 14, 2012.

4. Tex t of Final Regulations, Division 6. Pesticides a nd Pest Control Operations: Chapter 2. Pesticides, Subchapter 4. Restricted Materials, Article 4. Field Fumigation Use Requirements; Chapter 3. Pest Control Operations, Subchapter 1. Licensing, Article 5. Agr icultural Pest Control Adviser Licenses, Article 6. Pest Control Dealer Licenses; Chapter 4. Environmental Protection Subchapter 2. Air, Article 1. Toxic Air Contaminants, Article 2. Volatile Organic Compounds , California Department of Pesticide Regulation s, as submitted to EPA on February 4, 2015.