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[Federal Register Volume 77, Number 6 (Tuesday, January 10, 2012)]
[Rules and Regulations]
[Pages 1417-1427]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-139]

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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.

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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             04/16/2009   06/18/2009
                                                 Technology (RACT) Demonstration for
                                                 Ozone State Implementation Plan (SIP).
----------------------------------------------------------------------------------------------------------------

    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.

[[Page 1418]]

    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

[[Page 1419]]

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'').
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    \1\ For 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).
    \2\ For 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).
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    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\
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    \3\ Section 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.
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    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

[[Page 1420]]

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 non-major 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.
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    \4\ EPA 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.
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    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 SIP-
strengthening (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.
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    \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).
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    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

[[Page 1421]]

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.
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    \6\ EPA's RACT/BACT/LAER Clearinghouse is available at: http://cfpub.epa.gov/RBLC/.
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    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).
---------------------------------------------------------------------------

    \7\ The ``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.
---------------------------------------------------------------------------

    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-

[[Page 1422]]

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.
---------------------------------------------------------------------------

    \9\ The combined VOC emissions from these two facilities amount 
to approximately 1 ton per year. See SJV RACT SIP at 4-210.
---------------------------------------------------------------------------

    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 mid-1990s. 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.
---------------------------------------------------------------------------

    \10\ EPA contacted two manufacturers that sell wood sealers in 
California and learned that only one of them, Sherwin Williams, 
makes a water-based 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 Sherwin-Williams 
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[supreg] KEM 
AQUA[supreg] 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).
---------------------------------------------------------------------------

    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

[[Page 1423]]

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 [deg]C (374 [deg]F or greater), or (3) the 
total VOC vapor pressure of the material is 20 mm Hg or less at 20 
[deg]C (68 [deg]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.
---------------------------------------------------------------------------

    \11\ EPA 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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \12\ SCAQMD 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \13\ Ammonia 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.
---------------------------------------------------------------------------

    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-percent-of-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''

[[Page 1424]]

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 RACT \14\ 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.
---------------------------------------------------------------------------

    \14\ EPA 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).
---------------------------------------------------------------------------

    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 long-standing 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 (pre-
publication 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.
---------------------------------------------------------------------------

    \15\ We 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).
---------------------------------------------------------------------------

    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 
cost-effectiveness (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

[[Page 1425]]

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 cost-
effectiveness 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 cost-
effectiveness ``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        6/16/11  11/16/11, 76 FR 70886.
                                     Production Wells.
4565..............................  Biosolids, Animal Manure,       3/15/07  Signed 12/13/11.
                                     and Poultry Litter
                                     Operations.
4570..............................  Confined Animal Facilities     10/21/10  Signed 12/13/11.
4603..............................  Surface Coating of Metal        9/17/09  11/1/11, 76 FR 67369.
                                     Parts and Products,
                                     Plastic Parts and
                                     Products, and Pleasure
                                     Craft.
4605..............................  Aerospace Assembly and          6/16/11  11/16/11, 76 FR 70886.
                                     Component Coating
                                     Operations.
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,

[[Page 1426]]

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

[[Page 1427]]

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-and-of 
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]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(407) to read as 
follows:

Sec.  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]
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