[Federal Register Volume 73, Number 139 (Friday, July 18, 2008)]
[Rules and Regulations]
[Pages 41277-41283]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16388]


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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]
BILLING CODE 6560-50-P