ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-20l1-0463; FRL-]

Revisions to the California State Implementation Plan, San

Joaquin Valley Unified Air Pollution Control District.

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUIfl4ARY: EPA is finalizing approval of revisions to the San

Joaquin Valley Unified Air Pollution Control District (SJV(JAPCD)

portion of the California State Implementation Plan (SIP) . This

revision was proposed in the Federal Register on June 30, 2011

and concerns volatile organic compound (VOC) and particulate

matter (PM) emissions from commercial charbroilers. We are

approving a local rule that regulates these emission sources

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

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

from the date of publication in the Federal Register].

ADDRESSES: EPA has established docket number EPA-R09-OAR-2Oll0463 for this action. Generally, documents in the docket for

this action are available electronically at

http://www.regulations.gov or in hard copy at EPA Region IX, 75

Hawthorne Street, San Francisco, California. While all documents

in the docket are listed at http://www.regulations.gov, some

information may be publicly available only at the hard copy

location (e.g., copyrighted material, large maps, multi-volume
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reports), and some may not be available in either location (e.g.,

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

copy materials, please schedule an appointment during normal

business hours with the contact listed in the FOR FURTHER

INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: David Grounds, EPA Region IX,

(415) 972-3019, grounds. david@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. EPA Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

On June 30, 2011 (76 FR 38340), EPA proposed to approve the

following rule into the California SIP.

Local Rule Rule Title

Agency #

Amended Submitted

SJVUAPCD 4692 Commercial Charbroiling 09/17/2009 05/17/10

We proposed to approve this rule because we determined that it

complied with the relevant CAA requirements. Our proposed action

contains more information on the rules and our evaluation.

II. Public Comments and EPA Responses
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EPA’s proposed action provided a 30-day public corm-nent

period. During this period, we received a comment from the

following party.

1. Sarah Jackson, Earthjustice, letter dated August 1, 2011.

The comments and our responses are summarized below.

Comment #1: Earthjustice asserts that EPA must disapprove

Rule 4692 for failure to satisfy CAA requirements for reasonably

available control technology (RACT) and reasonably available

control measures (RACM) because the rule does not require

reasonable controls on under-fired charbrojlers (UFC).

Response #1: For the reasons discussed in our proposed rule

(76 FR 38340) and further below, we disagree and continue to

believe that Rule 4692 requires all control measures that are

“reasonably available” for implementation in the San Joaquin

Valley (SJV), Considering technical and economic feasibility. We

respond more specifically below to Earthjustjce’s assertions

regarding the technical and economic feasibility of UFC controls.

Comment #2: Earthjustice asserts that reductions from this

source category played a significant role in SJVUAPCD’S plan to

reduce PM25 levels in the SJV, but the current rule reduces

emissions by only 0.02 tons/day - less than 1% of what was

promised in SJVUAPCD’S 2008 PM25 plan.

Response #2: As discussed in our proposal, EPA evaluated

Rule 4692 to determine whether it complies with the
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enforceability requirements of CAA section 110(a) and whether

EPA’s approval of it into the SIP would satisfy the requirements

concerning attainment and reasonable further progress (RFP) in

CAA section 110(1) . Although this rule is not subject to the

specific ozone RACT control requirement in CAA 182(b) (2) and (f),

we also evaluated the control requirements in the rule to

determine whether it requires all measures that are “reasonably

available” for implementation in the SJV, considering technical

and economic feasibility. We did not evaluate the emission

reductions associated with this rule as such an evaluation

belongs in the context of EPA’s action on the State/District’s

RACM demonstration for the relevant NAAQS. For this reason, we

did not propose to make a regulatory determination with respect

to RACM in this rulemaking. Instead, we evaluated only the

control requirements in the rule and considered whether

additional controls for this particular source category are

demonstrated to be technically and economically feasible for

implementation in the area at this time. As stated in the

Technical Support Document (TSD) for our proposal, EPA will take

action in separate rulemakings on the State’s RACM demonstration

for the relevant NAAQS based on an evaluation of the control

measures submitted as a whole and their overall potential to

advance the applicable attainment dates in the SJV. See Technical

Support Document For EPA’s Direct Final Rulemaking For the
5

California State Implementation Plan, San Joaquin Valley Unified

Air Pollution Control District Rule 4692, Commercial

Charbroiling, EPA Region 9, June 9, 2011, page 4 (TSD).

Comment #3: Earthjustjce contends that SJVrJAPCD’S May 2009

Rule 4692 staff report states that UFC control is reasonably

available and cost-effective at as little as $5,800 per ton PM

reduced, and that SJVUAPCD subsequently abandoned UFC control

based on inflated new cost information. Earthjustjce also

asserts that the October 2009 staff report does not include UFC

emission reduction estimates needed to recalculate UFC control

cost-effectiveness. Finally, Earthjustjce asserts that even

using the new inflated cost information and the May 2009 emission

estimates, UFC control is still more cost-effective than chaindriven charbroiler controls that SJVUAPCD and EPA are approving

in Rule 4692 as reasonable.

Response #3: The $5,800/ton estimate provided in SJVUAPCD’s

May 2009 staff report references a draft staff report that relies

on 2007 estimates from the Bay Area Air Quality Management

District (BAAQMD).’ This was the low end of a range of estimates

that BAAQMD had developed; the high end of BAAQMD’s cost

estimates were over $lOO,000/ton. See response to comment 5

below. In 2009, SJVUAPCD revised the low end of the range in the

draft staff report by increasing it to $22,300/ton, based on
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updated information including cost quotes from vendors of control

equipment SJVUAPCD’S revised Cost-effectiveness analysis still

resulted in cost-perton estimates for UFC Controls within the

range of estimates developed by BAAQMD and the South Coast Air

Quality Management District (SCAQMD). We believe these Cost

estimates were performed following standard accepted procedures

and the conuenter has not provided specific information to

demonstrate otherwise.

Comment #4: Earthjustice comments that appendix c to

SJVtJAPCD’S October 2009 staff report assigns emission reductions

of 0.453 tons per year (tpy) per restaurant to potential UFC

controls but never explains the basis for this estimate or why it

is used instead of BAAQJYID’s estimate, which is based on

scientific studies. Earthjustjce asserts that 1.44 tons per day

(tpd) (the median of the range provided in SJVUApVD’ 5May 21,

2009 staff report) is a more appropriate estimate of emission

reductions from UFC controls.

Response #4: In response to EPA’s inquiry regarding

SJVUAPCD’S cost-effectiveness evaluation, the District provided

additional information to explain the cost-effectiveness analyses

in its August 2009 and SeptemiDer 2009 staff reports. 2

Specifically, SJVUAPCD identified the sources of its emission

‘Final

SJVUAPCD,

Draft

May

Staff Report for Proposed Amendments to Rule 4692, 21, 2009, pages C-4 and C-S.
7

factor data and explained the assumptions underlying its

calculations of the incremental cost-effectiveness of UFC

controls. SJVUAPCD used information from Dun & Bradstreet on the

number of restaurants operating within SJV, together with other

reasonable assumptions about the numbers of UFC units and the

quantities and types of meats grilled at these restaurants, to

develop a “composite” emission factor for the source category,

which provided the basis for its estimate of 0.453 tpy in

potential PM25 reductions per restaurant from the use of UFC

controls. The SJVUAPCD notes that Earthjustice appears to have

estimated PM10 instead of PM25 emissions, which increased the

emission reduction estimates, and to have relied on less accurate

estimates of the quantity of meat cooked and emission factors for

various charbroiled meats. We have reviewed the additional

information provided by SJVUAPCD and concur with the District

that additional UFC controls have not been demonstrated to be

“reasonably available” considering technical and economic

feasibility in the SJV area at this time.

Comment #5: Earthjustice comments that except for the wet

scrubber, no explanation is given for why SJVUAPCD’s estimates

for UFC control cost are much higher than BAAQMD’s.

Response #5: As explained in our TSD, SJVtJAPCD’s cost

estimates for UFC controls are within the range of cost estimates

2 Email from Sandra Lowe-Leseth (SJVtJAPCD) to David Grounds
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that other California districts have developed for similar

controls. See TSD at 4. SJVUAPCD estimates that the cost of UFC

controls ranges from $22K - $58K/ton PM2.5 reduced, 3BAAQMD

estimates $17K - $143K/ton VOC or PM, 4 and SCAQMD estimates $8K -

$34K/ton PM. 5 The cornmenter has provided no specific information

to indicate otherwise.

Comment #6: Earthjustice comments that BAAQMD concluded that

UFC control is cost-effective and adopted control requirements in

2007. Earthjustice also asserts that EPA’s claim that UFC

controls are not reasonably available because none have yet been

certified to comply with BA?QMD’s rule “is absurd since...

certification is not required until the rule limits take effect

in 2013.”

Response #6: We explained in our TSD our reasons for

concurring with SJVUAPCD’s conclusion that UFC control is not

reasonably available for implementation within the SJV at this

time. 6 These include SJVUAPCD’s cost-effectiveness analysis of

UFC controls and concerns regarding the technical feasibility of

UFC controls. We also noted that we are unaware of any other

federal or state regulation or guidance suggesting UFC control is

(EPA), September 22, 2011, with attachment.

Final Staff Report for Amendments

October

to Rule 4692, SJVUAPCD,

‘

8, 2009, pages 2 and C-6.

page

Staff

26

Report for Regulation 6, Rule 2, BAAQMD, November 2007,

(BAAQND Staff Report).

SCAQMD,

Preliminary

August

Draft Staff Report: Proposed Amended Rule 1138,

2009, Table 4.
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reasonably available for the commercial charbroiling industry

except for BAAQM]J’s Regulation 6 Rule 2. We therefore disagree

with Earthjustice’s suggestion that the absence of compliance

certifications under the BAAQMD’s rule provided the only basis

for our conclusion. As to BAAQNJJ’s rule, we noted that most

facilities in the Bay Area are too small to trigger the UFC

control requirements of Regulation 6 Rule 2 and that no

facilities had yet certified compliance with these limits. This

information is relevant to our evaluation of technical

feasibility because, until the BAAQMD confirms that sources are

complying with the UFC control requirements, we have only limited

information indicating that such controls are demonstrated to be

technically feasible for the commercial charbroiling industry.

It appears, however, that a large number of facilities (200) may

be subject to BAAQMD’s UFC control requirement 7and will be

required to certify by 2013 whether they are complying with the

UFC control requirements of that rule. We encourage the District

to reevaluate Rule 4692 at the earliest opportunity, taking into

account the most recent information about the technical and

economic feasibility of UFC controls, and to adopt all reasonably

available control measures for commercial charbroiling that will

expedite attainment of the PM2.5and ozone NAAQS in the SJV.

6 EPA TSD, pages 4-5.

BAAQMD Staff Report, page 18.
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Comment #7: Earthjustice asserts that actual controls have

been installed in California and provide empirical data on costs

and emission reductions, and further claims that EPA and SJVUAPCD

are ignoring this data and relying on conflicting information

that lacks any reasonable basis.

Response #7: We do not dispute that UFC controls have been

installed at facilities in California.8 As discussed in our

responses above, however, SJVUAPCD explained the basis for its

assessment of the economic feasibility of UFC controls in SJV,

including the empirical data underlying these evaluations, and we

concur with the District’s conclusion based on these evaluations

that UFC control is not reasonably available in the SJV at this

time.

III. EPA Action

No comments were submitted that change our assessment that

the submitted rule complies with the relevant CAA requirements.

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

fully approving this rule into the California SIP.

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to

approve a SIP submission that complies with the provisions of the

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

8 See Final Staff Report for Amendments to Rule 4692, SJVUAPCD, October 8, 2009, pages 11-12.
11

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

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

the Clean Air Act. Accordingly, this action merely approves

State law as meeting Federal requirements and does not impose

additional requirements beyond those imposed by State law. For

that reason, this action:

is not a “significant regulatory action” subject to review

by the Office of Management and Budget under Executive Order

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

• does not impose an information collection burden under the

provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et

seq.);

• is certified as not having a significant economic impact on

a substantial number of small entities under the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or

uniquely affect small governments, as described in the

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

• does not have Federalism implications as specified in

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

• is not an economically significant regulatory action based

on health or safety risks subject to Executive Order 13045

(62 FR 19885, April 23, 1997);
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• is not a significant regulatory action subject to Executive

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

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

National Technology Transfer and Advancement Act of 1995 (15

U.S.C. 272 note) because application of those requirements

would be inconsistent with the Clean Air Act; and

• does not provide EPA with the discretionary authority to

address disproportionate human health or environmental

effects with practical, appropriate, and legally permissible

methods under Executive Order 12898 (59 FR 7629, February

16, 1994)

In addition, this rule does not have tribal implications as

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

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

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

substantial direct costs on tribal governments or preempt tribal

law.

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

by the Small Business Regulatory Enforcement Fairness Act of

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

agency promulgating the rule must submit a rule report, which

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

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

report containing this action and other required information to
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the U.S. Senate, the U.S. House of Representatives, and the

Comptroller General of the United States prior to publication of

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

effect until 60 days after it is published in the Federal

Register. This action is not a “major rule” as defined by 5

U.S.C. 804(2).

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

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

Court of Appeals for the appropriate circuit by [FEDERAL REGISTER

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

document in the Federal Register]. Filing a petition for

reconsideration by the Administrator of this final rule does not

affect the finality of this action for the purposes of judicial

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

judicial review may be filed, and shall not postpone the

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

challenged later in proceedings to enforce its requirements (see

section 307(b) (2)).
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List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control,

Incorporation by reference, Intergovernmental relations, Ozone,

Particulate matter, Reporting and recordkeeping requirements,

Volatile organic compounds.

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onal Admi

Region IX.