[Federal Register Volume 86, Number 244 (Thursday, December 23, 2021)]
[Proposed Rules]
[Pages 72906-72908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27797]

[[Page 72906]]



40 CFR Part 52

[EPA-R09-OAR-2021-0799; FRL-9246-01-R9]

Air Plan Approval; California; San Joaquin Valley Unified Air 
Pollution Control District; Open Burning

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the San Joaquin Valley Unified Air Pollution 
Control District (SJVUAPCD or the ``District'') portion of the 
California State Implementation Plan (SIP). This revision concerns 
emissions of oxides of nitrogen (NOX) and particulate matter 
(PM) from agricultural open burning. We are proposing to approve 
additional local restrictions on such burning under the Clean Air Act 
(CAA or the Act). We are taking comments on this proposal and plan to 
follow with a final action.

DATES: Comments must be received on or before January 24, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2021-0799 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a 
language other than English or if you are a person with disabilities 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3073 or by 
email at [email protected].

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

I. The State's Submittal
    A. Background
    B. What did the State submit?
    C. Completeness Review of the 2021 Technical Submittal
    D. What is the purpose of the submitted SIP revision?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the SIP revision?
    B. Does the SIP revision meet the evaluation criteria?
    C. The EPA's Recommendations To Further Improve the Control 
    D. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. Background

    Most open burning activities in the San Joaquin Valley Air Basin 
(``San Joaquin Valley'') are regulated by District Rule 4103 ``Open 
Burning'' (``Rule 4103'' or ``the Rule''), which was most recently 
revised by the District on April 15, 2010. Rule 4103's provisions on 
open burning of agricultural waste, which constitutes the bulk of 
activity regulated under this local measure, are implemented as a part 
of a broader state-wide strategy on agricultural open burning, codified 
in California Health and Safety Code sections 41855.5 and 41855.6. 
Under Rule 4103's provisions implementing those State law requirements, 
the SJVUAPCD may grant a temporary postponement of the prohibition of 
open burning for specific agricultural material categories, if the 
following four criteria are all met: (1) The SJVUAPCD Governing Board 
(``District Board'') determines that there is no economically feasible 
alternative of eliminating the waste; (2) the District Board determines 
that there is no long-term Federal or State funding commitment for the 
continued operation of biomass combustion facilities in the San Joaquin 
Valley or development of alternatives to burning; (3) the District 
Board determines that the continued issuance of permits for that 
specific category or crop will not cause, or substantially contribute 
to, a violation of an applicable Federal ambient air quality standard; 
and (4) the California Air Resources Board (CARB or the ``State 
Board'') concurs with the District Board's determinations.\1\ The 
District's staff reports and the associated District Board and CARB 
resolutions approving the postponements must be submitted to the EPA as 
SIP revisions.\2\

    \1\ Rule 4103, section 5.5.2.
    \2\ Id. section 6.3.

    The EPA approved Rule 4103 and an initial prohibition schedule 
(``2010 Schedule'') (entitled ``Table 9-1, Final Staff Report and 
Recommendations on Agricultural Burning'') into the SIP on January 4, 

    \3\ 77 FR 214.

B. What did the State submit?

    On November 29, 2021, CARB submitted a document entitled ``Proposed 
District Rule 4103 (Open Burning) Technical Submittal for Receiving SIP 
Credit for Reductions in Agricultural Burning,'' dated November 18, 
2021 (the ``2021 Technical Submittal''), to the EPA for inclusion in 
the California SIP.\4\ The 2021 Technical Submittal includes a document 
called the ``Supplemental Report and Recommendations on Agricultural 
Burning'' (``2021 Supplemental Report''). Table 2-1 of the 2021 
Supplemental Report, ``Accelerated Reductions by Crop Category'' 
includes an updated schedule of prohibitions (``2021 Schedule''), which 
is the focus of our rulemaking. Further discussion and explanation of 
this material is detailed in section I.D of this proposed rule.

    \4\ CARB had previously submitted a proposed version of this 
document with a request for parallel processing pursuant to 40 CFR 
part 51, appendix V, section 2.3.1. The only substantive revision in 
the final document was the addition of a response to public comments 
submitted during the public comment period and hearing.

C. Completeness Review of the 2021 Technical Submittal

    Section 110(k)(1)(B) of the CAA requires the EPA to determine 
whether a SIP submission is complete within 60 days of receipt. The 
EPA's SIP completeness criteria are found in 40 CFR part 51, appendix 
V. The EPA has reviewed the 2021 Technical Submittal and finds that it 
fulfills the completeness criteria of appendix V.

D. What is the purpose of the submitted SIP revision?

    The open burning of various materials regulated under the 
District's authority, including agricultural waste, generates emissions 
of NOX and PM. Emissions of NOX contribute to the 
production of ground-level ozone, smog, and PM, which harm human health 
and the environment. Direct emissions of PM, including PM equal to or 
less than 2.5 microns in diameter (PM2.5) and PM

[[Page 72907]]

equal to or less than 10 microns in diameter (PM10), 
contribute to effects that are harmful to human health and the 
environment, including premature mortality, aggravation of respiratory 
and cardiovascular disease, decreased lung function, visibility 
impairment, and damage to vegetation and ecosystems. Section 110(a) and 
title I, part D of the CAA require states to submit regulations that 
control NOX and PM emissions.
    Under the provisions of California Health and Safety Code sections 
41855.5 and 41855.6 and SIP-approved District Rule 4103, the District 
must review at least once every five years the feasibility for 
prohibition from open burning the remaining categories of agricultural 
waste that were previously found to be infeasible under the four 
criteria described above in section I.A. That review results in a 
``District Staff Report and Recommendations on Agricultural Burning,'' 
which must be approved by the District Board and receive concurrence 
from the State Board in order to become effective. The District reports 
have in the past contained a schedule for prohibiting additional 
categories of agricultural waste from open burning, additional 
limitations on open burning for that category, or a determination that 
open burning should be allowed. This schedule implements sections 5.5.2 
and 6.3 of the Rule and supports the enforceability of the control 
requirements in Rule 4103. Therefore, it must be approved into the SIP 
to ensure the integrity of the control strategy. As noted above, the 
EPA approved the 2010 Schedule into the SIP in 2012.
    Pursuant to Rule 4103 section 5.5.2, the District adopted the 2021 
Supplemental Report, including the 2021 Schedule, on June 17, 2021. The 
CARB Executive Officer concurred on the 2021 Schedule in a letter dated 
June 18, 2021, effective through December 31, 2024.\5\ The 2021 
Schedule thus constitutes the enforceable measure needed to update the 
SIP-approved open burning control measure.

    \5\ The State Board had delegated the authority for this 
concurrence on February 25, 2021.

    The 2021 Schedule prohibits open burning for several previously 
postponed categories of agricultural waste effective January 1, 2021, 
and establishes a schedule for phase-out of open burning for other 
categories including vineyard removals, orchard removals, and surface 
harvested prunings by January 1, 2025. The EPA's technical support 
document (TSD) has more information about the specific requirements in 
the 2021 Schedule.

II. The EPA's Evaluation and Action

A. How is the EPA evaluating the SIP revision?

    Rules in the SIP must be enforceable (see CAA section 110(a)(2)), 
must not interfere with applicable requirements concerning attainment 
and reasonable further progress or other CAA requirements (see CAA 
section 110(l)), and must not modify certain SIP control requirements 
in nonattainment areas without ensuring equivalent or greater emissions 
reductions (see CAA section 193).
    The San Joaquin Valley is designated and classified as an Extreme 
nonattainment area for the 1979 1-hour and 1997, 2008, and 2015 8-hour 
ozone national ambient air quality standards (NAAQS).\6\ CAA section 
172(c)(1) requires ozone nonattainment areas to implement all 
reasonably available control measures (RACM), including such reductions 
in emissions from existing sources in the area as may be obtained 
through the adoption, at a minimum, of reasonably available control 
technology (RACT), as expeditiously as practicable. While our 
stringency discussion below focuses on PM emissions, we are not aware 
of reasonably available control measures for ozone precursors that are 
not also best available control measures for PM for this source 

    \6\ 40 CFR 81.305.

    San Joaquin Valley is designated and classified as a Serious 
nonattainment area for the 1997, 2006, and 2012 PM2.5 
NAAQS.\7\ CAA section 189(b)(1)(B) requires Serious PM2.5 
nonattainment areas to implement best available control measures 
(BACM), including best available control technology (BACT), within four 
years after reclassification of the area to Serious. Therefore, 
SJVUAPCD must implement BACM, including BACT, for PM2.5 and 
PM2.5 precursors. Guidance and policy documents that we used 
to evaluate enforceability, revision/relaxation and rule stringency 
requirements for the applicable criteria pollutants include the 

    \7\ Id. For the 2012 PM2.5 NAAQS, the EPA 
reclassified the San Joaquin Valley as Serious nonattainment in a 
final rule published November 26, 2021. 86 FR 67343. The effective 
date of this reclassification is December 27, 2021.

    1. ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 11, 
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    4. Preamble, Fine Particulate Matter National Ambient Air Quality 
Standards: State Implementation Plan Requirements, 81 FR 58010 (August 
24, 2016).

B. Does the SIP revision meet the evaluation criteria?

    The 2021 Schedule significantly enhances the overall stringency of 
the District's open burning requirements by prohibiting open burning 
for most remaining waste types by 2025. Furthermore, the District and 
State have justified the remaining postponements on the basis of 
technical and/or economic feasibility. Although the 2021 Schedule is 
less stringent than the 2010 Schedule for the rice stubble category, 
the potential emissions increase from this relaxation is more than 
offset by the emissions reductions from additional prohibitions on 
other categories of agricultural waste. Therefore, the EPA's initial 
evaluation indicates that this SIP revision meets CAA requirements and 
is consistent with relevant guidance regarding enforceability, 
stringency, and SIP revisions. The EPA's TSD has more information on 
our evaluation.

C. The EPA's Recommendations To Further Improve the Control Measure

    The EPA's TSD includes recommendations for the next time the 
SJVUAPCD modifies the control measure.

D. Public Comment and Proposed Action

    As authorized in section 110(k)(3) of the Act, the EPA proposes to 
fully approve the submitted SIP revision because it fulfills all 
relevant requirements. We will accept comments from the public on this 
proposal until January 24, 2022. If we take final action to approve 
Table 2-1 and the associated materials, our final action will 
incorporate this revision into the federally enforceable SIP.

III. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the following materials: Table 2-1 ``Accelerated Reductions 
by Crop Category'' of the ``Supplemental Report and Recommendations on 

[[Page 72908]]

Burning'' and Resolution 21-06-12 that were adopted by the SJVUAPCD 
Board on June 17, 2021; Resolution 21-4 ``San Joaquin Agricultural 
Burning Assessment'' adopted by CARB on February 25, 2021; and the 
letter dated June 18, 2021 from Richard W. Corey, Executive Officer, 
CARB, to Samir Sheikh, Executive Director, SJVUAPCD, concurring on the 
2021 Supplemental Report. The EPA has made, and will continue to make, 
these materials available through https://www.regulations.gov and at 
the EPA Region IX Office (please contact the person identified in the 
FOR FURTHER INFORMATION CONTACT section of this preamble for more 

IV. Statutory and Executive Order Reviews

    Under the CAA, 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, the EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. Accordingly, this 
proposed action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
     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 (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 CAA; and
     Does not provide the 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Particulate matter, 
Reporting and recordkeeping requirements.

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

    Dated: December 16, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-27797 Filed 12-22-21; 8:45 am]