ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

[EPA-R09-OAR-2011-0547; FRL-] 

Revisions to the California State Implementation Plan, San 

Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing approval of revisions to the San 

Joaquin Valley Air Pollution Control District (SJVUAPCD) portion 

of the California State Implementation Plan (SIP). These 

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

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

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

We are approving a local rule that regulates these emission 

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

Act). 

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

from the date of publication in the Federal Register]. 

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-

0547 for this action. Generally, documents in the docket for 

this action are available electronically at 

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

Hawthorne Street, San Francisco, California. While all documents 

in the docket are listed at http://www.regulations.gov, some 
2

information may be publicly available only at the hard copy 

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

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

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

copy materials, please schedule an appointment during normal 

business hours with the contact listed in the FOR FURTHER 

INFORMATION CONTACT section. 

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

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

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

following rules into the California SIP. 

Local 

Agency 

Rule # Rule Title Adopted Submitted 

SJVUAPCD 4103 Open Burning 04/15/10 04/05/11 
3

Local 

Agency 

Rule # Rule Title Adopted Submitted 

SJVUAPCD Table 9-1, Final Staff 

Report and 

Recommendations on 

Agricultural Burning 

05/20/10 04/05/11 

We proposed to approve these rules because we determined 

that they complied with the relevant CAA requirements. Our 

proposed action contains more information on the rules and our 

evaluation. 

II. Public Comments and EPA Responses

EPA’s proposed action provided a 30-day public comment 

period. During this period, we received comments from the 

following party. 

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

received August 10, 2011. 

The comments and our responses are summarized below. 

Comment #1: Earthjustice commented on the meaning of 

reasonably available control measures (RACM) under section 

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

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

and economically feasible and can be readily implemented.’” 

Earthjustice further asserted that “economic feasibility 

considers more than simply affordability and the cost-benefit 
4

ratio” and that “Congress intended RACM to be applied as those 

measures became available.” 

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

incorporates considerations of technical and economic 

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

States a great deal of deference for determining what measures to 

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

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

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

that implementation of these measures need be applied only ‘as 

expeditiously as practicable,’ Congress clearly intended that the 

RACT/RACM requirement be driven by an overall requirement that 

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

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

RACM determination is flawed because it applies a feasibility 

test that is inconsistent with EPA guidance and CAA standards.” 

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

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

analyze whether an alternative is technologically or economically 

feasible.” Earthjustice suggested that the District should 

conduct a more comprehensive economic analysis taking into 

consideration how the costs of alternatives to open burning will 

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

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

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

the economic and technical feasibility of potential control 

measures for this source category, which EPA has evaluated to 

determine whether additional controls for this source category 

might be reasonably available for implementation in the area. As 

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

separate rulemakings on the State’s RACM demonstration for the 

relevant NAAQS based on an evaluation of the control measures 

submitted as a whole and their overall potential to advance the 

applicable attainment dates in the SJV. 

We disagree that the District’s feasibility test is 

inconsistent with the CAA or EPA guidance. Neither the CAA nor 

EPA’s implementing regulations define “technical and economic 

feasibility” for purposes of determining what control measures 

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

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

determinations of what control measures are reasonably available. 

In this case, the District assessed the availability of 

alternatives to open burning by evaluating both technological and 

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

categories for which it found a technically feasible alternative 
6

to burning, the District assessed economic feasibility by 

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

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

cost exceeded ten percent of profits, the District found the 

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

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

this analysis represents the economic significance level 

generally utilized by the District in the development of District 

rules, and represents the level that a regulatory action would 

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

§1.2.2. 

As we have previously noted, looking at the percent of 

profits can provide useful information concerning the economic 

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

2082. Although we encourage the District to conduct further 

economic analysis of the feasibility of alternatives to open 

burning, we also recognize that resource constraints limit the 

amount of analysis that the District can perform. 

We also note that our evaluation of the stringency of 

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

economic and technical feasibility, but also takes into 

consideration other indicators of technical and economic 

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

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

we compared the control requirements in Rule 4103 with analogous 

rules in other local districts and states and concluded that Rule 

4103 was as stringent as or more stringent than those other 

rules. We have not received any information to undermine this 

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

requires all control measures that have been demonstrated to be 

“reasonably available” for open burning activities in the San 

Joaquin Valley. 

Comment #3: Earthjustice referred to a letter indicating 

that the District will no longer permit open burning of citrus 

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

biomass plant capacity and the availability of economically 

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

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

Response #3: The District has not submitted these 

additional restrictions on open burning for approval into the 

SIP, and we therefore do not need to evaluate their 

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

4103. 

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

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

controls, EPA should reject the proposed rule because the 

District’s application of this test is flawed.” 

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

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

in assessing the technical and economic feasibility of potential 

RACM controls. Nonetheless, Earthjustice’s specific points 

regarding the District’s application of the percent of profits 

are addressed below. 

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

calculated the cost of compliance ‘after tax’ without accounting 

for tax implications of increased control costs” and asserted 

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

meaningful analysis of costs.” 

Response #4.a: District staff explained that their 

calculations followed “EPA and ARB established methodologies.” 

Additionally, District staff clarified that, “the primary costs 

associated with potential alternatives to open burning result 

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

hauling services. The District does not expect tax implications 

associated with these non-capital expenditures, if any, to impact 
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the cost analyses associated with this project.”1 We are not 

aware of any information that contradicts the District’s 

assessment in this regard. 

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

uses a 10-year cost amortization schedule without providing a 

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

this assumption underestimates the lifespan of the vineyards and 

orchards and therefore produces artificially high annual cost 

figures. 

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

noted that Appendix H to the Staff Report provided information on 

the productivity over time of specific crops. District staff also 

listed numerous reasons for assuming a 10-year amortization 

schedule that were provided when this issue was raised at a 

California Senate Hearing including, for example: 

1. 10-year analysis is used to standardize comparisons 

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

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

real life spans in excess of 20-30 years). 

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

Resources Board and air districts for evaluating air pollution 

 

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

22, 2011. 
10

control economics. 

3. Farms can change owners and change crops fairly 

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

speculative since farm viability is subject to global market 

forces, weather, water availability, etc.2

Comment #4.c: Earthjustice contended that the District 

“inserted baseless assumptions to inflate the claimed costs. For 

example, the District assumes citrus root removal material must 

be separated from the tree material and transported to a 

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

Earthjustice claimed that, contrary to this assumption, biomass 

facility operators have indicated that roots can be chipped and 

transported to biomass facilities along with the rest of the 

chipped material. Similarly, Earthjustice asserted that the 

evidence in the record undermines the District’s suggestion that 

grinding and hauling material to a biomass plant may not be 

technically feasible. 

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

cost of citrus root removal and disposal. According to District 

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

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

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

 

2 Id.
11

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

accept any organic material with dirt or other unburnable 

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

indicated that roots can be chipped and transported to biomass 

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

this claim and demonstrate that root chipping and biomass burning 

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

we encourage the District to reexamine whether it may be possible 

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

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

specific evidence to challenge the District’s assumption in this 

regard. 

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

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

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

plus an additional unrestricted amount if certain conditions are 

met, blatantly disregards any economic feasibility analysis.” 

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

any economic feasibility analysis. The District found that the 

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

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

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

 

3 Id.
12

result, the District adopted an automatic 20 acre allowance plus 

a discretionary allowance depending on contractor availability. 

Comment #5: Earthjustice contended that additional 

reductions are reasonably available under the appropriate 

feasibility analysis. The specific arguments raised by 

Earthjustice in support of its contention are addressed below. 

Comment #5.a: Earthjustice argued that the proposed 

alternative to open burning of citrus orchard removal materials 

(grinding and hauling orchard removal materials to a biomass 

plant) is technically feasible because the biomass power plants 

that use San Joaquin Valley agricultural waste are physically 

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

would be caused by a total prohibition on burning citrus orchard 

removals. 

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

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

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

assuming that there is currently sufficient capacity for citrus 

removal materials at biomass facilities, the District has 

concluded that “reliance on biomass facilities as a primary, 

long-term alternative method to open burning is not possible 

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

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

typically less expensive than agricultural waste, urban waste 

(particularly construction debris) may displace some of the 

current capacity for agricultural waste, as the economy improves 

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

the District explains that “citrus material is typically less 

desirable” than other biomass materials4 and must be blended with 

other biomass fuels. Staff Report at 7-37. 

In light of this economic uncertainty, EPA has 

recommended that the District continue closely monitoring the 

economic feasibility of sending citrus orchard removal material 

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

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

indicates sufficient biomass capacity and the availability of 

economically feasible chipping services.”5 We believe that this 

interim step will have significant air quality benefits and we 

encourage the District to consider whether a complete or partial 

ban on citrus orchard burning is economically feasible. 

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

demonstrated to be economically feasible at this time. 

Comment #5.b: Earthjustice claimed that the proposed 

 

4 Id.

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

Jordan. 
14

alternative to open burning of almond, walnut and pecan prunings 

(shredding the prunings and leaving the materials on the orchard 

floor) is technically feasible. 

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

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

be economically feasible at all times. The District concluded 

that, although shredding is a technically feasible alternative to 

open burning, there is an insufficient supply of custom shredding 

services available to smaller farms. Staff Report Appendix D at 

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

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

the District reevaluate the availability of contractors to shred 

nut prunings based on updated data. 

Comment #5.c: Earthjustice claimed that these proposed 

alternatives to open burning of citrus orchard removal materials 

and almond, walnut and pecan prunings are also economically 

feasible. 

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

that sending citrus removal materials to biomass was not 

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

District’s economic analysis indicated that the cost of shredding 

prunings from less than 25 acres at once was not economically 

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

restrictions on open burning than those currently in place in the 

District, we believe these conclusions are reasonable at this 

time. However, we encourage the District to reevaluate these 

postponements to ensure that the State adopts all RACM for open 

burning activities as expeditiously as practicable. 

III. EPA Action

No comments were submitted that change our assessment that 

the submitted rules comply with the relevant CAA requirements. 

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

fully approving these rules into the California SIP. 

IV. Statutory and Executive Order Reviews 

 Under the Clean Air Act, the Administrator is required to 

approve a SIP submission that complies with the provisions of the 

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

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

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

the Clean Air Act. Accordingly, this action merely approves 

State law as meeting Federal requirements and does not impose 

additional requirements beyond those imposed by State law. For 

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

by the Office of Management and Budget under Executive Order 

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

• does not impose an information collection burden under the 

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

seq.); 

• is certified as not having a significant economic impact on 

a substantial number of small entities under the Regulatory 

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

• does not contain any unfunded mandate or significantly or 

uniquely affect small governments, as described in the 

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

• does not have Federalism implications as specified in 

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

• is not an economically significant regulatory action based 

on health or safety risks subject to Executive Order 13045 

(62 FR 19885, April 23, 1997); 

• is not a significant regulatory action subject to Executive 

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

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

National Technology Transfer and Advancement Act of 1995 (15 

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

would be inconsistent with the Clean Air Act; and 
17

• does not provide EPA with the discretionary authority to 

address disproportionate human health or environmental 

effects with practical, appropriate, and legally permissible 

methods under Executive Order 12898 (59 FR 7629, February 

16, 1994). 

In addition, this rule does not have tribal implications as 

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

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

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

substantial direct costs on tribal governments or preempt tribal 

law. 

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

by the Small Business Regulatory Enforcement Fairness Act of 

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

agency promulgating the rule must submit a rule report, which 

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

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

report containing this action and other required information to 

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

Comptroller General of the United States prior to publication of 

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

effect until 60 days after it is published in the Federal 
18

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

U.S.C. 804(2). 

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

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

Court of Appeals for the appropriate circuit by [FEDERAL REGISTER 

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

document in the Federal Register]. Filing a petition for 

reconsideration by the Administrator of this final rule does not 

affect the finality of this action for the purposes of judicial 

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

judicial review may be filed, and shall not postpone the 

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

challenged later in proceedings to enforce its requirements (see 

section 307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air pollution control, 

Incorporation by reference, Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, Reporting and recordkeeping 

requirements, Volatile organic compounds. 

_09/30/2011_ ____ //signed//_______

Dated: Jared Blumenfeld, 

 Regional Administrator, 

Region IX. 
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Part 52, Chapter I, Title 40 of the Code of Federal 

Regulations is amended as follows: 

PART 52 [AMENDED] 

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

follows: 

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

Subpart F - California 

2. Section 52.220 is amended by adding paragraphs (c)(388) 

(i)(B)(2)and(3) and (c)(388)(ii) to read as follows: 

§52.220 Identification of plan. 

* * * * * 

(c) * * * 

(388) * * * 

(i) * * * 

(B) * * * 

(2) Rule 4103, “Open Burning,” adopted on April 15, 2010. 

(3) Table 9-1, Final Staff Report and Recommendations on 

Agricultural Burning, adopted on May 20, 2010. 

* * * * * 

(ii) Additional materials. 

(A) California Air Resources Board. 

(1) Resolution 10-24 (May 27, 2010) 

(B) San Joaquin Valley Air Pollution Control District. 

(1) Resolution 10-05-22 (May 20, 2010)