[Federal Register: July 18, 2008 (Volume 73, Number 139)]
[Rules and Regulations]
[Page 41277-41283]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jy08-19]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2008-0313, FRL-8694-1]
Revisions to the California State Implementation Plan; Pesticide
Element; Ventura County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Under the Clean Air Act, EPA is approving a revision of the
California State Implementation Plan submitted by the California Air
Resources Board on November 30, 2007. The revision in part, and
temporarily, relaxes a commitment to reduce emissions of volatile
organic compounds in Ventura County caused by the application of
pesticides.
DATES: Effective Date: This rule is effective on August 18, 2008.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2008-0313 for
this action. The index to the docket is available electronically at
http://www.regulations.gov and in hard copy at EPA Region IX, 75
Hawthorne Street, San Francisco, California. 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 in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Wienke Tax, EPA Region IX, (520) 622-
1622, tax.wienke@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Summary of EPA's Proposed Action
II. Public Comments and EPA Responses
A. Comments on the Economic Consequences of EPA Action on the
SIP Revision
B. Comments on the Environmental Consequences of EPA Action on
the SIP Revision
C. Clean Air Act Section 110(l) Issues
D. Comments on Technical Issue of Whether Reduction Is Based on
Tonnage or Percentage Reductions
E. Comment About the Opportunity to Comment
F. Comments on Whether Best Available Control Technology (BACT)
Can Achieve the Necessary Reductions
III. EPA's Final Action
IV. Statutory and Executive Order Reviews
I. Summary of EPA's Proposed Action
On April 23, 2008 (73 FR 21885), we proposed to approve a revision
of the California State Implementation Plan (SIP) submitted by the
California Air Resources Board (CARB) on November 30, 2007. Table 1
lists the revision we proposed to approve with the dates that it was
revised and submitted by CARB.
Table 1.--Submitted SIP Revision Proposed for Full Approval
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State agency SIP revision Amended Submitted
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CARB.............................. Revised Proposed Revision to the Pesticide November 30, 2007................ November 30, 2007.
Element of the 1994 Ozone SIP for the Ventura
County Nonattainment Area (August 13, 2007).
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CARB's November 30, 2007 SIP revision submittal package includes
the ``Revised Proposed Revision to the Pesticide Element of the 1994
Ozone SIP for the Ventura County Nonattainment Area (August 13, 2007)''
(``Revised Pesticide Element for Ventura'') as attachment 3 to
Executive Order S-07-003.
As discussed in detail in our April 23, 2008, proposed rule,
California adopted the original Pesticide Element to reduce volatile
organic compounds (VOC) emissions resulting from the application of
agricultural and structural pesticides in certain ozone nonattainment
areas and included the Pesticide Element in the 1994 Ozone SIP. Under
the original Pesticide Element, for the Ventura County nonattainment
area (Ventura), the California Department of Pesticide Regulation (DPR)
committed to adopt and submit to EPA by June 15, 1997, any regulations
necessary to reduce VOC emissions from agricultural and structural
pesticides by 20 percent of the 1990 base year emissions by 2005.
California further defined DPR's commitment in Ventura under the
Pesticide Element in terms of VOC emissions reductions of 2.4 tons per
day by 2005.\1\ See 62 FR 1150, at 1169-1170 and at 1187 (January 8,
1997); and 40 CFR 52.220(c)(204)(i)(A)(6) and 52.220(c)(236). In 1997,
we approved the 1994 Ozone SIP, including the Pesticide Element. See 62
FR 1150, at 1169-1170 (January 8, 1997). In today's action, we are
approving a revision by the State of California to the Pesticide
Element for Ventura County.
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\1\ Tonnage commitment is 2.37 tons per day per letter dated
June 13, 1996, from James D. Boyd to David Howekamp, including
``Corrections to State and Local Measures'' (Attachment A) and
``Summary Emission Reduction Spreadsheets'' (Attachment C).
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In our April 23, 2008, proposed rule, we also described the
replacement of the 1-hour ozone national ambient air quality standard
(NAAQS), for which the 1994 Ozone SIP (and related original Pesticide
Element) was developed, with the current 8-hour ozone NAAQS. Further,
we noted that California had requested a change in classification, with
respect to the 8-hour NAAQS for the Ventura County nonattainment area
from ``moderate'' to ``serious'' with a new attainment date of June 15,
2013. We also indicated that we had reviewed the subject SIP revision
assuming the ``serious'' classification in anticipation of our approval
of the State's request. We have now approved the State's
[[Page 41278]]
reclassification request. See 73 FR 29073 (May 20, 2008).
In our April 23, 2008, proposed rule, we presented our evaluation
of the Revised Pesticide Element for Ventura first by characterizing
the change in VOC emissions in Ventura County that would occur if we
were to approve the revision, and then by determining whether the
change in VOC emissions would interfere with reasonable further
progress (RFP) or attainment of any of the NAAQS as required under CAA
section 110(l). We described the impact of the Revised Pesticide
Element for Ventura in terms of a reduction in the State's emission
reduction commitments by 1.3 tons per day in 2008, 1.0 tons per day in
2009, 0.7 tons per day in 2010, and 0.3 tons per day in 2011 that
allows a corresponding increase in VOC in Ventura County in those
years.
With respect to CAA section 110(l), we found that the Revised
Pesticide Element for Ventura would not interfere with RFP for the 8-
hour ozone NAAQS, notwithstanding the corresponding, temporary increase
in VOC emissions, based on the air quality analysis contained in the
Draft Final Ventura County Air Quality Management Plan (AQMP) (March
2008), which includes an RFP demonstration that does not rely on
emissions reductions from pesticides. In reaching our conclusion of
non-interference with respect to 8-hour ozone RFP, we reviewed the RFP
demonstration in the draft Ventura County 2007 AQMP and concluded that
the methodology and emission estimates used therein appear reasonable.
In our proposed rule, we indicated that we would defer final action on
our proposed approval of the Revised Pesticide Element for Ventura
until we had received a SIP revision submittal from California
containing the final 8-hour ozone Ventura RFP plan. We have now
received the final adopted 8-hour ozone Ventura RFP plan from CARB.\2\
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\2\ On June 27, 2008, CARB submitted the Final Ventura County
2007 Air Quality Management Plan (May 13, 2008), which includes the
final 8-hour ozone RFP demonstration for Ventura County. The final
adopted plan mirrors the draft Ventura County AQMP that we relied
upon in our proposed approval of the Revised Pesticide Element for
Ventura.
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In our proposed rule, in addition to our RFP finding, we found that
the Revised Pesticide Element for Ventura would not interfere with
attainment for the 8-hour ozone NAAQS because the temporary decrease in
the VOC emissions reduction commitment allowed under the revised
pesticide element would be phased out by 2012, i.e., the year before
the attainment deadline (June 15, 2013) for Ventura County as a
reclassified ``serious'' ozone nonattainment area. Thus, based on the
air quality analysis contained in the draft Ventura County 2007 AQMP
and the phase-out of the relaxed commitment by 2012, we concluded that
the Revised Pesticide Element for Ventura would not interfere with RFP,
attainment, or any other applicable requirement with respect to the 8-
hour ozone NAAQS. With respect to the other NAAQS, we based our non-
interference conclusion on our finding that the SIP revision would only
affect VOC emissions (precursor to ozone) and because Ventura County is
unclassifiable/attainment for all of the other NAAQS.
For a more detailed discussion, please refer to our proposed rule
(see 73 FR 21885, April 23, 2008).
II. Public Comments and EPA Responses
Our April 23, 2008 proposed rule provided a 30-day comment period.
EPA received seven comment letters on our proposed rule during the
comment period. Commenters include a government agency (California
Department of Pesticide Regulation (DPR)), a State-sanctioned
agricultural commission (California Strawberry Commission), two sets of
agricultural groups (Western Growers and California Farm Bureau
Federation (co-authored a single letter) and Ventura County
Agricultural Association), a pesticides manufacturing group
(Chloropicrin Manufacturers' Task Force), and two environmental groups
(Pesticide Action Network, and Center on Race, Poverty & the
Environment). Generally, the organizations other than the environmental
groups provided comments in support of our proposed approval of the
Revised Pesticide Element for Ventura. These commenters concentrated
the discussion on the economic and environmental consequences of the
decision on whether or not to approve the proposed revision. Of the two
environmental groups who wrote opposing our proposed approval, one
raised concerns about the health issues related to the smog in the
area, of which pesticide application is a contributor, and the other
focused on allegations that the SIP revision would violate section
110(l) of the CAA. Additionally, commenters writing both in support and
opposition to our proposed approval remarked upon the technical issue
of whether the commitment was to reduce emissions by a tonnage or
percentage value.
A summary of the significant comments and responses is provided
below.
A. Comments on the Economic Consequences of EPA Action on the SIP
Revision
Comment 1: The majority of commenters emphasize that a reduction in
the use of certain fumigants, as a result of a failure to approve the
SIP revision, would have a significant, adverse economic impact on the
farmers, as well as many others who depend on the agriculture industry.
One commenter stresses the long reach of that economic loss, noting
that there would be lost revenue to the community, lost jobs to the
community, and lost land rents affecting bank loans and financing.
These supporters contend that the phased-in approach to compliance will
help mitigate adverse economic and environmental impacts in the region,
while restoring the ultimate emissions reduction commitments under the
1994 Ozone SIP.
Response 1: EPA's role in reviewing SIP revisions is to approve
State choices, provided that they meet minimum criteria set by the CAA
and any applicable EPA regulations. As discussed in our proposed rule
and as discussed further in this final rule, we believe the SIP
revision that is the subject of this action, the Revised Pesticide
Element for Ventura, meets those criteria. Thus, while we acknowledge
commenters' views as to the economic impacts that could occur if we
were to disapprove the SIP revision, we did not base our proposed
approval, nor do we base our final approval today, on such
considerations.
B. Comments on the Environmental Consequences of EPA Action on the SIP
Revision
Comment 2: A few of the commenters address the negative
environmental impacts that, in their view, a failure by EPA to approve
the SIP revision could create. They explain that the economic strain
that would come with the denial of the revision would force a
substantial portion of the agricultural land to be converted to urban
and suburban development. This conversion, they assert, will result in
a large amount of additional emissions from an increase in vehicle
traffic and residences (e.g. use of consumer products).
Response 2: We acknowledge commenters' views concerning long-term
conversion of agricultural land to urban development and related
environmental impacts that could occur if we were to disapprove the
Revised Pesticide Element for Ventura. However, we did not take such
considerations into account in our proposed action, nor do we take such
considerations into
[[Page 41279]]
account for our final action today. With the limited amount of
information on the topic of agricultural land conversion and related
environmental impacts that is before us, we do not have a sufficient
basis either to agree or to disagree with the commenters' view in that
regard. Instead, we have based our approval on an evaluation of the
near-certain increase in VOC emissions that would occur from 2008-2011
due to the SIP revision in light of CAA requirements, and have
concluded that such VOC increases in Ventura County over the short-term
would not interfere with RFP or attainment of any of the NAAQS, or any
other applicable requirement of the Clean Air Act.
It is important to note that, while we describe the effect of the
SIP revision as an increase in VOC emissions, we do not expect there to
be an increase in overall VOC emissions within Ventura County over the
period affected by the SIP revision, but only that the expected overall
decrease would be slightly less with the SIP revision than would occur
if the SIP revision were not approved.
Comment 3: Two commenters state that the approval and
implementation of the SIP revision would be accomplished without
substantial adverse impacts to air quality in Ventura County or to the
health or safety of its citizens. This conclusion is founded on the
commenters' belief that the actual VOC from pesticides are a very small
percentage of all VOC in Ventura.
Response 3: As discussed in our proposed rule (see 73 FR 21885,
April 23, 2008), we believe that the Revised Pesticide Element for
Ventura would have an adverse impact on air quality in the short-term
as it would allow greater VOC emissions, and thereby incrementally slow
the downward trend in such emissions and associated ozone
concentrations, as compared to fully achieving the commitments for
pesticide-related emission reductions in the 1994 Ozone SIP. However,
we have determined that the Revised Pesticide Element for Ventura would
not interfere with RFP for the 8-hour ozone NAAQS based on our review
of the RFP demonstration in the Ventura County 2007 AQMP that does not
rely on the foregone pesticide-related emissions reductions.\3\
Further, we note that, by its terms, the Revised Pesticide Element for
Ventura phases out over four years (2008-2011), ensuring that it would
not interfere with Ventura's ability to attain the 8-hour ozone NAAQS
by the serious area deadline (i.e., June 15, 2013).
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\3\ We note that the RFP demonstration that was contained in the
draft Ventura County 2007 AQMP (March 2008) and that was included in
the docket for our April 23, 2008 proposed rule mirrors the RFP
demonstration in the final Ventura County 2007 AQMP (May 13, 2008)
that was adopted by Ventura County on May 13, 2008, and adopted by
CARB on June 26, 2008, and submitted to us on June 27, 2008. We
received no comments on the substance of the RFP demonstration in
response to our April 23, 2008 proposed rule.
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Comment 4: One commenter is concerned that EPA approval of the
revision of the SIP would further delay efforts to reduce smog, of
which pesticide application is a contributor, in the region and hence
the area would continue to suffer from air pollution created by smog,
which damages lung tissue, exacerbates asthma, reduces lung capacity,
increases respiratory and cardiovascular hospital admissions, and
increases school and work absenteeism.
Response 4: We acknowledge the commenter's concerns over the health
effects associated with elevated ozone concentrations. As discussed in
our proposal, we believe that the Revised Pesticide Element for Ventura
would have an adverse impact on ozone air quality in the short-term as
it would allow greater VOC emissions, and thereby incrementally slow
the downward trend in such emissions and associated ozone
concentrations, as compared to fully achieving the commitments for
pesticide-related emission reductions in the 1994 Ozone SIP.
Nonetheless, under the Clean Air Act, we must approve a SIP revision
notwithstanding such impacts so long as all of the applicable
requirements of the CAA (and applicable EPA regulations) are met. We
have determined that the Revised Pesticide Element for Ventura meets
all applicable CAA requirements and applicable EPA regulations. For
instance, notwithstanding the temporary increase in VOC emissions
associated with the Revised Pesticide Element for Ventura, we have
concluded that it would not interfere with RFP for the 8-hour ozone
NAAQS in that area based on our review of the RFP demonstration in the
Ventura County 2007 AQMP, which does not rely on the foregone
pesticide-related emissions reductions, nor would it interfere with
expeditious attainment of the 8-hour ozone NAAQS, because the effect of
the Revised Pesticide Element for Ventura diminishes each year through
2011 and phases out completely well before the serious area deadline
(June 15, 2013).
Comment 5: Some of the commenters assert that there would be no
``backsliding'' from the overall 1994 SIP commitments for Ventura
County, because all of the reactive organic gases (ROG) emission
reductions committed to in the 1994 SIP would still be achieved. This
assertion is based on the argument that a portion of the ROG reductions
for Ventura County would come from other emission sources.
Response 5: As stated in our proposed rule, we do not agree with
CARB that emissions reductions from California's mobile source
emissions control program are ``surplus'' for 8-hour ozone planning
purposes, and thus, we do not agree that such reductions are a
substitute for the foregone emissions reductions that would occur under
the Revised Pesticide Element for Ventura. See 73 FR 21885, at 21887
(April 23, 2008). Notwithstanding the temporary increase in VOC
(equivalent to ROG) emissions resulting therefrom, we are approving the
Revised Pesticide Element for Ventura because, for the reasons given in
the proposed rule and this final rule, we find that it would not
interfere with any requirement concerning attainment and RFP, or any
other applicable requirement of the Clean Air Act.
C. Clean Air Act Section 110(l) Issues
Comment 6: One commenter argues that EPA cannot propose approval of
the SIP revision because it has not approved the 8-hour ozone
attainment demonstration plan and the 8-hour ozone reasonable further
progress plan. It is suggested that approving the SIP revision before
the attainment plan and reasonable further progress demonstration would
make EPA's decision arbitrary and capricious because it has no basis to
make the finding that the revision would not interfere with attainment.
Response 6: For our final action, we are not relying on an EPA-
approved 8-hour ozone RFP or attainment demonstration for Ventura, but
rather, are relying on our review of the RFP demonstration included in
the Ventura County 2007 AQMP as a reasonable basis for our finding of
non-interference with respect to RFP for the 8-hour ozone NAAQS under
CAA section 110(l). We do not believe the attainment demonstration
(approved or otherwise) to be necessary to this action because the
effect of the Revised Pesticide Element for Ventura, by its terms,
phases out completely by 2012, the year before the attainment deadline
(June 15, 2013).\4\ As discussed further below, we do not believe that
an approved RFP demonstration is necessary to approve the Revised
Pesticide Element for Ventura based on our preliminary review of the
air quality analysis in the Ventura County 2007 AQMP that shows
[[Page 41280]]
how the area will maintain reasonable further progress towards the 8-
hour NAAQS without the benefit of VOC emissions reductions from
pesticide use.
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\4\ The phase-out will also be complete before any attainment
deadline for the 0.075 ppm 8-hour ozone standard. See generally, CAA
sections 107(d), 181(a).
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As explained in the proposed rule at 73 FR at 21888-21889, we
found, based on our review of the air quality analysis contained
therein, the RFP demonstration in the draft Ventura County 2007 AQMP to
be a reasonable basis to propose approval of the Revised Pesticide
Element for Ventura because the demonstration does not rely on VOC
emission reductions from pesticide use to show RFP and the methods and
emissions estimates used to demonstrate RFP in the AQMP appear
reasonable. However, given the preliminary nature of our review of the
RFP demonstration in the draft Ventura County 2007 AQMP, we concluded
that it would be appropriate for us to wait for the final adopted AQMP
to be submitted to us, and to consider any changes to the RFP
demonstration as well as any public comments on the RFP demonstration
submitted in connection with adoption of the plan at the county and
State levels, and any public comments submitted in response to our
April 23, 2008 proposed rule, prior to taking final action on the
Revised Pesticide Element for Ventura. We described our approach,
including our reliance on a draft SIP revision and our deferral of
final action pending receipt of the adopted SIP revision including
public comments, in our proposed rule at 73 FR 21889.
On June 27, 2008, CARB submitted the Final Ventura County 2007
Ventura County AQMP (May 13, 2008) as a revision to the California SIP.
There were no public comments submitted either at the local district
level or at the State level in relation to the AQMP's RFP
demonstration, and the final adopted RFP demonstration is the same as
the one in the Draft Final AQMP that was a basis for our proposed rule.
We did not receive any comments on the substance of the RFP
demonstration in the Ventura County 2007 AQMP in response to our April
23, 2008 proposed rule. Therefore, for the reasons set forth in the
proposed rule, we continue to believe that the RFP demonstration in the
2007 Ventura County AQMP, even though it has not been approved,
provides a reasonable basis for us to make our non-interference finding
with respect to the Revised Pesticide Element for Ventura.
Comment 7: One commenter objected to EPA's finding that the SIP
revision does not interfere with ``any other applicable requirement''
of the Act when, in the commenters' opinion, the proposed SIP revision
directly interferes with a court order issued to remedy a violation of
the SIP. Noting that the EPA has not made an attainment finding for the
1-hour ozone NAAQS in Ventura County, the commenter further contends
that EPA cannot approve the SIP revision without making a finding that
the revision does not interfere with attainment of the 1-hour ozone
NAAQS by the applicable deadline.
Response 7: We do not agree with the commenter's contention that
the existence of a court order enforcing the existing SIP precludes a
finding of non-interference under CAA section 110(l) with respect to a
SIP revision amending the portion of the existing SIP that is under the
court order. EPA is not a party to the lawsuit from which the court
order emanates, and the court order is not itself part of the SIP.
Thus, the existence of a court order under these circumstances is not
material to EPA's evaluation of the subject SIP revision under CAA
section 110(l), and as set forth in the proposed rule and further
discussed in this document, we conclude that the Revised Pesticide
Element for Ventura would not interfere with any requirement concerning
RFP or attainment of the NAAQS, or any other applicable requirement
under the Clean Air Act. By the same token, however, our approval today
of the Revised Pesticide Element for Ventura does not relieve any
obligations under the court order, but, as noted in the proposed rule
at 73 FR 21886, footnote 2, we expect that our approval of the SIP
revision will allow California to seek a modification to the court
order.
Second, the commenter's assertion that we cannot make a finding of
non-interference for the Revised Pesticide Element for Ventura without
having first evaluated whether the SIP revision would interfere with
attainment of the 1-hour ozone NAAQS by the applicable 1-hour ozone
attainment deadline is incorrect because the 1-hour ozone NAAQS has
been revoked. By way of explanation, we note that, under the Clean Air
Act Amendments of 1990, States were required to develop, adopt and
submit for EPA approval various SIP revisions to provide for
expeditious attainment of the 1-hour ozone NAAQS by no later than the
applicable deadline. However, under the Act, attainment of the 1-hour
ozone NAAQS by the deadline is not itself a separate requirement,
although failure to do so, even now that the 1-hour ozone NAAQS has
been revoked, may have certain consequences such as the triggering of
contingency measures.
Nonetheless, we reviewed Ventura County's 1-hour ozone data
contained in EPA's Air Quality System (AQS) database, the database in
which quality-assured concentration data from the States' monitoring
networks are recorded, and note that Ventura County appears to have
attained the 1-hour ozone NAAQS by the applicable 1-hour ozone NAAQS
deadline (2005) and appears to have continued to have been in
attainment of the 1-hour ozone NAAQS since that time.
Furthermore, as noted in response to comment 2, above,
while we describe the effect of the SIP revision as an increase in VOC
emissions, we mean that there would be an increase in VOC emissions
relative to what otherwise would occur. We do not mean that there would
be an increase in overall VOC emissions within Ventura County over the
period affected by the SIP revision. Rather, we expect that overall VOC
emissions in Ventura County, with or without approval of this SIP
revision, would decrease, reducing the potential for 1-hour ozone
violations during the period affected by the SIP revision. See ROG
emissions projections in table 4-6 on page 61 of the Ventura County
2007 AQMP. Thus, even if interference with attainment of the 1-hour
NAAQS by the applicable deadline were material to this action, the AQS
data provides us with the basis to reasonably conclude that the Revised
Pesticide Element for Ventura would have no such effect. Our
observations herein related to ambient 1-hour ozone concentrations are
not tantamount to an attainment finding for Ventura County for the 1-
hour ozone NAAQS. We expect to propose such a finding through a
separate rulemaking in the near future.
Comment 8: One commenter claims the SIP revision relies on a new
pesticide inventory, a part of the State Strategy for California's 2007
State Implementation Plan and the Draft Ventura 2007 Air Quality
Management Plan that has not been approved by the EPA, and that the
pesticide inventory lacks the appropriate scientific basis.
Response 8: California's Department of Pesticide Regulation (DPR)
develops and continues to update baseline and current year inventories
to evaluate pesticide VOC emissions. The refinement of emissions
estimates is ongoing and necessary to better characterize and quantify
emissions and control measures. We proposed to approve the Revised
Pesticide Element for Ventura into the California SIP based on a
finding of non-interference with 8-hour ozone RFP, which was itself
based on a review of the Ventura County 2007 AQMP, and specifically,
the RFP demonstration contained therein, and consideration of any
related public comments. The AQMP includes an air
[[Page 41281]]
quality analysis that demonstrates RFP toward attaining the 8-hour
ozone NAAQS without the attribution of VOC emissions reductions from
pesticides. The estimated VOC emissions from pesticide use are included
in the baseline emissions estimates of the RFP demonstration, and if
they were significantly underestimated, the RFP demonstration might be
undermined. However, the RFP demonstration in the Ventura County 2007
AQMP shows a significant surplus in oxides of nitrogen (NOX
) (i.e., the other ozone precursor in addition to VOC) after meeting
substitution and contingency needs. See page 73 of the AQMP. The
surplus in NOX in the RFP milestone year of 2011, for
example, amounts to roughly 150 tons per day. Thus, even if the
estimate for VOCs from pesticides were double or triple the AQMP
estimate of 4.82 tons per day, RFP would continue to be demonstrated
based on the analysis in the Ventura County 2007 AQMP.
D. Comments on Technical Issue of Whether Reduction Is Based on Tonnage
or Percentage Reductions
Comment 9: Commenters in support and in opposition to our proposed
action assert that the existing SIP commitment from the Pesticide
Element in the 1994 Ozone SIP is only to achieve a percentage reduction
from the 1990 baseline inventory and not, in addition, a commitment to
achieve a tonnage reduction as our proposed rule states. A commenter in
opposition to the proposed approval contends that in presenting the
commitment in a tons-per-day amount, EPA is overstepping its authority
and amending a SIP, rather than reviewing it under the proper standards
of section 110(k) of the Clean Air Act. Lastly, DPR clarifies the basis
for certain VOC emissions estimates attributed to DPR and cited in the
proposed rule.
Response 9: Commenters and EPA both agree that the State's SIP
commitment (from the 1994 Ozone SIP) with respect to VOC emissions
reductions from use of pesticides in Ventura County is defined in terms
of percent reduction from base year emissions. The point of
disagreement is that EPA states in the proposed rule that the
commitment is a two-fold commitment defined in terms of both a percent
reduction and a tonnage reduction.
Our interpretation of the original Pesticide Element commitment as
having both a tonnage reduction commitment in addition to the percent
reduction commitment rests on general and specific grounds. First, EPA
has traditionally found committal measures, such as the commitment to
reduce VOC emissions in the Pesticide Element of the 1994 Ozone SIP, to
be enforceable, and thus approvable, only if such measures identify the
responsible party, adoption dates for rules, 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. The tonnage specification provides the essential
link between the committal measure and the RFP or attainment
demonstration. See the general discussion of committal measures in
EPA's final rule approving the 1994 Ozone SIP at 62 FR 1150 (January 8,
1997), at 1155-1157, and the specific discussion of the committal
measures submitted as part of the 1994 Ozone SIP at 1157, column 3. In
this case, the tonnage commitment (for 2005) links the original
Pesticide Element commitment to the approved attainment demonstration
for Ventura County. Each specific element of a committal measure, once
the measure is approved by EPA, is considered to be enforceable. Thus,
we believe that EPA would not have found the original Pesticide Element
commitment for Ventura approvable unless the measure included the 2.37
tons per day reduction in pesticide VOC emissions in 2005 that was
credited to the measure in the 1994 Ozone SIP.
Second of all, we find support for our conclusion in the California
SIP in the form of the letter from James D. Boyd, Executive Officer,
CARB, to David Howekamp, Director, Air and Toxics Division, EPA-Region
IX, dated June 13, 1996 (``Boyd letter''), that includes an attachment
C that specifies a 2.37 tons per day commitment in 2005 in Ventura
County under the Pesticide Element of the 1994 Ozone SIP. The second
page of the Boyd letter describes attachment C as follows: ``In
Attachment C, we provide summary spreadsheets identifying the
reductions that the State committed to achieve and that we expect from
the federal government, by measure, area, and milestone year. These
summary tables contain the numbers used in the rate-of-progress and
attainment demonstrations, as reflected in Volume IV of the California
SIP.'' The Boyd letter, explicitly including attachment C, is
incorporated by reference into the California SIP at 40 CFR
52.220(c)(236)(i)(A)(1). The commenters cite attachment A of the Boyd
letter (also referred to as the ``Howekamp letter'') as evidence that
the Pesticide Element only includes a percent reduction commitment, but
we interpret the meaning of attachment A (``commitment is for a 20%
reduction from 1990 levels by 2005 in each SIP area, except SD'') as
clarifying that a percent reduction commitment (related to the
Pesticide Element) did not, as set forth in EPA's proposed rule on the
1994 Ozone SIP, exist for the RFP milestone years in Ventura County but
only existed for the attainment year (2005). In other words, we do not
view attachment A as excluding the existence of a tonnage reduction
commitment in 2005 as set forth in attachment C to the Boyd letter.
In any event, under the Revised Pesticide Element for Ventura, the
original commitment from the 1994 Ozone SIP, whether defined
exclusively in terms of percent reduction or also as a tonnage
reduction, will be entirely restored by year 2012, and no VOC emissions
reductions from pesticide use are relied upon in the 8-hour ozone RFP
demonstration in the Ventura County 2007 AQMP. Thus, our rationale for
approval of the Revised Pesticide Element for Ventura does not depend
upon definitive resolution of the issue of whether the original
commitment from the Pesticide Element of the 1994 Ozone SIP is two-fold
or just a percent reduction commitment. Lastly, EPA appreciates DPR's
clarification of the estimates of pesticide-related VOC emissions in
years 1990 and 1991.
E. Comment About the Opportunity To Comment
Comment 10: One commenter alleges that EPA has not provided the
public with the opportunity to comment on the basis for its proposed
findings--on whether the SIP revision interferes with attainment,
reasonable further progress, or any other requirement of the CAA, as
required by section 110(l)-- which violates the Administrative
Procedures Act (APA). Along the same lines, the commenter contends that
EPA has failed to provide relevant documents requested in violation of
the Freedom of Information Act (FOIA), and that the denial of documents
on which to base comments interfered with the opportunity to comment in
a meaningful manner.
Response 10: EPA has provided the public with the materials on
which we have based our proposed action through creation of a docket
for the rulemaking. In our proposed rule, at 73 FR 21886, we indicate
where the index to the docket can be located and indicate how to access
the items listed in the docket. Among the items so listed is Ventura
County Air Pollution Control District's ``Final Draft Ventura County
2007 Air Quality Management Plan (March 2008),'' which contains the air
quality
[[Page 41282]]
analysis, specifically, the RFP demonstration, that we relied upon in
the proposed rule for our finding that the Revised Pesticide Element
for Ventura would not interfere with RFP for the 8-hour ozone NAAQS.
See footnote 5 of the proposed rule, at 73 FR 21888.
For our final action, we are not relying on an EPA-approved 8-hour
RFP demonstration for Ventura, but rather, are relying on our review of
the RFP demonstration included in the Ventura County 2007 AQMP as a
reasonable basis for our finding of non-interference with respect to
RFP for the 8-hour ozone NAAQS under CAA section 110(l). We described
our approach, including our reliance on a draft AQMP and our deferral
of final action pending receipt and consideration of the adopted SIP
revision including any related public comments, as well as any comments
made in response to our April 23, 2008 proposed rule, in our proposed
rule at 73 FR 21889.
There were no public comments submitted either at the local
district level or at the State level in relation to the AQMP's RFP
demonstration nor did we receive any comments on the substance of the
RFP demonstration in the Ventura County 2007 AQMP in response to our
April 23, 2008 proposed rule. Moreover, the final adopted RFP
demonstration is the same as the one in the draft AQMP that was a basis
for our proposed rule. Therefore, for the reasons set forth in the
proposed rule, we continue to believe that the RFP demonstration in the
Ventura County 2007 AQMP, even though it has not been approved, is a
reasonable basis to make our non-interference finding with respect to
the Revised Pesticide Element for Ventura. As explained above and
because the RFP demonstration in the final Ventura County 2007 AQMP,
that was submitted on June 27, 2008, is no different than the one
available at the time we proposed action, we conclude that the public
has had an opportunity to know and review the basis for our proposed
action, consistent with the requirements of the Administrative
Procedure Act (APA). We will be taking action on the final adopted
Ventura County 2007 AQMP, as submitted by CARB on June 27, 2008, in a
separate rulemaking.
With respect to the second part of this comment, we believe that
the documents needed for an informed review of our proposed action were
included in the docket during the public comment period. Additional
documents have been provided in response to the FOIA request, but none
of these additional documents were needed to review the substance and
rationale of our proposed action in an informed manner.
F. Comments on Whether Best Available Control Technology (BACT) Can
Achieve the Necessary Reductions
Comment 11: Some commenters question whether further, even total,
implementation of Best Available Control Technology (BACT) could
achieve the overall reductions commitment. The commenters indicate that
even if all fumigant applicators adopt BACT, the emissions reduction
commitment would still fail to be reached. They propose that the only
way to reach the commitment level is through some combination of
acreage reduction, application rate reduction, and shifting
applications outside of the typical season.
Response 11: In today's action, we are approving a SIP revision
that relaxes in part, and temporarily, a commitment by the State of
California to reduce VOC emissions from pesticide use in Ventura
County. We are not taking action on the specific regulations
promulgated by DPR, and that purportedly go beyond BACT-level of
control, to fulfill that commitment. We acknowledge commenters' views
concerning the feasibility of complying with DPR's regulations but have
not based our approval action on the SIP revision on such
considerations.
III. EPA's Final Action
No comments were submitted that change our assessment of the
Revised Pesticide Element for Ventura as set forth in our proposed
rule. Therefore, pursuant to section 110(k)(3) of the CAA and for the
reasons set forth in detail in EPA's proposed rule and in today's final
rule, including the responses to comments, EPA is approving the
revision to the California SIP submitted by the State of California on
November 30, 2007 concerning the Pesticide Element for Ventura County.
We find that the SIP revision is consistent with the requirements of
the CAA and EPA's regulations.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, 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 Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, 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 rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate,
[[Page 41283]]
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of the rule in the Federal Register.
A major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 16, 2008. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: July 3, 2008.
Kathleen H. Johnson,
Acting Regional Administrator, Region IX.
0
Chapter I, title 40 of the Code of Federal Regulations is amended as
follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraph (c)(355) to read as
follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(355) The following plan revision was submitted on November 30,
2007, by the Governor's designee.
(i) Incorporation by reference.
(A) California Air Resources Board.
(1) Attachment 3 to Executive Order S-07-003, Appendix H, Revised
Proposed Revision to the Pesticide Element of the 1994 Ozone SIP for
the Ventura County Nonattainment Area (August 13, 2007).
(2) California Air Resources Board, Executive Order S-07-003,
November 30, 2007; to Wit: Revised Pesticide Element of the 1994 Ozone
SIP for the Ventura County Nonattainment Area.
[FR Doc. E8-16388 Filed 7-17-08; 8:45 am]
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