Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD), 214-217 [2011-33660]

Download as PDF 214 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations § 363.52 What is the principal amount of book-entry Series EE and Series I savings bonds that I may acquire in one year? ENVIRONMENTAL PROTECTION AGENCY (a) The principal amount of bookentry savings bonds that you may acquire in any calendar year is limited to $10,000 for Series EE savings bonds and $10,000 for Series I savings bonds. (b) Bonds purchased or transferred as gifts will be included in the computation of this limit for the account of the recipient for the year in which the bonds are delivered to the recipient. (c) Bonds purchased as gifts or in a fiduciary capacity are not included in the computation for the purchaser. Bonds received due to the death of the registered owner are not included in the computation for the recipient. (d) We reserve the right to take any action we deem necessary to adjust the excess, including the right to remove the excess bonds from your TreasuryDirect account and refund the payment price to your bank account of record using the ACH method of payment. 40 CFR Part 52 Mark Reger, Acting Fiscal Assistant Secretary. [FR Doc. 2011–33762 Filed 1–3–12; 8:45 am] BILLING CODE 4810–39–P [EPA–R09–OAR–2011–0547; FRL–9480–1] Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: 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). DATES: Effective Date: This rule is effective on February 3, 2011. ADDRESSES: EPA has established docket number EPA–R09–OAR–2011–0547 for this action. Generally, documents in the docket for this action are available SUMMARY: electronically at https:// 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 https://www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps, multivolume 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 No. Rule title SJVUAPCD ................................. SJVUAPCD ................................. 4103 .................... Open Burning ................................................................................. Table 9–1, Final Staff Report and Recommendations on Agricultural Burning. 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. wreier-aviles on DSK3TPTVN1PROD with RULES II. Public Comments and EPA Responses EPA’s proposed action provided a 30day public comment period. During this period, we received comments from the following party. 1. Sarah Jackson, Earthjustice; letter and email 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 VerDate Mar<15>2010 14:48 Jan 03, 2012 Jkt 226001 asserted that ‘‘economic feasibility considers more than simply affordability and the cost-benefit 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). PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 Adopted 04/15/10 05/20/10 Submitted 04/05/11 04/05/11 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. 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 E:\FR\FM\04JAR1.SGM 04JAR1 wreier-aviles on DSK3TPTVN1PROD with RULES Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 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 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 of measures for RACM * * * EPA may independently supplement the rationale VerDate Mar<15>2010 14:48 Jan 03, 2012 Jkt 226001 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 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 the cost analyses associated PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 215 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 10year 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 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 1 Email from Koshoua Thao, SJVUAPCD, to Rynda Kay, EPA, September 22, 2011. 2 Id. E:\FR\FM\04JAR1.SGM 04JAR1 wreier-aviles on DSK3TPTVN1PROD with RULES 216 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations explains, ‘‘Citrus is often grown in claylike soil that 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 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 4 Id. 5 See letter dated June 27, 2011, from Seyed Sadredin to Deborah Jordan. 3 Id. VerDate Mar<15>2010 materials at biomass facilities, the District has concluded that ‘‘reliance on biomass facilities as a primary, longterm alternative method to open burning is not possible since there are no longterm federal or state funding commitments for the biomass facilities * * *’’ Staff Report at 7–50. In 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 materials 4 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 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 14:48 Jan 03, 2012 Jkt 226001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 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 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: • 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 E:\FR\FM\04JAR1.SGM 04JAR1 wreier-aviles on DSK3TPTVN1PROD with RULES Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 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 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 March 7, 2011. 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 VerDate Mar<15>2010 14:48 Jan 03, 2012 Jkt 226001 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. 217 DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 410, 411, 416, 419, 489, and 495 [CMS–1525–CN] RIN 0938–AQ26 Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows: Medicare and Medicaid Programs: Hospital Outpatient Prospective Payment; Ambulatory Surgical Center Payment; Hospital Value-Based Purchasing Program; Physician SelfReferral; and Patient Notification Requirements in Provider Agreements; Corrections PART 52—[AMENDED] AGENCY: 1. The authority citation for Part 52 continues to read as follows: ACTION: Dated: September 30, 2011. Jared Blumenfeld, Regional Administrator, Region IX. ■ Authority: 42 U.S.C. 7401 et seq. 2. Section 52.220 is amended by adding paragraphs (c)(388)(i)(B)(2), (3), (4) and (5) to read as follows: ■ Identification of plan. * * * * * (c) * * * (388) * * * (i) * * * (B) * * * (2) Rule 4103, ‘‘Open Burning,’’ amended on April 15, 2010, not effective until June 1, 2010. (3) Table 9–1, Revised Proposed Staff Report and Recommendations on Agricultural Burning, approved on May 20, 2010. (4) San Joaquin Valley Air Pollution Control District, Resolution No. 10–05– 22, adopted on May 20, 2010. (5) California Air Resources Board, Resolution 10–24, adopted on May 27, 2010. * * * * * [FR Doc. 2011–33660 Filed 1–3–12; 8:45 am] BILLING CODE 6560–50–P PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 Correction of final rule with comment period. This document corrects technical errors that appeared in the final rule with comment period published in the Federal Register on November 30, 2011, entitled ‘‘Medicare and Medicaid Programs: Hospital Outpatient Prospective Payment; Ambulatory Surgical Center Payment; Hospital Value-Based Purchasing Program; Physician Self-Referral; and Patient Notification Requirements in Provider Agreements.’’ SUMMARY: Subpart F—California § 52.220 Centers for Medicare & Medicaid Services (CMS), HHS. Effective Date: This correction is effective January 1, 2012. DATES: FOR FURTHER INFORMATION CONTACT: Marjorie Baldo, (410) 786–0378, Hospital outpatient prospective payment issues. James Poyer, (410) 786– 2261, and Donald Howard, (410) 786– 6764, Hospital Value-Based Purchasing (VBP) Program Issues. SUPPLEMENTARY INFORMATION: I. Background In FR Doc. 2011–28612 of November 30, 2011 (76 FR 74122), (hereinafter referred to as the CY 2012 OPPS/ASC final rule with comment period), there were a number of technical errors that are identified and corrected in the Correction of Errors section below. The provisions in this correction document are effective as if they had been included in the CY 2012 OPPS/ASC final rule with comment period (76 FR 74122) appearing in the November 30, 2011 Federal Register. Accordingly, the corrections are effective January 1, 2012. E:\FR\FM\04JAR1.SGM 04JAR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 2 (Wednesday, January 4, 2012)]
[Rules and Regulations]
[Pages 214-217]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33660]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0547; FRL-9480-1]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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).

DATES: Effective Date: This rule is effective on February 3, 2011.

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 https://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 https://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 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 No. Rule title Adopted Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD................................ 4103 Open Burning................... 04/15/10 04/05/11
SJVUAPCD................................ ........... Table 9-1, Final Staff Report 05/20/10 04/05/11
and Recommendations on
Agricultural Burning.
----------------------------------------------------------------------------------------------------------------

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 email 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 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.
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

[[Page 215]]

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 Sec. 1.2. For those crop
categories for which it found a technically feasible alternative 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. Sec. 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. Sec. 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 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
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 the cost analyses associated with this
project.'' \1\ We are not aware of any information that contradicts the
District's assessment in this regard.
---------------------------------------------------------------------------

\1\ Email from Koshoua Thao, SJVUAPCD, to Rynda Kay, EPA,
September 22, 2011.
---------------------------------------------------------------------------

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 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\
---------------------------------------------------------------------------

\2\ Id.
---------------------------------------------------------------------------

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

[[Page 216]]

explains, ``Citrus is often grown in clay-like soil that 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.
---------------------------------------------------------------------------

\3\ Id.
---------------------------------------------------------------------------

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 Sec. 3.7.3. As a 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 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 materials \4\ and must be blended with other biomass
fuels. Staff Report at 7-37.
---------------------------------------------------------------------------

\4\ Id.
---------------------------------------------------------------------------

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

\5\ See letter dated June 27, 2011, from Seyed Sadredin to
Deborah Jordan.
---------------------------------------------------------------------------

Comment #5.b: Earthjustice claimed that the proposed 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 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:
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

[[Page 217]]

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 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 March 7, 2011. 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.

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 paragraphs (c)(388)(i)(B)(2),
(3), (4) and (5) to read as follows:

Sec. 52.220 Identification of plan.

* * * * *
(c) * * *
(388) * * *
(i) * * *
(B) * * *
(2) Rule 4103, ``Open Burning,'' amended on April 15, 2010, not
effective until June 1, 2010.
(3) Table 9-1, Revised Proposed Staff Report and Recommendations on
Agricultural Burning, approved on May 20, 2010.
(4) San Joaquin Valley Air Pollution Control District, Resolution
No. 10-05-22, adopted on May 20, 2010.
(5) California Air Resources Board, Resolution 10-24, adopted on
May 27, 2010.
* * * * *

[FR Doc. 2011-33660 Filed 1-3-12; 8:45 am]
BILLING CODE 6560-50-P

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