[Federal Register Volume 77, Number 79 (Tuesday, April 24, 2012)]
[Proposed Rules]
[Pages 24441-24451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9850]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0194; FRL-9664-5]


Approval and Promulgation of Implementation Plans; California; 
Revisions to the California State Implementation Plan Pesticide Element

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to approve several revisions to the Pesticide 
Element of the California state implementation plan (SIP). These 
revisions include regulations adopted by the California Department of 
Pesticide Regulation (CDPR) that: (1) Reduce volatile organic compound 
(VOC) emissions from the application of agricultural field fumigants in 
the South Coast, Southeast Desert, Ventura, San Joaquin Valley (SJV), 
and Sacramento Metro ozone nonattainment areas by restricting fumigant 
application methods; (2) establish a contingency fumigant emissions 
limit and allocation system for Ventura; (3) require CDPR to prepare 
and make available to the public an annual pesticide VOC emissions 
inventory report; and (4) require recordkeeping and reporting of 
pesticide usage. EPA also proposes to approve CDPR's commitments to 
manage VOC emissions from the use of agricultural and commercial 
structural pesticides in the SJV to ensure that they do not exceed 18.1 
tons per day and to implement restrictions on VOC emissions in the SJV 
from non-fumigant pesticides by 2014. Lastly, EPA is providing its 
response to a remand by the Ninth Circuit Court of Appeals of EPA's 
2009 approval of a revision to the California SIP related to reducing 
VOC emissions from pesticides.

DATES: Any comments must arrive by May 24, 2012.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2012-0194, by one of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the on-line instructions.
     Email: [email protected].
     Mail or deliver: Andrew Steckel, (AIR-4), U.S. 
Environmental Protection Agency Region 9, 75 Hawthorne Street, San 
Francisco, CA 94105.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through www.regulations.gov or email. 
The www.regulations.gov Web site is an ``anonymous access'' system, and 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send email directly to 
EPA, your email address will be automatically captured and included as 
part of the public comment. If EPA cannot read your comments due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment.
    Docket: The technical support document (TSD) and the index to the 
docket for this proposed action is available electronically on the 
www.regulations.gov Web site and in hard copy at EPA Region 9, 75 
Hawthorne Street, San Francisco, California 94105. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with either of the contacts listed in the 
FOR FURTHER INFORMATION CONTACT section below.

FOR FURTHER INFORMATION CONTACT: For information on the proposed action 
on CDPR's regulations: Nancy Levin, Rules Office (AIR-4), (415) 972-
3848, [email protected]. For information on the proposed actions on 
CDPR's commitments and the PEST-1 measure: Frances Wicher, Air Planning 
Office (AIR-2), (415) 972-3957, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we'', ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Introduction
II. The Current California SIP Pesticide Element and Description of 
the Proposed Revisions
    A. Currently-Approved Provisions of the California SIP Pesticide 
Element
    B. Proposed Revisions to the California SIP Pesticide Element
III. EPA's Evaluation of the Revisions to the California SIP 
Pesticide Element
    A. Clean Air Act (CAA) Procedural and Administrative 
Requirements for SIP Submittals Under CAA Section 110

[[Page 24442]]

    B. Enforceability of Emission Limitations Under CAA Section 
110(a)(2)(A)
    C. Reasonably Available Control Measures/Reasonably Available 
Control Technology (RACM/RACT) Requirement Under CAA Sections 
172(c)(1) and 182(b)(1)
    D. Finding of Non-Interference With Applicable Requirements of 
the CAA Under Section 110(l)
IV. Response To Remand in Association of Irritated Residents Case
V. Proposed Actions and Opportunity for Public Comment
VI. Statutory and Executive Order Reviews

I. Introduction

    This proposed action deals with revisions to California's 
federally-approved program to reduce emissions from the use of 
agricultural and structural pesticides to improve ozone air quality in 
five areas of the State: the South Coast, Southeast Desert (SED), 
Ventura, San Joaquin Valley (SJV), and Sacramento Metro nonattainment 
areas. Pesticides contribute to ozone pollution through the emissions 
of volatile organic compounds (VOC). VOC react in the atmosphere with 
nitrogen oxides (NOX) in the presence of sunlight to form 
ozone. Breathing ground-level ozone can result in a number of health 
effects that are observed in broad segments of the population. These 
health effects include reduced lung function and inflamed airways, 
which can increase respiratory symptoms and aggravate asthma or other 
lung diseases. Ozone exposure also has been associated with increased 
susceptibility to respiratory infections, medication use, doctor 
visits, and emergency department visits and hospital admissions for 
individuals with lung disease. Ozone exposure also increases the risk 
of premature death from heart or lung disease. Children are at 
increased risk from exposure to ozone because their lungs are still 
developing and they are more likely to be active outdoors, which 
increases their exposure.
    Pesticides contribute about 5 percent to total VOC emissions in SJV 
and Ventura ozone nonattainment areas and less than 1 percent to total 
VOC emissions in the South Coast, SED, and Sacramento Metro areas. See 
TSD, section I.D.
    This proposal addresses the regulation of VOC emissions from 
pesticides under the federal Clean Air Act (CAA or ``Act''). Pesticides 
and their uses and application are primarily regulated under Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA). This proposal does 
not address regulations of pesticides under FIFRA or other federal 
acts.

II. The Current California SIP Pesticide Element and a Description of 
the Proposed Revisions

A. Currently-Approved Provisions of the California SIP Pesticide 
Element

    Prior to today's proposal, EPA has taken three actions to either 
approve or revise provisions of the California SIP Pesticide Element. 
We briefly describe each action below. More information on each action 
and its background can be found in section I.E. of the TSD for this 
proposal.
     1994 Pesticide Element--The 1994 Pesticide Element was 
submitted by California in November 1994 as part of the State's 
comprehensive 1-hour ozone attainment plan (known as the 1994 Ozone 
SIP) and included a plan by CDPR to reduce VOC emissions from 
agricultural and structural pesticides in five ozone nonattainment 
areas by a maximum of 20 percent from 1990 baseline levels by 2005 and 
to adopt regulations if necessary to achieve these reductions. EPA 
approved the 1994 Pesticide Element on January 8, 1997 (62 FR 1150) and 
codified it at 40 CFR 52.220(c)(204)(i)(A)(6) and 52.220(c)(236).
     PEST-1 Measure in CARB's 2003 State Strategy--In 2003, the 
California Air Resources Board (CARB) updated the statewide strategy 
that was part of the 1994 Ozone SIP. One of the measures in the 2003 
State Strategy was PEST-1 (``Implement Existing Pesticide Strategy''), 
which retained and continued unchanged the provisions of the 1994 
Pesticide Element. EPA approved the PEST-1 measure into the California 
SIP as part of its action to approve in part and disapprove in part the 
2003 South Coast Air Quality Management Plan and 2003 State Strategy. 
See 74 FR 10176 (March 10, 2009), codified at 40 CFR 
52.220(c)(339)(ii)(A)(1).\1\
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    \1\ In Association of Irritated Residents v. EPA, No. 09-71383, 
the 9th Circuit Court of Appeals remanded the approval of PEST-1 to 
EPA with the instructions to determine whether the Pesticide Element 
has sufficient enforcement mechanisms to satisfy the requirements of 
the Clean Air Act (CAA or Act). We provide our response to the 
remand in section IV of this notice.
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     2007 Ventura Pesticide Element--In 2007, CARB submitted a 
revision to the Ventura portion of the 1994 Pesticide Element. This 
revision reduced in part and temporally the emissions reduction 
commitment for Ventura in 1994 Pesticide Element. EPA approved this 
revision in 2008. See 73 FR 41277 (July 18, 2008), codified at 40 CFR 
52.220(c)(355)(i)(A).

B. Proposed Revisions to the California SIP Pesticide Element

    EPA is proposing to approve regulations and commitments adopted by 
the CDPR to limit VOC emissions from the use of agricultural and 
commercial structural pesticides in the South Coast, SED, Ventura, SJV, 
and Sacramento Metro ozone nonattainment areas.\2\ These CDPR 
regulations and commitments were submitted by CARB to EPA as follows:
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    \2\ The South Coast nonattainment area includes Orange County 
and portions of Los Angeles, San Bernardino, and Riverside Counties. 
The Southeast Desert (SED) nonattainment area includes the Coachella 
Valley in Riverside County, Antelope Valley in Los Angeles County, 
and the southwestern quadrant of San Bernardino County. The Ventura 
nonattainment area is Ventura County. The San Joaquin Valley (SJV) 
nonattainment area includes San Joaquin, Stanislaus, Merced, Madera, 
Fresno, Tulare and Kings Counties and the valley portion of Kern 
County. The Sacramento Metro nonattainment area includes Sacramento 
County and parts of El Dorado, Placer, Solano and Sutter Counties.
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    1. October 12, 2009 submittal \3\ of the following CDPR 
regulations:
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    \3\ See letter, James N. Goldstene, Executive Officer, CARB to 
Laura Yoshii, Acting Regional Administrator, EPA Region 9, October 
12, 2009.
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     Title 3 California Code of Regulations (CCR), sections 
6447 (first paragraph) and 6447.3-6452 pertaining to field fumigation 
methods;
     Portions of 3 CCR sections 6452.1-6452.4 and sections 
6624-6626 pertaining to emission inventory;
     3 CCR sections 6452.2 and 6452.3 pertaining to field 
fumigation limits and allowances in the Ventura ozone nonattainment 
area.\4\
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    \4\ CARB did not submit for inclusion into the SIP those 
portions of 3 CCR sections 6452.2 and 6452.3 pertaining to field 
fumigation limits and allowances in the South Coast, SED, SJV, and 
Sacramento Metro ozone nonattainment areas.
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    2. October 12, 2009 submittal \5\ of CDPR's revised ``Pesticide 
Emission Reduction Commitment for the San Joaquin Valley''. This 
submittal caps VOC emissions from the use of agricultural and 
commercial structural pesticides in the SJV to 18.1 tpd and commits 
CDPR to implement restrictions on non-fumigant pesticides in the SJV by 
2014.
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    \5\ See letter, James N. Goldstene, Executive Officer, CARB to 
Laura Yoshii, Acting Regional Administrator, EPA Region 9, October 
12, 2009.
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    3. August 2, 2011 submittal \6\ of the following CDPR regulations 
which revised in part and added to the October 12, 2009 submittal: \7\
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    \6\ See letter, James N. Goldstene, Executive Officer, CARB to 
Jared Blumenfeld, Regional Administrator, EPA Region 9, August 2, 
2011.
    \7\ As part of its August 2, 2011 submittal, CARB also submitted 
3 CCR section 6400 (Restricted Materials), 6446 (Methyl Iodide 
Field--General Requirements) and section 6446.1 (Methyl Iodide Field 
Fumigation Methods) and methyl-iodide related portions of provisions 
6452.2(a)(4)(Annual Volatile Organic Compound Emissions Inventory 
Report) and 6624(f) (Pesticide Use Records). We are deferring action 
on these provisions due to California's cancellation, effective 
March 21, 2012, of the registration of all products containing the 
active ingredient methyl iodide. CDPR adopted this set of methyl 
iodide-related regulations on May 11, 2011, after and separately 
from the CDPR April 7, 2011 regulations that are also included in 
the CARB August 2, 2011 submittal.

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[[Page 24443]]

     3 CCR sections 6448.1, 6449.1, and 6450.1 pertaining to 
fumigation method restrictions.
     Portions of 3 CCR sections 6452.2 and 6452.3 pertaining to 
field fumigation limits and allowances in the Ventura ozone 
nonattainment area.
     3 CCR section 6452.4 pertaining to the annual VOC 
emissions inventory report.
     3 CCR sections 6624 and 6626 pertaining to pesticide use 
records and reports.
    The submitted CDPR regulations that we are proposing action on 
today can be divided into four distinct but related parts. The first 
part (3 CCR sections 6447 through 6452) establishes standards for 
fumigant application and restricts the use of certain higher-emitting 
application methods in the five nonattainment areas. The second part (3 
CCR sections 6452.2 and 6452.3) provides a contingency mechanism to 
limit VOC emissions from field fumigant applications in the Ventura 
nonattainment area. The third part (3 CCR section 6452.4) requires CDPR 
to annually report on pesticide VOC emissions in each of the five 
nonattainment areas and establishes requirements for the report. The 
fourth part (3 CCR sections 6624 and 6626) establishes the 
recordkeeping and reporting requirements necessary to ensure compliance 
with the other parts. We describe each part in more detail below.
    The first part (3 CCR sections 6447 through 6452) establishes, by 
fumigant and method, requirements for the field application of seven 
fumigants and restricts the use of certain higher-emitting application 
methods in the South Coast, SED, Ventura, SJV, and Sacramento Metro 
ozone nonattainment areas during the period May 1 to October 31.\8\ 
Requirements are described for the field fumigants: methyl bromide 
(sections 6447 and 6447.3), 1,3-dichloropropene (sections 6448 and 
6448.1), chloropicrin (sections 6449 and 6449.1), metam-sodium, 
potassium N-methyldithiocarbamate and dazomet (sections 6450, 6450.1 
and 6450.2), and sodium tetrathiocarbonate (sections 6451 and 6451.1).
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    \8\ CDPR's regulations establishing the parameters for field 
fumigant application methods (but not the restrictions on which 
methods may be used during certain periods of the year) apply 
statewide; however, EPA is limiting its approval to just the five 
listed nonattainment areas.
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    Specific requirements for applying these fumigants include, for 
example, limiting fumigant application rates (pounds/acre); specifying 
application methods (e.g., minimum injection depth below soil surface, 
number of water treatments, minimum hours to leave tarpaulin in place); 
and requiring plans to address damaged tarpaulins. 3 CCR section 6452 
allows CDPR to approve alternative fumigation methods under certain 
conditions and based on specific criteria.
    As submitted, the second part of CDPR's regulations (3 CCR sections 
6452.2 and 6452.3) apply only to the Ventura ozone nonattainment area. 
This part requires CDPR to set a field fumigant VOC emissions limit for 
Ventura in its annual VOC emissions inventory report if overall 
pesticide emissions (not just fumigant emissions) in the Ventura 
nonattainment area are found to be within five percent of or exceed the 
listed benchmark. The benchmark is equivalent to the 20 percent 
reduction in pesticide VOC emissions from 1990 emissions levels that is 
required in the area by the California SIP Pesticide Element. This part 
further requires that the county agricultural commissioner add 
conditions to field fumigation permits or take other actions that will 
prevent the field fumigant limit from being exceeded.
    The third part of the submitted regulations (3 CCR section 6452.4) 
requires CDPR to issue an annual emissions inventory report that 
reports the total agricultural and commercial structural (fumigant and 
nonfumigant) pesticide VOC emissions for previous years in each of the 
five nonattainment areas and evaluates compliance with the emissions 
reduction targets in each area. This section specifies the method for 
calculating emissions and requires CDPR make a draft emissions 
inventory available to the public for a 45-day comment period and post 
the final report on its Web site.
    The fourth part of the submitted regulations (3 CCR sections 6624 
and 6626) establishes the pesticide use recordkeeping and reporting 
requirements needed to assure compliance with the other parts. This 
part requires anyone using pesticides in specific applications to keep 
and maintain certain records for two years and requires operators of 
property that produces an agricultural commodity and agricultural pest 
control businesses to report the use of pesticides to the county 
agricultural commissioner. These sections require the recording and 
reporting of the method for fumigant application in the five 
nonattainment areas.
    CDPR has revised its commitments in the 1994 Pesticide Element to 
limit VOC emissions from agricultural and commercial structural 
pesticides in the SJV. Specifically, it is now committing to
     Use a specified emissions estimation methodology to 
establish the 1990 pesticide VOC emission levels and evaluate 
compliance with the provisions in the 1994 Pesticide Element for SJV;
     Implement restrictions on agricultural fumigation methods 
and by 2014 implement restrictions on VOC emissions from non-fumigant 
pesticides; and
     Manage VOC emissions from agricultural and commercial 
structural pesticide use to ensure that they do not exceed 18.1 tons-
per-day in the SJV area (which is equivalent to a 12 percent reduction 
in pesticide VOC emissions from 1990 levels).

III. EPA's Evaluation of the Revisions to the California SIP Pesticide 
Element

A. CAA Procedural and Administrative Requirements for SIP Submittals 
Under CAA Section 110

    CAA sections 110(a)(1) and (2) and 110(l) require a state to 
provide reasonable public notice and opportunity for public hearing 
prior to the adoption and submittal of a SIP or SIP revision. To meet 
this requirement, every SIP submittal should include evidence that 
adequate public notice was given and an opportunity for a public 
hearing was provided consistent with EPA's implementing regulations in 
40 CFR 51.102. All three submittals under consideration here included 
evidence of adequate public notice and opportunity for comment.
    CAA section 110(k)(1)(B) requires EPA to determine whether a SIP 
submittal is complete within 60 days of receipt. This section also 
provides that any SIP submittal that we have not affirmatively 
determined to be complete or incomplete will become complete by 
operation of law six months after the day of submittal. The October 12, 
2009 submittals of the CDPR's regulations and the revised SJV Pesticide 
Element went complete by operation of law on April 12, 2009. The August 
2, 2011 submittal of revisions to CDPR's regulations went complete by 
operation of law on February 2, 2012.

[[Page 24444]]

B. Enforceability of Emission Limitations Under CAA Section 
110(a)(2)(A)

    CAA section 110(a)(2)(A) requires that SIP ``shall include 
enforceable emissions limitations, and such other control measures, 
means or techniques (* * *) as well as schedules and timetables for 
compliance, as may be necessary or appropriate for attainment * * *.''
    In order to be enforceable, SIP regulations and commitments must be 
clear regarding, for example, who must comply, by what date, the 
standard of compliance, the methods used to determine compliance, and 
the process and criteria for obtaining any variation from the normal 
mode of compliance.\9\ Guidance used to help evaluate enforceability 
includes the Bluebook and the Little Bluebook.\10\
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    \9\ ``Review of State Implementations Plans and Revisions for 
Enforceability and Legal Sufficiency'' (Enforceability Guidance), 
Craig Potter, EPA, September 23, 1987. See also General Preamble for 
the Implementation of Title I of the Clean Air Act Amendments of 
1990. 57 FR 13498, 13502 and 13541 (April 16, 1992) and CAA sections 
110(a)(2) and 172(c)(6). http://www.epa.gov/compliance/resources/policies/civil/caa/stationary/review-enf-rpt.pdf.
    \10\ ``Issues Relating to VOC Regulation Cutpoints, 
Deficiencies, and Deviations,'' U.S. EPA, OAQPS, May 25, 1988 (``the 
Bluebook'') and ``Guidance Document for Correcting Common VOC and 
Other Rule Deficiencies,'' U.S. EPA Region 9, August 21, 2001 (``the 
Little Bluebook'').
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Field Fumigant Regulations
    CDPR's regulations include recordkeeping requirements in 3 CCR 
section 6624 (Pesticide Use Records) and the reporting requirements in 
3 CCR section 6626 (Pesticide Use Reports for Production Agriculture). 
Among these recordkeeping and reporting requirements is the provision 
that require any person who uses a fumigant in any of the five ozone 
nonattainment areas to record and report a description of the 
application method. See 3 CCR sections 6624(f) and 6626(d). The 
regulations provide specific methods, limits, and timeframes for 
agricultural use of each fumigant. The regulations provide a process 
and criteria for use of a field fumigation method not described in the 
regulations. The request to implement a method not described in the 
regulations must be accompanied by scientific data documenting the VOC 
emissions, and that the method will not result in emissions greater 
than any one of the methods allowed for use by the regulations. The 
director must consider criteria such as data sufficiency and validity, 
and representativeness of field conditions studied. See 3 CCR section 
6452.
    The recordkeeping and report requirements and other rule provisions 
in the submitted regulations are clear and adequate to ensure that 
California's submitted fumigant regulations is enforceable as required 
by of CAA section 110(a)(2)(A).
Pesticide Emission Reduction Commitment for the San Joaquin Valley
    The mechanism to track compliance with the 18.1 tpd limit on VOC 
emissions from agricultural and commercial structural pesticides in SJV 
is the Annual VOC Emissions Inventory Report required by 3 CCR section 
6452.4. (Annual Volatile Organic Compound Emissions Inventory Report). 
For tracking compliance with the overall VOC limit in the SJV, CDPR 
proposes to use the emissions estimation methodology described on page 
2-4 (in the section ``Procedure for Calculating Unadjusted and Adjusted 
Volatile Organic Compound Emissions'') of November 5, 2008 memorandum 
from Rosemary Neal, CDPR to Randy Segawa, CDPR, Subject: Update to the 
Pesticide Volatile Organic Inventory; Estimated Emissions 1990-2006, 
and Preliminary Estimates for 2007 (``Neal memorandum'').\11\ 
Procedures for calculating pesticide VOC emissions are also in 3 CCR 
section 6452.4(a)(1).\12\ The Neal memorandum lays out a calculation 
process that follows standard inventorying practice and provides the 
same procedures for calculating VOC emissions as 3 CCR section 
6452.4(a)(1). Pesticide usage rates used to calculate total emissions 
are collected from pesticide use reports which are required by 3 CCR 
section 6626 and the requirements for persons (e.g., pesticide 
applicators) to keep and report the data necessary for preparing the 
annual report are in 3 CCR section 6624. These provisions are clear and 
adequate in combination with the fumigant regulations to ensure the 
pesticide VOC limit for the SJV is enforceable as required by CAA 
section 110(a)(2)(A).
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    \11\ The Neal memorandum was included as part of October 12, 
2009 submittal of the ``Pesticide Emission Reduction Commitment for 
the San Joaquin Valley'' and we intend to include it as additional 
material in the California SIP should we finalize our proposed 
approval of CDPR's commitment.
    \12\ These procedures apply not only to SJV but also to the 
other four nonattainment areas.
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    CDPR has committed to implement restrictions on VOC emissions from 
non-fumigant regulations by 2014 which we interpret to mean by no later 
than May 1, 2014 given that CDPR projects emissions reductions from 
these restrictions in 2014 and its control program operates from May 1 
to October 31 of each year. See ``Proposed SIP Commitment for San 
Joaquin Valley,'' page 2. To achieve reductions in 2014, the 
restriction would need to be implemented by the beginning of the 
regulatory season (May 1) in that year. CDPR does not commit to a 
specific emissions reduction from the additional restrictions on non-
fumigant pesticide; however, the restrictions are part of CDPR's 
regulatory program to ensure that the inventory target of 18.1 tpd in 
the SJV is not exceeded (Id. at page 1), which effectively defines the 
needed stringency. This commitment is sufficiently clear and adequate 
to ensure that is enforceable as required by CAA section 110(a)(1)(A).

C. Reasonably Available Control Measures/Reasonably Available Control 
Technology (RACM/RACT) Requirement Under CAA Sections 172(c)(1) and 
182(b)(1)

    CAA section 172(c)(1) requires that each attainment plan ``provide 
for the implementation of all reasonably available control measures as 
expeditiously as practicable (including such reductions in emissions 
from existing sources in the area as may be obtained through the 
adoption, at a minimum, of reasonably available control technology), 
and shall provide for attainment of the national primary ambient air 
quality standards.'' RACM is a requirement only for nonattainment 
areas.
    EPA defines RACM as any potential control measure for application 
to point, area, on-road and non-road emissions source categories that 
meets certain criteria. These criteria include whether the measure is 
technologically and economically feasible and either individually or 
collectively with other RACM can advance the attainment date by at 
least one year. See 57 FR 13498, 13560 (April 16, 1992). The 
determination as to whether a SIP provides for the implementation of 
RACM as required by CAA section 172(c)(1) is done as part of an area's 
attainment and reasonable further progress plans and not on a rule-by-
rule basis.
    For ozone nonattainment areas classified as moderate or above, CAA 
section 182(b)(2) requires the implementation of reasonably available 
control technologies (RACT) on all major sources of VOC \13\ and for 
each

[[Page 24445]]

VOC source category for which EPA has issued a Control Techniques 
Guideline (CTG). CAA section 182(f) requires that RACT under section 
182(b)(2) also apply to major stationary sources of NOX. See 
CAA sections 182(d) and (f).
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    \13\ In areas classified as severe (such as SED, Ventura, and 
Sacramento Metro), a major source is a stationary source that emits 
or has the potential to emit at least 25 tons of VOC or 
NOX per year. See CAA sections 182(d) and (f). For 
extreme areas (South Coast and SJV), a major stationary sources is 
one that emits or has the potential to emit at least 10 tons of VOC 
or NOX per year. See CAA sections 182(e) and (f).
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    The proposed revisions to the California SIP Pesticide Element that 
we are evaluating here are intended to reduce VOC emissions in the 
South Coast, SED, Ventura, SJV, and Sacramento Metro ozone 
nonattainment areas. VOC emissions contribute to the formation of ozone 
and secondary particulate matter. EPA, though, has determined by rule 
that states do not need to address controls for sources of VOC 
emissions for PM2.5 standard attainment unless the state 
and/or EPA make a technical demonstration that such controls would 
significantly contribute to reducing PM2.5 concentrations in 
the nonattainment area. See 40 CFR 51.1002(c)(3). Such a determination 
would be made in the context of each area's plan for attainment of the 
PM2.5 standards. Of the areas subject to the California SIP 
Pesticide Element, only the South Coast, SJV, and Sacramento Metro 
areas are nonattainment for one or more of the PM2.5 
standards and only South Coast controls VOC for PM2.5 
attainment.
Field Fumigant Regulations
    CARB's 2009 submittal of the field fumigant regulations did not 
include a demonstration of how the field fumigation methods implement 
RACT.\14\ In response to EPA comments, CDPR provided a document 
containing more detailed information on its RACT evaluation of 
fumigation methods.\15\ This document contains a general discussion of 
strategies for controlling VOC emissions from fumigants and an 
evaluation of field fumigation method options, including the basis for 
those accepted and those rejected by CDPR for inclusion in its 
regulations. It discusses current research on fumigant VOC emission 
reduction methods, including a reevaluation of fumigants to obtain 
additional data to replace surrogate data used in developing the 
adopted regulations.
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    \14\ See letter, Andrew Steckel, EPA Region 9 to Frank Spurlock, 
CDPR and Mike Guzzetta, CARB, November 2, 2010.
    \15\ See letter and attachments, Randy Segawa, CDPR to Andrew 
Steckel, EPA-Region 9, Reducing Volatile Organic Compound Emissions 
from Pesticides: Analysis of Alternatives for Field Fumigation 
Methods, June 28, 2011.
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    Field fumigation emissions are considered fugitive emissions 
because they are emissions that ``could not reasonably pass through a 
stack, chimney, vent, or other functionally-equivalent opening.'' \16\ 
As noted above, CAA section 182(b)(1) requires RACT be applied to all 
to major stationary sources in a ozone nonattainment area classified 
moderate or above. EPA has not yet defined by rule whether fugitive 
emissions must be included in determination of major source status for 
the purposes determining the application of section 182(b)(1) RACT 
requirement; however, EPA believes, based on the information provided 
in the CDPR's alternatives analysis, and the research cited to support 
it, that CDPR has demonstrated that the proposed regulations are 
stringent enough to implement RACT-level controls on the application of 
pesticides.
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    \16\ See 40 CFR 70.2 (Definitions).
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    On January 10, 2012, EPA partially approved and partially 
disapproved the section 182(b)(1) RACT SIP submitted by California on 
June 18, 2009 for the SJV ozone nonattainment area. The partial 
disapproval was based in part on our conclusion that the State had not 
fully satisfied CAA section 182(b) RACT requirements for the 
application of fumigants. See 77 FR 1417, 1425 (January 10, 2012). 
Based on our proposed finding here that CDPR's field fumigant 
regulations provide RACT-level controls on this source category, final 
approval of these regulations would satisfy California's obligation to 
implement RACT under CAA section 182(b)(1) for this source category for 
the 1-hour ozone and 1997 8-hour ozone standards for the SJV RACT SIP.
    EPA has recently approved the attainment, RFP and RACM 
demonstrations in the 8-hour ozone SIPs for the South Coast and San 
Joaquin Valley and the PM2.5 SIP for the South Coast (which 
did include VOC reductions in its RFP and attainment 
demonstrations).\17\ These demonstrations relied in part on VOC control 
measures in the 2007 State Strategy; however, EPA's approval of these 
demonstrations did not rely on emissions reductions from CDPR's field 
fumigant regulations. Therefore, their approval into the SIP is 
consistent with the approved RACM demonstrations.
---------------------------------------------------------------------------

    \17\ See 76 FR 69928 (November 9, 2011) (South Coast 
PM2.5 Plan), 77 FR 12652 (March 1, 2012) (SJV 2007 8-hour 
Ozone SIP), and 77 FR 12674 (March 1, 2012) (South Coast 8-hour 
Ozone Plan). EPA has also recently approved the SJV 2008 
PM2.5 SIP which relied in part on measures in the 2007 
State Strategy. In approving that SIP, EPA concurred with the 
State's determination that VOC did not need to be controlled for 
PM2.5 attainment in the SJV and therefore the plan did 
not include did not need to evaluate VOC control measures as part of 
its RACM demonstration. See 76 FR 69896, 69924 (November 9, 2011). 
The PM2.5 plan for the Sacramento Metro area is not due 
until late 2012.
---------------------------------------------------------------------------

    CARB has submitted SIPs to address attainment of the 1997 8-hour 
ozone standard in the SED, Ventura County, and Sacramento Metro 
nonattainment. EPA has not yet acted on these plans although we note 
that none rely on reductions from controls on pesticides.
Pesticide Emission Reduction Commitment for the San Joaquin Valley
    As noted above, the demonstration that a SIP provides for the 
implementation of RACM as required by CAA section 172(c)(1) is done as 
part of an area's attainment and reasonable further progress plans and 
not on an individual rule or commitment basis.
    EPA recently approved the 2007 8-hour ozone SIP for the San Joaquin 
Valley, including the SIP's RACM demonstration. 77 FR 12652 (March 1, 
2012). To demonstrate that the SIP provided for RACM, California relied 
in part on measures in the 2007 State Strategy, including the 
``Pesticide Emission Reduction Commitment for the San Joaquin Valley'' 
(as revised April 17, 2009) that we are proposing to approve here. 
However, because we had not yet approved the commitment into the SIP, 
we did not grant any emissions reductions credit to the commitment in 
either the RFP or attainment demonstration nor did we rely on it to 
make our determination that the 2007 SIP provided for RACM. See Air 
Division, EPA Region 9, ``Final Technical Support Document and Response 
to Comments Final Rule on the San Joaquin Valley 2007 Ozone Plan and 
the San Joaquin Valley Portions of the 2007 State Strategy,'' December 
15, 2011, pp. 51-57. Because EPA's approvals of the attainment, RFP, 
and RACM demonstrations in the SJV 2007 8-hour ozone SIP did not rely 
on emissions reductions from CDPR's commitment to limit pesticide VOC 
emissions in the SJV to 18.1 tpd, its approval into the SIP is 
consistent with the approved RACM demonstration.

D. Finding of Non-Interference With Applicable Requirements of the CAA 
Under Section 110(l)

    Revisions to the SIP, including revisions to SIP-approved control 
measure, must meet the requirements of CAA section 110(l) to be 
approved by EPA. CAA section 110(l) ``Plan Revisions'' provides in 
relevant part:

    The Administrator shall not approve a revision of a plan if the 
revision would interfere with any applicable requirement concerning 
attainment and reasonable further progress (as defined in [section 
171]) or any other applicable requirement of [the CAA].


[[Page 24446]]


    We interpret section 110(l) to apply to all requirements of the CAA 
and to all areas of the country, whether attainment, nonattainment, 
unclassifiable, or maintenance for one or more of the six criteria 
pollutants. We also interpret section 110(l) to require a demonstration 
addressing all pollutants whose emissions and/or ambient concentrations 
may change as a result of the SIP revision. The scope and rigor of an 
adequate section 110(l) demonstration of noninterference depends on the 
air quality status of the area, the potential impact of the revision on 
air quality, the pollutant(s) affected, and the nature of the 
applicable CAA requirements.
    In reviewing a modification to an approved SIP provision, we look 
to see to what extent the existing SIP has relied on that provision to 
meet applicable CAA requirements. For emissions reduction measures, we 
generally conclude that the revision will not interfere with any 
applicable requirement related to attainment or RFP if the revised SIP 
will provide the same or more emissions reductions on the same or 
similar schedule as the existing SIP. We note, however, that CAA 
section 110(l) does not bar approval of SIP revisions that may result 
in higher levels of emissions than would potentially occur under the 
unrevised SIP; only that such revisions do not result in the applicable 
SIP no longer providing for expeditious attainment or RFP or complying 
with any other applicable requirements of the CAA.
    The submittals that we are evaluating in this proposal for 
inclusion into the California SIP control VOC emissions in five 
California areas. Neither the field fumigant regulations nor the SJV 
pesticide SIP commitment explicitly regulated any other pollutant 
besides VOC. VOC is a precursor pollutant for ozone as well as for both 
fine (PM2.5) and coarse (PM10) particulate 
matter.\18\ At this time, only the South Coast's SIP relies on VOC 
controls for PM2.5 or PM10 attainment and none of 
its adopted particulate matter plans rely on reductions from the 
California SIP Pesticide Element (either as already approved or 
proposed for approval here) to demonstrate attainment, RFP, or RACM or 
to meet any other requirement of the CAA.
---------------------------------------------------------------------------

    \18\ As noted previously, while EPA considers VOC to be a 
precursor to PM, it does not require control of VOC emissions for PM 
standard attainment in most instances. See 72 FR 20586, 20589 (April 
25, 2007) and 57 FR 13498, 13538 (April 16, 1992).
---------------------------------------------------------------------------

Field Fumigant Regulations
    The CDPR's field fumigant regulations are the first such 
regulations incorporated into the California SIP. Their approval will 
strengthen the SIP by providing SIP-enforceable measures and compliance 
procedures to reduce emissions from the application of fumigants in the 
five ozone nonattainment areas covered by the regulations. Their 
approval will also aid compliance with the approved California SIP 
Pesticide Element's provisions for reducing VOC emissions by 20 percent 
from 1990 baseline levels in the South Coast, SED, Ventura, and 
Sacramento Metro ozone nonattainment areas. Their approval will also 
aid compliance with the proposed 18.1 tpd limit on pesticide VOC 
emissions in the San Joaquin Valley. Therefore, EPA proposes to find 
that approving the field fumigant regulations into the California SIP 
will not interfere with any applicable requirement concerning 
attainment and reasonable further progress or with any other applicable 
requirement of the CAA.
Pesticide Emission Reduction Commitment for the San Joaquin Valley
    In 1997, EPA approved the 1994 Pesticide Element into the 
California SIP. See 62 FR 1150, 1170 (January 8, 1997). As approved, 
the Element's goal was to reduce VOC emissions from agricultural and 
commercial structural pesticide applications by a maximum of 20 percent 
from the 1990 baseline emission inventory by 2005 in areas that relied 
on VOC reductions from pesticides in their attainments plans with 
reductions to occur linearly from 1990 to 2005 but it allowed for less 
than 20 percent if fewer VOC reductions from pesticide were needed. See 
``The State Implementation Plan for Agricultural and Commercial 
Structural Pesticides,'' November 15, 1994 (``1994 Pesticide SIP''), p. 
1.\19\
---------------------------------------------------------------------------

    \19\ As submitted, the 1994 Pesticide Element consisted of three 
documents: the 1994 Pesticide SIP and the memorandum from James W. 
Wells, Director, CDPR, to James D. Boyd, Executive Officer, CARB, 
May 9, 1995 (``Wells memorandum'') and the letter from James D. 
Boyd, Executive Officer, CARB, to David Howekamp, Division Director, 
EPA-Region 9, June 13, 1996 (``Boyd Letter''). As approved, it 
consisted of the 1994 Pesticide SIP (40 CFR 52.220(c)(204)(i)(A)(6)) 
and the Boyd letter (40 CFR 52.220(c)(236)). See section IV of this 
preamble for further discussion of the 1994 Pesticide Element.
---------------------------------------------------------------------------

    The attainment demonstration for the SJV in the 1994 Ozone SIP 
relied in part on reductions of 12 percent from 1990 emissions levels 
from the 1994 Pesticide Element to demonstrate attainment by the area's 
then-applicable attainment deadline of November 15, 1999. In approving 
the 1994 Pesticide Element and the SJV ozone attainment demonstration, 
EPA credited the element with 13 tpd (in 1994 SIP currency \20\) in VOC 
emissions reductions in 1999.\21\ At the same time, EPA noted that 
California had committed to adopt and submit any regulations necessary 
to reduce VOC emissions from agricultural and commercial structural 
pesticides by 12 percent in 1999 \22\ in SJV. See 61 FR 10920, 10935 
(March 18, 1996).
---------------------------------------------------------------------------

    \20\ A SIP's ``currency'' is the emissions inventory on which it 
is based. An emissions reduction expressed in a particular ``SIP 
currency'' is an emissions reduction calculated using the inventory 
included in that SIP. Because inventories vary from SIP to SIP for 
reasons unrelated to controls (e.g., improved activity estimates or 
emissions factors), the estimated emissions reductions from a 
control measure in tons per day can change from SIP to SIP even if 
the effectiveness of the control measure as a percentage of the 
emissions category does not.
    \21\ The 13 tpd figure was provided by CARB on page A-2 and in 
Attachment C of the Boyd Letter. For the 1994 Ozone SIP, the State 
estimated that VOC emissions from pesticide use in 1990 in the San 
Joaquin Valley were 62.5 tpd. A 12 percent reduction from this level 
would require reducing overall pesticide emissions to be no more 
than 55.0 tpd in 1999. The State further estimated that without 
controls, VOC emissions from pesticides in the SJV would increase to 
67.9 tpd by 1999, thereby requiring a reduction of 12.9 tpd (67.9 
tpd minus 55.0 tpd, rounded to 13 tpd) in 1999 in order to meet the 
target level for a 12 percent reduction. See CDPR, Staff Report on 
the Department of Pesticide Regulation's Proposed SIP Commitment for 
San Joaquin Valley,'' undated, p. 1, ftn 1.
    \22\ A 20 percent reduction that was to occur linearly over the 
fifteen years between 1990 and 2005 would accrue reductions at a 
rate of 1.33 percent per year (20 percent divided by 15 years) 
resulting in a 12 percent reduction by 1999 (9 years times 1.33 
percent per year).
---------------------------------------------------------------------------

    In 2003, CARB updated the strategy that was part of the 1994 Ozone 
SIP. One of the measures in the 2003 State Strategy was PEST-1 
(``Implement Existing Pesticide Strategy''), which retained the 
provisions of the 1994 Pesticide Element. In 2004, CARB submitted the 
2004 Extreme [1-hour Ozone] Attainment Plan for the SJV \23\ which 
relied in part on the 2003 State Strategy for the reductions needed to 
demonstrate attainment by SJV's new applicable attainment date of 
November 15, 2010. On page 27 of its staff report for that plan,\24\ 
CARB discusses the measures in the 2003 State Strategy including PEST-
1. It describes the measure as a ``[c]ontinuation of the Department of 
Pesticide Regulation's approved SIP obligation to reduce volatile 
emissions from pesticides [which f]or the San Joaquin Valley * * * 
means a pesticide VOC emissions

[[Page 24447]]

target of 12 percent less than 1990 levels.''
---------------------------------------------------------------------------

    \23\ San Joaquin Valley Air Pollution Control District, 
``Extreme Ozone Attainment Demonstration Plan'' adopted October 8, 
2004; amended October 20, 2005 and August 21, 2008.
    \24\ CARB, Staff Report, Proposed 2004 State Implementation Plan 
For Ozone In The San Joaquin Valley, Release Date: September 28, 
2004.
---------------------------------------------------------------------------

    EPA approved PEST-1 into the SIP as part of its action to approve 
in part and disapprove in part the 2003 South Coast AQMP. See 74 FR 
10176 (March 10, 2009), codified at 40 CFR 52.220(c)(ii)(A)(1). We have 
not approved any other changes to the SJV-related provisions of 1994 
Pesticide Element nor have we granted any emissions reductions credit 
for the 1994 Pesticide Element beyond the 13 tpd (in 1994 SIP currency) 
approved as part of our action on the 1994 Ozone SIP.\25\
---------------------------------------------------------------------------

    \25\ We have approved two ozone plans for the SJV since the 
1997: the 2004 Ozone Plan in 2010 and the second, the 2007 8-hour 
Ozone Plan in 2012. See 75 FR 10420 (March 8, 2010) and 77 FR 12652 
(March 1, 2012). Neither plan nor our approval of them relied on 
reductions in pesticide emissions to meet any applicable CAA 
requirement.
---------------------------------------------------------------------------

    California is now proposing to revise its SIP Pesticide Element for 
the SJV to replace the requirement to achieve a percent reduction in 
VOC emissions from pesticides with a limit on overall VOC emissions 
from pesticides in the SJV of 18.1 tpd of VOC during the high ozone 
season of May 1 to October 31. The 18.1 tpd cap equates to a reduction 
of 12 percent from the current estimate of 1990 pesticide VOC emissions 
levels in the SJV.\26\
---------------------------------------------------------------------------

    \26\ See CDPR, Staff Report on the Department of Pesticide 
Regulation's Proposed SIP Commitment for San Joaquin Valley,'' 
undated (enclosure 2 to memorandum, Christopher W. Reardon, Chief 
Deputy Director, CDPR, to James Goldstene, Executive Officer, CARB, 
October 5, 2009; subject: Amendments to the Pesticide Element of the 
Ozone State Implementation Plan).
---------------------------------------------------------------------------

    Based on our review of the proposed revision, we find that the 
revision will result in, at minimum, the same emissions reductions that 
are currently required by the approved SIP and will not delay those 
reductions given that the limit is currently effective. We, therefore, 
propose to find that approving CDPR's commitment to manage VOC 
emissions from agricultural and commercial structural pesticide use to 
ensure that they do not exceed 18.1 tpd in the SJV area into the 
California SIP will not interfere with any requirement concerning 
attainment and reasonable further progress or any other applicable 
requirement of the CAA.
    In comments that EPA received on its proposed approval of the SJV 
2004 Extreme Ozone Attainment Plan (74 FR 33933(July 14, 2009)), 
several non-governmental organizations argued that the 1994 Pesticide 
Element requires a 20 percent reduction in VOC emissions from 1990 
levels by 2005 in the SJV citing to the Boyd letter on page A-2.\27\
---------------------------------------------------------------------------

    \27\ See letter, Brent Newell, Legal Director, Center on Race, 
Poverty & the Environment, August 31, 2009, ``Comments on Approval 
and Promulgation of Implementation Plans: 1-Hour Ozone Extreme Area 
Plan for San Joaquin Valley, CA (Docket No. EPA-R09-OAR-2008-
0693),'' pp. 16-20.
---------------------------------------------------------------------------

    In the Boyd letter, CARB provided EPA with suggested revisions to 
our March 18, 1996 (61 FR 10920, 10935) proposed approval of the 1994 
Ozone SIP. In reference to the 1994 Pesticide Element, CARB stated that 
the ``commitment is for a 20% reduction from 1990 levels by 2005 in 
each SIP area, except [San Diego]. [CARB] only took credit in the 
attainment year: SJV 1999 = 12%; Sac 2005 = 20%; Ven 2005 = 20%; SED 
2007 = 20%; SC 2010 = 20%.'' EPA does not find the ``commitment is for 
a 20% reduction'' statement determinative as to the State's commitment 
for SJV, not only because it is immediately contradicted by the 
statement that a 12 percent credit was taken only in the attainment 
year of 1999 but also because it is not entirely consistent with the 
more extensive language describing the emissions reductions target in 
other parts of the approved 1994 Pesticide Element and does not reflect 
the reductions relied on in the SIP.
    The 1994 Pesticide Element committed CDPR to a ``maximum of 20 
percent'' reduction in pesticide VOC emissions from 1990 baseline 
levels in areas ``which reference VOC reductions'' from the element in 
their plans. See 1994 Pesticide SIP, p. 1. With this language, the 
percent reduction required in an area is tied to the emissions 
reductions referenced, that is, relied on, in that area's plan. As 
approved, the 1994 Pesticide Element also allowed for reductions of 
less than 20 percent if fewer VOC reductions from pesticide were 
needed. Id. As noted above, the reductions relied on in the 1994 Ozone 
SIP in its attainment demonstration for SJV in 1999 were 13 tpd (in 
1994 SIP currency) which equates to 12 percent reduction from 1990 
baseline in 1999 (when anticipated growth in pesticide VOC emissions 
between 1990 and 1999 is excluded) and no additional reductions have 
been relied on in any SIP for SJV subsequent to the 1994 one.
    Approval of the revised ``Pesticide Emission Reduction Commitment 
for the San Joaquin Valley'' (submitted in 2009) will not interfere 
with any applicable requirement related to attainment or reasonable 
further progress for any PM2.5 or PM10 standard 
in the SJV. EPA has determined that VOC controls are not required for 
particulate matter control in the SJV. See 72 FR 20586, 20589 (April 
25, 2007), 69 FR 30006, 30007 (May 26, 2004), and 76 FR 69896, 69924 
(November 9, 2011).
    Additional information on EPA's determination under CAA section 
110(l) can be found in section II.D. of the TSD for this proposal.

IV. Response To Remand in Association of Irritated Residents Case

    In this section, we discuss why EPA believes that our proposed 
approval of the fumigant regulations and commitment for the SJV obviate 
the need to rescind or modify EPA's previous approvals of the 
California SIP Pesticide Element notwithstanding the deficiencies in 
the 1994 Pesticide Element that have been brought to light by 
subsequent litigation. In so doing, we summarize the relevant 
background that provides the context for this explanation.
    In 1994, California submitted the 1994 Pesticide SIP as part of its 
comprehensive 1994 Ozone SIP. The 1994 Pesticide SIP set forth the goal 
of reducing VOC emissions from pesticide use by as much as 20 percent 
from 1990 levels as needed in those areas of California that relied on 
emissions reductions from pesticides to meet CAA requirements for 
attainment of the 1-hour ozone standard. The 1994 Pesticide SIP 
included a process for re-evaluation of pesticide products (to refine 
emissions estimates and to review for possible restrictions on use), 
for establishing the 1990 base year inventory and for tracking 
emissions, for reducing VOC emissions from pesticide use through 
voluntary changes in pest management practices, and for developing 
additional regulatory measures to ensure that reductions are achieved.
    Upon review of the 1994 Pesticide SIP, EPA identified certain 
completeness and approvability issues and requested clarification. See 
letters, David P. Howekamp, Director, Air and Toxics Division, EPA 
Region 9 to James W. Wells, Director, CDPR, March 20, 1995 and April 
21, 1995. CDPR responded to EPA's request with a clarification of the 
1994 Pesticide SIP that established a commitment on the part of CDPR 
``to adopt and submit to U.S. EPA by June 15, 1997, any regulations 
necessary to reduce [VOC] emissions from agricultural and commercial 
structural pesticides by specific percentages of the 1990 base year 
emissions, by specific years, and in specific nonattainment areas,'' as 
listed in a table showing percent reductions of 8, 12, 16, and 20 
percent by 1996, 1999, 2002, and 2005, respectively, in the following 
nonattainment areas: South Coast, Southeast Desert, Ventura, San

[[Page 24448]]

Joaquin Valley, and Sacramento Metro. See letter, James W. Wells, 
Director, CDPR, to David P. Howekamp, EPA Region 9, March 31, 1995; the 
Wells memorandum; and the related transmittal letter for the Wells 
memorandum from James D. Boyd, Executive Officer, CARB to Felicia 
Marcus, Regional Administrator, EPA Region 9, May 11, 1995.
    In March 1996, EPA proposed to approve the 1994 Pesticide Element, 
among other elements of the 1994 Ozone SIP and did so based in part on 
the clarification provided by CDPR through the Wells memorandum. See 61 
FR 10920, 10935-10936 (March 18, 1996). In response to EPA's proposed 
rule, CARB submitted a letter stating: ``In the pesticide element of 
the SIP, the [CDPR] projected a steady decline in volatile emissions 
from pesticides between 1996 and 2005. However, California took SIP 
credit for these reductions only in the applicable attainment year for 
the San Joaquin Valley, Sacramento Region, Ventura County, the 
Southeast Desert, and the South Coast. The notice should reflect this 
information.'' See letter, James M. Strock, Secretary for Environmental 
Protection, California Environmental Protection Agency, to Felicia 
Marcus, Regional Administrator, EPA Region 9, May 2, 1996. CARB 
subsequently submitted the Boyd Letter providing additional detail that 
was intended to supplement the technical corrections identified in the 
State's formal May 2 comment letter. Through the Boyd Letter, CARB 
clarified again that CDPR's commitment was for a 20 percent reduction 
from 1990 levels by 2005 in the five specified nonattainment area but 
also noted that CARB only took credit in the attainment year, which 
CARB specified as a 12 percent reduction by 1999 in San Joaquin Valley, 
and 20 percent reduction in the attainment years for the four other 
nonattainment areas.\28\
---------------------------------------------------------------------------

    \28\ At the time of EPA's action on the 1994 California Ozone 
SIP and related 1994 Pesticide Element, the SJV was classified as a 
``serious'' nonattainment area for the 1-hour ozone standard with an 
applicable attainment date of 1999. See 61 FR 10920, 10925. Years 
after approval of the 1994 SIP, the SJV was reclassified as 
``severe'' and then ``extreme'' for the 1-hour ozone standard. See 
66 FR 56476 (November 8, 2001) and 69 FR 20550 (April 16, 2004).The 
other four areas were classified as ``severe'' or ``extreme'' with 
later attainment dates at the time of EPA's action on the ozone SIP 
and Pesticide Element.
---------------------------------------------------------------------------

    In 1997, EPA took final action to approve the 1994 Pesticide 
Element, and most of the 1994 California Ozone SIP and again referred 
to the Wells memorandum as providing the clarification necessary to 
provide EPA with the basis to approve the 1994 Pesticide Element as 
meeting the applicable requirements for enforceability of SIP 
revisions. See 62 FR 1150, 1169-1170 (January 8, 1997). However, in the 
1997 final rule, EPA referred explicitly to California's request in its 
May 2, 1996 comment letter to exclude emissions reductions for interim 
years from the SIP, and also implicitly referred to the Boyd Letter by 
citing CARB's decision not to assign credit to the pesticides measure 
except for purposes of attainment. In the final rule, we tried to 
reconcile the Wells memorandum with California's comment letter and the 
Boyd letter and summarized what we believed the Pesticide Element to 
contain with respect to regulatory measures, as follows: ``As described 
in the SIP, California has committed to adopt and submit to U.S. EPA by 
June 15, 1997, any regulations necessary to reduce VOC emissions from 
agricultural and commercial structural pesticides by 20 percent of the 
1990 base year emissions in the attainment years for Sacramento, 
Ventura, Southeast Desert, and the South Coast, and by 12 percent in 
1999 for the San Joaquin Valley.'' Id. at 1170.
    In listing the specific portions of the 1994 Ozone SIP and related 
documents that we were approving and incorporating as part of the 
California SIP in our 1997 final action, we listed CDPR's 1994 
Pesticide SIP and the Boyd Letter, but did not list the Wells 
memorandum. While EPA's failure to approve and incorporate the Wells 
memorandum into the SIP may have been inadvertent, California's May 2, 
1996 comment letter and the Boyd Letter made such approval and 
incorporation (i.e., without modification) problematic because the 
Wells memorandum contained interim year emissions reduction commitments 
that the California comment letter and Boyd Letter specifically 
excluded.
    In the mid-2000's, several community groups sued CDPR under the CAA 
for failure to adopt and submit regulations ensuring VOC emissions 
reductions from pesticide use in Ventura County based on the 
commitments set forth in the Wells memorandum. Upon review of the 
record, the Ninth Circuit Court of Appeals in effect denied the 
community group the remedy that the group sought based on the court's 
determination that the Wells memorandum was not in fact approved into 
the California SIP and thus the commitment by CDPR to adopt and submit 
regulations as set forth in the Wells memorandum was not enforceable 
under the Act. See El Comit[eacute] para el Bienestar de Earlimart v. 
Warmerdam, 539 F.3d 1062 (9th Cir. 2008) (Warmerdam). In the wake of 
the Warmerdam decision, the community group filed a petition for review 
in the Ninth Circuit challenging EPA's 1997 approval of the 1994 Ozone 
SIP on the grounds that, without the Wells memorandum, EPA's approval 
of that SIP was arbitrary and capricious because it relied on 
unenforceable emissions reductions from the 1994 Pesticide Element. See 
El Comit[eacute] para el Bienestar de Earlimart v. EPA, No. 08-74340 
(``El Comit[eacute]''). The Ninth Circuit has not issued its decision 
in the El Comit[eacute] case against EPA's approval of the 1994 Ozone 
SIP.
    Meanwhile, in 2004, California resubmitted the 1994 Pesticide 
Element to EPA as part of the 2003 State Strategy, which was originally 
intended to replace the state measures potion of the 1994 California 
Ozone SIP in the California SIP, in the form of a control measure 
referred to as ``PEST-1.'' PEST-1 was simply a continuation of the 
original 1994 Pesticide Element. In 2009, we approved PEST-1 as part of 
our approval of the 2003 State Strategy reasoning that approval or 
disapproval of PEST-1 amounted to the same thing from the standpoint of 
the California SIP, namely the 1994 Pesticide Element. See 74 FR 10176 
(March 10, 2009). EPA's approval of PEST-1 was challenged and the Ninth 
Circuit disagreed with EPA's decision that approval or disapproval of 
PEST-1 amounted to the same thing and remanded the approval of PEST-1 
back to EPA for an evaluation of the Pesticide Element for 
enforceability. See Association of Irritated Residents v. EPA, 632 F.3d 
584 (9th Cir. 2011), revised January 27, 2012 (AIR). Specifically, the 
Ninth Circuit held, given its earlier finding in the Warmerdam case 
that the Wells memorandum was not approved and incorporated into the 
California SIP, that EPA must determine whether the approved 1994 
Pesticide Element has sufficient enforcement mechanisms to satisfy the 
requirements of the CAA. In light of the decision in AIR, EPA filed a 
supplemental brief that argues that the decision in the AIR case makes 
the El Comit[eacute] case moot on the grounds that the relief granted 
in the AIR case with respect to PEST-1 amounts to the same relief that 
the petitioner could gain by a favorable decision in the El 
Comit[eacute] case, namely re-evaluation of the Pesticide Element for 
enforceability. The petitioners in the El Comit[eacute] disagree that 
the AIR decision has made the El Comit[eacute] case moot, and the Ninth 
Circuit has not yet issued its decision in the El Comit[eacute] case.

[[Page 24449]]

    In light of the remand in the AIR case and with due consideration 
to the history summarized above, we must re-evaluate the enforceability 
of the 1994 Pesticide Element recognizing that the Wells memorandum is 
not approved into the SIP and take appropriate remedial actions if the 
element (without the Wells memorandum) does not meet the minimum 
requirements for enforceability under the CAA. We are using this 
proposed rule on the submitted fumigant regulations and revised SIP 
commitment for the SJV as the opportunity to present our re-evaluation 
and to explain our rationale for taking no action to rescind or modify 
our approvals of the 1994 Pesticide Element in 1997 and again (as PEST-
1) in 2009.
    First, we recognize that the 1994 Pesticide Element is a 
``committal'' measure rather than a ``control'' measure. That is, the 
1994 Pesticide Element constitutes a measure for which the State does 
not provide regulations (or equivalent enforceable mechanism) in 
support of the emissions reductions credited to the measure at the time 
EPA takes action on the RFP or attainment demonstration plan that 
relies on the emissions reduction, but commits to adopt and submit 
regulations in support of the emissions reductions prior to the time 
when the reductions are needed for RFP or attainment. EPA has found, 
under certain circumstances, that committal measures that are relied on 
to meet RFP, attainment, and/or other emissions reductions requirements 
of the CAA to be enforceable, and thus approvable, only if such 
measures identify the responsible party, applicability, adoption dates 
for rules (if applicable), implementation dates, and emissions 
reductions in terms of emissions rates (such as tons per day) equal to 
the credit taken in the RFP or attainment plan for the committal 
measure.
    Back in 1995, when EPA reviewed the 1994 Pesticide SIP, we sought 
clarification from CDPR on whether the 1994 Pesticide SIP establishes a 
commitment to limit VOC emissions from pesticides to specific 
percentages of the 1990 base year emissions by specific years in 
specific nonattainment areas, regardless of future growth in emissions 
that might otherwise occur and whether the Pesticide Element 
establishes a commitment to adopt any regulations by a specific month 
prior to the implementation date. See letter, David P. Howekamp, 
Director, Air and Toxics Division, EPA Region 9 to James W. Wells, 
Director, CDPR, March 20, 1995. Later, we requested that CDPR modify 
the SIP to be explicit as to the dates of rule adoption and submittal 
and the emissions reductions by date and area. See letter, David P. 
Howekamp, Director, Air and Toxics Division, EPA Region 9 to James W. 
Wells, Director, CDPR, April 21, 1995. The clear implication in EPA's 
request to CDPR is that EPA believed at the time that such a 
modification of the 1994 Pesticide SIP was necessary to meet the 
minimum level of enforceability for crediting the emissions reductions 
from such a committal measure. CDPR's response, via CARB, was the Wells 
memorandum.
    EPA's views on acceptable committal measures have not changed 
significantly since the time of EPA's review and approval of the 1994 
Pesticide Element in 1997, and thus, we can infer from the 
correspondence between EPA and CDPR cited above and EPA's statements in 
both the 1996 proposed rule and 1997 final rule that, in the absence of 
the Wells memorandum, EPA would not have approved the 1994 Pesticide 
Element on the grounds that it does not meet the minimum level of 
enforceability that the CAA requires. See, generally, CAA section 
110(a)(2) (``Each such plan shall (A) include enforceable emission 
limitations and other control measures, means, or techniques * * * as 
may be necessary or appropriate to meet the applicable requirements of 
[the CAA]''). We have no reason to conclude otherwise today, and thus, 
we affirm that, absent a commitment providing the specificity found in 
the Wells memorandum, the 1994 Pesticide Element does not meet the 
minimum requirements for enforceability of SIP committal measures.
    Second, we discuss what actions EPA should take to address the 
deficiency in enforceability of the 1994 Pesticide Element as discussed 
above. We do so recognizing that CDPR has, since EPA's approval of the 
1994 Pesticide Element, adopted and (via CARB) submitted regulations 
that in effect have converted many of the non-regulatory provisions in 
the 1994 Pesticide Element into a regulatory form. Specifically, CDPR 
has adopted and submitted regulations restricting the use of field 
fumigant application methods; requiring CDPR to annually inventory and 
report pesticide VOC emissions for each area; establishing pesticide 
use recordkeeping and reporting requirements; and creating a 
contingency field fumigation limit and allowance program for Ventura. 
These are the types of regulations that the commitment in the Well 
memorandum would have made enforceable had the Wells memorandum been 
approved into the SIP, and thus, we find no need to perfect the 
commitment to regulations in the 1994 Pesticide Element because the 
actual submittal of the regulations themselves obviates the need for an 
enforceable commitment to submit those same regulations.
    While we believe that the submitted CDPR regulations fulfill the 
otherwise unenforceable commitment in the 1994 Pesticide Element to 
adopt and submit regulations, the question remains whether the 
regulations alone suffice to ensure that the emission reduction targets 
(20 percent from 1990 levels in the South Coast, Southeast Desert, 
Ventura, and Sacramento Metro areas and 12 percent from 1990 levels in 
San Joaquin Valley) are met. Based on our review of the regulations for 
this proposed action, we find that compliance with the emission 
reductions targets is provided through CDPR regulations limiting field 
fumigant application to lower-emitting methods and establishing a 
fumigant emissions limit and allocation system for Ventura County and 
monitored and enforced through regulations that require recordkeeping 
and reporting of pesticide usage and CDPR to annually evaluate and 
report VOC emissions from pesticides in each area.
    These provisions are adequate to ensure that the emission reduction 
targets are met in the Sacramento Metro, South Coast, and Southeast 
Desert areas given that VOC emissions from pesticide use are typically 
60 percent lower than 1990 levels in Sacramento Metro and Southeast 
Desert and 80 percent lower than 1990 levels in the South Coast. See 
CDPR's Annual Report on Volatile Organic Compound Emissions from 
Pesticides: Emissions for 1990-2010 (March 2012), page 3. To a large 
degree, the reductions in VOC emissions from pesticide use (relative to 
1990 levels) in these three areas have resulted from permanent changes 
in land use, although CDPR's regulations still serve an important 
function by reducing the VOC emissions from remaining pesticide use in 
the areas and by establishing a regulatory mechanism to track VOC 
emissions from this source category that could, if necessary, provide 
the basis for additional regulatory measures if, for some reason, VOC 
emissions from pesticide use were to increase significantly over 
current levels.
    For Ventura County, in recognition that VOC emissions from 
pesticide use are predominantly from fumigant use and are high enough 
that they could, in a given year due to fluctuations in pesticide use, 
violate the 20 percent emission reduction target, CDPR has submitted, 
and we are proposing to

[[Page 24450]]

approve, additional regulatory provisions for that area. These Ventura-
specific provisions require CDPR to set a field fumigant VOC emissions 
limit in its annual VOC emissions inventory report if overall pesticide 
emissions (not just fumigant emissions) in the Ventura nonattainment 
area are found to be within five percent of or exceed the listed 
benchmark. The benchmark is equivalent to the 20 percent emissions 
reduction target called for in the 1994 Pesticide Element for the 
Ventura area. The Ventura-specific provisions also require the county 
agricultural commissioner to add conditions to field fumigation permits 
or take other actions to prevent the field fumigation limit from being 
exceeded. As such, the regulations reasonably ensure that the 20 
percent emissions reduction target would be met in Ventura County.
    For the San Joaquin Valley, CDPR's regulations restricting fumigant 
application methods and establishing requirements on CDPR to inventory 
and report VOC emissions from pesticide use apply just as they do in 
the other four nonattainment areas. While these regulations and other 
measures have decreased VOC emissions from pesticide use in the SJV 
such that current VOC emissions are approximately 18 percent less than 
1990 levels, CDPR concluded that a mechanism was needed to supplement 
the regulations to ensure that the 12 percent emission reduction target 
would be met in the SJV. The supplemental mechanism chosen by CDPR is 
the adoption of a commitment, which we are proposing to approve in 
today's action, to manage VOC emissions from commercial structural and 
agricultural pesticide use, such that the related VOC emissions do not 
exceed 18.1 tons per day in the SJV. This level of emissions reflects a 
12 percent emissions reduction from 1990 level of VOC emissions from 
pesticide use. The specific measures that CDPR would undertake to bring 
emissions back down to that level in the event that the annual 
inventory reveals that the 18.1 tons per day emissions level had been 
exceeded are not specified.\29\ Considered in isolation, the revised 
commitment for San Joaquin Valley changes the form of the commitment in 
the 1994 Pesticide Element for the SJV but does not represent an 
enforceable measure for SIP purposes. However, when viewed in light of 
the CDPR's regulations, the combination of the commitment and fumigant 
regulations does meet the minimum requirements for enforceability of 
SIP measures and reasonably ensures that the 12 percent emissions 
reduction target from the 1994 Pesticide Element would be achieved in 
San Joaquin Valley.
---------------------------------------------------------------------------

    \29\ CDPR has presented options for these measures. See CDPR 
presentation ``Volatile Organic Compound Emissions from Pesticides: 
Options for Reducing Non-Fumigant Emissions'' September 2011 and 
November 2011, which can be found at http://www.cdpr.ca.gov/docs/emon/vocs/vocproj/nonfum_options_091611.pdf http://www.cdpr.ca.gov/docs/emon/vocs/vocproj/nonfum_options_prec_111811.pdf.
---------------------------------------------------------------------------

    For the reasons stated above, we conclude that there is no need to 
rescind or otherwise modify our 1997 approval of the 1994 Pesticide 
Element or our 2009 approval of PEST-1 notwithstanding the deficiencies 
in enforceability in the 1994 Pesticide Element due to the absence of 
an enforceable mechanism like the Wells memorandum. In short, this is 
because CDPR's regulations and revised commitment for the San Joaquin 
Valley provide the enforceable mechanism that would otherwise be 
lacking in the 1994 Pesticide Element. If EPA approves the regulations 
and commitment, as proposed herein, then the 1994 Pesticide Element 
would be fulfilled. If, after consideration of comments, EPA concludes 
that the regulations and commitment do not meet the applicable CAA 
requirements, then the decision regarding EPA's previous actions on the 
1994 Pesticide Element would need to be reconsidered.

V. Proposed Actions and Opportunity for Public Comment

    For the reasons discussed above, EPA is proposing to approve under 
CAA section 110(k)(3) the revisions to the California SIP Pesticide 
Element submitted by CARB on October 12, 2009 and August 2, 2011 and to 
incorporate them into the California's federally-enforceable SIP. We 
are deferring action on the set of regulations submitted by CARB August 
2, 2011 related to incorporating requirements related to methyl iodide 
into the fumigant regulations.
    Based on the proposed approval of these SIP revisions, EPA does not 
plan to rescind or modify the Agency's prior approvals of the Pesticide 
Element because the Agency has concluded that the revisions fulfill the 
commitments of the original Pesticide Element, thus obviating the need 
to address the deficiencies in enforceability of those original 
commitments.
    We encourage the public to comment on these proposals. Comments 
will be accepted for 30 days following publication of the proposal in 
the Federal Register. The deadline and a list of options for submitting 
comments is provided at the DATES and ADDRESSES sections at the 
beginning of this preamble.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not propose to impose additional requirements 
beyond those imposed by state law. For that reason, this proposed 
action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735 (October 4, 1993));
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255 (August 10, 1999));
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 19885 
(April 23, 1997));
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355 (May 22, 2001));
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629 (February 16, 1994)).
    In addition, this proposed action does not have Tribal implications 
as specified by Executive Order 13175 (65 FR 67249; November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and

[[Page 24451]]

EPA notes that it will not impose substantial direct costs on Tribal 
governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: April 13, 2012.
Jared Blumenfeld,
Regional Administrator, Region 9.
[FR Doc. 2012-9850 Filed 4-23-12; 8:45 am]
BILLING CODE 6560-50-P