ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA—R09-OAR—2011-0547; FRL—]

Revisions to the California State Implementation Plan, San

Joaquin Valley Unified Air Pollution Control District (SJVUAPCD)

AGENCY: Environmental Protection Agency (EPA)

ACTION: Final rule.

SUNMARY: EPA is finalizing approval of revisions to the San

Joaquin Valley Air Pollution Control District (SJVUAPCD) portion

of the California State Implementation Plan (SIP) . These

revisions were proposed in the Federal Register on July 11, 2011

and concern volatile organic compound (VOC), oxides of nitrogen

(NOx), and particulate matter (PM) emissions from open burning.

We are approving a local rule that regulates these emission

sources under the Clean Air Act as amended in 1990 (CAA or the

Act)

EFFECTIVE DATE: This rule is effective on [Insert date 30 days

from the date of publication 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, some
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information may be publicly available only at the hard copy

location (e.g., copyrighted material, large maps, multi—volume

reports), and some may not be available in either location (e.g.,

confidential business information (CBI)) . To inspect the hard

copy materials, please schedule an appointment during normal

business hours with the contact listed in the FOR FURTHER

INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Rynda Kay, EPA Region IX, (415)

947-4118, kay.rynda@epa.gov.

SUPPLENThRY INFORMATION: Throughout this document, “we,” “us”

and “our” refer to EPA.

Table of Contents

I. Proposed Action

II. Public Comments and EPA Responses

III. EPA Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

On July 11, 2011 (76 FR 132), EPA proposed to approve the

following rules into the California SIP.

Local Rule # Rule Title Adopted Submitted

Agency

SJVUAPCD 4103 Open Burning 04/15/10 04/05/11
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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

We proposed to approve these rules because we determined

that they complied with the relevant CAA requirements. Our

proposed action contains more information on the rules and our

evaluation.

II. Public Comments and EPA Responses

E?A’s proposed action provided a 30-day public comment

period. During this period, we received comments from the

following party.

1. Sarah Jackson, Earthjustice; letter and e—mail dated and

received August 10, 2011.

The comments and our responses are summarized below.

Comment #1: Earthjustice commented on the meaning of

reasonably available control measures (RACM) under section

172(c) (1) of the CAA, noting that “EPA has interpreted

‘reasonably available’ to be a measure that is ‘technologically

and economically feasible and can be readily implemented.’”

Earthjustice further asserted that “economic feasibility

considers more than simply affordability and the cost-benefit
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ratio” and that “Congress intended RACM to be applied as those

measures became available.”

Response #1: We agree that RACM under section 172(c) (1)

incorporates considerations of technical and economic

feasibility. We note, however, that, “Congress provided EPA and

States a great deal of deference for determining what measures to

include in an attainment plan” under CAA section 172(c) (1) and

that “[b]y including language in Section 172(c) (1) that only

‘reasonably available’ measures be considered for RACT/RACM, and

that implementation of these measures need be applied only ‘as

expeditiously as practicable,’ Congress clearly intended that the

RACT/RACM requirement be driven by an overall requirement that

the measure be ‘reasonable.’” 72 FR 20610 (April 25, 2007)

Comment #2: Earthjustice asserted that, “[t]he District’s

RACM determination is flawed because it applies a feasibility

test that ±5 inconsistent with EPA guidance and CAA standards.”

In particular, Earthjustice argued that the “10 percent of the

crop category’s net profits” test used by District “fails to

analyze whether an alternative is technologically or economically

feasible.” Earthjustice suggested that the District should

conduct a more comprehensive economic analysis taking into

consideration how the costs of alternatives to open burning will

impact production, employment, competition, and prices.
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Reponse #2: As an initial matter, we disagree with the

commenter that the District has made a “‘RACM determination” with

respect to Rule 4103. The District has provided an assessment of

the economic and technical feasibility of potential control

measures for this source category, which EPA has evaluated to

determine whether additional controls for this source category

might be reasonably available for implementation in the area. As

stated in the TSD for our proposal, EPA will take action in

separate rulemakings on the State’s RACM demonstration for the

relevant NAAQS based on an evaluation of the control measures

submitted as a whole and their overall potential to advance the

applicable attainment dates in the SJV.

We disagree that the District’s feasibility test is

inconsistent with the CAI-\ or EPA guidance. Neither the CAA nor

EPA’s implementing regulations define “technical and economic

feasibility” for purposes of determining what control measures

are “reasonably available,” and, as noted above, section

172(c) (1) provides considerable deference to States’

determinations of what control measures are reasonably available.

In this case, the District assessed the availability of

alternatives to open burning by evaluating both technological and

economic feasibility. See, e.g. Staff Report §1.2. For those crop

categories for which it found a technically feasible alternative
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to burning, the District assessed economic feasibility by

comparing the per—acre costs for the alternative to the per-acre

net profit for that category. Id. §1.2.2. Where an alternative’s

cost exceeded ten percent of profits, the District found the

alternative to be economically infeasible. Id. Table 9-1. As

explained by the District “[t]he 10 percent threshold utilized in

this analysis represents the economic significance level

generally utilized by the District in the development of District

rules, and represents the level that a regulatory action would

pose a significant economic impact to affected sources.” Id.

§1.2.2.

As we have previously noted, looking at the percent of

profits can provide useful information concerning the economic

feasibility of particular control measures. See, e.g., 75 FR

2082. Although we encourage the District to conduct further

economic analysis of the feasibility of alternatives to open

burning, we also recognize that resource constraints limit the

amount of analysis that the District can perform.

We also note that our evaluation of the stringency of

the rule does not rest solely upon the District’s assessment of

economic and technical feasibility, but also takes into

consideration other indicators of technical and economic

feasibility. See 72 FR 20614 (“in reviewing the State’s selection
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of measures for RACM. . . EPA may independently supplement the

rationale of the State . . .“) . For example, as noted in the TSD,

we compared the control requirements in Rule 4103 with analogous

rules in other local districts and states and concluded that Rule

4103 was as stringent as or more stringent than those other

rules. We have not received any information to undermine this

conclusion. As such, we continue to believe that Rule 4103

requires all control measures that have been demonstrated to be

“reasonably available” for open burning activities in the San

Joaquin Valley.

Comment #3: Earthjustice referred to a letter indicating

that the District will no longer permit open burning of citrus

orchard removals “when case-by—case analysis indicates sufficient

biomass plant capacity and the availability of economically

feasible chipping services.” Earthjustice argued that “[s]uch

Director’s discretion is not approvable into the SIP.”

Response #3: The District has not submitted these

additional restrictions on open burning for approval into the

SIP, and we therefore do not need to evaluate their

approvability, and do not rely on them for our approval of Rule

4103.

Comment #4: Earthjustice argued that, “Even if EPA finds

the District’s percent of profits test is a sufficient means of
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demonstrating economic infeasibility to reject potential RACM

controls, EPA should reject the proposed rule because the

District’s application of this test is flawed.”

Response #4: As noted above, we have considered other

factors in addition to the District’s “percent of profits” test

in assessing the technical and economic feasibility of potential

RACM controls. Nonetheless, Earthjustice’s specific points

regarding the District’s application of the percent of profits

are addressed below.

Comment #4.a: Earthjustice noted that “the District

calculated the cost of compliance ‘after tax’ without accounting

for tax implications of increased control costs” and asserted

that “[t]his failure to adjust the cost estimates precludes any

meaningful analysis of costs.”

Response #4.a: District staff explained that their

calculations followed “EPA and ARB established methodologies.”

Additionally, District staff clarified that, “the primary costs

associated with potential alternatives to open burning result

from service costs, such as through the hiring of chipping and

hauling services. The District does not expect tax implications

associated with these non—capital expenditures, if any, to impact
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the cost analyses associated with this project.” We are not

aware of any information that contradicts the District’s

assessment in this regard.

Comment #4.b: Earthjustice commented that, “the District

uses a 10-year cost amortization schedule without providing a

rational basis for this term of years.” Earthjustice argued that

this assumption underestimates the lifespan of the vineyards and

orchards and therefore produces artificially high annual cost

figures.

Response #4.b: In response to this comment, District staff

noted that Appendix H to the Staff Report provided information on

the productivity over time of specific crops. District staff also

listed numerous reasons for assuming a 10—year amortization

schedule that were provided when this issue was raised at a

California Senate Hearing including, for example:

1. 10-year analysis is used to standardize comparisons

across various source categories (Example: 10-year analysis is

also used for boilers, engines, and other source categories with

real life spans in excess of 2 0-30 years)

2. Standard 10-year analysis is used by the California Air

Resources Board and air districts for evaluating air pollution

1 Email from Koshoua Thao, SJVUAPCD, to Rynda Kay, EPA, September

22, 2011.
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control economics.

3. Farms can change owners and change crops fairly

frequently: For farms, periods longer than 10—years are

speculative since farm viability is subject to global market

forces, weather, water availability, etc. 2

Comment #4.c: Earthjustice contended that the District

“inserted baseless assumptions to inflate the claimed costs. For

example, the District assumes citrus root removal material must

be separated from the tree material and transported to a

composting facility at an additional cost of $244 per acre.”

Earthjustice claimed that, contrary to this assumption, biomass

facility operators have indicated that roots can be chipped and

transported to biomass facilities along with the rest of the

chipped material. Similarly, Earthjustice asserted that the

evidence in the record undermines the District’s suggestion that

grinding and hauling material to a biomass plant may not be

technically feasible.

Response #4.c: We acknowledge some uncertainty about the

cost of citrus root removal and disposal. According to District

staff, “the root removal process is independent from the chipping

and biomass operations.” Staff Report Appendix D at D-34. The

District explains, “Citrus is often grown in clay—like soil that

2 Id.
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adheres to its roots” and “biomass power plant operators will not

accept any organic material with dirt or other unburnable

contaminants” 3.We do not dispute that biomass facilities have

indicated that rOots can be chipped and transported to biomass

facilities, but we are not aware of any other evidence to support

this claim and demonstrate that root chipping and biomass burning

is reasonably available. This appears to be an evolving area and

we encourage the District to reexamine whether it may be possible

to send some or all citrus roots to biomass rather than landfill

or compost. Nonetheless, at this time, we do not have sufficient

specific evidence to challenge the District’s assumption in this

regard.

Coniment #4.d: Earthjustice argued that “[t]he District’s

allowance for walnut, almond, and pecan growers whose total nut

acreage is less than 3,500 acres to burn 20 acres of prunings,

plus an additional unrestricted amount if certain conditions are

met, blatantly disregards any economic feasibility analysis.”

Response #4.d: We disagree that this allowance disregards

any economic feasibility analysis. The District found that the

cost of shredding up to 20 acres at once was not economically

feasible and that shredding 20-plus acres was feasible only when

a custom shredder was available. See Staff Report §3.7.3. As a

3 Id.
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result, the District adopted an automatic 20 acre allowance plus

a discretionary allowance depending on contractor availability.

Comment #5: Earthjustice contended that additional

reductions are reasonably available under the appropriate

feasibility analysis. The specific arguments raised by

Earthjustice in support of its contention are addressed below.

Comment #5.a: Earthjustice argued that the proposed

alternative to open burning of citrus orchard removal materials

(grinding and hauling orchard removal materials to a biomass

plant) is technically feasible because the biomass power plants

that use San Joaquin Valley agricultural waste are physically

capable of handling the 54,035—ton increase in material that

would be caused by a total prohibition on burning citrus orchard

removals.

Response #5.a: We agree that it is technically feasible to

grind and haul orchard removal materials to a biomass plant. It

is less clear, however, whether it is economically feasible. Even

assuming that there is currently sufficient capacity for citrus

removal materials at biomass facilities, the District has

concluded that “reliance on biomass facilities as a primary,

long-term alternative method to open burning is not possible

since there are no long-term federal or state funding commitments

for the biomass facilities . . .“ Staff Report at 7—50. In
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addition, the Staff Report notes that, since urban waste is

typically less expensive than agricultural waste, urban waste

(particularly construction debris) may displace some of the

current capacity for agricultural waste, as the economy improves

and construction activity increases. Id. at 7-49. Additionally,

the District explains that “citrus material is typically less

desirable” than other biomass materials 4and must be blended with

other biomass fuels. Staff Report at 7—37.

In light of this economic uncertainty, EPA has

recommended that the District continue closely monitoring the

economic feasibility of sending citrus orchard removal material

to biomass. In response, the District has agreed to ban the

burning of citrus orchards “on a case-by—case basis when analysis

indicates sufficient biomass capacity and the availability of

economically feasible chipping services.” 5We believe that this

interim step will have significant air quality benefits and we

encourage the District to consider whether a complete or partial

ban on citrus orchard burning is economically feasible.

Nonetheless, we continue to believe that such a ban has not been

demonstrated to be economically feasible at this time.

Comment #5.b: Earthjustice claimed that the proposed

4 Id.

5 See letter dated June 27, 2011, from Seyed Sadredin to Deborah

Jordan.
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alternative to open burning of almond, walnut and pecan prunings

(shredding the prunings and leaving the materials on the orchard

floor) is technically feasible.

Response #5.b: As with the previous comment, we agree that

this is technically feasible, but not that it has been shown to

be economically feasible at all times. The District concluded

that, although shredding is a technically feasible alternative to

open burning, there is an insufficient supply of custom shredding

services available to smaller farms. Staff Report Appendix D at

D—36. EPA believes this is a reasonable conclusion based on

historical data. However, as noted in the TSD, we recommend that

the District reevaluate the availability of contractors to shred

nut prunings based on updated data.

Comment #5.c: Earthjustice claimed that these proposed

alternatives to open burning of citrus orchard removal materials

and almond, walnut and pecan prunings are also economically

feasible.

Response #5.c: The District’s economic analysis indicated

that sending citrus removal materials to biomass was not

economically feasible. Staff Report Table 3-4. Similarly, the

District’s economic analysis indicated that the cost of shredding

prunings from less than 25 acres at once was not economically

feasible. For the reasons noted above (see responses 4c, 4d, and
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5a) and given that no other agency has adopted more stringent

restrictions on open burning than those currently in place in the

District, we believe these conclusions are reasonable at this

time. However, we encourage the District to reevaluate these

postponements to ensure that the State adopts all RACM for open

burning activities as expeditiously as practicable.

III. EPA Action

No comments were submitted that change our assessment that

the submitted rules comply with the relevant CAA requirements.

Therefore, as authorized in section 110(k) (3) of the Act, EPA is

fully approving these rules into the California SIP.

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to

approve a SIP submission that complies with the provisions of the

Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40

CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is

to approve State choices, provided that they meet the criteria of

the Clean Air Act. Accordingly, this action merely approves

State law as meeting Federal requirements and does not impose

additional requirements beyond those imposed by State law. For

that reason, this action:
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• is not a “significant regulatory action” subject to review

by the Office of Management and Budget under Executive Order

12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the

provisions of the Paperwork Reduction Act (44 u.s.c. 3501 et

seq.);

• is certified as not having a significant economic impact on

a substantial number of small entities under the Regulatory

Flexibility Act (5 u.s.c. 601 et seq.);

• does not contain any unfunded mandate or significantly or

uniquely affect small governments, as described in the

Unfunded Mandates Reform Act of 1995 (Public Law 104—4);

• does not have Federalism implications as specified in

Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based

on health or safety risks subject to Executive Order 13045

(62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive

Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the

National Technology Transfer and Advancement Act of 1995 (15

u.s.c. 272 note) because application of those requirements

would be inconsistent with the clean Air Act; and
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• does not provide EPA with the discretionary authority to

address disproportionate human health or environmental

effects with practical, appropriate, and legally permissible

methods under Executive Order 12898 (59 FR 7629, February

16, 1994)

In addition, this rule does not have tribal implications as

specified by Executive Order 13175 (65 FR 67249, November 9,

2000), because the SIP is not approved to apply in Indian country

located in the State, and EPA notes that it will not impose

substantial direct costs on tribal governments or preempt tribal

law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added

by the Small Business Regulatory Enforcement Fairness Act of

1996, generally provides that before a rule may take effect, the

agency promulgating the rule must submit a rule report, which

includes a copy of the rule, to each House of the Congress and to

the Comptroller General of the United States. EPA will submit a

report containing this action and other required information to

the U.S. Senate, the U.S. House of Representatives, and the

Comptroller General of the United States prior to publication of

the rule in the Federal Register. A major rule cannot take

effect until 60 days after it is published in the Federal
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Register. This action is not a “major rule” as defined by 5

U.S.C. 804(2).

Under section 307 (b) (1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States

Court of Appeals for the appropriate circuit by [FEDERAL REGISTER

OFFICE: insert date 60 days from date of publication of this

document in the Federal Register] . Filing a petition for

reconsideration by the Administrator of this final rule does not

affect the finality of this action for the purposes of judicial

review nor does it extend the time within which a petition for

judicial review may be filed, and shall not postpone the

effectiveness of such rule or action. This action may not be

challenged later in proceedings to enforce its requirements (see

section 307 (b) (2))

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Ozone, Particulate matter, Reporting and recordkeeping

requirements, Volatile organic compounds.

red B 1 m n f e 1 d,

Region IX.

dministrator,