Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control District, 69393-69396 [2016-24081]

Download as PDF Federal Register / Vol. 81, No. 194 / Thursday, October 6, 2016 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2015–0570; FRL–9951–67– Region 9] Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control District Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is taking final action to approve a revision to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOCs), oxides of nitrogen (NOX), and SUMMARY: particulate matter (PM) from wood burning devices. We are approving a local rule that regulates these emission sources under the Clean Air Act (CAA or the Act). DATES: This rule will be effective on November 7, 2016. ADDRESSES: The EPA has established docket number EPA–R09–OAR–2015– 0570 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 94105–3901. 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 69393 (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 the EPA. Table of Contents I. Proposed Action II. Public Comments and EPA Responses III. EPA Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Proposed Action On September 30, 2015 in 80 FR 58637, the EPA proposed to approve the following rule into the California SIP. Local agency Rule No. Rule title Amended Submitted SJVUAPCD ............................. 4901 Wood Burning Fireplaces and Wood Burning Heaters .......... 09/18/14 11/06/14 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 rule and our evaluation. II. Public Comments and EPA Responses sradovich on DSK3GMQ082PROD with RULES The EPA’s proposed action provided a 30-day public comment period. During this period, which ended on October 30, 2015, we received comments from Adenike Adeyeye, Earthjustice.1 Summaries of the comments are provided below, along with our responses to those comments. Comment #1: Earthjustice commented that, ‘‘[t]he previous iteration of Rule 4901, amended in 2008, banned the use of [all] wood burning devices when the forecasted PM2.5 concentration exceeded 30 [micrograms per cubic meter (mg/ m3)]’’, while the submitted rule allows use of registered devices 2 until forecasted PM2.5 concentrations reach 65 mg/m3. Earthjustice argued that this revision, which allows registered 1 Letter and email from Adenike Adeyeye, Earthjustice, dated and received October 30, 2015. 2 Submitted Rule 4901, Paragraph 5.7.1 sets eligibility requirements for District registration of wood burning heaters that may be used during a Level One Episodic Wood Burning Curtailment. The heaters must be either exempt from EPA certification requirements or EPA-certified as specified under the New Source Performance Standard (NSPS) for New Residential Wood Heaters (40 CFR part 60, subpart AAA) in effect at the time of purchase or installation. VerDate Sep<11>2014 17:57 Oct 05, 2016 Jkt 241001 devices to burn and emit PM equal to or less than 2.5 microns in diameter (PM2.5) while the San Joaquin Valley Air Basin is violating the 2006 24-hour PM2.5 standard, constitutes a relaxation of restrictions on burning for registered wood burning devices that violates CAA section 110(l). Earthjustice noted that SJVUAPCD justified this relaxation by predicting drastic emission reductions from replacement of existing wood burning devices, but asserted that SJVUAPCD’s claim that the relaxation is irrelevant because the associated emissions are low is incorrect. Response #1: We disagree with the commenter’s claim that the rule revisions are a relaxation that violates CAA section 110(l). As an initial matter, section 110(l) does not prohibit all relaxations of individual SIP-approved rule provisions. Rather, section 110(l) prohibits the EPA from approving a SIP revision that ‘‘would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in [CAA section 171]), or any other applicable requirement of [the CAA].’’ The EPA’s conclusion that Rule 4901 will not interfere with attainment is not based on low emissions associated with the revision of the SIP to allow registered devices to be used when forecasted concentrations are between 30 and 65 mg/m3, as the commenter asserts. The commenter focuses only on this provision of Rule 4901 and ignores the associated requirement that unregistered PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 devices can no longer be used when forecasted concentrations are above 20 mg/m3. Contrary to the commenter’s suggestion, the EPA is not required under section 110(l) to evaluate each individual revision to Rule 4901 separately from all other revisions to Rule 4901. Accordingly, the EPA’s analysis of Rule 4901 considers both provisions in conjunction. As discussed in the EPA’s Technical Support Document supporting our proposed approval of Rule 4901 (‘‘Rule 4901 TSD’’),3 SJVUAPCD estimates that reducing the PM2.5 forecast level at which unregistered devices are banned from 30 to 20 mg/m3 decreases average wood burning season emissions by 3.33 tons per day (tpd) PM2.5, while allowing registered devices to burn when forecasted concentrations are between 30–65 mg/m3 increases emissions by 0.065 tpd PM2.5. Combining these changes yields an overall estimated emission reduction of 3.27 tpd PM2.5 when compared to the SIP-approved rule.4 Therefore, projected increases in 3 See Technical Support Document for the EPA’s Proposed Rulemaking for the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District Rule 4901, Wood Burning Fireplaces and Wood Burning Heaters, August 2015, (‘‘Rule 4901 TSD’’) page 8. 4 As noted in the Rule 4901 TSD, the SIPapproved version of Rule 4901 contains a contingency provision which would have come into effect if the EPA had found that the SJV had failed to attain the 1997 PM2.5 National Ambient Air Quality Standards (NAAQS or ‘‘standards’’) by the applicable deadline. That provision would have E:\FR\FM\06OCR1.SGM Continued 06OCR1 69394 Federal Register / Vol. 81, No. 194 / Thursday, October 6, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES emissions from registered devices are more than offset by the emission reductions achieved by the enhanced curtailment criteria for unregistered stoves. Contrary to the commenter’s assertion, this evaluation does not rely on expected additional change-outs to cleaner burning devices, which would lead to additional emission reductions beyond 3.27 tpd PM2.5. Thus, the revisions to Rule 4901 are expected to result in significant emission reductions overall compared to the current SIPapproved version of the rule, which will help to expedite attainment of the PM2.5 NAAQS in the San Joaquin Valley (SJV). Accordingly, we find that the revisions to Rule 4901 are consistent with the development of an overall plan for attaining the NAAQS in the SJV. With regard to other applicable requirements of the CAA, for the reasons explained in our proposal, TSD and in response to comments below, we also find that Rule 4901 implements reasonably available control measures (RACM) and best available control measures (BACM) for PM2.5 emissions from wood burning devices in the SJV. Therefore, we conclude that the revisions to Rule 4901 will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA. Comment #2: Earthjustice commented that the Bay Area Air Quality Management District (BAAQMD), South Coast Air Quality Management District (SCAQMD), and Sacramento Metropolitan Air Quality Management District (SMAQMD) include more stringent curtailment requirements as they apply to registered devices. In particular, Earthjustice noted that SCAQMD and BAAQMD ban the use of all wood burning devices when the forecasted PM2.5 concentration exceeds 30 mg/m3 and 35 mg/m3, respectively. SMAQMD limits burning using a tiered system, banning the use of registered devices when the forecasted PM2.5 concentration exceeds 35 mg/m3. As a result, Earthjustice argued that ‘‘[t]he changes to rule 4901 do not meet the reduced the mandatory curtailment PM2.5 forecast threshold from 30 to 20 mg/m3 for all wood burning devices. However, we have not made a finding that the SJV failed to attain the 1997 PM2.5 NAAQS by the applicable deadline, so the contingency provision has not been triggered. Moreover, we have withdrawn our approval of and disapproved the State’s 2013 Contingency Measure Submittal, which relied, among other things on the contingency provision in Rule 4901. 81 FR 29498 (May 12, 2016). Accordingly, we believe the appropriate point of comparison for purposes of 110(l) is the SIP-approved rule without the contingency measure (i.e., a mandatory curtailment PM2.5 forecast threshold of 30 mg/m3 for all wood burning devices). VerDate Sep<11>2014 17:57 Oct 05, 2016 Jkt 241001 requirements for reasonably available control measures (RACM) or BACM for registered wood burning devices.’’ Response #2: The commenter appears to assume that we must evaluate RACM and BACM for registered (clean burning) devices separately from RACM and BACM for unregistered devices. We do not agree with this premise. Nothing in the CAA or EPA’s implementing regulations requires us to consider the stringency of requirements for registered devices separately from the stringency of requirements for unregistered devices. Furthermore, the purpose of the two-tiered curtailment system is to encourage replacement of unregistered devices with registered devices, so it is reasonable to consider the requirements applicable to registered and unregistered devices together.5 As explained above, SJVUAPCD estimates that the emissions from registered clean burning devices when concentrations are above 30 mg/m3 will be overwhelmingly compensated for by decreased emissions from unregistered devices when concentrations are between 20–30 mg/m3, making the Rule 4901 curtailment program at least as stringent as or more stringent than these and other analogous curtailment programs.6 The commenter has not provided information that contradicts the District’s assessment in this regard. Comment #3: Earthjustice asserted that the controls on the installation of wood burning devices in new developments are less stringent than those used by SCAQMD and BAAQMD. In particular, the commenter noted that SCAQMD Rule 445 prohibits the installation of any wood burning device in new development, except where there is no existing infrastructure for natural gas within 150 feet of the property line or those 3,000 feet above sea level.7 In addition, the commenter stated that ‘‘BAAQMD recently became the first air district in the nation to ban the installation of wood burning devices in any new development.’’ Response #3: Rule 4901, Paragraph 5.3 limits the number of wood burning devices that can be installed in new residential developments. In residential developments with a density greater than two dwellings per acre, no wood burning fireplaces are allowed and a 5 For example, on page 45 of Final Staff Report for Amendments to the District’s Residential Wood Burning Program, SJVUAPCD, dated September 18, 2014, SJVUAPCD explains that 29% of survey respondents indicated that they would replace their current wood burning fireplace or wood burning heater with a cleaner device if allowed to burn more often. 6 See Rule 4901 TSD, page 11. 7 SCAQMD, Rule 445: Wood Burning Devices, Section f(2) (amended 5/3/13). PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 maximum of two certified wood burning heaters per acre are allowed. In developments with a density less than or equal to two dwellings per acre, one wood burning fireplace or certified wood burning heater is allowed per dwelling. As discussed in Rule 4901 TSD at page 12, ‘‘SJVUAPCD states that Rule 4901 is more stringent than SCAQMD Rule 445 as it does not exempt any homes at any elevation.8 Given the lack of any exemptions in Rule 4901, it is reasonable to conclude that Rule 4901 is at least as stringent as SCAQMD Rule 445.’’ The commenters have not provided new information to contradict this conclusion. The ban on wood burning devices in new construction in BAAQMD Regulation 6–3 was enacted on October 21, 2015, more than a year after SJVUAPCD had amended Rule 4901 on September 18, 2014, and does not become effective until November 1, 2016.9 Given that no other State or district had enacted a complete ban at the time that SJVUAPCD was revising Rule 4901 and conducting its BACM analysis and no such ban has yet become effective in any State or district, we do not believe it is reasonable to disapprove Rule 4901 for failing to include such a ban. However, we recommend that SJVUAPCD evaluate the feasibility of such a ban in the SJV and revise Rule 4901 to include such a ban, if it is found to be feasible. Comment #4: Earthjustice commented that Rule 4901’s incentive of fewer noburn days for registered devices is inappropriate and unnecessarily adds air pollution. Earthjustice argued that SJVUAPCD’s well-funded financial incentives program is sufficient to motivate a switch to registered wood burning devices and allowing these devices to burn additional days is an unnecessary additional incentive. Further, Earthjustice suggested, if the District offers an additional ‘‘incentive of fewer no burn days, the limit for registered devices should be 30 mg/m3, not 65 mg/m3.’’ Response #4: The survey conducted for SJVUAPCD found that 24 percent (%) of residents with non-EPA certified wood burning heaters and wood burning fireplaces would transition to cleaner burning devices if provided a discount of up to 50% toward the cost of a new wood burning device and 29% of residents stated they would transition to cleaner devices if allowed to burn 8 See Rule 4901 Staff Report, p. 30. Regulation 6: Particulate Matter and Visible Emissions, Rule 3: Wood Burning Devices, Section 6-3-306 (amended 10/21/15). 9 BAAQMD, E:\FR\FM\06OCR1.SGM 06OCR1 sradovich on DSK3GMQ082PROD with RULES Federal Register / Vol. 81, No. 194 / Thursday, October 6, 2016 / Rules and Regulations more often.10 It seems reasonable to conclude that using both strategies in combination should encourage at least some additional change-outs over just providing incentive funding. In reviewing SIP submissions, the EPA’s role is to approve state choices, provided that they meet minimum criteria set by the CAA and any applicable EPA regulations and are reasonable. We conclude that allowing clean burning devices to burn when the PM2.5 concentration is forecasted to be between 20–65 mg/m3 is reasonable and, as described in Response #1 and #2 above, complies with relevant CAA requirements. Comment #5: Earthjustice argued that the District should be required to incorporate the EPA’s recommendations into Rule 4901. In particular, Earthjustice asserted that the District should: (1) Not subsidize the transition to wood burning heaters, which are generally used more frequently than gas fireplaces; (2) require retrofit of existing wood burning fireplaces during major renovations; and (3) require homes where wood burning devices are the sole source of heat to meet current EPA certification requirements. Earthjustice noted that requirements similar to (2) and (3) were recently added to the BAAQMD rule. Response #5: While we agree that SJVUAPCD should consider eliminating subsidies for transition from fireplaces to wood burning heaters, details regarding the implementation of SJVUAPCD’s monetary incentive program have not been submitted into the SIP and are outside of the scope of this rulemaking. Regarding retrofits of wood burning fireplaces during major renovations, at the time of Rule 4901 adoption and proposal, Laguna Beach, California was the only area we were aware of that required fireplace retrofits upon major home renovation. While we recommended SJVUAPCD examine the feasibility of including this provision, its existence in one small southern California city is not a sufficient basis for determining that it is feasible in the much larger and more diverse SJV. As noted by the commenter, on October 21, 2015, BAAQMD adopted a requirement that a gas-fueled, electric, or EPAcertified device be installed upon remodel of a fireplace or chimney where total costs exceed $15,000 and a local building permit is required. Given that no other State or district had adopted a similar provision at the time that Rule 4901 was revised, we do not believe it is reasonable to disapprove Rule 4901 for failing to include such a provision. 10 See Staff Report, Appendix B, p. B–13. VerDate Sep<11>2014 17:57 Oct 05, 2016 Jkt 241001 However, we continue to recommend that SJVUAPCD consider the feasibility of implementing such a provision in the SJV, particularly in light of the newlyenacted BAAQMD provision. Similarly, we do not believe it is reasonable to disapprove Rule 4901 for failing to require sole-source households to meet EPA certification requirements, as no other State or district had adopted a similar provision at the time that Rule 4901 was amended. In the Rule 4901 TSD, Attachment 1,11 we compared Rule 4901 to analogous district rules, and found SJVUAPCD implements a collection of measures as stringent as or more stringent than these rules. We agree that SJVUAPCD should consider our recommendations for future rule revisions, but they do not affect our conclusion that Rule 4901, as amended, strengthens the SIP, decreases PM2.5 emissions, and currently implements BACM/Best Available Control Technology (BACT) for wood burning devices. Additionally, the rule fulfills the relevant CAA section 110 and Title I Part D requirements. Therefore, we conclude that our recommendations for rule revisions do not provide a basis for rule disapproval. III. EPA Action No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP. IV. Incorporation by Reference In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SJVUAPCD rule described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at U.S. Environmental Protection Agency Region IX (AIR–4), 75 Hawthorne Street, San Francisco, CA, 94105–3901. V. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the 11 See Rule 4901 TSD, Attachment 1. Major Components of Various Residential Wood Burning Rules.xlsx. PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 69395 provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • 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 be inconsistent with the Clean Air Act; and • does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). E:\FR\FM\06OCR1.SGM 06OCR1 69396 Federal Register / Vol. 81, No. 194 / Thursday, October 6, 2016 / Rules and Regulations 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. The 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 December 5, 2016. 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: August 15, 2016. Alexis Strauss, Acting Regional Administrator, Region IX. Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for Part 52 continues to read as follows: sradovich on DSK3GMQ082PROD with RULES ■ Authority: 42 U.S.C. 7401 et seq. Subpart F—California 2. Section 52.220 is amended by adding paragraphs (c)(364)(i)(A)(4) and (c)(457)(i)(H) to read as follows: ■ VerDate Sep<11>2014 17:57 Oct 05, 2016 Jkt 241001 § 52.220 Identification of plan—in part. * * * * * (c) * * * (364) * * * (i) * * * (A) * * * (4) Previously approved on October 11, 2009 in paragraph (c)(364)(i)(A)(2) of this section and now deleted with replacement in paragraph (c)(457)(i)(H)(1), Rule 4901, ‘‘Wood Burning Fireplaces and Wood Burning Heaters,’’ amended on October 16, 2008. * * * * * (457) * * * (i) * * * (H) San Joaquin Valley Unified Air Pollution Control District. (1) Rule 4901, ‘‘Wood Burning Fireplaces and Wood Burning Heaters,’’ amended on September 18, 2014. * * * * * [FR Doc. 2016–24081 Filed 10–5–16; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2015–0432; FRL–9953–66– Region 9] Denial of Request for Extension of Attainment Date for 1997 PM2.5 NAAQS; California; San Joaquin Valley Serious Nonattainment Area Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is denying a request submitted by California for extension of the attainment date for the 1997 24-hour and annual fine particulate matter (PM2.5) national ambient air quality standards in the San Joaquin Valley Serious PM2.5 nonattainment area. DATES: This rule is effective on November 7, 2016. ADDRESSES: The EPA has established docket number EPA–R09–OAR–2015– 0432 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 94105–3901. 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 SUMMARY: PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 (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: Rory Mays, Air Planning Office (AIR–2), EPA Region 9, (415) 972–3227, mays.rory@ epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us’’ and ‘‘our’’ refer to the EPA. Table of Contents I. Background II. Final Action on Section 188(e) Extension Request III. Statutory and Executive Order Reviews I. Background On February 9, 2016, the EPA proposed to approve, conditionally approve, and disapprove state implementation plan (SIP) revisions submitted by California (the ‘‘State’’ or California Air Resources Board (CARB)) to address Clean Air Act (CAA or ‘‘Act’’) requirements for the 1997 24-hour and annual PM2.5 national ambient air quality standards (NAAQS) in the San Joaquin Valley (SJV) Serious PM2.5 nonattainment area.1 The SIP revisions on which we proposed action are the ‘‘2015 Plan for the 1997 PM2.5 Standard,’’ which the State submitted on June 25, 2015, and the ‘‘2018 Transportation Conformity Budgets for the San Joaquin Valley PM2.5 SIP, Plan Supplement,’’ submitted on August 13, 2015. We refer to these SIP submissions collectively as the ‘‘2015 PM2.5 Plan’’ or ‘‘the Plan.’’ The 2015 PM2.5 Plan is a PM2.5 Serious area attainment plan for the SJV and includes a request to extend the applicable attainment date for the 24-hour and annual PM2.5 standards by three and five years, respectively, on the basis that attainment by December 31, 2015 is impracticable, in accordance with CAA section 188(e). The EPA proposed to approve the following elements of the Plan as satisfying applicable CAA requirements: (1) The 2012 base year emissions inventories; (2) the best available control measures (BACM)/best available control technology demonstration; (3) the attainment demonstration; (4) the reasonable further progress demonstration; (5) the State’s application for an extension of the Serious area attainment date to December 31, 2018 for the 1997 24-hour PM2.5 NAAQS and to December 31, 2020 for the 1997 annual PM2.5 NAAQS; (6) the San Joaquin Valley Unified Air Pollution Control District (the ‘‘District’’ 1 81 E:\FR\FM\06OCR1.SGM FR 6936 (February 9, 2016). 06OCR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 81, Number 194 (Thursday, October 6, 2016)]
[Rules and Regulations]
[Pages 69393-69396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24081]

[[Page 69393]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2015-0570; FRL-9951-67-Region 9]

Approval of California Air Plan Revisions, San Joaquin Valley
Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve a revision to the San Joaquin Valley Unified Air
Pollution Control District (SJVUAPCD) portion of the California State
Implementation Plan (SIP). This revision concerns emissions of volatile
organic compounds (VOCs), oxides of nitrogen (NOX), and
particulate matter (PM) from wood burning devices. We are approving a
local rule that regulates these emission sources under the Clean Air
Act (CAA or the Act).

DATES: This rule will be effective on November 7, 2016.

ADDRESSES: The EPA has established docket number EPA-R09-OAR-2015-0570
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 94105-
3901. 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 the EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

On September 30, 2015 in 80 FR 58637, the EPA proposed to approve
the following rule into the California SIP.

----------------------------------------------------------------------------------------------------------------
Local agency Rule No. Rule title Amended Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD.......................... 4901 Wood Burning Fireplaces 09/18/14 11/06/14
and Wood Burning Heaters.
----------------------------------------------------------------------------------------------------------------

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 rule and our evaluation.

II. Public Comments and EPA Responses

The EPA's proposed action provided a 30-day public comment period.
During this period, which ended on October 30, 2015, we received
comments from Adenike Adeyeye, Earthjustice.\1\ Summaries of the
comments are provided below, along with our responses to those
comments.
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\1\ Letter and email from Adenike Adeyeye, Earthjustice, dated
and received October 30, 2015.
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Comment #1: Earthjustice commented that, ``[t]he previous iteration
of Rule 4901, amended in 2008, banned the use of [all] wood burning
devices when the forecasted PM2.5 concentration exceeded 30
[micrograms per cubic meter ([micro]g/m\3\)]'', while the submitted
rule allows use of registered devices \2\ until forecasted
PM2.5 concentrations reach 65 [micro]g/m\3\. Earthjustice
argued that this revision, which allows registered devices to burn and
emit PM equal to or less than 2.5 microns in diameter
(PM2.5) while the San Joaquin Valley Air Basin is violating
the 2006 24-hour PM2.5 standard, constitutes a relaxation of
restrictions on burning for registered wood burning devices that
violates CAA section 110(l). Earthjustice noted that SJVUAPCD justified
this relaxation by predicting drastic emission reductions from
replacement of existing wood burning devices, but asserted that
SJVUAPCD's claim that the relaxation is irrelevant because the
associated emissions are low is incorrect.
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\2\ Submitted Rule 4901, Paragraph 5.7.1 sets eligibility
requirements for District registration of wood burning heaters that
may be used during a Level One Episodic Wood Burning Curtailment.
The heaters must be either exempt from EPA certification
requirements or EPA-certified as specified under the New Source
Performance Standard (NSPS) for New Residential Wood Heaters (40 CFR
part 60, subpart AAA) in effect at the time of purchase or
installation.
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Response #1: We disagree with the commenter's claim that the rule
revisions are a relaxation that violates CAA section 110(l). As an
initial matter, section 110(l) does not prohibit all relaxations of
individual SIP-approved rule provisions. Rather, section 110(l)
prohibits the EPA from approving a SIP revision that ``would interfere
with any applicable requirement concerning attainment and reasonable
further progress (as defined in [CAA section 171]), or any other
applicable requirement of [the CAA].'' The EPA's conclusion that Rule
4901 will not interfere with attainment is not based on low emissions
associated with the revision of the SIP to allow registered devices to
be used when forecasted concentrations are between 30 and 65 [micro]g/
m\3\, as the commenter asserts. The commenter focuses only on this
provision of Rule 4901 and ignores the associated requirement that
unregistered devices can no longer be used when forecasted
concentrations are above 20 [micro]g/m\3\. Contrary to the commenter's
suggestion, the EPA is not required under section 110(l) to evaluate
each individual revision to Rule 4901 separately from all other
revisions to Rule 4901. Accordingly, the EPA's analysis of Rule 4901
considers both provisions in conjunction.
As discussed in the EPA's Technical Support Document supporting our
proposed approval of Rule 4901 (``Rule 4901 TSD''),\3\ SJVUAPCD
estimates that reducing the PM2.5 forecast level at which
unregistered devices are banned from 30 to 20 [micro]g/m\3\ decreases
average wood burning season emissions by 3.33 tons per day (tpd)
PM2.5, while allowing registered devices to burn when
forecasted concentrations are between 30-65 [micro]g/m\3\ increases
emissions by 0.065 tpd PM2.5. Combining these changes yields
an overall estimated emission reduction of 3.27 tpd PM2.5
when compared to the SIP-approved rule.\4\ Therefore, projected
increases in

[[Page 69394]]

emissions from registered devices are more than offset by the emission
reductions achieved by the enhanced curtailment criteria for
unregistered stoves. Contrary to the commenter's assertion, this
evaluation does not rely on expected additional change-outs to cleaner
burning devices, which would lead to additional emission reductions
beyond 3.27 tpd PM2.5. Thus, the revisions to Rule 4901 are
expected to result in significant emission reductions overall compared
to the current SIP-approved version of the rule, which will help to
expedite attainment of the PM2.5 NAAQS in the San Joaquin
Valley (SJV). Accordingly, we find that the revisions to Rule 4901 are
consistent with the development of an overall plan for attaining the
NAAQS in the SJV.
---------------------------------------------------------------------------

\3\ See Technical Support Document for the EPA's Proposed
Rulemaking for the California State Implementation Plan, San Joaquin
Valley Unified Air Pollution Control District Rule 4901, Wood
Burning Fireplaces and Wood Burning Heaters, August 2015, (``Rule
4901 TSD'') page 8.
\4\ As noted in the Rule 4901 TSD, the SIP-approved version of
Rule 4901 contains a contingency provision which would have come
into effect if the EPA had found that the SJV had failed to attain
the 1997 PM2.5 National Ambient Air Quality Standards
(NAAQS or ``standards'') by the applicable deadline. That provision
would have reduced the mandatory curtailment PM2.5
forecast threshold from 30 to 20 [mu]g/m\3\ for all wood burning
devices. However, we have not made a finding that the SJV failed to
attain the 1997 PM2.5 NAAQS by the applicable deadline,
so the contingency provision has not been triggered. Moreover, we
have withdrawn our approval of and disapproved the State's 2013
Contingency Measure Submittal, which relied, among other things on
the contingency provision in Rule 4901. 81 FR 29498 (May 12, 2016).
Accordingly, we believe the appropriate point of comparison for
purposes of 110(l) is the SIP-approved rule without the contingency
measure (i.e., a mandatory curtailment PM2.5 forecast
threshold of 30 [mu]g/m\3\ for all wood burning devices).
---------------------------------------------------------------------------

With regard to other applicable requirements of the CAA, for the
reasons explained in our proposal, TSD and in response to comments
below, we also find that Rule 4901 implements reasonably available
control measures (RACM) and best available control measures (BACM) for
PM2.5 emissions from wood burning devices in the SJV.
Therefore, we conclude that the revisions to Rule 4901 will not
interfere with any applicable requirement concerning attainment and
reasonable further progress or any other applicable requirement of the
CAA.
Comment #2: Earthjustice commented that the Bay Area Air Quality
Management District (BAAQMD), South Coast Air Quality Management
District (SCAQMD), and Sacramento Metropolitan Air Quality Management
District (SMAQMD) include more stringent curtailment requirements as
they apply to registered devices. In particular, Earthjustice noted
that SCAQMD and BAAQMD ban the use of all wood burning devices when the
forecasted PM2.5 concentration exceeds 30 [micro]g/m\3\ and
35 [micro]g/m\3\, respectively. SMAQMD limits burning using a tiered
system, banning the use of registered devices when the forecasted
PM2.5 concentration exceeds 35 [micro]g/m\3\. As a result,
Earthjustice argued that ``[t]he changes to rule 4901 do not meet the
requirements for reasonably available control measures (RACM) or BACM
for registered wood burning devices.''
Response #2: The commenter appears to assume that we must evaluate
RACM and BACM for registered (clean burning) devices separately from
RACM and BACM for unregistered devices. We do not agree with this
premise. Nothing in the CAA or EPA's implementing regulations requires
us to consider the stringency of requirements for registered devices
separately from the stringency of requirements for unregistered
devices. Furthermore, the purpose of the two-tiered curtailment system
is to encourage replacement of unregistered devices with registered
devices, so it is reasonable to consider the requirements applicable to
registered and unregistered devices together.\5\ As explained above,
SJVUAPCD estimates that the emissions from registered clean burning
devices when concentrations are above 30 [micro]g/m\3\ will be
overwhelmingly compensated for by decreased emissions from unregistered
devices when concentrations are between 20-30 [micro]g/m\3\, making the
Rule 4901 curtailment program at least as stringent as or more
stringent than these and other analogous curtailment programs.\6\ The
commenter has not provided information that contradicts the District's
assessment in this regard.
---------------------------------------------------------------------------

\5\ For example, on page 45 of Final Staff Report for Amendments
to the District's Residential Wood Burning Program, SJVUAPCD, dated
September 18, 2014, SJVUAPCD explains that 29% of survey respondents
indicated that they would replace their current wood burning
fireplace or wood burning heater with a cleaner device if allowed to
burn more often.
\6\ See Rule 4901 TSD, page 11.
---------------------------------------------------------------------------

Comment #3: Earthjustice asserted that the controls on the
installation of wood burning devices in new developments are less
stringent than those used by SCAQMD and BAAQMD. In particular, the
commenter noted that SCAQMD Rule 445 prohibits the installation of any
wood burning device in new development, except where there is no
existing infrastructure for natural gas within 150 feet of the property
line or those 3,000 feet above sea level.\7\ In addition, the commenter
stated that ``BAAQMD recently became the first air district in the
nation to ban the installation of wood burning devices in any new
development.''
---------------------------------------------------------------------------

\7\ SCAQMD, Rule 445: Wood Burning Devices, Section f(2)
(amended 5/3/13).
---------------------------------------------------------------------------

Response #3: Rule 4901, Paragraph 5.3 limits the number of wood
burning devices that can be installed in new residential developments.
In residential developments with a density greater than two dwellings
per acre, no wood burning fireplaces are allowed and a maximum of two
certified wood burning heaters per acre are allowed. In developments
with a density less than or equal to two dwellings per acre, one wood
burning fireplace or certified wood burning heater is allowed per
dwelling. As discussed in Rule 4901 TSD at page 12, ``SJVUAPCD states
that Rule 4901 is more stringent than SCAQMD Rule 445 as it does not
exempt any homes at any elevation.\8\ Given the lack of any exemptions
in Rule 4901, it is reasonable to conclude that Rule 4901 is at least
as stringent as SCAQMD Rule 445.'' The commenters have not provided new
information to contradict this conclusion.
---------------------------------------------------------------------------

\8\ See Rule 4901 Staff Report, p. 30.
---------------------------------------------------------------------------

The ban on wood burning devices in new construction in BAAQMD
Regulation 6-3 was enacted on October 21, 2015, more than a year after
SJVUAPCD had amended Rule 4901 on September 18, 2014, and does not
become effective until November 1, 2016.\9\ Given that no other State
or district had enacted a complete ban at the time that SJVUAPCD was
revising Rule 4901 and conducting its BACM analysis and no such ban has
yet become effective in any State or district, we do not believe it is
reasonable to disapprove Rule 4901 for failing to include such a ban.
However, we recommend that SJVUAPCD evaluate the feasibility of such a
ban in the SJV and revise Rule 4901 to include such a ban, if it is
found to be feasible.
---------------------------------------------------------------------------

\9\ BAAQMD, Regulation 6: Particulate Matter and Visible
Emissions, Rule 3: Wood Burning Devices, Section
6[hyphen]3[hyphen]306 (amended 10/21/15).
---------------------------------------------------------------------------

Comment #4: Earthjustice commented that Rule 4901's incentive of
fewer no-burn days for registered devices is inappropriate and
unnecessarily adds air pollution. Earthjustice argued that SJVUAPCD's
well-funded financial incentives program is sufficient to motivate a
switch to registered wood burning devices and allowing these devices to
burn additional days is an unnecessary additional incentive. Further,
Earthjustice suggested, if the District offers an additional
``incentive of fewer no burn days, the limit for registered devices
should be 30 [micro]g/m\3\, not 65 [micro]g/m\3\.''
Response #4: The survey conducted for SJVUAPCD found that 24
percent (%) of residents with non-EPA certified wood burning heaters
and wood burning fireplaces would transition to cleaner burning devices
if provided a discount of up to 50% toward the cost of a new wood
burning device and 29% of residents stated they would transition to
cleaner devices if allowed to burn

[[Page 69395]]

more often.\10\ It seems reasonable to conclude that using both
strategies in combination should encourage at least some additional
change-outs over just providing incentive funding. In reviewing SIP
submissions, the EPA's role is to approve state choices, provided that
they meet minimum criteria set by the CAA and any applicable EPA
regulations and are reasonable. We conclude that allowing clean burning
devices to burn when the PM2.5 concentration is forecasted
to be between 20-65 [mu]g/m\3\ is reasonable and, as described in
Response #1 and #2 above, complies with relevant CAA requirements.
---------------------------------------------------------------------------

\10\ See Staff Report, Appendix B, p. B-13.
---------------------------------------------------------------------------

Comment #5: Earthjustice argued that the District should be
required to incorporate the EPA's recommendations into Rule 4901. In
particular, Earthjustice asserted that the District should: (1) Not
subsidize the transition to wood burning heaters, which are generally
used more frequently than gas fireplaces; (2) require retrofit of
existing wood burning fireplaces during major renovations; and (3)
require homes where wood burning devices are the sole source of heat to
meet current EPA certification requirements. Earthjustice noted that
requirements similar to (2) and (3) were recently added to the BAAQMD
rule.
Response #5: While we agree that SJVUAPCD should consider
eliminating subsidies for transition from fireplaces to wood burning
heaters, details regarding the implementation of SJVUAPCD's monetary
incentive program have not been submitted into the SIP and are outside
of the scope of this rulemaking. Regarding retrofits of wood burning
fireplaces during major renovations, at the time of Rule 4901 adoption
and proposal, Laguna Beach, California was the only area we were aware
of that required fireplace retrofits upon major home renovation. While
we recommended SJVUAPCD examine the feasibility of including this
provision, its existence in one small southern California city is not a
sufficient basis for determining that it is feasible in the much larger
and more diverse SJV. As noted by the commenter, on October 21, 2015,
BAAQMD adopted a requirement that a gas-fueled, electric, or EPA-
certified device be installed upon remodel of a fireplace or chimney
where total costs exceed $15,000 and a local building permit is
required. Given that no other State or district had adopted a similar
provision at the time that Rule 4901 was revised, we do not believe it
is reasonable to disapprove Rule 4901 for failing to include such a
provision. However, we continue to recommend that SJVUAPCD consider the
feasibility of implementing such a provision in the SJV, particularly
in light of the newly-enacted BAAQMD provision. Similarly, we do not
believe it is reasonable to disapprove Rule 4901 for failing to require
sole-source households to meet EPA certification requirements, as no
other State or district had adopted a similar provision at the time
that Rule 4901 was amended.
In the Rule 4901 TSD, Attachment 1,\11\ we compared Rule 4901 to
analogous district rules, and found SJVUAPCD implements a collection of
measures as stringent as or more stringent than these rules. We agree
that SJVUAPCD should consider our recommendations for future rule
revisions, but they do not affect our conclusion that Rule 4901, as
amended, strengthens the SIP, decreases PM2.5 emissions, and
currently implements BACM/Best Available Control Technology (BACT) for
wood burning devices. Additionally, the rule fulfills the relevant CAA
section 110 and Title I Part D requirements. Therefore, we conclude
that our recommendations for rule revisions do not provide a basis for
rule disapproval.
---------------------------------------------------------------------------

\11\ See Rule 4901 TSD, Attachment 1. Major Components of
Various Residential Wood Burning Rules.xlsx.
---------------------------------------------------------------------------

III. EPA Action

No comments were submitted that change our assessment of the rule
as described in our proposed action. Therefore, as authorized in
section 110(k)(3) of the Act, the EPA is fully approving this rule into
the California SIP.

IV. Incorporation by Reference

In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of the
SJVUAPCD rule described in the amendments to 40 CFR part 52 set forth
below. The EPA has made, and will continue to make, these documents
available electronically through www.regulations.gov and in hard copy
at U.S. Environmental Protection Agency Region IX (AIR-4), 75 Hawthorne
Street, San Francisco, CA, 94105-3901.

V. 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, the 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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
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 be inconsistent
with the Clean Air Act; and
does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).

[[Page 69396]]

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. The 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 December 5, 2016. 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: August 15, 2016.
Alexis Strauss,
Acting Regional Administrator, Region IX.

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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)(364)(i)(A)(4) and
(c)(457)(i)(H) to read as follows:

Sec. 52.220 Identification of plan--in part.

* * * * *
(c) * * *
(364) * * *
(i) * * *
(A) * * *
(4) Previously approved on October 11, 2009 in paragraph
(c)(364)(i)(A)(2) of this section and now deleted with replacement in
paragraph (c)(457)(i)(H)(1), Rule 4901, ``Wood Burning Fireplaces and
Wood Burning Heaters,'' amended on October 16, 2008.
* * * * *
(457) * * *
(i) * * *
(H) San Joaquin Valley Unified Air Pollution Control District.
(1) Rule 4901, ``Wood Burning Fireplaces and Wood Burning
Heaters,'' amended on September 18, 2014.
* * * * *
[FR Doc. 2016-24081 Filed 10-5-16; 8:45 am]
BILLING CODE 6560-50-P

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