Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 1 SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

FINAL STAFF REPORT

Revised Proposed Amendments to

Rule 4103 (Open Burning)

April 15, 2010

Prepared by: Koshoua Thao, Senior Air Quality Specialist

Reviewed by: George Heinen, Supervising Air Quality Engineer

Joven Nazareno, Senior Air Quality Engineer Anna Myers, Air Quality Specialist Daniel Martinez, Supervising Air Quality Inspector Dennis Roberts, Senior Air Quality Engineer Colette Kincaid, Senior Air Quality Specialist Morgan Lambert, Director of Compliance

Errol Villegas, Planning Manager Samir Sheikh, Planning Director Scott Nester, Senior Projects Manager Rick McVaigh, Deputy APCO

I. SUMMARY

The historical cultural practice for disposing of a gricultural materials, such as prunings and orchard removals, is to burn the materials. Bu rning agricultural materials in the field has helped prevent the spread of diseases, as well as control weeds and pests. However, recognizing the impacts that open burning has in the San Joaquin Valley Air Basin, concerned Valley growers have reduced open b urning through the use of sustainable agricultural practices. Those practice s have contributed to a significant reduction in particulate matter (PM) emissions over the last several years: since 2002, PM2.5 emissions from open burning have been reduced by 64%, or eight tons of PM2.5 per day.

A. Reasons for Rule Development and Implementation

The San Joaquin Valley Air Pollution Control Distri ct (District) has continued to work closely with the stakeholders to identify economica lly feasible alternatives to open burning of various agricultural materials and to me et its legal obligation under the California Health and Safety Code (CH&SC). The sta te law requires that specified crop categories be prohibited from open burning accordin g to a phased-in schedule of deadlines, but also authorizes the District to post pone the deadlines if economicallySAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 2 feasible alternatives are not available. State law also requires the Air Resources Board’s (ARB) concurrence on any burn prohibition d eadlines that are postponed. To fulfill the state law requirements, the District has amended Rule 4103 several times to implement the requirements for most crop categor ies identified in the California Health and Safety Code (CH&SC). In September 2004, Rule 4103 was amended to include specific requirements that must be met for the burning of diseased crops. As part of the May 19, 2005 Phase II amendments to the rule, the District established best management practices for the control of other weeds and maintenance, and implemented the burn prohibition for 90% of the cro ps identified in the categories for that phase. In 2007, the District implemented Phas e III of the CH&SC that prohibits open burning of all orchard removal material, excep t for citrus crops, apple crops, pear crops, quince crops, fig crops, and any orchard rem oval that is less than 20 acres.

The final phase of the CH&SC burn prohibitions is s et for June 1, 2010, and District staff would address the final deadline in a two-step proc ess. First, on April 15, 2010, the District’s Governing Board adopted the revised prop osed amendments to incorporate the provisions from the CH&SC into the rule. These provisions would allow the District to periodically review changes in agricultural prac tices and consider non-burning alternatives and economic conditions as they develo p. Second, on May 20, 2010, District staff plan to present a comprehensive “Sta ff Report and Recommendations on Agricultural Burning” document on the economic feas ibility of non-burning alternatives for the agricultural materials subject to the June 1, 2010 deadline at the May 2010 Governing Board hearing.

B. California Health and Safety Code

Section 41855.5 of the CH&SC prohibits the issuance of a burn permit for specific categories of agricultural material. This section also requires that the District regulates the burning of diseased crops and establish best ma nagement practices for the control

of other weeds and maintenance. The schedule below shows the requirements for specific categories of agricultural waste and their corresponding prohibition dates.

June 1, 2005

• Prohibit burning for Field Crops, Prunings, and We ed

Abatement

• Establish best management practices for Other Weed s and

Maintenance

• Regulate burning of diseased crops

June 1, 2007 Prohibit burning for Orchard Removals

June 1, 2010 Prohibit burning for Vineyard Removal Materials, Prunings from

Surface Harvested Crops and Other MaterialsSAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 3 The agricultural materials subject to the first two deadlines were previously addressed in separate rulemaking projects. The District has inc orporated the diseased crops and the

materials from Other Weeds and Maintenance into Sec tion 5.5.5 and Section 5.9 of the rule in previous rulemaking. Further details on th e CH&SC definitions are provided in Appendix A of this staff report.

Section 41855.6 of the CH&SC allows the District to postpone the burn prohibition implementation dates of Section 41855.5 for any cat egory of agricultural waste or crop. Postponement of those deadlines requires the Distri ct to meet additional criteria; however, the CH&SC does not permit the District to provide a “permanent” postponement of the burning prohibition. All of th e following criteria must be met for the District to postpone a burn prohibition commencemen t date for a specific category or

crop:

1. The District determines that there is no economi cally feasible alternative means of eliminating the waste.

2. The District determines that there is no long-te rm federal or state commitment for the continued operation of biomass facilities in the Sa n Joaquin Valley or the development of alternatives to burning.

3. The District determines that the continued issua nce of permits for that specific category or crop will not cause, or substantially c ontribute to a violation of an applicable federal ambient air quality standard.

4. The State Air Resources Board concurs with the D istrict’s determinations.

C. Description of the Project

According to the two-step process, District staff h as incorporated the provisions of CH&SC Section 41855.5 and Section 41855.6 directly into the rule, to more efficiently allow the District to consider the feasibility of n on-burning alternatives for specific crops

and materials. The amendments to the rule would no t become effective until June 1, 2010. The technological research and economic anal ysis associated with the June 2010 deadline will be addressed separately, in the “Staff Report and Recommendations on Agricultural Burning” document. The document wa s made available for public review and comment on April 5, 2010.

While the CH&SC is designed to achieve emissions re duction by implementing wide scale prohibitions on agricultural burning, it reco gnizes that technological and economic factors may limit the non-burning alternatives to a gricultural material disposal, and it

allows the District to determine the details and ti ming of the prohibitions. The rule amendments would require District staff to revisit the crops and materials with non-burn alternatives at least once every five years to dete rmine if there are any economicallySAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 4 feasible alternatives to open burning. The amendme nts will protect public health without adverse impacts to the economic viability o f these crops in the Valley.

D. Rulemaking Process

The revised proposed amendments to Rule 4103 were p ublished and made available to affected sources and interested parties for review and comments on March 11, 2010. The commenting period for the revised proposed amen dments ended on March 25,

2010. The District received several comments from stakeholders regarding concerns over the burn prohibition on June 1, 2010 for vario us crop categories, specifically vineyard removal materials, small orchard removals, and surface harvested prunings.

District staff will address these comments in the “ Staff Report and Recommendations on Agricultural Burning” document.

District’s responses to comments pertaining to the revised proposed amendments to Rule 4103 are available as part of Appendix B of th is report for the public hearing on April 15, 2010. The notice of the public hearing f or the proposed rule amendments was published in a general circulation newspaper in eac h of the eight San Joaquin Valley

counties and was mailed to affected sources and int erested parties. The public notice solicited written comments to be submitted by mail, and it also identified the name, email address, and telephone numbers of the District staff who can answer questions and respond to comments.

District staff will conduct a public workshop for t he “Staff Report and Recommendations on Agricultural Burning” document in April 2010 and solicit comments from stakeholders. The document will be presented to th e District’s Governing Board on May

20, 2010.

II. IMPACTS ON THE 2007 OZONE PLAN AND 2008 PM2.5 PLAN

District staff does not expect that the revised pro posed amendments to Rule 4103 to incorporate the state law provisions would have any adverse impact on the Reasonable Further Progress and attainment goals of the Distri ct’s 2007 Ozone Plan and 2008

PM2.5 Plan

( Plans ). District staff plans to present the analyses an d recommendations for specific crop categories in the “Staff Report a nd Recommendations on Agricultural Burning” document (Report) and will analyze the pot ential impacts of those

recommendations to the Plans at a later process. Per new Section 6.3, the Repor t would be conducted through a public process prior t o consideration of approval from the District’s Governing Board, ARB, and EPA for inclus ion into the State Implementation Plan. The Report, which will be provided to ARB an d EPA for review in April, would be required by new Section 6.3 and therefore, independ ent of the revised proposed

amendments to the rule. The District will minimize any potential impact to the Plans and will continue to work with the industry and stakeho lders to reduce emissions from open burning as expeditiously as practicable.SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 5 III. BACKGROUND AND DISCUSSION

A. Open Burning

Open burning of agricultural crops and materials is managed by the District’s Smoke Management System (SMS). The SMS uses a combinatio n of real-time meteorological information and computer modeling to determine the allowable amount and location of agricultural burning. The District’s use of the SM S is intended to limit emissions to levels below the federal ambient air quality standa rds.

As mentioned, the amount of PM2.5 emissions from op en burning in the SJVAB has been reduced by 64% since 2002. According to the D istrict’s data, the total amount of PM2.5 emissions reduced from 2002 to 2009 was 2,918 tons, which is equivalent to eight tons of PM2.5 emissions reduced per day.

B. Categories of Agricultural Materials

Rule 4103 has been amended several times in the pas t few years to incorporate the crop categories from the CH&SC. District staff has evaluated several alternatives to open burn for those crop categories. While most cr op categories in the CH&SC are already subject to the requirements of Rule 4103 an d are prohibited from being burned, there were no technologically or economically feasi ble alternatives for some crop categories at the time. The following crops relati ve to the phases identified in Section I.B above are currently allowed to be burned:

June 1, 2005:

• Rice Stubble, residual rice stubble, spot burning of rice stubble, burning of weeds and vegetative materials on rice field levees and banks

• Weed abatement activities affecting surface waterw ays, including ponding and

levee banks

• Prunings from apple crops, pear crops, fig crops, and quince crops

June 1, 2007:

• Orchard removal matter from citrus crops, apple cr ops, pear crops, quince crops, and fig crops

• 20 acres or less of orchard removal at a single lo cation, per calendar year

June 1, 2010:

• Surface harvested prunings, vineyard removal mater ials, and other materials

The District minimizes the impacts from the burning of these crops through the burn permitting process and the Smoke Management System. In previous amendments to the rule, the District has determined that the cont inued issuance of burn permits for the postponed crop categories would not cause or substa ntially contribute to a violation of an applicable federal ambient air quality standard.SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 6 IV. CURRENT AND PROPOSED REGULATIONS

A. Current Regulations

Rule 4103 was adopted on June 18, 1992 and it has b een amended seven times. The provisions of Rule 4103 apply to open burning condu cted in the San Joaquin Valley Air Basin, with the exception of prescribed burning and hazard reduction burning as defined in Rule 4106 (Prescribed Burning and Hazard Reducti on Burning). The rule has limitations on the amount and the type of materials that can be burned and restricts when such burning can occur.

B. Amendments to Rule 4103

Section 1.0 Purpose

No change is proposed for this section.

Section 2.0 Applicability

No change is proposed for this section.

Section 3.0 Definitions

The following definitions would be added to this se ction for clarity and to improve rule effectiveness: Air Pollution Control Officer, Board , Environmental Protection Agency (EPA), and Vineyard Removal Materials. The definit ions for Air Pollution Control Officer, Board, and EPA are from the District’s Rul e 1020 (Definitions) and Rule 4651 (Soil Decontamination Operations). The term, viney ard removal materials, is intended

to be used in similar context to orchard removal ma tter from Rule 4103, where agricultural materials are cleared in order to repl ant new crops or to conduct other agricultural operations. Therefore, the definition for vineyard removal materials would be similar to orchard removal matter, as defined an d used in the rule. The terms, vineyard removal materials and vineyard removals, a s used in the CH&SC, are considered to have the same meaning. As a result, vineyard removal materials would be used as a category in this rule.

For clarification purposes, District staff has revi sed the definition for “vineyard removal materials” in the revised proposed amendments to th e rule to include kiwi crops. Although pruning from kiwi crops has been prohibite d from open burning since 2005, kiwifruits are grown from vines and require a trell is or support system. The removal of a kiwi vineyard is considered to be similar to a grap e vineyard. District staff believes that the intent of the category for vineyard removal mat erials in the CH&SC was to include both grape vineyards and kiwi vineyards.SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 7 The following definitions would be added to this se ction to incorporate the meaning of each of the agricultural waste categories from CH&S C Section 41855.5: Field Crops, Orchard Removals, Other Materials, Other Weeds and Maintenance, Surface Harvested Prunings, and Vineyard Removal Materials. The defi nition for Surface Harvested Prunings would include similar language from the ru le’s definition for Prunings to ensure enforceability of rule requirements for this crop c ategory. The term, Vineyard materials, was defined separately in the CH&SC and includes gr ape canes and raisin trays. Vineyard materials would replace Vineyard Removal M aterials from the definition for the Surface Harvested Prunings category since grapes ca nes are also pruned and would be more representative of that category. District sta ff expects that this clarification would improve rule enforceability.

The definitions for Prunings and Weed Abatement are currently in the rule and would be amended to include the specific agricultural crops and materials in the CH&SC for those categories.

Section 4.0 Exemptions

No change is proposed for this section.

Section 5.0 Requirements

Section 5.5.1

This section would be amended to include CH&SC Sect ion 41855.5 by incorporating all of the categories for the agricultural crops and ma terials.

The CH&SC does not clearly define the categories fo r vineyard removals and surface harvested prunings. Based on research and discussi on with growers, grape vines and grapes canes are both pruned but they would be defi ned separately in the rule to be consistent with the CH&SC. Vineyard materials, whi ch include grape canes, would be considered under the category for surface harvested prunings. Vineyard removal materials, which are considered to be from the remo val of vineyards for the purposes of replanting or for other agricultural operations, wo uld be a separate category. The District’s burn permits are based on the specific c rop or material being burned and the grouping of crops or materials under these categori es would not have an impact on rule requirements.

Proposed Section 5.5.2 This section would add CH&SC Section 41855.6 langua ge to the rule by incorporating all of the criteria that the District’s Governing B oard would need to satisfy in order to make determinations on burn prohibition for any agr icultural waste or crop. While the District cannot provide a “permanent” postponement of the burning prohibition, this

section would allow the District to address certain crops or materials that do not have technologically and economically feasible alternati ves to open burning at the time. ThisSAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 8 section would allow the District to continue to con duct research and analyze feasible alternatives that would allow burn prohibitions to take effect for those crops.

The CH&SC referenced the District as the agency res ponsible for making the determinations. The term “District” would be chang ed to the “Board” to ensure that any determinations made under this section would underg o a public process and provide an opportunity for stakeholders to participate.

Other Sections The following subsections would be removed from the Requirements section: Section 5.5.2, Section 5.5.3, and Section 5.5.4. The agric ultural waste and crop from these sections would be addressed in the “Staff Report an d Recommendations on Agricultural Burning” report and would be prohibited from open b urn, unless the agricultural waste or crop is covered under the proposed section 5.5.2.

Section 6.0 Administrative Requirements

Section 6.3 would be added to this rule as administ rative requirements for the Air Pollution Control Officer (APCO). This section wou ld require the District to review the feasibility of non-burning alternatives, as well as the associated economic and air quality factors, at least once every five years and prepare a “Staff Report and Recommendations on Agricultural Burning” report. I ncluded in that report would be an updated assessment on technologically feasible alte rnatives and whether those alternatives are economically feasible. The altern ative technologies are not expected to change significantly over the course of five years; however, the District would revisit the determinations sooner should there be any potential feasible alternatives to open burning. The five-year period would also allow ade quate time for District staff to work with the affected industry and complete the review process. Any recommendations for certain agricultural crops or materials would be pr esented to the Board for consideration of approval through a public process.

V. EMISSIONS AND EMISSIONS REDUCTIONS

The purpose of the revised proposed amendments to R ule 4103 is to incorporate the CH&SC Section 41855.5 and Section 41855.6 requireme nts through administrative changes. The effect on air quality and the require ments of the CH&SC are in place; therefore, the revised proposed amendments to Rule 4103 do not strengthen those emissions limitations which are already established by state law. As a result, the emissions and emissions reduction analyses do not a pply to this project.SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 9 VI. COST EFFECTIVENESS ANALYSIS

California Health and Safety Code (CH&SC) Section 4 0920.6 requires the District to analyze the cost effectiveness of any proposed rule amendment that implements Best Available Retrofit Control Technology (BARCT). The purpose of the revised proposed amendments to Rule 4103 is to incorporate the requi rements of CH&SC Section

41855.5 and Section 41855.6 and not to establish BA RCT requirements, therefore; this project is not subject to the cost effectiveness an alysis mandate.

VII. SOCIOECONOMICAL ANALYSIS

Pursuant to CH&SC Section 40728.5, District staff i s required to analyze the socioeconomic impacts of any proposed rule amendmen ts that significantly affects air quality or strengthens an emission limitation. Alt hough the burning prohibitions have already been established by state law and the socio economic analysis is not required by state law, District staff is preparing an econom ic analysis of the impacts of the burning prohibitions. The analysis will be present ed as part of the “Staff Report and Recommendations on Agricultural Burning.”

VIII. RULE CONSISTENCY ANALYSIS

The purpose of the revised proposed amendments to R ule 4103 is to incorporate the requirements of the CH&SC Section 41855.5 and Secti on 41855.6. The effect on air quality and the requirements of the CH&SC are in pl ace; therefore the revised proposed amendments to Rule 4103 do not strengthen those emi ssions limitations which are already established by state law and thereby a rule consistency analysis is not required.

IX. ENVIRONMENTAL IMPACTS

The California Environmental Quality Act (CEQA) app lies in situations where a governmental agency uses its discretion in deciding whether and how to carry out or approve a project. A project subject to such discr etionary determinations is called a “discretionary project.” Where the law requires a g overnmental agency to act on a project in a set way without allowing the agency to use its own judgment, the project is called “ministerial,” and CEQA does not apply.

The proposed amendments to District Rule 4103 are t o fulfill a State mandate to incorporate California Health and Safety Code (CH&S C) sections 41855.5 and 41855.6

into the rule. The District has no discretion in d eciding whether to incorporate said Health and Safety Code sections into its rule and, thus, approval by the District’s Governing Board is a ministerial action. Section 2 1080 of the Public Resources Code exempts from the application of CEQA those projects over which public agenciesSAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 10 exercise only ministerial authority. Consistent wi th CEQA provisions, upon approval by the District’s Governing Board, a Notice of Exempti on will be filed with each County

Clerk’s Office within the District.

X. REASONABLY AVAILABLE CONTROL TECHNIQUES (RACT) ANALYSIS

The Clean Air Act (CAA) Section 182(b)(2) states th at ozone attainment plans shall assure that RACT for volatile organic compounds (VO C) is applied at certain sources. Section 182(f) extends federal RACT requirements to NOx rules and major NOx

sources. VOC and NOx emissions are included in the District’s 2007 Ozone Plan for Rule 4103; however, the revised proposed amendments to this rule do not strengthen the requirements, which are already established by state law. Therefore, this analysis does not apply.

XI. REFERENCES

1. California Health and Safety Code, Section 41855 .5 and Section 41855.6

2. California State Senate Bill 705 (Florez, 2003).SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 A - 1 

### APPENDIX A

Summarized Information from

CH&SC Section 41855.5

April 15, 2010SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

Final Staff Report: Rule 4103 April 15, 2010

Final Staff Report and Appendices for Revised Proposed Amendments to

Rule 4103 A - 2 Category Definitions List

CHSC Section 41855.5 defines Agricultural Waste Cat egories as follows:

"Field crops" means any of the following crops: (A) Alfalfa (B) Asparagus (C) Barley stubble (D) Beans (E) Corn (F) Cotton (G) Flower straw (H) Hay (I) Lemon grass (J) Oat stubble (K) Other field crops, as determin ed by the state board (L) Pea vines (M) Peanuts (N) Rice stubble (O) Safflower (P) Sugar cane (Q) Vegetable crops (R) Wheat stubble

"Orchard removals" includes, but is not limited to, any of the follow ing: (A) Orchard removal matter (B) Stumps (C) Untreated sticks

"Other materials" includes, but is not limited to, any of the follow ing: (A) Brooder paper (B) Deceased goats (C) Diseased bee hives

"Other weeds and maintenance" includes, but is not limited to, any of the follow ing: (A) Ditch bank work (B) Canal bank work (C) Dodder weed (D) Star thistle (E) Tumbleweed (F) Noxious weeds (G) Pesticide sacks (H) Fertilizer sacks

"Prunings" means prunings from any of the following: (A) Apple crops (B) Apricot crops (C) Avocado cro ps (D) Bushberry crops (E) Cherry crops (F) Christma s trees (G) Citrus crops (H) Date crops (I) Eucalyptus cr ops (J) Fig crops (K) Kiwi crops (L) Nectarine crops (M) Nursery prunings (N) Olive crops (O) Other pru nings, as determined by the state board (P) Pasture or corral trees (Q) Peach crops (R) Pe ar crops (S) Persimmon crops (T) Pistachio crops (U) Plum c rops (V) Pluot crops (W) Pomegranate crops (X) Prune cr ops (Y) Quince crops (Z) Rose prunings

"Surface harvested prunings" includes, but is not limited to, any of the follow ing: (A) Almond prunings (B) Walnut prunings (C) Pecan prunings (D) Grape vines (E) Vineyard removal materials

"Vineyard materials" includes, but is not limited to, any of the follow ing: (A) Grape canes (B) Raisin trays

"Weed abatement" includes, but is not limited to, any of the follow ing: (A) Berms (B) Bermuda grass (C) Fence rows (D) Grass (E) Pasture (F) Ponding or levee banks