ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0313, FRL-]

Revisions to the California State Implementation Plan; Pesticide
Element; Ventura County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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. 

DATE: Effective Date: This rule is effective on [FEDERAL REGISTER
OFFICE: Insert date 30 days from the date of publication in the Federal
Register]. 

ADDRESSES: EPA has established docket number EPA-R09-OAR-2008-0313 for
this action. The index to the docket is available electronically at 
HYPERLINK "http://www.regulations.gov/" 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,   HYPERLINK "mailto:tax.wienke@epa.gov"  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

Comments on the Economic Consequences of EPA Action on the SIP Revision

Comments on the Environmental Consequences of EPA Action on the SIP
Revision

Clean Air Act Section 110(l) Issues

Comments on Technical Issue of Whether Reduction Is Based on Tonnage or
Percentage Reductions

Comment About the Opportunity to Comment

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

State Agency	SIP Revision	Amended	Submitted

CARB	Revised Proposed Revision to the Pesticide Element of the 1994
Ozone SIP for the Ventura County Nonattainment Area (August 13, 2007)
November 30, 2007	November 30, 2007



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. 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. 

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
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. 

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 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. 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).	

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). 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 how the area will
maintain reasonable further progress towards the 8-hour NAAQS without
the benefit of VOC emissions reductions from pesticide use.

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 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
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 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 Law 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, 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 [FEDERAL REGISTER OFFICE: insert
date 60 days from date of publication of this document in the Federal
Register]. 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.

_7-03-2008_________			________________________

Dated:					Kathleen H. Johnson,

Acting Regional Administrator,

Region IX.

Chapter I, title 40 of the Code of Federal 

Regulations is amended as follows:

PART 52 [AMENDED]

1.  The authority citation for Part 52 continues to read as 

follows:

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

Subpart F - California

2. Section 52.220 is amended by adding paragraph (c)(355) to read as
follows: 

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. 

*		*		*		*		*

 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). 

  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.

  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.

  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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