[Federal Register Volume 77, Number 2 (Wednesday, January 4, 2012)]
[Rules and Regulations]
[Pages 214-217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33660]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0547; FRL-9480-1]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified Air Pollution Control District (SJVUAPCD)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of revisions to the San Joaquin 
Valley Air Pollution Control District (SJVUAPCD) portion of the 
California State Implementation Plan (SIP). These revisions were 
proposed in the Federal Register on July 11, 2011 and concern volatile 
organic compound (VOC), oxides of nitrogen (NOX), and 
particulate matter (PM) emissions from open burning. We are approving a 
local rule that regulates these emission sources under the Clean Air 
Act as amended in 1990 (CAA or the Act).

DATES: Effective Date: This rule is effective on February 3, 2011.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0547 for 
this action. Generally, documents in the docket for this action are 
available electronically at http://www.regulations.gov or in hard copy 
at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While 
all documents in the docket are listed at http://www.regulations.gov, 
some information may be publicly available only at the hard copy 
location (e.g., copyrighted material, large maps, multi-volume 
reports), and some may not be available in either location (e.g., 
confidential business information (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: Rynda Kay, EPA Region IX, (415) 947-
4118, [email protected].

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

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On July 11, 2011 (76 FR 132), EPA proposed to approve the following 
rules into the California SIP.

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              Local agency                  Rule No.              Rule title              Adopted     Submitted
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SJVUAPCD................................         4103  Open Burning...................     04/15/10     04/05/11
SJVUAPCD................................  ...........  Table 9-1, Final Staff Report       05/20/10     04/05/11
                                                        and Recommendations on
                                                        Agricultural Burning.
----------------------------------------------------------------------------------------------------------------

    We proposed to approve these rules because we determined that they 
complied with the relevant CAA requirements. Our proposed action 
contains more information on the rules and our evaluation.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received comments from the following party.
    1. Sarah Jackson, Earthjustice; letter and email dated and received 
August 10, 2011.
    The comments and our responses are summarized below.
    Comment #1: Earthjustice commented on the meaning of reasonably 
available control measures (RACM) under section 172(c)(1) of the CAA, 
noting that ``EPA has interpreted `reasonably available' to be a 
measure that is `technologically and economically feasible and can be 
readily implemented.' '' Earthjustice further asserted that ``economic 
feasibility considers more than simply affordability and the cost-
benefit ratio'' and that ``Congress intended RACM to be applied as 
those measures became available.''
    Response #1: We agree that RACM under section 172(c)(1) 
incorporates considerations of technical and economic feasibility. We 
note, however, that, ``Congress provided EPA and States a great deal of 
deference for determining what measures to include in an attainment 
plan'' under CAA section 172(c)(1) and that ``[b]y including language 
in Section 172(c)(1) that only `reasonably available' measures be 
considered for RACT/RACM, and that implementation of these measures 
need be applied only `as expeditiously as practicable,' Congress 
clearly intended that the RACT/RACM requirement be driven by an overall 
requirement that the measure be `reasonable.' '' 72 FR 20610 (April 25, 
2007).
    Comment #2: Earthjustice asserted that, ``[t]he District's RACM 
determination is flawed because it applies a feasibility test that is 
inconsistent with EPA guidance and CAA standards.'' In particular, 
Earthjustice argued that the ``10 percent of the crop category's net 
profits'' test used by District ``fails to analyze whether an 
alternative is technologically or economically feasible.'' Earthjustice 
suggested that the District should conduct a more comprehensive 
economic analysis taking into consideration how the costs of 
alternatives to open burning will impact production, employment, 
competition, and prices.
    Reponse #2: As an initial matter, we disagree with the commenter 
that the District has made a ``RACM determination'' with respect to 
Rule 4103. The District has provided an assessment of the economic and 
technical feasibility of potential control measures for this source 
category, which

[[Page 215]]

EPA has evaluated to determine whether additional controls for this 
source category might be reasonably available for implementation in the 
area. As stated in the TSD for our proposal, EPA will take action in 
separate rulemakings on the State's RACM demonstration for the relevant 
NAAQS based on an evaluation of the control measures submitted as a 
whole and their overall potential to advance the applicable attainment 
dates in the SJV.
    We disagree that the District's feasibility test is inconsistent 
with the CAA or EPA guidance. Neither the CAA nor EPA's implementing 
regulations define ``technical and economic feasibility'' for purposes 
of determining what control measures are ``reasonably available,'' and, 
as noted above, section 172(c)(1) provides considerable deference to 
States' determinations of what control measures are reasonably 
available.
    In this case, the District assessed the availability of 
alternatives to open burning by evaluating both technological and 
economic feasibility. See, e.g., Staff Report Sec.  1.2. For those crop 
categories for which it found a technically feasible alternative to 
burning, the District assessed economic feasibility by comparing the 
per-acre costs for the alternative to the per-acre net profit for that 
category. Id. Sec.  1.2.2. Where an alternative's cost exceeded ten 
percent of profits, the District found the alternative to be 
economically infeasible. Id. Table 9-1. As explained by the District 
``[t]he 10 percent threshold utilized in this analysis represents the 
economic significance level generally utilized by the District in the 
development of District rules, and represents the level that a 
regulatory action would pose a significant economic impact to affected 
sources.'' Id. Sec.  1.2.2.
    As we have previously noted, looking at the percent of profits can 
provide useful information concerning the economic feasibility of 
particular control measures. See, e.g., 75 FR 2082. Although we 
encourage the District to conduct further economic analysis of the 
feasibility of alternatives to open burning, we also recognize that 
resource constraints limit the amount of analysis that the District can 
perform.
    We also note that our evaluation of the stringency of the rule does 
not rest solely upon the District's assessment of economic and 
technical feasibility, but also takes into consideration other 
indicators of technical and economic feasibility. See 72 FR 20614 (``in 
reviewing the State's selection of measures for RACM * * * EPA may 
independently supplement the rationale of the State * * *''). For 
example, as noted in the TSD, we compared the control requirements in 
Rule 4103 with analogous rules in other local districts and states and 
concluded that Rule 4103 was as stringent as or more stringent than 
those other rules. We have not received any information to undermine 
this conclusion. As such, we continue to believe that Rule 4103 
requires all control measures that have been demonstrated to be 
``reasonably available'' for open burning activities in the San Joaquin 
Valley.
    Comment #3: Earthjustice referred to a letter indicating that the 
District will no longer permit open burning of citrus orchard removals 
``when case-by-case analysis indicates sufficient biomass plant 
capacity and the availability of economically feasible chipping 
services.'' Earthjustice argued that ``[s]uch Director's discretion is 
not approvable into the SIP.''
    Response #3: The District has not submitted these additional 
restrictions on open burning for approval into the SIP, and we 
therefore do not need to evaluate their approvability, and do not rely 
on them for our approval of Rule 4103.
    Comment #4: Earthjustice argued that, ``Even if EPA finds the 
District's percent of profits test is a sufficient means of 
demonstrating economic infeasibility to reject potential RACM controls, 
EPA should reject the proposed rule because the District's application 
of this test is flawed.''
    Response #4: As noted above, we have considered other factors in 
addition to the District's ``percent of profits'' test in assessing the 
technical and economic feasibility of potential RACM controls. 
Nonetheless, Earthjustice's specific points regarding the District's 
application of the percent of profits are addressed below.
    Comment #4.a: Earthjustice noted that ``the District calculated the 
cost of compliance `after tax' without accounting for tax implications 
of increased control costs'' and asserted that ``[t]his failure to 
adjust the cost estimates precludes any meaningful analysis of costs.''
    Response #4.a: District staff explained that their calculations 
followed ``EPA and ARB established methodologies.'' Additionally, 
District staff clarified that, ``the primary costs associated with 
potential alternatives to open burning result from service costs, such 
as through the hiring of chipping and hauling services. The District 
does not expect tax implications associated with these non-capital 
expenditures, if any, to impact the cost analyses associated with this 
project.'' \1\ We are not aware of any information that contradicts the 
District's assessment in this regard.
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    \1\ Email from Koshoua Thao, SJVUAPCD, to Rynda Kay, EPA, 
September 22, 2011.
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    Comment #4.b: Earthjustice commented that, ``the District uses a 
10-year cost amortization schedule without providing a rational basis 
for this term of years.'' Earthjustice argued that this assumption 
underestimates the lifespan of the vineyards and orchards and therefore 
produces artificially high annual cost figures.
    Response #4.b: In response to this comment, District staff noted 
that Appendix H to the Staff Report provided information on the 
productivity over time of specific crops. District staff also listed 
numerous reasons for assuming a 10-year amortization schedule that were 
provided when this issue was raised at a California Senate Hearing 
including, for example:
    1. 10-year analysis is used to standardize comparisons across 
various source categories (Example: 10-year analysis is also used for 
boilers, engines, and other source categories with real life spans in 
excess of 20-30 years).
    2. Standard 10-year analysis is used by the California Air 
Resources Board and air districts for evaluating air pollution control 
economics.
    3. Farms can change owners and change crops fairly frequently: For 
farms, periods longer than 10 years are speculative since farm 
viability is subject to global market forces, weather, water 
availability, etc.\2\
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    \2\ Id.
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    Comment #4.c: Earthjustice contended that the District ``inserted 
baseless assumptions to inflate the claimed costs. For example, the 
District assumes citrus root removal material must be separated from 
the tree material and transported to a composting facility at an 
additional cost of $244 per acre.'' Earthjustice claimed that, contrary 
to this assumption, biomass facility operators have indicated that 
roots can be chipped and transported to biomass facilities along with 
the rest of the chipped material. Similarly, Earthjustice asserted that 
the evidence in the record undermines the District's suggestion that 
grinding and hauling material to a biomass plant may not be technically 
feasible.
    Response #4.c: We acknowledge some uncertainty about the cost of 
citrus root removal and disposal. According to District staff, ``the 
root removal process is independent from the chipping and biomass 
operations.'' Staff Report Appendix D at D-34. The District

[[Page 216]]

explains, ``Citrus is often grown in clay-like soil that adheres to its 
roots'' and ``biomass power plant operators will not accept any organic 
material with dirt or other unburnable contaminants''.\3\ We do not 
dispute that biomass facilities have indicated that roots can be 
chipped and transported to biomass facilities, but we are not aware of 
any other evidence to support this claim and demonstrate that root 
chipping and biomass burning is reasonably available. This appears to 
be an evolving area and we encourage the District to reexamine whether 
it may be possible to send some or all citrus roots to biomass rather 
than landfill or compost. Nonetheless, at this time, we do not have 
sufficient specific evidence to challenge the District's assumption in 
this regard.
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    \3\ Id.
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    Comment #4.d: Earthjustice argued that ``[t]he District's allowance 
for walnut, almond, and pecan growers whose total nut acreage is less 
than 3,500 acres to burn 20 acres of prunings, plus an additional 
unrestricted amount if certain conditions are met, blatantly disregards 
any economic feasibility analysis.''
    Response #4.d: We disagree that this allowance disregards any 
economic feasibility analysis. The District found that the cost of 
shredding up to 20 acres at once was not economically feasible and that 
shredding 20-plus acres was feasible only when a custom shredder was 
available. See Staff Report Sec.  3.7.3. As a result, the District 
adopted an automatic 20 acre allowance plus a discretionary allowance 
depending on contractor availability.
    Comment #5: Earthjustice contended that additional reductions are 
reasonably available under the appropriate feasibility analysis. The 
specific arguments raised by Earthjustice in support of its contention 
are addressed below.
    Comment #5.a: Earthjustice argued that the proposed alternative to 
open burning of citrus orchard removal materials (grinding and hauling 
orchard removal materials to a biomass plant) is technically feasible 
because the biomass power plants that use San Joaquin Valley 
agricultural waste are physically capable of handling the 54,035-ton 
increase in material that would be caused by a total prohibition on 
burning citrus orchard removals.
    Response #5.a: We agree that it is technically feasible to grind 
and haul orchard removal materials to a biomass plant. It is less 
clear, however, whether it is economically feasible. Even assuming that 
there is currently sufficient capacity for citrus removal materials at 
biomass facilities, the District has concluded that ``reliance on 
biomass facilities as a primary, long-term alternative method to open 
burning is not possible since there are no long-term federal or state 
funding commitments for the biomass facilities * * *'' Staff Report at 
7-50. In addition, the Staff Report notes that, since urban waste is 
typically less expensive than agricultural waste, urban waste 
(particularly construction debris) may displace some of the current 
capacity for agricultural waste, as the economy improves and 
construction activity increases. Id. at 7-49. Additionally, the 
District explains that ``citrus material is typically less desirable'' 
than other biomass materials \4\ and must be blended with other biomass 
fuels. Staff Report at 7-37.
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    \4\ Id.
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    In light of this economic uncertainty, EPA has recommended that the 
District continue closely monitoring the economic feasibility of 
sending citrus orchard removal material to biomass. In response, the 
District has agreed to ban the burning of citrus orchards ``on a case-
by-case basis when analysis indicates sufficient biomass capacity and 
the availability of economically feasible chipping services.'' \5\ We 
believe that this interim step will have significant air quality 
benefits and we encourage the District to consider whether a complete 
or partial ban on citrus orchard burning is economically feasible. 
Nonetheless, we continue to believe that such a ban has not been 
demonstrated to be economically feasible at this time.
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    \5\ See letter dated June 27, 2011, from Seyed Sadredin to 
Deborah Jordan.
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    Comment #5.b: Earthjustice claimed that the proposed alternative to 
open burning of almond, walnut and pecan prunings (shredding the 
prunings and leaving the materials on the orchard floor) is technically 
feasible.
    Response #5.b: As with the previous comment, we agree that this is 
technically feasible, but not that it has been shown to be economically 
feasible at all times. The District concluded that, although shredding 
is a technically feasible alternative to open burning, there is an 
insufficient supply of custom shredding services available to smaller 
farms. Staff Report Appendix D at D-36. EPA believes this is a 
reasonable conclusion based on historical data. However, as noted in 
the TSD, we recommend that the District reevaluate the availability of 
contractors to shred nut prunings based on updated data.
    Comment #5.c: Earthjustice claimed that these proposed alternatives 
to open burning of citrus orchard removal materials and almond, walnut 
and pecan prunings are also economically feasible.
    Response #5.c: The District's economic analysis indicated that 
sending citrus removal materials to biomass was not economically 
feasible. Staff Report Table 3-4. Similarly, the District's economic 
analysis indicated that the cost of shredding prunings from less than 
25 acres at once was not economically feasible. For the reasons noted 
above (see responses 4c, 4d, and 5a) and given that no other agency has 
adopted more stringent restrictions on open burning than those 
currently in place in the District, we believe these conclusions are 
reasonable at this time. However, we encourage the District to 
reevaluate these postponements to ensure that the State adopts all RACM 
for open burning activities as expeditiously as practicable.

III. EPA Action

    No comments were submitted that change our assessment that the 
submitted rules comply with the relevant CAA requirements. Therefore, 
as authorized in section 110(k)(3) of the Act, EPA is fully approving 
these rules into the California SIP.

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

[[Page 217]]

in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address disproportionate human health or environmental effects with 
practical, appropriate, 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 action 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 March 7, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: September 30, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 52, 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 paragraphs (c)(388)(i)(B)(2), 
(3), (4) and (5) to read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (388) * * *
    (i) * * *
    (B) * * *
    (2) Rule 4103, ``Open Burning,'' amended on April 15, 2010, not 
effective until June 1, 2010.
    (3) Table 9-1, Revised Proposed Staff Report and Recommendations on 
Agricultural Burning, approved on May 20, 2010.
    (4) San Joaquin Valley Air Pollution Control District, Resolution 
No. 10-05-22, adopted on May 20, 2010.
    (5) California Air Resources Board, Resolution 10-24, adopted on 
May 27, 2010.
* * * * *

[FR Doc. 2011-33660 Filed 1-3-12; 8:45 am]
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