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[Federal Register Volume 76, Number 213 (Thursday, November 3, 2011)]
[Rules and Regulations]
[Pages 68103-68106]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28388]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0463; FRL-9481-1]

Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of revisions to the San Joaquin 
Valley Unified Air Pollution Control District (SJVUAPCD) 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).

DATES: Effective Date: This rule is effective on December 5, 2011.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0463 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 
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

[[Page 68104]]

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.

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            Local agency               Rule No.             Rule title              Amended         Submitted
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SJVUAPCD...........................         4692   Commercial Charbroiling....      09/17/2009         05/17/10
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    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

    EPA's proposed action provided a 30-day public comment 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 charbroilers (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 Earthjustice'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 
PM2.5 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 PM2.5 plan.
    Response #2: As discussed in our proposal, EPA evaluated Rule 4692 
to determine whether it complies with the 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(l). 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 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: Earthjustice contends that SJVUAPCD'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. Earthjustice also asserts that the October 2009 staff 
report does not include UFC emission reduction estimates needed to 
recalculate UFC control cost-effectiveness. Finally, Earthjustice 
asserts that even using the new inflated cost information and the May 
2009 emission estimates, UFC control is still more cost-effective than 
chain-driven 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).\1\ This was the low end of a range of estimates that BAAQMD 
had developed; the high end of BAAQMD's cost estimates were over 
$100,000/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 updated information including 
cost quotes from vendors of control equipment. SJVUAPCD's revised cost-
effectiveness analysis still resulted in cost-per-ton 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 commenter has not provided specific information to demonstrate 
otherwise.
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    \1\ Final Draft Staff Report for Proposed Amendments to Rule 
4692, SJVUAPCD, May 21, 2009, pages C-4 and C-5.
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    Comment #4: Earthjustice comments that appendix C to SJVUAPCD'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 BAAQMD's 
estimate, which is based on scientific studies. Earthjustice asserts 
that 1.44 tons per day (tpd) (the median of the range provided in 
SJVUAPVD's May 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 September 2009 staff reports.\2\ Specifically, SJVUAPCD 
identified the sources of its emission

[[Page 68105]]

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 PM2.5 reductions per restaurant from the 
use of UFC controls. The SJVUAPCD notes that Earthjustice appears to 
have estimated PM10 instead of PM2.5 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.
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    \2\ Email from Sandra Lowe-Leseth (SJVUAPCD) to David Grounds 
(EPA), September 22, 2011, with attachment.
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    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, SJVUAPCD's cost estimates for 
UFC controls are within the range of cost estimates 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,\3\ BAAQMD estimates $17K-$143K/ton VOC or 
PM,\4\ and SCAQMD estimates $8K-$34K/ton PM.\5\ The commenter has 
provided no specific information to indicate otherwise.
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    \3\ Final Staff Report for Amendments to Rule 4692, SJVUAPCD, 
October 8, 2009, pages 2 and C-6.
    \4\ Staff Report for Regulation 6, Rule 2, BAAQMD, November 
2007, page 26 (BAAQMD Staff Report).
    \5\ Preliminary Draft Staff Report: Proposed Amended Rule 1138, 
SCAQMD, August 2009, Table 4.
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    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 BAAQMD'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 reasonably available for the commercial 
charbroiling industry except for BAAQMD'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 BAAQMD'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 \7\ and 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 PM2.5 and ozone NAAQS in the SJV.
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    \6\ EPA TSD, pages 4-5.
    \7\ 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.
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    \8\ See Final Staff Report for Amendments to Rule 4692, 
SJVUAPCD, October 8, 2009, pages 11-12.
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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 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 (Pub. L. 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

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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 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 
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 January 3, 2012. 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, Ozone, Particulate matter, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 30, 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)(379)(i)(C)(5) to 
read as follows:

Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (379) * * *
    (i) * * *
    (C) * * *
    (5) Rule 4692, ``Commercial Charbroiling,'' amended on September 
17, 2009.
* * * * *
[FR Doc. 2011-28388 Filed 11-2-11; 8:45 am]
BILLING CODE 6560-50-P
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