Federal Register / Vol. 77, No. 6 / Tuesday, January 10, 2012 / Rules and Regulations 1417 

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 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 12, 2012. 

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, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: December 28, 2011. 

Michelle L. Pirzadeh, 

Acting Regional Administrator, Region 10. 

40 CFR part 52 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 C—Alaska 

■ 2. Section 52.73 is amended by adding 

paragraph (a)(1)(ii) to read as follows: 

§ 52.73 Approval of plan. 

(a) * * * 

(1) * * * 

(ii) EPA approves as a revision to the 

Alaska State Implementation Plan, the 

Anchorage Carbon Monoxide 

Maintenance Plan (Volume II Sections 

II, III.A and III.B of the State Air Quality 

Control Plan adopted August 20, 2010, 

effective October 29, 2010, and Volume 

III of the Appendices adopted August 

20, 2010, effective October 29, 2010) 

submitted by the Alaska Department of 

Environmental Conservation on 

September 29, 2010 

* * * * * 

[FR Doc. 2012–341 Filed 1–9–12; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0723; FRL–9616–5] 

Partial Approval and Partial 

Disapproval of Air Quality 

Implementation Plans; California; San 

Joaquin Valley; Reasonably Available 

Control Technology for Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving in part and 

disapproving in part a revision to the 

San Joaquin Valley Unified Air 

Pollution Control District (SJVUAPCD 

or SJV) portion of the California State 

Implementation Plan (SIP). This action 

was proposed in the Federal Register on 

September 9, 2011 and concerns 

SJVUAPCD’s ‘‘Reasonably Available 

Control Technology (RACT) 

Demonstration for Ozone SIP’’ (RACT 

SIP) for the 8-hour ozone National 

Ambient Air Quality Standard. Under 

authority of the Clean Air Act as 

amended in 1990 (CAA or the Act), this 

action directs California to correct 

RACT rule deficiencies in the SJV. 

DATES: Effective Date: This rule is 

effective on February 9, 2012. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2011–0723 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at 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 at 

www.regulations.gov, some information 

may be publicly available only at the 

hard copy location (e.g., copyrighted 

material, large maps), 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: 

Stanley Tong, EPA Region IX, (415) 

947–4122, tong.stanley@epa.gov. 

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. Final Action and CAA Consequences 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

On September 9, 2011 (76 FR 55842), 

EPA proposed to partially approve and 

partially disapprove the following 

document that was submitted for 

incorporation into the California SIP. 

Local agency Document Adopted Submitted 

SJVUAPCD ................ Reasonably Available Control Technology (RACT) Demonstration for Ozone State Implementation Plan (SIP).04/16/2009 06/18/2009 

In our proposed action we divided 

SJVUAPCD’s rules into the following 

categories and evaluated each rule for 

compliance with RACT requirements. 

Group 1: Rules that EPA recently 

approved or proposed to approve as 

implementing RACT. 

Group 2: Rules previously approved 

for which we are not aware of more 

stringent controls that are reasonably 

available. 


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1418 Federal Register / Vol. 77, No. 6 / Tuesday, January 10, 2012 / Rules and Regulations 

Group 3: Rules that EPA has 

disapproved or proposed to disapprove, 

in full or in part, because SJVUAPCD’s 

has failed to demonstrate they fully 

satisfy current RACT requirements. 

Group 4: Rules for which EPA has not 

yet made a RACT determination. 

We proposed to approve those 

elements of SJVUAPCD’s RACT SIP 

demonstration that pertain to the SIP 

rules identified in groups 1 and 2, 

which EPA has fully approved or 

proposed to approve as satisfying the 

RACT requirements of CAA sections 

182(b)(2) and (f). 

Simultaneously, we proposed to 

disapprove those elements of the RACT 

SIP demonstration that pertain to the 

SJVUAPCD rules identified in group 3, 

which EPA has either disapproved or 

proposed to disapprove in whole or in 

part, for failure to satisfy RACT 

requirements, and those elements of the 

RACT SIP demonstration that pertain to 

the rules in group 4, for which EPA has 

not yet made a RACT determination. 

Our technical support document for 

our proposed action stated that a revised 

RACT SIP demonstration would not be 

necessary if each SIP submittal for the 

rules in groups 3 and 4 contains the 

necessary supporting analyses to 

demonstrate the rule meets RACT. 

Specifically, we proposed to partially 

disapprove SJVUAPCD’s RACT SIP 

demonstration because seven rules did 

not fully satisfy current RACT 

requirements. We have since approved 

three of the rules and are awaiting SIP 

submittals for the remaining four rules. 

The seven rules were: 

1. Rule 4352—Solid Fuel Fired 

Boilers, Steam Generators, and Process 

Heaters—final limited approval/ 

disapproval October 1, 2010 (75 FR 

60623). SJVUAPCD is scheduled to 

adopt amendments to Rule 4352 on 

December 15, 2011. 

2. Rule 4401—Steam Enhanced Crude 

Oil Production Wells—final limited 

approval/disapproval January 26, 2010, 

(75 FR 3996). SJVUAPCD submitted 

amendments to EPA on July 28, 2011 

and EPA approved them into the SIP on 

November 16, 2011, (76 FR 70886). 

3. Rule 4402—Crude Oil Production 

Sumps—final limited approval/ 

disapproval July 7, 2011 (76 FR 39777). 

SJVUAPCD is scheduled to adopt 

amendments to Rule 4402 on December 

15, 2011. 

4. Rule 4605—Aerospace Assembly 

and Component Coating Operations— 

final limited approval/disapproval 

January 26, 2010, (75 FR 3996). 

SJVUAPCD submitted amendments to 

EPA on July 28, 2011 and EPA approved 

them into the SIP on November 16, 

2011, (76 FR 70886). 

5. Rule 4625—Wastewater 

Separators—final limited approval/ 

disapproval July 7, 2011 (76 FR 39777). 

SJVUAPCD is scheduled to adopt 

amendments to Rule 4625 on December 

15, 2011. 

6. Rule 4682—Polystyrene, 

Polyethylene, and Polypropylene 

Products Manufacturing—proposed 

disapproval July 15, 2011, (76 FR 

41745). SJVUAPCD is scheduled to 

adopt amendments to Rule 4682 on 

December 15, 2011. 

7. Rule 4684—Polyester Resin 

Operations—final limited approval/ 

disapproval January 26, 2010, (75 FR 

3996). SJVUAPCD submitted 

amendments to EPA on August 26, 2011 

and EPA approved them on November 

18, 2011 (awaiting publication). 

We also proposed to partially 

disapprove the RACT SIP because we 

had not yet made RACT determinations 

for the following three rules identified 

under group 4: 

1. Rule 4566—Organic Material 

Composting Operations—adopted 

August 18, 2011 and submitted to EPA 

on November 18, 2011. 

2. Rule 4694—Wine Fermentation and 

Storage Tanks—amendments adopted 

August 18, 2011 and submitted to EPA 

on November 18, 2011. 

3. Fumigant Volatile Organic 

Compound Regulations—California 

Department of Pesticide Regulation— 

submitted August 2, 2011. EPA is 

currently reviewing the submittal. 

Our proposed rule contains more 

information on the basis for this 

rulemaking and on our evaluation of the 

RACT SIP demonstration. 

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. 

Paul Cort, Earthjustice; letter dated 

October 11, 2011 and received 

October 11, 2011. 

We have summarized the comments 

and provided responses below. 

Comment #1: 

Earthjustice asserts that EPA’s 

analysis of SJVUAPCD’s RACT SIP 

demonstration fails to satisfy Clean Air 

Act requirements and largely excuses 

the District’s ‘‘continued refusal to 

adopt the controls necessary to meet the 

ozone standards in the Valley.’’ 

Referencing sections 172(c)(1), 182(b)(2) 

and 182(f) of the CAA as the provisions 

governing this action, Earthjustice 

asserts that the requirement in section 

172(c)(1) is not limited to ‘‘major 

sources’’ and that ‘‘[o]nly section 182 

mentions the need to provide for RACT 

for all major stationary sources.’’ 

Earthjustice quotes from EPA’s 1992 

General Preamble (57 FR 13498, 13541 

(April 16, 1992)), in which EPA states 

that it ‘‘recommends that a State’s 

control technology analyses for existing 

stationary sources go beyond major 

stationary sources in the area and that 

States require control technology for 

other sources in the area that are 

reasonable in light of the area’s 

attainment needs and the feasibility of 

such controls,’’ and asserts that this 

language represents EPA’s interpretation 

of the ‘‘interplay’’ of CAA sections 

172(c)(1), 182(b)(2), and 182(f). Finally, 

Earthjustice argues that EPA’s review of 

SJVUAPCD’s RACT demonstration does 

not recognize ‘‘the extreme attainment 

needs for the Valley’’ and that ‘‘[i]t is 

not possible to make the RACT 

demonstration for the Valley without 

explaining what is needed to attain the 

ozone standards in the Valley and using 

this attainment need to justify the 

thresholds used to accept or eliminate 

available control options.’’ 

Response #1: 

We disagree with Earthjustice’s 

characterization of the CAA 

requirements that apply to our 

evaluation of the RACT SIP for SJV. As 

explained in our proposed rule and our 

August 29, 2011 Technical Support 

Document for our proposed action on 

the RACT SIP (‘‘2011 RACT SIP TSD’’), 

California submitted the SJV RACT SIP 

to meet the RACT requirements of 

subpart 2, part D of title I of the CAA 

(sections 182(b) and 182(f)), and EPA 

therefore evaluated the submittal in 

accordance with those requirements. 

See 76 FR 55842 at 55844 (September 9, 

2011) and 2011 RACT SIP TSD at 2–9 

and 34–35. 

Prior to the 1990 Amendments to the 

CAA, all nonattainment areas were 

subject to the nonattainment planning 

provisions of section 172. Under section 

172, the RACT requirement and the 

attainment demonstration are addressed 

in the same subsection. Specifically, 

section 172(c)(1) of the Act requires that 

the SIP for each nonattainment area 

‘‘shall provide for the implementation of 

all reasonably available control 

measures as expeditiously as practicable 

(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) and shall provide 

for the attainment of the national 

primary ambient air quality standards.’’ 

As part of the 1990 Amendments, 

Congress created specific nonattainment 

area planning requirements for ozone. In 

section 182(b)(2) of the Act, Congress 


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Federal Register / Vol. 77, No. 6 / Tuesday, January 10, 2012 / Rules and Regulations 1419 

1For the 1997 8-hour ozone standard, EPA’s 

regulations required States to submit the RACT SIP 

within 27 months after designation as 

nonattainment for the 1997 8-hour ozone standard. 

40 CFR 51.912(a)(2). 

2For example, see 40 CFR 51.918 and 

Memorandum dated May 10, 1995, from John S. 

Seitz, Director, EPA, Office of Air Quality Planning 

and Standards, to Air Division Directors, EPA, 

Regions I–X, ‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment Areas 

Meeting the Ozone National Ambient Air Quality 

Standard’’ (explaining that certain SIP requirements 

related to attainment of the NAAQS may be 

suspended if an ozone nonattainment area subject 

to those requirements is in fact attaining the ozone 

standard but stating that this interpretation of the 

Act does not extend to ‘‘requirements of subpart 2 

that are not linked by the language of the Act with 

the attainment demonstration and RFP 

requirements,’’ such as VOC RACT). 

3Section 182(b)(2) of the CAA mandates that each 

State with an ozone nonattainment area classified 

as moderate or above under subpart 2 submit a SIP 

revision providing for the implementation of RACT 

with respect to three specific types of sources: (1) 

Each category of VOC sources in the area covered 

by a Control Techniques Guideline (CTG) document 

issued between November 15, 1990 and the date of 

attainment; (2) all VOC sources in the area covered 

by any CTG issued before November 15, 1990; and 

(3) all other ‘‘major stationary sources’’ of VOC 

located in the area. Section 182(f) provides that the 

requirements for major stationary sources of VOC 

under subpart 2 shall also apply to major stationary 

sources of NOX. 

required States with areas classified as 

moderate and above to submit a RACT 

SIP within two years.1 Separately, in 

sections 182(b)(1)(A) and (c)(2)(A), 

Congress required States to submit 

attainment demonstrations within three 

years for moderate areas and within four 

years for serious and above areas. Where 

these more specific planning obligations 

apply, we interpret them to supplant the 

similar, but less specific, obligations in 

section 172. Furthermore, because 

Congress expressly separated the RACT 

requirement from the attainment 

demonstration obligation, EPA has 

treated the RACT requirement as a 

technology-based requirement that is 

separate from the attainment 

demonstration obligation.2 The RACT 

requirement in CAA section 182 is a 

control mandate that applies 

independent of the emission reductions 

needed for attainment. See, e.g., EPA’s 

Proposed Rule to Implement the 8-Hour 

Ozone National Ambient Air Quality 

Standard, 68 FR 32802 at 32837 (June 2, 

2003) (explaining that ‘‘[u]nder subpart 

2, RACT requirements for ozone 

nonattainment areas apply independent 

of the emissions reductions needed to 

attain the standard’’). However, as we 

have explained, Congress did not 

supplant the more general requirement 

for areas to demonstrate they have 

adopted ‘‘reasonably available control 

measures’’ (RACM) consistent with 

section 172(c)(1) and we have required 

States to address RACM as a component 

of the area’s attainment demonstration. 

57 FR 13498 at 13560 (April 16, 1992) 

(1992 General Preamble); see also 40 

CFR 51.912(d) (requiring States to 

submit with the attainment 

demonstration (where required) for an 

ozone nonattainment area ‘‘a SIP 

revision demonstrating that it has 

adopted all RACM necessary to 

demonstrate attainment as expeditiously 

as practicable and to meet any RFP 

requirements’’). 

Thus, at this time, we are reviewing 

only the RACT demonstration submitted 

by the State to determine whether it 

meets the technology-based 

requirements of section 182(b)(2). 

Earthjustice quotes from a portion of 

EPA’s 1992 General Preamble that 

discusses CAA RACT requirements, but 

that discussion addresses the subpart 1 

RACT/RACM requirement in CAA 

section 172(c)(1), not the more specific 

RACT control mandate in CAA section 

182(b)(2). See 57 FR 13498 at 13541 

(April 16, 1992) (referencing CAA 

section 172(c)(1) in support of statement 

that RACT applies to ‘‘existing 

sources’’). To the extent the commenters 

have concerns about whether there are 

additional ‘‘reasonably available’’ 

controls that are necessary to attain the 

1997 8-hour ozone standard, the State is 

required to address that issue in the 

context of the RACM analysis submitted 

with its attainment demonstration for 

that standard. In a separate action, EPA 

has proposed to approve the SIP 

submitted by California to provide for 

attainment of the 1997 8-hour ozone 

NAAQS in the SJV area (SJV 2007 

Ozone Plan). See 76 FR 57846 at 57850– 

57853 (September 16, 2011). As part of 

that action, EPA will determine whether 

the SJV 2007 Ozone Plan satisfies the 

CAA section 172(c)(1) requirement to 

implement all RACT/RACM necessary 

for expeditious attainment of the 1997 

8-hour ozone NAAQS in the SJV. 

We note that our approach to 

evaluating the RACT SIP under CAA 

section 182 as a discreet SIP element is 

consistent with EPA’s actions on RACT 

SIPs for the 1997 8-hour ozone NAAQS 

in other nonattainment areas. See, 

e.g.,73 FR 76947 (December 18, 2008) 

(final rule approving CAA section 182 

RACT SIP for Los Angeles-South Coast, 

California); 73 FR 78192 (December 22, 

2008) (final rule approving CAA section 

182 RACT SIP for Virginia); 74 FR 

18148 (April 21, 2009) (final rule 

approving CAA section 182 RACT SIP 

for Ventura County, California); and 74 

FR 22837 (May 15, 2009) (final rule 

fully approving RACM analysis but 

conditionally approving CAA section 

182 RACT SIP for New Jersey). 

We further note that contrary to the 

implication of the comment, section 182 

does not limit RACT to ‘‘major sources.’’ 

Rather, States are required to adopt 

RACT rules for all sources covered by a 

control technique guideline (CTG) and 

many CTGs apply to sources smaller 

than major sources. In addition to 

addressing all sources covered by a 

CTG, States are also required to adopt 

RACT rules for ‘‘major stationary 

sources.’’ 3

Comment #2: 

Earthjustice asserts that EPA or the 

District must explain why options for 

controlling sources beyond major 

sources have not been considered. 

Earthjustice references portions of EPA’s 

2011 RACT SIP TSD that discuss six 

specific SJVUAPCD regulations (Rules 

4106, 4601, 4652, 4692, 4902, and 4905) 

and states that EPA cannot ‘‘avoid 

RACT review’’ for these rules that 

regulate non-major sources. 

Response #2: 

As provided above, the State 

submitted the RACT SIP to meet the 

requirements in section 182(b)(2) and 

(f), which requires VOC RACT for all 

sources subject to a CTG and all major 

VOC sources and requires NOX RACT 

for all major sources of NOX. The 

portions of EPA’s 2011 RACT SIP TSD 

referenced by Earthjustice discuss six 

specific SJVUAPCD regulations that 

were not submitted to meet the CAA 

section 182 RACT requirement: Rule 

4106 (Prescribed Burning and Hazard 

Reduction Burning); Rule 4601 

(Architectural Coatings); Rule 4652 

(Coatings and Ink Manufacturing); Rule 

4692 (Commercial Charbroiling); Rule 

4902 (Residential Water Heaters); and 

Rule 4905 (Natural Gas-Fired, Fan-Type 

Residential Central Furnaces). As 

explained in the 2011 RACT SIP TSD, 

these rules are not subject to the CAA 

section 182 RACT control mandate 

because they do not apply to any CTG 

source category or any major stationary 

source of VOC or NOX. See 2011 RACT 

SIP TSD at 12–13. Therefore, evaluation 

of these rules is not a necessary element 

of our action on the RACT SIP. 

In a separate action on the SJV 2007 

Ozone Plan, EPA is currently evaluating 

whether the State and District have 

adopted all RACM (including RACT) 

necessary for expeditious attainment of 

the 1997 8-hour ozone standard in the 

Valley, as required by CAA section 

172(c)(1). 76 FR 57846 at 57850–57853 

(September 16, 2011). The evaluation of 

potentially reasonable control options 

for sources not subject to the RACT 

control mandate in CAA section 182 


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1420 Federal Register / Vol. 77, No. 6 / Tuesday, January 10, 2012 / Rules and Regulations 

4EPA explained in the preamble to the Phase 2 

Ozone Rule that where the incremental emission 

reductions that would result from application of a 

particular control option are small, the costs 

necessary to achieve that small additional 

increment of reduction may not be ‘‘reasonable.’’ 

See 70 FR 71612, 71654 (November 29, 2005). In 

contrast, a RACT analysis for uncontrolled sources 

would more likely result in a conclusion that RACT 

level controls are economically and technically 

feasible. Id. 

5 See also Final rule, 76 FR 16696 (March 25, 

2011) (approving Rule 4320 as SIP-strengthening 

but noting that the rule is not consistent with EPA 

guidance on economic incentive programs). 

belongs in the context of this broader 

evaluation of the 8-hour ozone 

attainment demonstration for the SJV 

area. EPA is not ‘‘avoiding’’ review for 

these other source categories but, rather, 

appropriately evaluating these 

additional control options as part of our 

separate action on the RACM and 

attainment demonstration under section 

172(c)(1) and section 182(c)(2). 

Comment #3: 

Earthjustice asserts that ‘‘EPA cannot 

acknowledge feasible control options 

that have been left out of District rules 

and excuse this failure without 

explaining why these options are not 

necessary for attainment.’’ In particular, 

Earthjustice references portions of EPA’s 

2011 RACT SIP TSD discussing four 

specific SJVUAPCD regulations (Rules 

4320, 4354, 4606, and 4624) and asserts 

that EPA has provided ‘‘no numbers or 

any suggestion that it has actually 

evaluated the potential emission 

reductions achievable’’ by these rules. 

Earthjustice also asserts that 

‘‘[c]onclusory claims that tighter 

controls would not provide significant 

emission reductions need to be 

supported.’’ Finally, Earthjustice 

questions what is ‘‘significant’’ in ‘‘an 

area that currently has no actual strategy 

for meeting the ozone standards,’’ what 

the cumulative effect of these potential 

rule improvements would be, and 

whether emission reductions might be 

significant if the rules applied to nonmajor sources. 

Response #3: 

With respect to Earthjustice’s 

assertion that EPA must consider the 

SJV area’s attainment needs and the 

cumulative effect of potential rule 

improvements as part of our action on 

the RACT SIP, we disagree for the 

reasons provided in Response #1 above. 

As to Earthjustice’s statement about the 

need to support ‘‘[c]onclusory claims 

that tighter controls would not provide 

significant emission reductions,’’ we 

agree generally that a RACT evaluation 

should include adequate support for 

rejection of any control option based on 

the cost of and amount of incremental 

emission reductions it would achieve.4

We disagree, however, that either EPA’s 

or the District’s RACT analyses are 

‘‘conclusory.’’ As explained in the 2011 

RACT SIP TSD, our evaluation of the 

RACT SIP was based on multiple 

sources of information about potentially 

available control options, including: (1) 

The District’s SIP submittals for specific 

rules, including public comments and 

the District’s responses to those 

comments; (2) the District’s RACT 

analysis in the April 16, 2009 RACT 

SIP; and (3) EPA’s previous rulemaking 

action on each rule, including public 

comments and EPA’s responses to those 

comments. Our 2011 RACT SIP TSD 

references each of the documents we 

relied upon and adequately supports 

our conclusions with respect to each of 

the District rules we evaluated as part of 

the RACT SIP. 

In support of its challenge to EPA’s 

evaluation of the RACT SIP, Earthjustice 

refers generally to statements in EPA’s 

2011 RACT SIP TSD identifying issues 

that EPA considered with respect to four 

specific SJVUAPCD rules (Rules 4320, 

4354, 4606, and 4624). For the most 

part, these portions of the 2011 RACT 

SIP TSD summarize issues that EPA 

considered as part of its recent actions 

on these rules. See 2011 RACT SIP TSD 

at 14, 17, and 19 (referencing previous 

EPA rulemaking actions on Rules 4320, 

4606, and 4624). However, some 

portions of the 2011 RACT SIP TSD 

referenced by Earthjustice describe 

additional information that EPA 

considered as part of its evaluation of 

the RACT SIP. See 2011 RACT SIP TSD 

at 15 (referencing, with respect to Rule 

4354, previous EPA rulemaking action 

and SJVUAPCD’s statements in RACT 

SIP demonstration). We note as a 

threshold matter that Earthjustice’s 

generalized assertions fail to identify 

any specific deficiency in any of these 

rules or to provide any new information 

that EPA did not evaluate in our 

previous rulemaking actions. A 

commenter bears the burden of bringing 

to an agency’s attention at least some 

particulars of an alleged defect in a 

rulemaking. See International Fabricare 

Inst. v. EPA, 972 F. 2d 384, 391 (DC Cir. 

1992). Nonetheless, in response to these 

comments, we have conducted further 

evaluation of Rules 4320, 4354, 4606, 

and 4624 and discuss these evaluations 

below. For the reasons provided in our 

2011 RACT SIP TSD, as further 

discussed in the previous rulemaking 

actions referenced therein and as further 

explained below, we disagree with 

Earthjustice’s assertion that EPA has 

failed to explain the bases for our 

approvals with respect to these 

particular source categories. 

Comment 3a (Rule 4320—Advanced 

Emission Reduction Options for Boilers, 

Steam Generators, and Process Heaters 

Greater than 5.0 MMBtu/hr): 

Earthjustice asserts that EPA’s 2011 

RACT SIP TSD indicates more stringent 

control options for this rule are 

available but fails to explain why these 

options should not be required for all 

sources as RACT. 

Response 3a: 

We did not propose to approve Rule 

4320 as satisfying RACT under CAA 

section 182. In the Technical Support 

Document for EPA’s proposed action on 

this rule (75 FR 68294, November 5, 

2010), EPA stated that section 5.3.3 of 

Rule 4320, which requires operators of 

units for which annual fees are paid to 

‘‘certify that the units meet federal 

RACT control measures at the time the 

annual fee is provided,’’ is not sufficient 

to ensure implementation of RACT by 

covered sources. See Technical Support 

Document, ‘‘San Joaquin Valley Unified 

Air Pollution Control District’s Rule 

4320, Advanced Emission Reduction 

Options for Boilers, Steam Generators 

and Process Heaters Greater than 5.0 

MMbtu/hr,’’ August 19, 2010 (Rule 4320 

TSD).5 EPA also noted, however, that 

EPA had approved Rule 4306 as 

satisfying RACT for this source category. 

See Rule 4320 TSD at 6 (referencing 75 

FR 1715, January 13, 2010) (final rule 

approving Rule 4306). EPA further 

explained that ‘‘[b]ecause sources have 

a separate obligation to comply with 

Rule 4306 (which does not allow 

payment of fees in lieu of compliance), 

the necessary regulatory framework is in 

place to ensure that RACT will be 

implemented for this source category’’ 

and that ‘‘[i]f, in the future, the District 

intends to rely on Rule 4320 to 

implement RACT, the District would 

need to modify Rule 4320 to delete the 

provision which allows sources to pay 

fees in lieu of compliance or otherwise 

ensure RACT implementation.’’ Rule 

4320 TSD at 6. Accordingly, we noted 

in our 2011 RACT SIP TSD that ‘‘EPA 

approved Rule 4320 only as SIPstrengthening (not as meeting RACT) 

but determined that the source category 

covered by this rule is subject to RACT 

requirements under SIP-approved Rule 

4306.’’ 2011 RACT SIP TSD at 14. 

Moreover, we disagree with the 

comment that EPA’s 2011 RACT SIP 

TSD indicated more stringent control 

options were available under Rule 4320. 

EPA’s 2011 RACT SIP TSD simply 

noted that EPA had not approved Rule 

4320 as satisfying RACT requirements 

because of the option it provided to pay 

fees in lieu of compliance with control 

requirements. See 2011 RACT SIP TSD 


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6EPA’s RACT/BACT/LAER Clearinghouse is 

available at: http://cfpub.epa.gov/RBLC/. 

7The ‘‘Tier 4’’ NOX limits in the rule are 3.4 lbs/ 

ton of glass (block 24-hour average) and 2.9 lbs/ton 

of glass (rolling 30-day average). See Rule 4354 (as 

amended September 16, 2010), section 5.1, Table 1. 

8 In the 2011 RACT SIP TSD, we stated that the 

District had compared its rule with BAAQMD 

Regulation 9 Rule 12 and ‘‘indicate[d] that although 

[Bay Area’s] NOX limits are more stringent than 

Rule 4354 for flat glass, [Bay Area] staff verified 

there are no flat glass furnaces operating within the 

Bay Area.’’ 2011 RACT SIP TSD at 16. In response 

to these comments, we are revising our evaluation 

of Rule 4354 to take into account the September 16, 

2010 revisions to the rule, which strengthened its 

NOX emission limits. 

at 14. We note that the SJVUAPCD’s 

supporting documentation for Rule 4320 

did include evaluation of alternative 

NOx RACT requirements that the State 

rejected as not economically feasible 

(see SJVUAPCD, Final Draft Staff 

Report, Proposed Amendments to Rule 

4306, Proposed Amendments to Rule 

4307, and Proposed New Rule 4320 

(October 16, 2008) at 11, 17, and 

Appendix C), and the commenter 

submits no substantive claims to rebut 

the State’s conclusion. We are not, 

however, making any determination in 

this action as to the stringency of the 

NOx requirements in Rule 4320 given 

our previous conclusion that Rule 4306 

adequately implements NOx RACT for 

this source category. 

Comment 3b (Rule 4354—Glass 

Melting Furnaces): 

Earthjustice asserts that EPA’s 2011 

RACT SIP TSD indicates more stringent 

glass melting furnace limits have been 

adopted in the Bay Area but fails to 

explain why the Bay Area’s limits are 

not reasonable for SJV other than the 

fact that the Bay Area has not 

implemented them. 

Response 3b: 

EPA approved Rule 4354 (as amended 

September 16, 2010) on August 29, 2011 

as satisfying RACT under CAA section 

182. See 76 FR 53640. As explained in 

the Technical Support Document for our 

proposed action on this rule (76 FR 

30744, June 24, 2011), our approval was 

based on our evaluation of several 

sources of information, including EPA’s 

1994 Alternative Control Techniques 

(ACT) Document for Glass 

Manufacturing, EPA’s RACT/BACT/ 

LAER Clearinghouse (RBLC),6 emission 

limits in 40 CFR part 60 (Standards of 

Performance for New Stationary 

Sources) and part 63 (National Emission 

Standards for Hazardous Air Pollutants), 

and several analogous State/local rules. 

See Technical Support Document, ‘‘San 

Joaquin Valley Unified Air Pollution 

Control District’s Rule 4354, Glass 

Melting Furnaces,’’ June 2011 (Rule 

4354 TSD at 3). In response to 

Earthjustice’s comment about the Bay 

Area Air Quality Management District’s 

(BAAQMD’s) NOX limit for glass 

melting operations, however, we have 

further evaluated BAAQMD Regulation 

9, Rule 12 (Nitrogen Oxides from Glass 

Melting Furnaces) and compared it to 

Rule 4354. 

BAAQMD Regulation 9, Rule 12 

contains a single NOX limit of 5.5 lbs of 

NOX per short ton of glass pulled from 

‘‘any glass melting furnace.’’ See 

BAAQMD Rule 9–12–301 (as adopted 

January 19, 1994). The January 7, 1994 

staff report for Regulation 9, Rule 12 

indicates that the BAAQMD developed 

the NOX limit in this rule to apply 

specifically to three container glass 

facilities in the Bay Area and does not 

indicate this NOX limit was feasible for 

flat glass melting operations. See 

BAAQMD, ‘‘Staff Report, Proposed 

Regulation 9, Rule 12, Nitrogen Oxides 

from Glass Melting Furnaces,’’ January 

7, 1994, at 1 (stating that ‘‘[t]he 

proposed rule would affect three Bay 

Area container glass plants operating a 

total of five furnaces * * *’’). To date, 

EPA is not aware of any flat glass 

melting facility that has operated in the 

Bay Area and thus been subject to the 

NOX emission limit in BAAQMD 

Regulation 9, Rule 12 (5.5 lbs of NOX

per short ton of glass pulled). See email 

dated October 27, 2011, from Julian 

Elliot (BAAQMD) to Stanley Tong (EPA 

Region 9), RE: Glass plants in 

BAAQMD. We also note that container 

glass furnaces generally emit NOX at 

lower levels compared to flat glass 

furnaces. See EPA’s Compilation of Air 

Pollutant Emission Factors, AP–42 Fifth 

Edition, Volume I, Chapter 11, at Table 

11.15–1 (identifying NOX emission 

factors of 3.3 to 9.1 lbs of NOX per ton 

of glass for container glass furnaces and 

emission factors of 5.6 to 10.4 lbs of 

NOX/ton of glass for flat glass furnaces). 

Thus, we do not have information 

indicating that any flat glass melting 

furnaces are located in the Bay Area and 

are subject to and meeting the NOX limit 

in BAAQMD Regulation 9, Rule 12. 

At the time the SJVUAPCD adopted 

its 2009 RACT SIP demonstration (on 

April 16, 2009), this NOX limit in 

BAAQMD Rule 9–12–301 was more 

stringent than the NOX limits in 

SJVUAPCD Rule 4354 (as adopted 

August 17, 2006) for flat glass melting 

operations, which ranged from 7.0 to 9.2 

lbs of NOX per ton of flat glass, 

depending on the averaging period. On 

September 16, 2010, however, the 

SJVUAPCD adopted successive tiers of 

more stringent NOX limits for flat glass 

melting operations, including a NOX

limit equivalent to the limit in 

BAAQMD’s Regulation 9, Rule 12. 

Specifically, the revised Rule 4354 

established new ‘‘Tier 3’’ NOX emission 

limits, which reduced the earlier rule’s 

Tier 2 limits of 9.2 lbs of NOX per ton 

of flat glass (24-hour average) and 7.0 

lbs of NOX per ton (30-day average) to 

5.5 and 5.0 lbs of NOX per ton of flat 

glass, respectively, effective January 1, 

2011. See Rule 4354 (as amended 

September 16, 2010), section 7.2.1.1. 

These amendments to Rule 4354 also 

provide flat glass melting facilities with 

an ‘‘enhanced’’ compliance option 

which grants them a temporary reprieve 

from the Tier 3 limits (i.e., allowing 

them to continue complying with the 

Tier 2 limits) if the facilities comply 

with the more stringent ‘‘Tier 4’’ NOX

limits either by January 1, 2014 (four 

years earlier than the required 

compliance date of January 1, 2018) or 

by the next furnace rebuild schedule, 

whichever is earlier. See Rule 4354, 

section 7.2.2.3.7 Thus, SJVUAPCD’s 

Rule 4354, as revised September 16, 

2010, now contains the same NOX

emission limit for flat glass melting 

facilities (effective January 1, 2011) as 

applied to the three container glass 

melting facilities in the Bay Area.8 EPA 

approved these revisions to Rule 4354 

into the California SIP on August 29, 

2011. See 76 FR 53640. We believe the 

limited option for delayed compliance 

under section 7.2.2.3 of Rule 4354 is 

reasonable, given current uncertainty 

about the feasibility of a 5.5 lb/ton NOX

limit for flat glass melting furnaces, and 

given the requirement to meet even 

lower NOX limits under the ‘‘Tier 4 

early enhanced option’’ by the next 

furnace rebuild and no later than 

January 1, 2014 (see fn. 8 and 

accompanying text, above). 

Comment 3c (Rule 4606—Wood 

Products and Flat Wood Paneling 

Products Coating Operations): 

Earthjustice asserts that EPA’s 2011 

RACT SIP TSD indicates Rule 4606 

‘‘includes less stringent requirements’’ 

but fails to explain why strengthening 

the rule would not be reasonable. 

Response 3c: 

EPA approved Rule 4606 (as amended 

October 16, 2008) on October 15, 2009 

as satisfying RACT under CAA section 

182. See 74 FR 52894. In the Technical 

Support Document for our proposed 

action on this rule (74 FR 33399, July 

13, 2009), we noted that Rule 4606 

exempts refinishing, replacement and 

custom replica furniture operations 

from VOC control requirements, while 

the CTG for this source category 

(‘‘Control of Volatile Organic Compound 

Emissions from Wood Furniture 

Manufacturing Operations, EPA–453/R– 


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9The combined VOC emissions from these two 

facilities amount to approximately 1 ton per year. 

See SJV RACT SIP at 4–210. 

10EPA contacted two manufacturers that sell 

wood sealers in California and learned that only 

one of them, Sherwin Williams, makes a waterbased sealer that meets a 240 grams/liter limit. See 

email dated November 3, 2011, from Matt Collins 

(The Sherwin-Williams Company) to Stanley Tong 

(EPA Region 9), RE: Sher-Wood Q&A, and email 

dated November 3, 2011 from Robert Wendoll 

(Dunn-Edwards Corporation) to Stanley Tong (EPA 

Region 9), RE: Does Dunn-Edwards make sanding 

sealers—240 g/l? Information from SherwinWilliams indicates that the performance of this 

wood sealer may depend upon the use of its 

complete ‘‘wood finishing system.’’ See Sherwin 

Williams, Chemical Coatings, ‘‘CC–F46: SHER– 

WOOD® KEM AQUA® Lacquer Sanding Sealer’’ 

(stating that ‘‘[d]ue to the wide variety of substrates, 

surface preparation methods, application methods, 

and environments, the customer should test the 

complete [wood finishing] system for adhesion and 

compatibility prior to full scale application’’), 

available at http://www.paintdocs.com/webmsds/ 

webPDF.jsp?SITEID=STORECAT&prodno=

035777432143&doctype=PDS&lang=E). 

96–007’’ April 1996 (1996 Wood 

Furniture CTG)) does not contain such 

an exemption. See Technical Support 

Document, ‘‘San Joaquin Valley Unified 

Air Pollution Control District, Rule 

4606, Wood Products and Flat Wood 

Paneling Product Coating Operations,’’ 

June 2009 (Rule 4606 TSD), at 3–4. We 

also noted that a few requirements for 

wood coatings are more stringent in 

other areas. See Rule 4606 TSD at 4. In 

response to Earthjustice’s comment, we 

have further evaluated the VOC limits in 

Rule 4606 and compared them to CTG 

recommendations and limits in other 

California air district regulations. 

First, with respect to the exemption in 

Rule 4606 for refinishing, replacement 

and custom replica furniture operations, 

this is not a RACT deficiency because 

the only operations of this type in the 

SJV have combined potential VOC 

emissions well below the 1996 Wood 

Furniture CTG’s applicability threshold. 

The 1996 Wood Furniture CTG provides 

recommendations for control of VOC 

emissions from wood furniture coating 

and cleaning operations located at a 

manufacturing site. See 1996 Wood 

Furniture CTG at 1–2, 7–3 and 

Appendix B at B–1 and B–2. The 

guidance applies to affected sources in 

extreme ozone nonattainment areas that 

potentially emit at least 10 tons per year 

(tpy) of VOC. Id. at 7–4. Rule 4606 

exempts refinishing, replacement, and 

custom replica furniture operations 

from VOC control requirements, but 

only two such facilities operate in the 

SJV area and their combined VOC 

emissions are well below 10 tons per 

year. See Rule 4606 TSD at 4.9 Because 

VOC emissions from these facilities are 

well below the major source and CTG 

applicability threshold of 10 tpy, section 

182 RACT does not apply to these two 

facilities. We agree, however, that 

additional VOC reductions could be 

achieved from wood refinishing, 

replacement and custom replica 

furniture operations in the SJV and 

recommended that SJVUAPCD consider 

adopting limits for these operations in 

the next revision of Rule 4606. See Rule 

4606 TSD at 4. 

Second, as to the statement in the 

Rule 4606 TSD that some requirements 

in other areas are more stringent than 

Rule 4606, we have reviewed several 

other California air district rules and do 

not have sufficient information to 

conclude that more stringent controls 

for this source category are reasonably 

available for implementation in the SJV. 

Id. According to SJVUAPCD’s final staff 

report for Rule 4606, Ventura County 

APCD (VCAPCD) has a VOC limit for 

sanding sealers of 240 grams/liter (see 

VCAPCD Rule 74.30 as amended June 

27, 2006, section B.1), which is lower 

than the limit of 275 grams/liter in 

SJVUAPCD’s Rule 4606 (see SJVUAPCD 

Rule 4606 section, 5.1), and San Diego 

APCD (SDAPCD) has two rules 

containing a VOC limit for surface 

preparation and paint stripping 

operations of 200 grams/liter (see 

SDAPCD Rules 67.11 and 67.11.1, as 

adopted September 25, 2002, sections 

(d)(5) and (d)(3), respectively), which is 

lower than the limit of 350 grams/liter 

in SJVUAPCD’s Rule 4606 (see 

SJVUAPCD Rule 4606, section 5.1). See 

SJVUAPCD, Final Staff Report, 

‘‘Proposed Amendments to: Rule 4603 

(Surface Coating of Metal Parts and 

Products), Rule 4606 (Wood Products 

Coating Operations), October 16, 2008, 

Appendix A at A–2 and A–3. On further 

investigation, it is not clear that the 

VOC limits for these wood coating 

categories in the Ventura and San Diego 

rules are actually achievable by the 

application of reasonably available 

controls. The VOC limits in SJVUAPCD 

Rule 4606 are equivalent to analogous 

requirements in several other California 

regulations that we have evaluated (see, 

e.g., SCAQMD Rule 1136 (as amended 

June 14, 1996), BAAQMD Regulation 8, 

Rule 32 (as amended August 5, 2009), 

and Sacramento Metropolitan AQMD 

(SMAQMD) Rule 463 (as amended 

September 25, 2008)), and Earthjustice 

has provided no information to support 

a conclusion that the SJVUAPCD has 

failed to adequately evaluate additional 

controls for wood coating operations 

that are reasonably available. 

Specifically, according to staff at the 

VCAPCD, the 240 grams/liter limit for 

wood sealers in VCAPCD Rule 74.30 

was based on a prior version of 

SCAQMD Rule 1136 from the mid1990s. See email dated October 31, 

2011, from Stan Cowen (VCAPCD) to 

Stanley Tong (EPA Region 9), RE: Wood 

Coating Rule 74.30. In 1996, however, 

SCAQMD amended Rule 1136 to 

increase the sealer limit from 240 

grams/liter up to 275 grams/liter and 

extended the compliance date from 

1996 to 2005. See SCAQMD Rule 1136 

(as amended June 14, 1996), at section 

(c)(1)(A)(i). EPA approved these 

revisions to SCAQMD Rule 1136 into 

the California SIP on August 18, 1998 

(63 FR 44132). The VOC limit in 

SJVUAPCD’s Rule 4606 for wood sealers 

(275 g/l) is equivalent to the limits in 

SCAQMD Rule 1136 (as amended June 

14, 1996), and several other California 

ozone nonattainment areas have also 

adopted VOC limits of 275 grams/liter 

or higher for these types of wood 

coatings. See, e.g., BAAQMD Regulation 

8, Rule 32 (as amended August 5, 2009) 

at section 8–32–302 and Sacramento 

SMAQMD Rule 463 (as amended 

September 25, 2008) at section 302. 

Although VCAPCD’s Rule 74.30 

continues to require a VOC limit of 240 

grams/liter for wood sealers, this is the 

only regulation we know of that 

contains a limit this low, and we do not 

have information indicating that wood 

sealers can generally meet a 240 grams/ 

liter limit by the application of 

reasonably available controls.10 Given at 

least one district has adopted a limit of 

240 grams/liter and at least one large 

manufacturer sells wood sealers that 

apparently can meet a 240 grams/liter 

limit, we encourage the SJVUAPCD to 

reevaluate Rule 4606 at the next 

opportunity to ensure that it requires all 

controls for wood sealers that are 

reasonably available for implementation 

in the SJV. At this time, however, we 

believe the limits in Rule 4606 for wood 

sealers meet RACT under CAA section 

182 for the 1997 8-hour ozone standard. 

Similarly, the VOC limit in 

SJVUAPCD’s Rule 4606 for paint 

strippers (350 g/l) is equivalent to or 

more stringent than the limits for this 

category of wood coatings in most other 

California nonattainment areas. See, 

e.g., SCAQMD Rule 1136 (as amended 

June 14, 1996), at section (c)(1)(B); 

SMAQMD Rule 463 (as amended 

September 25, 2008), at section 304; 

VCAPCD Rule 74–30 (as amended June 

27, 2006), at section B.3. The only 

California district rules we know of that 

contain lower limits for paint strippers 

are SDAPCD’s Rule 67.11 (‘‘Wood 

Products Coating Operations’’) and Rule 

67.11.1 (‘‘Large Coating Operations for 

Wood Products’’), both of which 

prohibit the use of VOC containing 


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11EPA approved SDAPCD Rule 67.11.1 into the 

California SIP on June 5, 2003. See 68 FR 33635. 

Rule 67.11 is not SIP-approved. 

12SCAQMD Rule 1142 (Marine Tank Vessel 

Operations) VOC limit is 2 lbs per 1,000 barrels, 

which is equivalent to approximately 0.05 lb per 

1,000 gallons (assuming 1 barrel = 42 gallons). 

13Ammonia and ammonium nitrate are not VOCs 

(40 CFR 51.100(s)), molasses is highly viscous and 

Palm Oil is a semi-solid at room temperature. 

Several Materials Safety Data Sheets for Palm Oil 

list its vapor pressure as: ‘‘not applicable’’, ‘‘N/A’’ 

and ‘‘none listed.’’ See, e.g., http:// 

www.sciencelab.com/msds.php?msdsId=9926383. 

materials for surface preparation or 

stripping unless at least one of the 

following conditions is met: (1) The 

material contains 200 grams/liter or less 

of VOC per liter of material, (2) the 

material has an initial boiling point of 

190 °C (374 °F or greater), or (3) the total 

VOC vapor pressure of the material is 20 

mm Hg or less at 20 °C (68 °F). See 

SDAPCD Rule 67.11 at section (d)(5) 

and Rule 67.11.1 at section (d)(3).11

Thus, although both of these rules 

contain a VOC limit of 200 grams/liter 

for paint strippers, this limit is only one 

of three different compliance options 

and it is not clear that facilities in the 

San Diego area have actually achieved 

the 200 grams/liter VOC limit. We do 

not have information indicating that 

paint strippers can generally meet a 200 

grams/liter limit by the application of 

reasonably available controls and 

Earthjustice has not provided any 

information to support such a 

conclusion. 

Based on this evaluation, we conclude 

that SJVUAPCD Rule 4606 satisfies 

RACT under CAA section 182 for the 

1997 8-hour ozone standard. As 

discussed above, however, we 

recommend that the SJVUAPCD 

consider revisiting the wood sealer limit 

and adding VOC limits for refinishing, 

replacement, and custom replica 

furniture operations the next time Rule 

4606 is amended. 

Comment 3d (Rule 4624—Transfer of 

Organic Liquid): 

Earthjustice states that EPA’s 2011 

RACT SIP TSD indicates more stringent 

limits exist for organic liquid loading 

activities but fails to explain why these 

limits are not reasonable for Rule 4624. 

Response 3d: 

Our 2011 RACT SIP TSD stated that 

the emission limit in Rule 4624 (0.08 lbs 

of VOC per 1,000 gallons of liquid 

transferred) is consistent with the VOC 

limits in other districts’ regulations, 

which range from 0.05 to 0.84 lbs of 

VOC per 1,000 gallons of gasoline. See 

2011 RACT SIP TSD at 19; see also 

SJVUAPCD Rule 4624 (as amended 

December 20, 2007) at section 5.0; 

SCAQMD Rule 1142 (as adopted July 

19, 1991) at section (c)(1)(B); and 

VCAPCD Rule 70 (as amended April 1, 

2009) at section C.1. We also stated that 

the South Coast AQMD provides the 

option of either meeting a limit of 0.05 

lb VOC per 1,000 gallons 12 or reducing 

VOC emissions by 95 percent weight 

from uncontrolled conditions. See 2011 

RACT SIP TSD at 19. In response to the 

comment, we are clarifying that this 

statement was in reference to SCAQMD 

Rule 1142, ‘‘Marine Tank Vessel 

Operations,’’ which applies to all 

‘‘loading, lightering, ballasting, and 

housekeeping events where a marine 

tank vessel is filled with an organic 

liquid,’’ or ‘‘where a liquid is placed 

into a marine tank vessel’s cargo tanks 

which had previously held organic 

liquid.’’ See SCAQMD Rule 1142 (as 

adopted July 19, 1991), section (a). 

SCAQMD Rule 1142 prohibits loading, 

lightering, ballasting, or housekeeping 

events in South Coast Waters unless the 

owner or operator of the marine tank 

vessel either limits VOC emissions to 

5.7 grams per cubic meter (2 lbs per 

1,000 barrels, which is approximately 

equivalent to 0.05 lbs/1000 gallons) of 

liquid loaded into a marine tank vessel 

or reduces VOC emissions by at least 95 

percent by weight from uncontrolled 

conditions. Id. at section (c). This VOC 

limit applies only to liquid loading or 

unloading operations on a marine tank 

vessel, which the rule defines as ‘‘any 

tugboat, tanker, freighter, passenger 

ship, barge, boat, ship, or watercraft, 

which is specifically constructed or 

converted to carry liquid cargo in 

tanks.’’ Id. at section (b). The rule does 

not apply to liquid loading or unloading 

operations at facilities onshore. The 

SCAQMD has a separate rule that limits 

VOC emissions from organic liquid 

loading or unloading operations at 

facilities onshore (Rule 462 Organic 

Liquid Loading), which contains the 

same VOC limit as SJVUAPCD Rule 

4624, 0.08 lb or less per 1,000 gallons 

of liquid transferred. See SCAQMD Rule 

462 (as amended May 14, 1999), section 

(d); see also Antelope Valley AQMD 

Rule 462 Organic Liquid Loading (as 

amended June 9, 1995), section (d)(1)(D) 

and Kern County APCD Rule 413 

Organic Liquid Loading (as amended 

March 7, 1996), section (IV.A). 

We also contacted SJVUAPCD staff to 

determine whether marine loading 

operations occur within the SJV and 

found that liquid transfers of ammonia, 

urea-ammonium nitrate, ammonia based 

fertilizers, molasses, and palm oil have 

occurred at or near the port of Stockton. 

Since there is no CTG for marine 

loading operations and we have no 

information indicating that emissions 

from the transfer of these liquids reach 

10 tons per year of VOC or NOX,13 we 

believe it is reasonable to conclude that 

section 182 RACT does not apply to 

these operations. The SCAQMD marine 

loading rule is designed to control 

emissions of gasoline, aviation fuels, 

crude oils and other liquids containing 

volatile organic compounds. As 

explained above, SJVUAPCD’s Rule 

4624, which regulates VOC emissions 

from the transfer of organic liquids at 

onshore facilities, is equivalent to 

analogous rules in other California 

districts, and Earthjustice does not 

identify any additional control option 

for this source category that the District 

has failed to adequately evaluate. 

Comment #4: 

Earthjustice asserts that SJVUAPCD 

applies ‘‘invalid economic tests for 

determining what rules are and are not 

reasonable’’ and rejects controls ‘‘not 

based solely on the cost-effectiveness of 

controls but based on an overly 

simplistic ratio of costs to profits for the 

industry,’’ referred to as the ‘‘‘10 percent 

of profits’ test, to determine whether 

controls are economically feasible.’’ 

Earthjustice asserts that this 10-percentof-profits test ‘‘has no connection to 

whether an industry is actually capable 

of bearing the costs of control, let alone 

whether the control should be 

considered cost-effective on a dollars 

per ton of emission reduction basis.’’ 

Referencing their own comments on the 

Open Burning Rule and Confined 

Animal Facilities Rule as examples, 

Earthjustice asserts that the District 

‘‘discards technologically feasible 

control measures based on its illegal test 

of economic feasibility.’’ Earthjustice 

also references EPA policy in support of 

its statement that EPA presumes it is 

reasonable for similar sources to bear 

similar costs of emission reductions and 

that capital costs, annualized costs, and 

cost effectiveness should be determined 

for all technologically feasible emission 

reduction options (quoting 57 FR 18070, 

18074, April 28, 1992). Earthjustice 

further argues that EPA ‘‘reiterates the 

proper test for economic feasibility 

* * * but then fails to explain how the 

District has complied with this 

interpretation of the statute.’’ Finally, 

Earthjustice states that ‘‘[u]ntil this 

failure has been corrected, EPA cannot 

reasonably conclude that the District’s 

rules satisfy RACT because EPA cannot 

reasonably claim that all technologically 

and economically feasible controls have 

been adopted by the District.’’ 

Response #4: 

We agree generally that an economic 

feasibility analysis based on the use of 

the SJVUAPCD’s ‘‘10 percent of profits’’ 


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14EPA has defined RACT as ‘‘the lowest emission 

limitation that a particular source is capable of 

meeting by the application of control technology 

that is reasonably available considering 

technological and economic feasibility.’’ See 44 FR 

53762 (September 17, 1979). 

15We note that Earthjustice’s comments refer to 

just two specific rules as examples in which the 

District applied the 10 percent of profits test—Rule 

4103, ‘‘Agricultural Burning,’’ and Rule 4570 

‘‘Confined Animal Feeding Operations.’’ We note 

further that Earthjustice did not comment on this 

issue on EPA’s most recent proposal to approve 

revisions to Rule 4570. See, 76 FR 56706 

(September 14, 2011). 

test is not a sufficient basis for rejecting 

a control option from consideration as 

RACT under CAA section 182. As 

explained in the 2011 RACT SIP TSD, 

EPA’s long-standing guidance on 

RACT14 states that the cost of using a 

control measure is considered 

reasonable if those same costs are borne 

by other comparable facilities. See 2011 

RACT SIP TSD at 11 (citing 59 FR 41998 

at 42009 (August 16, 1994) and 57 FR 

18070 at 18074 (April 28, 1992)). 

Earthjustice correctly notes that 

economic feasibility is largely 

determined by evidence that other 

sources in a source category have in fact 

applied the control technology in 

question and may also be based on cost 

effectiveness (i.e., calculation of the cost 

per amount of emission reduction in $/ 

ton). Id. We therefore do not endorse the 

District’s use of a ‘‘10 percent of the 

industry’s profit’’ test for evaluating the 

economic feasibility of an available 

control option for purposes of a RACT 

analysis. 

We disagree, however, with 

Earthjustice’s assertions that the District 

has ‘‘discard[ed] technologically feasible 

control measures based on its illegal test 

of economic feasibility’’ and that EPA 

has failed to explain how the District’s 

analyses are consistent with EPA’s 

interpretation of the CAA’s RACT 

requirement. 

In numerous guidance documents 

EPA has stated that several different 

factors, including cost effectiveness, 

may be considered in evaluating the 

economic feasibility of an available 

control option. See, e.g., 57 FR at 18074 

(‘‘[t]he capital costs, annualized costs, 

and cost effectiveness of an emission 

reduction technology should be 

considered in determining its economic 

feasibility’’) (emphasis added); 57 FR 

55620 at 55625 (November 25, 1992) 

(‘‘NOX Supplement to General 

Preamble’’) (‘‘comparability’’ of a NOX

RACT control level ‘‘shall be 

determined on the basis of several 

factors including, for example, cost, 

cost-effectiveness, and emission 

reductions’’); 59 FR 41998 at 42013 

(August 16, 1994) (‘‘PM–10 Addendum 

to General Preamble’’) (‘‘capital costs, 

annualized costs, and cost effectiveness 

of an emission reduction technology 

should be considered in determining its 

economic feasibility’’). EPA has also 

consistently stated that States may 

justify rejection of certain control 

measures as not ‘‘reasonably available’’ 

based on the technical and economic 

circumstances of the particular sources 

being regulated. See 2011 RACT SIP 

TSD at 11, 12 (referencing, inter alia, 44 

FR 53761 (September 17, 1979)). 

As we explained in the 2011 RACT 

SIP TSD and further in the individual 

TSDs associated with EPA’s previous 

actions on the District’s rules, the 

District generally considered multiple 

sources of information about the costs of 

available control options, including 

information from manufacturers, 

vendors, stakeholders, and other air 

districts (see Rule 4308—Final Draft 

Staff Report, Revised Proposed Rule 

4308 (Boilers, Steam Generators, and 

Process Heaters—0.075 MMBtu/hr to 2.0 

MMBtu/hr), October 20, 2005 Appendix 

C at C–3); technical reports, CTGs, US 

Economic Census and Internal Revenue 

Service data (see Rule 4607—Final Draft 

Staff Report, Revised Proposed 

Amendments to Rule 4607 (Graphic 

Arts and Paper, Film, Foil and Fabric 

Coatings), December 18, 2008, 

Appendix C at C–3, and Appendix D at 

D–8); and annualized costs of control 

options, California State oil and gas 

production reports, and Dun and 

Bradstreet profits (see Rule 4703—Final 

Staff Report Amendments to Rule 4703 

(Stationary Gas Turbines), September 

20, 2007, Appendix C at C–4 and 

Appendix D at D–8). Given EPA’s longstanding position that States may justify 

rejection of certain control measures as 

not ‘‘reasonably available’’ based on the 

technical and economic circumstances 

of the particular sources being 

regulated, it is appropriate for the 

District to consider multiple sources of 

information about the costs of potential 

control options to determine if they are 

economically feasible with respect to 

sources located within the SJV. 

EPA has reviewed the District’s 

technical and economic analyses as well 

as supplemental information for each of 

the RACT rules that we have categorized 

under groups 1 and 2.15 Based on these 

evaluations, we conclude that 

additional or more stringent controls are 

not reasonably available for 

implementation in the SJV area. See 

TSD at 13–32. For example, with respect 

to those crop categories subject to Rule 

4103 (Open Burning) for which the 

District concluded that alternatives to 

burning were not economically feasible 

(e.g., citrus orchard material), EPA 

considered several indicators of 

technical and economic feasibility, such 

as other State/local open burning 

prohibitions and information indicating 

current uncertainty about the feasibility 

of sending citrus orchard removal 

material to biomass facilities. See Final 

Rule, ‘‘Revisions to the California State 

Implementation Plan, San Joaquin 

Valley Unified Air Pollution Control 

District (SJVUAPCD),’’ signed 

September 30, 2011, at Response #2 

(pre-publication notice); see also 

Technical Support Document, 

SJVUAPCD Rule 4103, Open Burning, 

June 2011, at fn. 14. These evaluations 

adequately support our conclusion that 

additional burn prohibitions under Rule 

4103 are not reasonably available for 

implementation in the SJV at this time. 

Similarly, for those ‘‘Class Two 

mitigation measures’’ that the 

SJVUAPCD did not adopt in its October 

2010 revisions to Rule 4570 (Confined 

Animal Facilities), the District evaluated 

the cost effectiveness of the rejected 

VOC control systems (e.g., venting 

emissions from livestock barns to 

biofilters, replacing naturally ventilated 

poultry housing with mechanically 

ventilated housing) by calculating the 

annual capital costs, annual operating 

costs, and emissions reductions 

associated with each control option. See 

Technical Support Document, 

SJVUAPCD Rule 4570, Confined Animal 

Facilities, August 2011, at 7–8 and Final 

Rule, signed December 13, 2011 (prepublication notice); see also Final Draft 

Staff Report, Amended Revised 

Proposed Amendments to Rule 4570 

(Confined Animal Facilities), October 

21, 2010, Appendices C and E. These 

evaluations also adequately support our 

conclusion that additional VOC controls 

under Rule 4570 are not reasonably 

available for implementation in the SJV 

at this time. 

Thus, without endorsing the use of a 

‘‘10 percent of profits’’ test for economic 

feasibility, we find that analyses 

supporting the District’s RACT 

demonstration for the rules in groups 1 

and 2 adequately considered other 

appropriate factors, such as costs of 

control borne by comparable sources in 

other nonattainment areas and costeffectiveness (i.e., the cost per amount 

of emission reduction in $/ton). 

Comment #5: 

Earthjustice argues that in preparing a 

RACT SIP analysis, ‘‘the District must 

not only use the correct metric (i.e., 

cost-effectiveness rather than 

affordability) but must also justify the 

cutoff applied,’’ and that neither EPA 

nor the District purport to do this. 

Earthjustice also asserts that ‘‘what is 


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considered too costly for one area may 

not be for another because the 

attainment needs of the areas are 

different,’’ and that ‘‘what should be 

considered economically feasible in the 

Valley may represent a more aggressive 

control option than what would be 

required elsewhere.’’ 

Response #5: 

First, we disagree with Earthjustice’s 

assertion that neither EPA nor the 

District have used the correct metrics for 

economic feasibility. See Response #4 

above. Second, as to Earthjustice’s 

argument about the threshold (‘‘cutoff’’) 

applied to the analysis supporting the 

RACT SIP, it is not clear what specific 

‘‘cutoff’’ the commenter intended to 

refer to. To the extent Earthjustice 

intended to argue that the District 

should establish and justify a consistent 

cost-effectiveness threshold for 

determining the economic feasibility of 

potential RACT measures, we disagree. 

Neither EPA nor the District has 

established such a generalized costeffectiveness threshold for RACT 

purposes. Consistent with EPA policy, 

as discussed in Response #4, the District 

considers multiple factors in 

determining the economic feasibility of 

specific control options, such as cost 

effectiveness, the ratio of control costs 

to industry profits, control requirements 

in other nonattainment areas, and 

employment impacts. Thus, depending 

on the specific circumstances of the 

source category at issue and the control 

costs borne by comparable sources 

elsewhere, the District’s selected costeffectiveness ‘‘cutoff’’ can vary (e.g., 

industries dominated by large highly 

profitable operators may be subject to 

more expensive control requirements 

than less profitable sources). As 

discussed above, we believe the 

District’s economic feasibility analyses 

with respect to the source categories 

identified in group 1 and group 2 of our 

2011 RACT SIP TSD were adequate. 

Finally, as to the assertion that an 

economic feasibility analysis for sources 

in the SJV area may need to be more 

aggressive than elsewhere in light of the 

attainment needs, such analysis would 

need to be made for purposes of the 

RACM analysis under CAA section 

172(c)(1), which is a component of the 

attainment demonstration. See Response 

#1 above. 

III. Final Action and CAA 

Consequences 

A. Final Action 

Since our September 9, 2011 

proposal, we have approved the 

following SJVUAPCD rules as satisfying 

RACT under CAA section 182. 

Rule Title Amended Approved 

4103 ....................... Open Burning .......................................................................................................... 4/15/10 Signed 9/30/11. 

4311 ....................... Flares ...................................................................................................................... 6/18/09 11/3/11, 76 FR 68106. 

4401 ....................... Steam Enhanced Crude Oil Production Wells ....................................................... 6/16/11 11/16/11, 76 FR 70886. 

4565 ....................... Biosolids, Animal Manure, and Poultry Litter Operations ...................................... 3/15/07 Signed 12/13/11. 

4570 ....................... Confined Animal Facilities ...................................................................................... 10/21/10 Signed 12/13/11. 

4603 ....................... Surface Coating of Metal Parts and Products, Plastic Parts and Products, and 

Pleasure Craft.

9/17/09 11/1/11, 76 FR 67369. 

4605 ....................... Aerospace Assembly and Component Coating Operations ................................... 6/16/11 11/16/11, 76 FR 70886. 

4684 ....................... Polyester Resin Operations .................................................................................... 8/18/11 Signed 11/18/11. 

For the reasons provided in our 

September 9, 2011 proposed rule and 

further explained above in response to 

comments, EPA is partially approving 

under CAA section 110(k)(3) 

SJVUAPCD’s RACT demonstration 

adopted on April 16, 2009, based on our 

conclusion that it satisfies the 

requirements of CAA sections 182(b)(2) 

and (f) for the 1997 8-hour ozone 

NAAQS except as provided below. 

Simultaneously under CAA section 

110(k)(3), EPA is partially disapproving 

the RACT SIP based on our conclusion 

that the SJVUAPCD has not 

demonstrated that the following rules 

satisfy RACT under CAA sections 

182(b)(2) and (f) for the 1997 8-hour 

ozone standard. 

1. Rule 4352—Solid Fuel Fired 

Boilers, Steam Generators, and Process 

Heaters. 

2. Rule 4402—Crude Oil Production 

Sumps. 

3. Rule 4625—Wastewater Separators. 

4. Rule 4682—Polystyrene, 

Polyethylene, and Polypropylene 

Products Manufacturing. 

Additionally, EPA is partially 

disapproving the RACT SIP with respect 

to the following rules, which we have 

not yet approved as satisfying RACT 

under CAA sections 182(b)(2) and (f) for 

the 1997 8-hour ozone standard. 

1. Rule 4566—Organic Material 

Composting Operations. 

2. Rule 4694—Wine Fermentation and 

Storage Tanks. 

3. Fumigant Volatile Organic 

Compound Regulations—California 

Department of Pesticide Regulation. 

B. CAA Consequences of Final Partial 

Disapproval 

EPA is committed to working with the 

District and CARB to resolve the 

identified RACT deficiencies. We note 

that SJVUAPCD will not be required to 

submit a revised CAA section 182 RACT 

SIP demonstration for the 1997 8-hour 

ozone NAAQS if each of the rule 

revisions required by this action is 

accompanied by adequate supporting 

analyses demonstrating that the rule 

satisfies current RACT requirements and 

EPA fully approves it into the SIP. 

However, because we are finalizing a 

partial disapproval of the RACT SIP, the 

offset sanction in CAA section 179(b)(2) 

will apply in the SJV ozone 

nonattainment area 18 months after the 

effective date of today’s final 

disapproval. The highway funding 

sanctions in CAA section 179(b)(1) 

would apply in the area six months after 

the offset sanction is imposed. Neither 

sanction will be imposed under the 

CAA if California submits and we 

approve prior to the implementation of 

sanctions, SIP revisions that correct the 

RACT deficiencies in the individual 

rules identified in our proposed action. 

In addition to the sanctions, CAA 

section 110(c)(1) provides that EPA 

must promulgate a federal 

implementation plan (FIP) addressing 

the deficient RACT elements in the 

individual rules two years after March 

12, 2012, the effective date of this rule, 

if we have not approved a SIP revision 

correcting the deficiencies within two 

years. EPA previously found that the 

State had failed to submit a plan 

revision for SJV addressing the CAA 

section 182 RACT requirements for the 

1-hour ozone standard, starting a FIP 

clock that expired on January 21, 2011. 

See 74 FR 3442 (January 21, 2009). 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 


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entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals and 

partial approvals/partial disapprovals 

under section 110 and subchapter I, part 

D of the Clean Air Act do not create any 

new requirements but simply approve 

requirements that the State is already 

imposing. Therefore, because this 

partial approval/partial disapproval 

action does not create any new 

requirements I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

Under sections 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed 

into law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most cost 

effective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that the partial 

approval/partial disapproval action 

promulgated does not include a Federal 

mandate that may result in estimated 

costs of $100 million or more to either 

State, local, or tribal governments in the 

aggregate, or to the private sector. This 

Federal action approves pre-existing 

requirements under State or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely approves a State rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it 

approves a State rule implementing a 

Federal standard. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 


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perform activities conducive to the use 

of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

rulemaking. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the Clean Air Act. 

Accordingly, this action merely 

approves certain State regulations for 

inclusion into the SIP under the CAA 

section 110 and subchapter I, part D and 

disapproves others, and will not in-andof itself create any new requirements. 

Accordingly, it does not provide EPA 

with the disproportionate human health 

or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898. 

K. Congressional Review Act 

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). This rule 

will be effective on March 12, 2012. 

L. Petitions for Judicial Review 

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 12, 2012. 

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, Intergovernmental 

relations, Incorporation by reference, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: December 15, 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] 

■ 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)(407) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(407) A plan was submitted on June 

18, 2009 by the Governor’s designee. 

(i) [Reserved] 

(ii) Additional Material. 

(A) San Joaquin Valley Air Pollution 

Control District. 

(1) Reasonably Available Control 

Technology (RACT) Demonstration for 

Ozone State Implementation Plan (SIP), 

adopted April 16, 2009. 

* * * * * 

[FR Doc. 2012–139 Filed 1–9–12; 8:45 am] 

BILLING CODE P 


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