Daily Rules, Proposed Rules, and Notices of the Federal Government
Throughout this document, “we”, “us” and “our” refer to EPA.
This action deals with revisions to California's federally-approved program to reduce volatile organic compound (VOC) emissions from the use of agricultural and structural pesticides to improve ozone air quality in five areas of the State: the South Coast, Southeast Desert (SED), Ventura County, San Joaquin Valley (SJV), and Sacramento Metro ozone nonattainment areas. VOC from pesticides and other sources react in the atmosphere with nitrogen oxides (NO
EPA is approving as revisions to California state implementation plan (SIP) regulations and commitments adopted by the California Department of Pesticide Regulation (CDPR). These CDPR regulations and commitments were submitted by the California Air Resources Board (CARB) to EPA as follows:
1. October 12, 2009 submittal of the following CDPR regulations:
• Title 3 California Code of Regulations (3 CCR), sections 6447 (first paragraph) and 6447.3-6452 pertaining to field fumigation methods;
• Portions of 3 CCR sections 6452.1-6452.4 and sections 6624 and 6626 pertaining to emissions inventory;
• 3 CCR sections 6452.2 and 6452.3 pertaining to field fumigation limits and allowances in the Ventura County ozone nonattainment area.
2. October 12, 2009 submittal of CDPR's revised SIP commitment for the San Joaquin Valley (adopted by the CDPR Director, April 17, 2009). This submittal limits VOC emissions from the use of agricultural and commercial structural pesticides in the SJV to 18.1 tons per day (tpd) and commits CDPR to implement restrictions on non-fumigant pesticides in the SJV by 2014.
3. August 2, 2011 submittal of the following CDPR regulations that revised in part and added to the October 12, 2009 submittal:
• 3 CCR sections 6448.1, 6449.1, and 6450.1 pertaining to fumigation method restrictions.
• Portions of 3 CCR sections 6452.2 and 6452.3 pertaining to field fumigation limits and allowances in the Ventura County ozone nonattainment area.
• 3 CCR section 6452.4 pertaining to the annual VOC emissions inventory report.
• 3 CCR section 6626 pertaining to pesticide use reports.
EPA proposed to approve these submittals as revisions to the California SIP on April 24, 2012 at 77 FR 24441. A detailed discussion of these submitted revisions, the Clean Air Act (CAA) and EPA requirements applicable to them, and our evaluation can be found in the proposed rule and the technical support document (TSD) for this final action.
In the April 24, 2012 proposal, EPA also provided its preliminary response to the remand by the Ninth Circuit Court of Appeals in
Lastly, in our April 24, 2012 proposed rule, we referred to another Ninth
Since then, the Ninth Circuit has issued a remand order to EPA in
EPA provided the public an opportunity to comment on its proposal to approve the revisions to the California SIP Pesticide Element for 30 days following the proposal's April 24, 2012 publication in the
The “emissions inventories” required by both the revised SIP commitment for the SJV and the fumigant regulations should not be confused with the emissions inventories that are required by specific sections of the CAA, such as sections 172(c)(3) and 182(a)(1). They are not the same in either scope or purpose. CAA section 172(c)(3) requires SIPs to “include a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in such [nonattainment] area. * * *” The purpose of the comprehensive inventories required by this and similar CAA sections is to provide the basis for, among other things, the demonstrations of attainment and progress toward attainment required, for example, by CAA sections 182(c)(2)(A), 182(b)(1), and 182(c)(2)(B). Emissions inventories submitted to meet the CAA's specific inventory requirements are intended to describe but not control emissions from sources and source categories in the inventory and thus are not enforceable emission limitations as defined by CAA section 302(k).
In contrast, the “emissions inventory” called for in the revised SIP commitment and fumigant regulations is not a specific requirement of the CAA. It is instead an emissions estimation for a single emissions source—pesticide usage in the SJV—for the sole purpose of “evaluat[ing] compliance with the 1994 SIP pesticide element for SJV.” Revised SIP commitment for the SJV, p. 2. Together with the calculation methodology in the Neal memorandum,
Under the CAA and EPA regulations, a wide range of data and means of collecting data qualify as methods to monitor compliance. CDPR's procedures for monitoring compliance with the 18.1 tpd emission limit for VOC emissions from pesticides in the SJV fall squarely within this range. See, for example, 40 CFR 64.1 (defining compliance monitoring to include emission estimation and calculation procedures).
EPA considers the compliance monitoring associated with an emission limitation to be part of that limitation and, once incorporated into the SIP, enforceable under CAA sections 113 and 304. Therefore, including the inventory calculation procedures along with the requirements for an annual emissions inventory report and recordkeeping and reporting by pesticide users (which collectively constitute the compliance monitoring procedures for the 18.1 tpd emission limit), in the SIP will make CDPR's revised commitment for the SJV fully enforceable under CAA sections 113 and 304.
We also note that citizens seeking to enforce the revised commitment for the SJV under CAA section 304 are not
These [compliance monitoring] provisions are clear and adequate in combination with the fumigant regulations to ensure the pesticide VOC limit for the SJV is enforceable as required by CAA section 110(a)(2)(A).
This statement is consistent with the one later in the proposed rule that El Comité claims contradicts it:
Considered in isolation, the revised commitment for San Joaquin Valley changes the form of the commitment in the 1994 Pesticide Element for the SJV but does not represent an enforceable measure for SIP purposes. However, when viewed in light of the CDPR's regulations, the combination of the commitment and fumigant regulations does meet the minimum requirements for enforceability of SIP measures and reasonably ensures that the 12 percent emissions reduction target from the 1994 Pesticide Element would be achieved in San Joaquin Valley.
As explained above, except for the analysis required by CAA section 110(l), the SJV baseline (that is, the 1990 baseline used to calculate the required level of emissions reductions) no longer has a purpose now that the State has set the maximum level of pesticide VOC emissions allowed in the SJV at a fixed 18.1 tpd. Once that limitation is incorporated into the SIP, the 1990 baseline inventory will be of historical interest only and neither it nor the calculation procedures used for it need to be enforceable in the future. We note that this will also be true for the 1990 baseline inventory for Ventura County once we approve the fumigant regulations.
CDPR's revised SIP commitment for the SJV is not a discretionary commitment. As discussed above and in the proposed rule, the commitment (including the fixed 18.1 tpd limitation on pesticide VOC emissions in the SJV), the monitoring procedures necessary to determine compliance with it, and the fumigant regulations combine to be a fully enforceable program under the CAA once approved into the SIP. We note again that citizens may use any credible evidence to enforce the commitment and are not restricted to using inventories generated by the State.
As to the requirement for continuous emissions reductions, we cannot consider the 18.1 tpd emission limit for the SJV as unrelated to the fumigant regulations. Not only do the fumigant regulations contain the reporting and recordkeeping requirements necessary for monitoring compliance with the limit, they also contain the principal control requirements for maintaining pesticide VOC emissions in the SJV under that limit. CDPR considers the 1.5 tpd in emissions reductions from the application method restrictions in the fumigant regulations to be sufficient to meet the SJV limit in a typical year.
As a practical matter, CDPR produces the inventories as soon as practicable given the size and complexity of the source at hand (pesticide usage in the SJV), the sheer amount of data that must be evaluated, and the requirement in 3 CCR section 6452.4(b) that the public be given 45 days to comment on the draft inventories.
We explained the basis for our conclusion in this regard on pages 24446-24447 of the proposed rule. First, we note that the Boyd Letter, while clarifying certain other aspects of the Pesticide Element, introduced an ambiguity in the percentage commitment for SJV by stating, in the same paragraph, that the commitment in each SIP area (which in this context presumably includes SJV) is for a 20 percent reduction from 1990 to 2005 and that the credit taken in SJV is 12 percent.
To resolve this ambiguity, EPA is taking into account the words of the 1994 Pesticide Element itself and the words of EPA's final rule approving the 1994 California Ozone SIP, including this Element.
First, the 1994 Pesticide SIP committed CDPR to a “maximum of 20 percent” reduction in pesticide VOC emissions from 1990 baseline levels in areas “which reference VOC reductions” from the element in their plans. See 1994 Pesticide SIP, p.1. In the case of SJV, the “plan” that references VOC reductions from the Pesticide Element is the attainment demonstration plan for SJV in the 1994 California Ozone SIP, and it took credit for a 12 percent (not a 20 percent) reduction in baseline emissions from 1990.
Second, the Pesticide SIP states: “[t]he plan offers the flexibility to achieve reductions of less than 20 percent by the year 2005 in air districts if less pesticide VOC emission reductions are needed.”
Third, in EPA's final rule approving the 1994 California Ozone SIP (and the related 1994 Pesticide Element), we summarized our understanding of the emissions reduction commitments in the Pesticide Element as follows: “As described in the SIP, California has committed to adopt and submit to U.S. EPA by June 15, 1997, any regulations necessary to reduce VOC emissions from agricultural and commercial structural pesticides by 20 percent of the 1990 base year emissions in the attainment years for Sacramento, Ventura, Southeast Desert, and the South Coast, and by 12 percent in 1999 for the San Joaquin Valley.” See 62 FR at 1150, at 1170 (January 8, 1997). Therefore, in view of the overall design and purpose of the 1994 Pesticide Element and EPA's understanding of the commitments in the Element at the time of the approval of the Element into the California SIP, we have concluded that the approved Pesticide Element includes a 12 percent emissions reduction commitment in SJV, not a 20 percent emissions reduction commitment.
Our conclusion in this regard is not contrary to the Ninth Circuit's decision in the
As to CAA section 110(l), relative to California's and EPA's interpretation of the Pesticide Element to require a 12 percent reduction in pesticide VOC emissions in (rather than 20 percent) from a 1990 baseline, we have concluded that the revised SIP
As stated above, we have concluded that the emissions reduction commitment in SJV under the existing SIP is 12 percent from 1990 levels, not 20 percent, and thus, the establishment of a 18.1 tpd limit (which represents a 12 percent reduction from 1990) through this SIP revision would result in the same emissions reductions from pesticide VOC emissions as required under the existing SIP.
We reviewed the language of the existing Pesticide SIP itself to see whether it could be reasonably interpreted to allow for use of 1990 PUR data, rather than 1991 PUR data, to determine whether the establishment of the 18.1 tpd limit (determined using 1990 PUR data) represents a revision to the SIP that would result in an emissions impact. If the existing SIP could be reasonably interpreted to allow for use of 1990 PUR data, then no emission impact would result.
The 1994 Pesticide SIP requires that a 1990 baseline inventory be used to determine the level of emissions reductions needed: “[t]his plan is designed to reduce volatile organic compound (VOC) emissions from agricultural and commercial structural pesticide applications by a maximum of 20 percent from the 1990baseline * * *.” p. 1. The 1994 Pesticide SIP is clear that this 1990 baseline inventory is to represent conditions in 1990:
• “The base year inventory will be created from the 1991 Pesticide Use Report and then adjusted by a factor to represent the 1990 base year.” p. 5;
• “In cooperation with DPR, [CARB] will develop a baseline inventory of estimated 1990 pesticidal VOC emissions based on 1991 pesticide use data, adjusted to represent the 1990 base year.” p. 6;
• “The baseline inventory will be calculated by summing the estimated 1990 emissions of each agricultural and commercial structural use pesticide.” p. 6;
• “[Estimated 1990 e]missions will be calculated by multiplying the VOC Emissions Factor value for each product by the adjusted use of that product in 1990.” p. 5.
The 1994 Pesticide SIP also emphasizes the use of the best available information to calculate the inventory, including in the rationale for using the 1991 PUR data in lieu of the 1990 data. It also allows (on page 6) for “further adjust[ments] by additional VOC Emission Factors if additional information becomes available.” While this statement applies to VOC emission factors, it would be counter-intuitive to limit adjustments to just this type of data if the primary interest is to produce the best possible assessment of pesticide VOC emissions in the 1990 base year.
In the 1994 Pesticide SIP (page 5), CDPR stated it would use the 1991 PUR data (backcasted to represent 1990) as the starting point for calculating the 1990 baseline inventory because “[i]t is believed that the 1991 pesticide use report would be a more accurate source to determine 1990 pesticidal VOC emissions.” CDPR did not concede that the 1991 PUR data was more accurate and thus left open the option to use 1990 PUR data to calculate the 1990 baseline inventory if that data was determined to be more or similarly accurate. CDPR would later determine that the data for the two years was in fact of similar accuracy. This determination weakens any reading that the SIP mandates the use of the 1991 PUR data, given the SIP's emphasis on the 1990 baseline inventory reflecting 1990 conditions and on the use of the best available data.
We also observe that the use of unbackcasted 1991 PUR data to calculate the baseline inventory results in a 1991 baseline inventory. Using a 1991 baseline inventory to set SJV's (or any area's) pesticide VOC emission limit, as El Comité advocates, would conflict with the plain language of the 1994 Pesticide SIP, which indisputably requires that these emission limits be set from a 1990 baseline.
For these reasons, we conclude that the existing Pesticide Element
For the purposes of this response, we have also investigated further the possibility that unbackcasted 1991 PUR data is required under the existing SIP and that use of 1990 PUR data would result in a higher limit than one resulting from the use of unbackcasted 1991 PUR data to establish the baseline emissions. To do this, we used information from the CDPR staff report on the revised SIP commitment for SJV to isolate the potential emissions impact of using 1990 PUR data rather than unbackcasted 1991 PUR data and calculated the difference to be 0.7 tpd.
Alternatively, based on this analysis, we find that, even if the existing SIP required the use of unbackcasted 1991 PUR data to calculate the baseline and the use of the 1990 PUR data represented a revision to the SIP, we find that the potential emissions impact (0.7 ton per day of VOC higher limit) of using 1990 PUR data instead would not interfere with RFP or attainment of the NAAQS, for the following reasons.
As to particulate matter (PM), we reiterate our observation from our proposed rule (at page 24447) that EPA has determined that VOC controls are not required for PM control in the SJV. See 72 FR 20586, 20589 (April 25, 2007); 69 FR 30006, 30007 (May 26, 2004); and 76 FR 69896, 69924 (November 9, 2011). In addition, we note that while the EPA-approved PM plans do not address the 2006 PM
El Comité provides no support for their position that the 1994 Pesticide Element requires year-round reductions. They do not cite to specific language in the Element and make no arguments as to why it should be interpreted to require year-around reductions. In our review of the 1994 Pesticide Element, we find nothing in it that directly addresses the issue of year around versus seasonal controls. Even with the most generous reading, the 1994 Element is at best ambiguous on the subject. This issue is also not directly addressed in EPA's rulemakings on the 1994 Ozone Plan. For these reasons, we have looked to California's stated purpose for including the 1994 Pesticide Element in its SIP and how the State relied on the emissions reductions from the Element to discern the best interpretation of its requirements regarding seasonality.
California submitted the 1994 Pesticide Element as part of its comprehensive plan to meet the 1-hour ozone standard and included reductions from this measure in the attainment demonstrations for the South Coast, Southeast Desert, Ventura County, SJV, and Sacramento nonattainment areas. From the language of the 1994 Pesticide Element itself, the reason for including a measure to reduce pesticide VOC emissions in the SIP was to address pesticide's contribution to ozone formation. See 1994 Pesticide SIP, p. 1.
Ozone is a seasonal pollutant with unhealthy levels being recorded mainly in the summer months when conditions are most conducive to its formation. The seasonality of ozone standard exceedances is reflected in EPA's policies and regulations that require ozone SIPs to include summer season inventories. See, for example, EPA's General Preamble at 57 FR 13498, 13502.
We described California's definition of its “summer season” (that is, its ozone season) in our proposed approval of the 1994 Ozone SIP as being from May through October. See 61 FR 10920, 10937. Consistent with the summer season being the period of concern for ozone, all the emissions inventories, the rate of progress demonstrations, and the attainment demonstrations in the 1994 Ozone SIP are expressed in tons per summer day. See, for example, 61 FR 10920, 10943-44. Estimates of emissions reductions from measures are also expressed in tons per summer day.
Taken together, these facts argue that the 1994 Pesticide Element as approved can be reasonably interpreted to apply only to the ozone season. As we noted above, this ozone season was defined by California in its 1994 Ozone SIP as being from May to October, the exact period that the fumigant regulations and the revised pesticide commitment for SJV cover. We, therefore, find that approval of these SIP revisions does not violate CAA section 110(l) on the basis that they provide for seasonal controls only.
We note again that citizens are not limited to enforcing based solely on records reported by sources. Under applicable CAA and regulatory provisions, any credible evidence of violation may be used. Such credible evidence might include, for example, photographs of a fumigant application taken from a public road.
Under the SIP,
EPA's general policy regarding director's discretion is stated in 52 FR 45109 (November 24, 1987). Provisions allowing for a degree of state director discretion may be considered appropriate if explicit and replicable procedures within the rule tightly define how the discretion will be exercised to assure equivalent emissions reductions.
CDPR has provided a detailed explanation of its process for determining the frequency of use of historical fumigant methods for the 1991 inventory as well as the 1990 inventory (which is the basis for calculating reductions) in the Barry memorandum.
DPR agrees that the variability in flux rates (emissions) between applications is large. For fumigants and application methods with multiple studies, the standard deviations of the emissions are approximately 50 percent. DPR has chosen to use the average flux rates to estimate emissions for three reasons. First, the emissions inventory represents the aggregate emissions from all agricultural and structural pesticide applications within a region over several months. The average flux rates represent the most accurate estimate of aggregate emissions. Second, all pesticide applications included in DPR's inventory represent its most accurate and consistent estimate of emissions, for both the base year and subsequent years. Using a consistent method to estimate emissions is essential for making relative comparisons and determining compliance with the SIP commitments. Using the most accurate estimates for some applications and high-end estimates for other applications would skew the inventory and make relative comparisons unreliable. Third, even if DPR were to use high-end emission estimates, they would affect both current emissions and emissions for the 1991 base year. Estimates of the 1991 base year emissions are generally more uncertain, than current emissions. DPR would likely apply a larger uncertainty factor to the 1991 base year than current emissions, and the emissions reductions achieved would be larger than currently estimated using the average flux rates.
See CDPR, Rulemaking File For Regulations Filed and in Effect on January 8, 2008; Final Statement of Reasons, Attachment A: Summary of Comments Received During the 45-Day Comment Period and DPR's Response.
Therefore, we conclude that CDPR took a reasoned approach to establishing AMAF based on the available science.
CAA section 110(a)(2)(e) requires states to provide “necessary assurances that the State * * * will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan.” CDPR has provided sufficient assurance that it has adequate funding (as well as personnel and authority) to implement the regulations.
CDPR funds CAC on an annual basis to conduct inspections and enforcement activities. Funding derives from an assessment on pesticide sales. CDPR collects 21 mill (or 2.1 cents) per dollar, of which approximately 7.6 mill is designated for CAC pesticide use inspection and enforcement activities (3 CCR section 6386; CFAC sections 12841 and 12841.3). In 2006 CDPR and the California Agricultural Commission and Sealers Association entered into a Memorandum of Understanding that explains the process for distributing funds.
The CAC have conducted 3,154 field fumigant inspections since January 1, 2008.
Both CDPR and CAC enforcement authority is derived from State law and regulation. See CFAC section 14004; see also, CFAC section 2281 and 11501.5 and 3 CCR sections 6140 and 6128. Beyond its enforcement authorities, California law provides CDPR with the authority to place limitations on the quantity, area, and manner of application to reduce pesticide emissions through restricted materials permit conditions. See CFAC section 14006.5 and 3 CCR section 6412. Permits to use restricted materials are issued by the CAC, who has broad discretion to condi