ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA—R09-OAR—2011-0547; FRL—] Revisions to the California State Implementation Plan, San Joaquin Valley UnifiedAir Pollution Control District (SJVUAPCD) AGENCY: Environmental ProtectionAgency (EPA) ACTION: Final rule. SUNMARY: EPA is finalizing approval of revisions to the San Joaquin ValleyAir Pollution Control District (SJVUAPCD) portion ofthe California State Implementation Plan (SIP)

. These revisions were proposed in the Federal Register on July 11, 2011 and concern volatile organic compound (VOC), oxides ofnitrogen (NOx), andparticulate matter (PM) emissions from openburning. We are approving a local rule that regulates these emission

sources under the CleanAirAct as amended in 1990 (CAA or the Act) EFFECTIVE DATE: This rule is effective on [Insert date 30 days fromthe date ofpublication in the Federal Register] ADDRESSES: EPA has established docket number EPA-R09-OAR-2011- 0547 for this action. Generally, documents in the docket for this action are available electronically at http://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at http://www.regulations.gov, some2 informationmaybe publicly available only at the hard copy location (e.g., copyrightedmaterial, large maps, multi—volume reports), and some may not be available in either location (e.g., confidential business information (CBI))

. To inspect the hard copymaterials, please schedule an appointment during normal business hours with the contact listed in the FORFURTHER INFORMATIONCONTACT section. FORFURTHERINFORMATION CONTACT: Rynda Kay, EPA Region IX, (415) 947-4118, kay.rynda@epa.gov. SUPPLENThRY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table ofContents I. ProposedAction II. Public Comments and EPA Responses III. EPAAction IV. Statutory and Executive Order Reviews I. ProposedAction On July 11, 2011 (76 FR 132), EPAproposed to approve the following rules into the California SIP.

Local Rule 

### # Rule Title Adopted Submitted Agency SJVUAPCD 4103 Open Burning 04/15/10 04/05/113
Local Rule # Rule Title Adopted Submitted Agency SJVUAPCD Table 9—1, Final Staff 07/21/10 04/05/11 Report and Recommendations on Agricultural Burning

Weproposedto approve these rules because we determined that they compliedwith the relevant CAArequirements. Our proposed action contains more information on the rules and our evaluation. II. Public Comments andEPAResponses E?A’s proposed actionprovided a 30-daypublic comment period. During this period, we received comments fromthe following party. 1. Sarah Jackson, Earthjustice; letter and e—mail dated and receivedAugust 10, 2011. The comments and our responses are summarizedbelow. Comment#1: Earthjustice commented on the meaning of reasonably available control measures (RACM) under section 172(c)(1) ofthe CAA, noting that “EPAhas interpreted ‘reasonably available’ to be ameasure that is ‘technologically and economically feasible and canbe readily implemented.’” Earthjustice further asserted that “economic feasibility considers more than simply affordability and the cost-benefit4 ratio” and that “Congress intended RACM to be applied as those

measures became available.” Response #1: We agree that RACM under section 172(c)(1) incorporates considerations oftechnical and economic feasibility. We note, however, that, “Congress providedEPA and States a great deal ofdeference for determining whatmeasures to include in an attainmentplan” under CAA section 172(c)(1) and that “[b]y including language in Section 172(c)(1) that only

‘reasonably available’ measures be considered for RACT/RACM, and that implementation ofthese measures needbe applied only ‘as expeditiously as practicable,’ Congress clearly intended that the RACT/RACM requirement be drivenby an overall requirement that the measure be ‘reasonable.’” 72 FR 20610 (April 25, 2007) Comment#2: Earthjustice asserted that, “[t]he District’s RACM determination is flawedbecause it applies a feasibility test that ±5 inconsistent with EPA guidance and CAA standards.” Inparticular, Earthjustice arguedthat the “10 percent ofthe crop category’s net profits” test usedby District “fails to analyze whether an alternative is technologically or economically feasible.” Earthjustice suggestedthat the District should conduct amore comprehensive economic analysis taking into considerationhow the costs of alternatives to open burning will impact production, employment, competition, andprices.5 Reponse #2: As an initial matter, we disagree with the commenter that the District has made a “‘RACM determination” with respect to Rule 4103. The District has provided an assessment of the economic andtechnical feasibility ofpotential control
measures for this source category, which EPAhas evaluatedto determine whether additional controls for this source category might be reasonably available for implementation in the area. As stated in the TSD for our proposal, EPAwill take action in separate rulemakings on the State’s RACM demonstration for the relevantNAAQS based on an evaluation ofthe control measures submitted as a whole and their overall potential to advance the applicable attainment dates in the SJV. We disagree that the District’s feasibility test is inconsistent with the CAI-\ or EPA guidance. Neither the CAAnor EPA’s implementing regulations define “technical and economic feasibility” forpurposes ofdetermining what control measures are “reasonably available,” and, as noted above, section 172(c)(1) provides considerable deference to States’ determinations ofwhat control measures are reasonably available. In this case, the District assessed the availability of alternatives to openburning by evaluating both technological and economic feasibility. See, e.g. StaffReport §1.2. For those crop categories for which it found a technically feasible alternative6 to burning, the District assessed economic feasibilityby comparing the per—acre costs for the alternative to the per-acre netprofit for that category. Id. §1.2.2. Where an alternative’s cost exceeded ten percent ofprofits, the District found the alternative to be economically infeasible. Id. Table 9-1. As explainedby the District “[t]he 10 percent threshold utilized in this analysis represents the economic significance level generally utilizedby the District in the development of District rules, andrepresents the level that a regulatory action would pose a significant economic impact to affected sources.” Id. §1.2.2. As we have previously noted, looking at the percent of profits can provide useful information concerning the economic feasibility ofparticular control measures. See, e.g., 75 FR 2082. Although we encourage the District to conduct further economic analysis ofthe feasibility of alternatives to open burning, we also recognize that resource constraints limit the amount of analysis that the District canperform. We also note that our evaluation ofthe stringency of the rule does not rest solely upon the District’s assessment of economic and technical feasibility, but also takes into consideration other indicators oftechnical and economic feasibility. See 72 FR 20614 (“in reviewing the State’s selection7 ofmeasures for RACM.

. . EPAmay independently supplement the rationale ofthe State

. . .“) . For example, as noted in the TSD,
we compared the control requirements in Rule 4103 with analogous rules in other local districts and states and concluded that Rule 4103 was as stringent as ormore stringent than those other rules. We have not received any information to undermine this conclusion. As such, we continue to believe that Rule 4103 requires all control measures that have been demonstratedto be “reasonably available” for openburning activities in the San JoaquinValley. Comment#3: Earthjustice referred to a letter indicating that the District will no longer permit openburning of citrus orchard removals “when case-by—case analysis indicates sufficient biomass plant capacity andthe availability ofeconomically feasible chipping services.” Earthjustice argued that “[s]uch Director’s discretion is not approvable into the SIP.” Response #3: The District has not submitted these additional restrictions on openburning for approval into the SIP, andwe therefore do not need to evaluate their approvability, and do not rely on them for our approval ofRule 4103.Comment#4: Earthjustice argued that, “Even ifEPA finds the District’s percent ofprofits test is a sufficientmeans of8 demonstrating economic infeasibility to reject potential RACM controls, EPA should reject the proposed rule because the District’s application ofthis test is flawed.” Response #4: As noted above, we have considered other factors in addition to the District’s “percent ofprofits” test in assessing the technical and economic feasibility ofpotential RACM controls. Nonetheless, Earthjustice’s specific points regarding the District’s application ofthe percent ofprofits

are addressedbelow. Comment#4.a: Earthjustice noted that “the District calculated the cost ofcompliance ‘after tax’ without accounting for tax implications of increased control costs” and asserted that “[t]his failure to adjust the cost estimates precludes any meaningful analysis ofcosts.” Response #4.a: District staffexplainedthat their calculations followed “EPA andARB establishedmethodologies.” Additionally, District staffclarified that, “the primary costs associated withpotential alternatives to openburning result from service costs, such as through the hiring ofchipping and hauling services. The District does not expect tax implications associatedwith these non—capital expenditures, ifany, to impact9 the cost analyses associatedwith this project.” We are not

aware of any information that contradicts the District’s assessment in this regard. Comment#4.b: Earthjustice commentedthat, “the District

uses a 10-year cost amortization schedule withoutproviding a rational basis for this term ofyears.” Earthjustice arguedthat this assumption underestimates the lifespan ofthe vineyards and orchards and therefore produces artificially high annual cost figures. Response #4.b: In response to this comment, District staff noted thatAppendix H to the StaffReportprovided information on the productivity over time of specific crops. District staffalso listednumerous reasons for assuming a 10—year amortization schedule that were providedwhen this issue was raised at a California Senate Hearing including, for example: 1. 10-year analysis is used to standardize comparisons

across various source categories (Example: 10-year analysis is also used forboilers, engines, and other source categories with real life spans in excess of20-30 years) 2. Standard 10-year analysis is usedby the CaliforniaAir Resources Board and air districts for evaluating airpollution

1 Email fromKoshoua Thao, SJVUAPCD, to Rynda Kay, EPA, September 22, 2011.10 control economics. 3. Farms can change owners and change crops fairly frequently: For farms, periods longer than 10—years are speculative since farmviability is subject to global market forces, weather, water availability, etc. 2 Comment#4.c: Earthjustice contended that the District “insertedbaseless assumptions to inflate the claimed costs. For example, the District assumes citrus root removal material must be separated fromthe tree material and transported to a composting facility at an additional cost of $244 per acre.” Earthjustice claimed that, contrary to this assumption, biomass facility operators have indicated that roots canbe chipped and transportedto biomass facilities along with the rest ofthe chippedmaterial. Similarly, Earthjustice assertedthat the evidence in the recordundermines the District’s suggestion that grinding and haulingmaterial to abiomass plantmay not be technically feasible. Response #4.c: We acknowledge some uncertainty about the cost of citrus root removal and disposal. According to District staff, “the root removal process is independent fromthe chipping andbiomass operations.” StaffReportAppendix D at D-34. The District explains, “Citrus is often grown in clay—like soil that
2 Id.11 adheres to its roots” and “biomass powerplant operators will not accept any organic material with dirt or other unburnable contaminants”

3
. We do not dispute that biomass facilities have indicated that rOots canbe chipped and transportedto biomass facilities, but we are not aware ofany other evidence to support this claim and demonstrate that root chipping andbiomass burning is reasonably available. This appears to be an evolving area and
we encourage the District to reexamine whether itmaybe possible to send some or all citrus roots to biomass rather than landfill
or compost. Nonetheless, at this time, we do not have sufficient specific evidence to challenge the District’s assumption in this regard. Coniment#4.d: Earthjustice argued that “[t]he District’s allowance for walnut, almond, andpecan growers whose total nut acreage is less than 3,500 acres to burn 20 acres ofprunings, plus an additional unrestricted amount ifcertain conditions are met, blatantly disregards any economic feasibility analysis.” Response #4.d: We disagree that this allowance disregards any economic feasibility analysis. The District found that the cost of shredding up to 20 acres at once was not economically feasible and that shredding 20-plus acres was feasible only when
a custom shredderwas available. See StaffReport §3.7.3. As a 3 Id.12 result, the District adopted an automatic 20 acre allowance plus

a discretionary allowance depending on contractor availability. Comment#5: Earthjustice contended that additional reductions are reasonably available under the appropriate feasibility analysis. The specific arguments raisedby Earthjustice in support of its contention are addressedbelow. Comment#5.a: Earthjustice arguedthat the proposed alternative to openburning ofcitrus orchard removal materials (grinding andhauling orchard removal materials to abiomass plant) is technically feasible because the biomass powerplants that use San Joaquin Valley agricultural waste are physically capable ofhandling the 54,035—ton increase inmaterial that wouldbe causedby a total prohibition onburning citrus orchard removals. Response #5.a: We agree that it is technically feasible to grind andhaul orchard removal materials to a biomass plant. It is less clear, however, whether it is economically feasible. Even assuming that there is currently sufficient capacity for citrus removal materials atbiomass facilities, the District has concludedthat “reliance onbiomass facilities as a primary, long-term alternative method to openburning is not possible since there are no long-term federal or state funding commitments for the biomass facilities

. . .“ StaffReport at 7—50. In13 addition, the StaffReport notes that, since urban waste is typically less expensive than agricultural waste, urban waste (particularly construction debris) may displace some ofthe current capacity for agricultural waste, as the economy improves and construction activity increases. Id. at 7-49. Additionally, the District explains that “citrus material is typically less desirable” than otherbiomass materials 4 andmustbe blended with other biomass fuels. StaffReport at 7—37. In light ofthis economic uncertainty, EPAhas recommended that the District continue closelymonitoring the economic feasibility of sending citrus orchard removal material to biomass. In response, the District has agreedto ban the burning ofcitrus orchards “on a case-by—case basis when analysis indicates sufficient biomass capacity and the availability of economically feasible chipping services.” 5 We believe that this interim step will have significant air qualitybenefits andwe encourage the District to considerwhether a complete orpartial ban on citrus orchardburning is economically feasible. Nonetheless, we continue to believe that such aban has not been demonstrated to be economically feasible at this time. Comment#5.b: Earthjustice claimed that the proposed

4 Id. 5 See letter dated June 27, 2011, from Seyed Sadredin to Deborah Jordan.14 alternative to openburning of almond, walnut andpecan prunings (shredding the prunings and leaving the materials on the orchard floor) is technically feasible. Response #5.b: As with the previous comment, we agree that this is technically feasible, but not that it has been shown to be economically feasible at all times. The District concluded that, although shredding is a technically feasible alternative to openburning, there is an insufficient supply ofcustom shredding services available to smaller farms. StaffReportAppendix D at D—36. EPAbelieves this is a reasonable conclusion based on historical data. However, as noted in the TSD, we recommend that the District reevaluate the availability ofcontractors to shred nut prunings based on updated data. Comment#5.c: Earthjustice claimed that these proposed alternatives to openburning of citrus orchard removal materials and almond, walnut andpecanprunings are also economically feasible. Response #5.c: The District’s economic analysis indicated that sending citrus removal materials to biomass was not economically feasible. StaffReport Table 3-4. Similarly, the District’s economic analysis indicated that the cost of shredding prunings from less than 25 acres at once was not economically feasible. For the reasons noted above (see responses 4c, 4d, and15 5a) and given that no other agencyhas adoptedmore stringent restrictions on open burning than those currently in place in the District, we believe these conclusions are reasonable at this time. However, we encourage the District to reevaluate these postponements to ensure that the State adopts all RACM for open burning activities as expeditiously as practicable. III. EPAAction No comments were submitted that change our assessment that the submitted rules comply with the relevant CAArequirements. Therefore, as authorized in section 110(k)(3) ofthe Act, EPA is fully approvingthese rules into the California SIP. IV. Statutory andExecutive OrderReviews Under the CleanAirAct, the Administrator is requiredto approve a SIP submission that complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve State choices, provided that theymeet the criteria of the Clean AirAct. Accordingly, this actionmerely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposedby State law. For that reason, this action:16

• is not a “significant regulatory action” subject to review by the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collectionburden under the provisions ofthe PaperworkReductionAct (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 FlexibilityAct (5 u.s.c. 601 et seq.);

• does not contain any unfundedmandate or significantly or uniquely affect small governments, as described in the UnfundedMandates ReformAct of 1995 (Public Law 104—4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) ofthe National Technology Transfer andAdvancementAct of 1995 (15

u.s.c. 272 note) because application ofthose requirements wouldbe inconsistent with the cleanAirAct; and17

• does not provide EPAwith the discretionary authority to address disproportionate human health or environmental effects withpractical, appropriate, and legallypermissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994) In addition, this rule does not have tribal implications as specifiedby Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, andEPAnotes that it will not impose substantial direct costs on tribal governments orpreempt tribal law. The Congressional ReviewAct, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generallyprovides thatbefore a rulemay take effect, the agencypromulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPAwill submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication of the rule in the Federal Register. Amajor rule cannot take effect until 60 days after it is published in the Federal18 Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) ofthe Clean AirAct, petitions for judicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit by [FEDERAL REGISTER OFFICE: insert date 60 days from date ofpublication ofthis document in the Federal Register]

. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis action for the purposes ofjudicial review nor does it extend the time within which a petition for judicial review maybe filed, and shall not postpone the effectiveness of such rule or action. This actionmay not be challenged later in proceedings to enforce its requirements (see section 307(b)(2))

List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

red B1 mnfe1d, Region IX.dministrator,