[Federal Register Volume 77, Number 6 (Tuesday, January 10, 2012)]
[Rules and Regulations]
[Pages 1417-1427]
[FR Doc No: 2012-139]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0723; FRL-9616-5]

Partial Approval and Partial Disapproval of Air Quality
Implementation Plans; California; San Joaquin Valley; Reasonably
Available Control Technology for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving in part and disapproving in part a revision
to the San Joaquin Valley Unified Air Pollution Control District
(SJVUAPCD or SJV) portion of the California State Implementation Plan
(SIP). This action was proposed in the Federal Register on September 9,
2011 and concerns SJVUAPCD's ``Reasonably Available Control Technology
(RACT) Demonstration for Ozone SIP'' (RACT SIP) for the 8-hour ozone
National Ambient Air Quality Standard. Under authority of the Clean Air
Act as amended in 1990 (CAA or the Act), this action directs California
to correct RACT rule deficiencies in the SJV.

DATES: Effective Date: This rule is effective on February 9, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0723 for
this action. Generally, documents in the docket for this action are
available electronically at www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed at www.regulations.gov, some
information may be publicly available only at the hard copy location
(e.g., copyrighted material, large maps), and some may not be publicly
available in either location (e.g., 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: Stanley Tong, EPA Region IX, (415)
947-4122<EMAIL_ADDRESS>
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. Final Action and CAA Consequences
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On September 9, 2011 (76 FR 55842), EPA proposed to partially
approve and partially disapprove the following document that was
submitted for incorporation into the California SIP.

----------------------------------------------------------------------------------------------------------------
                 Local agency                                  Document                   Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD......................................  Reasonably Available Control             04/16/2009   06/18/2009
                                                 Technology (RACT) Demonstration for
                                                 Ozone State Implementation Plan (SIP).
----------------------------------------------------------------------------------------------------------------

    In our proposed action we divided SJVUAPCD's rules into the
following categories and evaluated each rule for compliance with RACT
requirements.
    Group 1: Rules that EPA recently approved or proposed to approve as
implementing RACT.
    Group 2: Rules previously approved for which we are not aware of
more stringent controls that are reasonably available.

    Group 3: Rules that EPA has disapproved or proposed to disapprove,
in full or in part, because SJVUAPCD's has failed to demonstrate they
fully satisfy current RACT requirements.
    Group 4: Rules for which EPA has not yet made a RACT determination.
    We proposed to approve those elements of SJVUAPCD's RACT SIP
demonstration that pertain to the SIP rules identified in groups 1 and
2, which EPA has fully approved or proposed to approve as satisfying
the RACT requirements of CAA sections 182(b)(2) and (f).
    Simultaneously, we proposed to disapprove those elements of the
RACT SIP demonstration that pertain to the SJVUAPCD rules identified in
group 3, which EPA has either disapproved or proposed to disapprove in
whole or in part, for failure to satisfy RACT requirements, and those
elements of the RACT SIP demonstration that pertain to the rules in
group 4, for which EPA has not yet made a RACT determination.
    Our technical support document for our proposed action stated that
a revised RACT SIP demonstration would not be necessary if each SIP
submittal for the rules in groups 3 and 4 contains the necessary
supporting analyses to demonstrate the rule meets RACT.
    Specifically, we proposed to partially disapprove SJVUAPCD's RACT
SIP demonstration because seven rules did not fully satisfy current
RACT requirements. We have since approved three of the rules and are
awaiting SIP submittals for the remaining four rules. The seven rules
were:
    1. Rule 4352--Solid Fuel Fired Boilers, Steam Generators, and
Process Heaters--final limited approval/disapproval October 1, 2010 (75
FR 60623). SJVUAPCD is scheduled to adopt amendments to Rule 4352 on
December 15, 2011.
    2. Rule 4401--Steam Enhanced Crude Oil Production Wells--final
limited approval/disapproval January 26, 2010, (75 FR 3996). SJVUAPCD
submitted amendments to EPA on July 28, 2011 and EPA approved them into
the SIP on November 16, 2011, (76 FR 70886).
    3. Rule 4402--Crude Oil Production Sumps--final limited approval/
disapproval July 7, 2011 (76 FR 39777). SJVUAPCD is scheduled to adopt
amendments to Rule 4402 on December 15, 2011.
    4. Rule 4605--Aerospace Assembly and Component Coating Operations--
final limited approval/disapproval January 26, 2010, (75 FR 3996).
SJVUAPCD submitted amendments to EPA on July 28, 2011 and EPA approved
them into the SIP on November 16, 2011, (76 FR 70886).
    5. Rule 4625--Wastewater Separators--final limited approval/
disapproval July 7, 2011 (76 FR 39777). SJVUAPCD is scheduled to adopt
amendments to Rule 4625 on December 15, 2011.
    6. Rule 4682--Polystyrene, Polyethylene, and Polypropylene Products
Manufacturing--proposed disapproval July 15, 2011, (76 FR 41745).
SJVUAPCD is scheduled to adopt amendments to Rule 4682 on December 15,
2011.
    7. Rule 4684--Polyester Resin Operations--final limited approval/
disapproval January 26, 2010, (75 FR 3996). SJVUAPCD submitted
amendments to EPA on August 26, 2011 and EPA approved them on November
18, 2011 (awaiting publication).
    We also proposed to partially disapprove the RACT SIP because we
had not yet made RACT determinations for the following three rules
identified under group 4:
    1. Rule 4566--Organic Material Composting Operations--adopted
August 18, 2011 and submitted to EPA on November 18, 2011.
    2. Rule 4694--Wine Fermentation and Storage Tanks--amendments
adopted August 18, 2011 and submitted to EPA on November 18, 2011.
    3. Fumigant Volatile Organic Compound Regulations--California
Department of Pesticide Regulation--submitted August 2, 2011. EPA is
currently reviewing the submittal.
    Our proposed rule contains more information on the basis for this
rulemaking and on our evaluation of the RACT SIP demonstration.

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.

Paul Cort, Earthjustice; letter dated October 11, 2011 and received
October 11, 2011.

    We have summarized the comments and provided responses below.
    Comment #1:
    Earthjustice asserts that EPA's analysis of SJVUAPCD's RACT SIP
demonstration fails to satisfy Clean Air Act requirements and largely
excuses the District's ``continued refusal to adopt the controls
necessary to meet the ozone standards in the Valley.'' Referencing
sections 172(c)(1), 182(b)(2) and 182(f) of the CAA as the provisions
governing this action, Earthjustice asserts that the requirement in
section 172(c)(1) is not limited to ``major sources'' and that ``[o]nly
section 182 mentions the need to provide for RACT for all major
stationary sources.'' Earthjustice quotes from EPA's 1992 General
Preamble (57 FR 13498, 13541 (April 16, 1992)), in which EPA states
that it ``recommends that a State's control technology analyses for
existing stationary sources go beyond major stationary sources in the
area and that States require control technology for other sources in
the area that are reasonable in light of the area's attainment needs
and the feasibility of such controls,'' and asserts that this language
represents EPA's interpretation of the ``interplay'' of CAA sections
172(c)(1), 182(b)(2), and 182(f). Finally, Earthjustice argues that
EPA's review of SJVUAPCD's RACT demonstration does not recognize ``the
extreme attainment needs for the Valley'' and that ``[i]t is not
possible to make the RACT demonstration for the Valley without
explaining what is needed to attain the ozone standards in the Valley
and using this attainment need to justify the thresholds used to accept
or eliminate available control options.''
    Response #1:
    We disagree with Earthjustice's characterization of the CAA
requirements that apply to our evaluation of the RACT SIP for SJV. As
explained in our proposed rule and our August 29, 2011 Technical
Support Document for our proposed action on the RACT SIP (``2011 RACT
SIP TSD''), California submitted the SJV RACT SIP to meet the RACT
requirements of subpart 2, part D of title I of the CAA (sections
182(b) and 182(f)), and EPA therefore evaluated the submittal in
accordance with those requirements. See 76 FR 55842 at 55844 (September
9, 2011) and 2011 RACT SIP TSD at 2-9 and 34-35.
    Prior to the 1990 Amendments to the CAA, all nonattainment areas
were subject to the nonattainment planning provisions of section 172.
Under section 172, the RACT requirement and the attainment
demonstration are addressed in the same subsection. Specifically,
section 172(c)(1) of the Act requires that the SIP for each
nonattainment area ``shall provide for the implementation of all
reasonably available control measures as expeditiously as practicable
(including such reductions in emissions from existing sources in the
area as may be obtained through the adoption, at a minimum, of
reasonably available control technology) and shall provide for the
attainment of the national primary ambient air quality standards.'' As
part of the 1990 Amendments, Congress created specific nonattainment
area planning requirements for ozone. In section 182(b)(2) of the Act,
Congress

required States with areas classified as moderate and above to submit a
RACT SIP within two years.\1\ Separately, in sections 182(b)(1)(A) and
(c)(2)(A), Congress required States to submit attainment demonstrations
within three years for moderate areas and within four years for serious
and above areas. Where these more specific planning obligations apply,
we interpret them to supplant the similar, but less specific,
obligations in section 172. Furthermore, because Congress expressly
separated the RACT requirement from the attainment demonstration
obligation, EPA has treated the RACT requirement as a technology-based
requirement that is separate from the attainment demonstration
obligation.\2\ The RACT requirement in CAA section 182 is a control
mandate that applies independent of the emission reductions needed for
attainment. See, e.g., EPA's Proposed Rule to Implement the 8-Hour
Ozone National Ambient Air Quality Standard, 68 FR 32802 at 32837 (June
2, 2003) (explaining that ``[u]nder subpart 2, RACT requirements for
ozone nonattainment areas apply independent of the emissions reductions
needed to attain the standard''). However, as we have explained,
Congress did not supplant the more general requirement for areas to
demonstrate they have adopted ``reasonably available control measures''
(RACM) consistent with section 172(c)(1) and we have required States to
address RACM as a component of the area's attainment demonstration. 57
FR 13498 at 13560 (April 16, 1992) (1992 General Preamble); see also 40
CFR 51.912(d) (requiring States to submit with the attainment
demonstration (where required) for an ozone nonattainment area ``a SIP
revision demonstrating that it has adopted all RACM necessary to
demonstrate attainment as expeditiously as practicable and to meet any
RFP requirements'').
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    \1\ For the 1997 8-hour ozone standard, EPA's regulations
required States to submit the RACT SIP within 27 months after
designation as nonattainment for the 1997 8-hour ozone standard. 40
CFR 51.912(a)(2).
    \2\ For example, see 40 CFR 51.918 and Memorandum dated May 10,
1995, from John S. Seitz, Director, EPA, Office of Air Quality
Planning and Standards, to Air Division Directors, EPA, Regions I-X,
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard'' (explaining that certain SIP
requirements related to attainment of the NAAQS may be suspended if
an ozone nonattainment area subject to those requirements is in fact
attaining the ozone standard but stating that this interpretation of
the Act does not extend to ``requirements of subpart 2 that are not
linked by the language of the Act with the attainment demonstration
and RFP requirements,'' such as VOC RACT).
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    Thus, at this time, we are reviewing only the RACT demonstration
submitted by the State to determine whether it meets the technology-
based requirements of section 182(b)(2). Earthjustice quotes from a
portion of EPA's 1992 General Preamble that discusses CAA RACT
requirements, but that discussion addresses the subpart 1 RACT/RACM
requirement in CAA section 172(c)(1), not the more specific RACT
control mandate in CAA section 182(b)(2). See 57 FR 13498 at 13541
(April 16, 1992) (referencing CAA section 172(c)(1) in support of
statement that RACT applies to ``existing sources''). To the extent the
commenters have concerns about whether there are additional
``reasonably available'' controls that are necessary to attain the 1997
8-hour ozone standard, the State is required to address that issue in
the context of the RACM analysis submitted with its attainment
demonstration for that standard. In a separate action, EPA has proposed
to approve the SIP submitted by California to provide for attainment of
the 1997 8-hour ozone NAAQS in the SJV area (SJV 2007 Ozone Plan). See
76 FR 57846 at 57850-57853 (September 16, 2011). As part of that
action, EPA will determine whether the SJV 2007 Ozone Plan satisfies
the CAA section 172(c)(1) requirement to implement all RACT/RACM
necessary for expeditious attainment of the 1997 8-hour ozone NAAQS in
the SJV.
    We note that our approach to evaluating the RACT SIP under CAA
section 182 as a discreet SIP element is consistent with EPA's actions
on RACT SIPs for the 1997 8-hour ozone NAAQS in other nonattainment
areas. See, e.g.,73 FR 76947 (December 18, 2008) (final rule approving
CAA section 182 RACT SIP for Los Angeles-South Coast, California); 73
FR 78192 (December 22, 2008) (final rule approving CAA section 182 RACT
SIP for Virginia); 74 FR 18148 (April 21, 2009) (final rule approving
CAA section 182 RACT SIP for Ventura County, California); and 74 FR
22837 (May 15, 2009) (final rule fully approving RACM analysis but
conditionally approving CAA section 182 RACT SIP for New Jersey).
    We further note that contrary to the implication of the comment,
section 182 does not limit RACT to ``major sources.'' Rather, States
are required to adopt RACT rules for all sources covered by a control
technique guideline (CTG) and many CTGs apply to sources smaller than
major sources. In addition to addressing all sources covered by a CTG,
States are also required to adopt RACT rules for ``major stationary
sources.'' \3\
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    \3\ Section 182(b)(2) of the CAA mandates that each State with
an ozone nonattainment area classified as moderate or above under
subpart 2 submit a SIP revision providing for the implementation of
RACT with respect to three specific types of sources: (1) Each
category of VOC sources in the area covered by a Control Techniques
Guideline (CTG) document issued between November 15, 1990 and the
date of attainment; (2) all VOC sources in the area covered by any
CTG issued before November 15, 1990; and (3) all other ``major
stationary sources'' of VOC located in the area. Section 182(f)
provides that the requirements for major stationary sources of VOC
under subpart 2 shall also apply to major stationary sources of
NOX.
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    Comment #2:
    Earthjustice asserts that EPA or the District must explain why
options for controlling sources beyond major sources have not been
considered. Earthjustice references portions of EPA's 2011 RACT SIP TSD
that discuss six specific SJVUAPCD regulations (Rules 4106, 4601, 4652,
4692, 4902, and 4905) and states that EPA cannot ``avoid RACT review''
for these rules that regulate non-major sources.
    Response #2:
    As provided above, the State submitted the RACT SIP to meet the
requirements in section 182(b)(2) and (f), which requires VOC RACT for
all sources subject to a CTG and all major VOC sources and requires
NOX RACT for all major sources of NOX. The
portions of EPA's 2011 RACT SIP TSD referenced by Earthjustice discuss
six specific SJVUAPCD regulations that were not submitted to meet the
CAA section 182 RACT requirement: Rule 4106 (Prescribed Burning and
Hazard Reduction Burning); Rule 4601 (Architectural Coatings); Rule
4652 (Coatings and Ink Manufacturing); Rule 4692 (Commercial
Charbroiling); Rule 4902 (Residential Water Heaters); and Rule 4905
(Natural Gas-Fired, Fan-Type Residential Central Furnaces). As
explained in the 2011 RACT SIP TSD, these rules are not subject to the
CAA section 182 RACT control mandate because they do not apply to any
CTG source category or any major stationary source of VOC or
NOX. See 2011 RACT SIP TSD at 12-13. Therefore, evaluation
of these rules is not a necessary element of our action on the RACT
SIP.
    In a separate action on the SJV 2007 Ozone Plan, EPA is currently
evaluating whether the State and District have adopted all RACM
(including RACT) necessary for expeditious attainment of the 1997 8-
hour ozone standard in the Valley, as required by CAA section
172(c)(1). 76 FR 57846 at 57850-57853 (September 16, 2011). The
evaluation of potentially reasonable control options for sources not
subject to the RACT control mandate in CAA section 182

belongs in the context of this broader evaluation of the 8-hour ozone
attainment demonstration for the SJV area. EPA is not ``avoiding''
review for these other source categories but, rather, appropriately
evaluating these additional control options as part of our separate
action on the RACM and attainment demonstration under section 172(c)(1)
and section 182(c)(2).
    Comment #3:
    Earthjustice asserts that ``EPA cannot acknowledge feasible control
options that have been left out of District rules and excuse this
failure without explaining why these options are not necessary for
attainment.'' In particular, Earthjustice references portions of EPA's
2011 RACT SIP TSD discussing four specific SJVUAPCD regulations (Rules
4320, 4354, 4606, and 4624) and asserts that EPA has provided ``no
numbers or any suggestion that it has actually evaluated the potential
emission reductions achievable'' by these rules. Earthjustice also
asserts that ``[c]onclusory claims that tighter controls would not
provide significant emission reductions need to be supported.''
Finally, Earthjustice questions what is ``significant'' in ``an area
that currently has no actual strategy for meeting the ozone
standards,'' what the cumulative effect of these potential rule
improvements would be, and whether emission reductions might be
significant if the rules applied to non-major sources.
    Response #3:
    With respect to Earthjustice's assertion that EPA must consider the
SJV area's attainment needs and the cumulative effect of potential rule
improvements as part of our action on the RACT SIP, we disagree for the
reasons provided in Response 1 above. As to Earthjustice's
statement about the need to support ``[c]onclusory claims that tighter
controls would not provide significant emission reductions,'' we agree
generally that a RACT evaluation should include adequate support for
rejection of any control option based on the cost of and amount of
incremental emission reductions it would achieve.\4\ We disagree,
however, that either EPA's or the District's RACT analyses are
``conclusory.'' As explained in the 2011 RACT SIP TSD, our evaluation
of the RACT SIP was based on multiple sources of information about
potentially available control options, including: (1) The District's
SIP submittals for specific rules, including public comments and the
District's responses to those comments; (2) the District's RACT
analysis in the April 16, 2009 RACT SIP; and (3) EPA's previous
rulemaking action on each rule, including public comments and EPA's
responses to those comments. Our 2011 RACT SIP TSD references each of
the documents we relied upon and adequately supports our conclusions
with respect to each of the District rules we evaluated as part of the
RACT SIP.
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    \4\ EPA explained in the preamble to the Phase 2 Ozone Rule that
where the incremental emission reductions that would result from
application of a particular control option are small, the costs
necessary to achieve that small additional increment of reduction
may not be ``reasonable.'' See 70 FR 71612, 71654 (November 29,
2005). In contrast, a RACT analysis for uncontrolled sources would
more likely result in a conclusion that RACT level controls are
economically and technically feasible. Id.
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    In support of its challenge to EPA's evaluation of the RACT SIP,
Earthjustice refers generally to statements in EPA's 2011 RACT SIP TSD
identifying issues that EPA considered with respect to four specific
SJVUAPCD rules (Rules 4320, 4354, 4606, and 4624). For the most part,
these portions of the 2011 RACT SIP TSD summarize issues that EPA
considered as part of its recent actions on these rules. See 2011 RACT
SIP TSD at 14, 17, and 19 (referencing previous EPA rulemaking actions
on Rules 4320, 4606, and 4624). However, some portions of the 2011 RACT
SIP TSD referenced by Earthjustice describe additional information that
EPA considered as part of its evaluation of the RACT SIP. See 2011 RACT
SIP TSD at 15 (referencing, with respect to Rule 4354, previous EPA
rulemaking action and SJVUAPCD's statements in RACT SIP demonstration).
We note as a threshold matter that Earthjustice's generalized
assertions fail to identify any specific deficiency in any of these
rules or to provide any new information that EPA did not evaluate in
our previous rulemaking actions. A commenter bears the burden of
bringing to an agency's attention at least some particulars of an
alleged defect in a rulemaking. See International Fabricare Inst. v.
EPA, 972 F. 2d 384, 391 (DC Cir. 1992). Nonetheless, in response to
these comments, we have conducted further evaluation of Rules 4320,
4354, 4606, and 4624 and discuss these evaluations below. For the
reasons provided in our 2011 RACT SIP TSD, as further discussed in the
previous rulemaking actions referenced therein and as further explained
below, we disagree with Earthjustice's assertion that EPA has failed to
explain the bases for our approvals with respect to these particular
source categories.
    Comment 3a (Rule 4320--Advanced Emission Reduction Options for
Boilers, Steam Generators, and Process Heaters Greater than 5.0 MMBtu/
hr):
    Earthjustice asserts that EPA's 2011 RACT SIP TSD indicates more
stringent control options for this rule are available but fails to
explain why these options should not be required for all sources as
RACT.
    Response 3a:
    We did not propose to approve Rule 4320 as satisfying RACT under
CAA section 182. In the Technical Support Document for EPA's proposed
action on this rule (75 FR 68294, November 5, 2010), EPA stated that
section 5.3.3 of Rule 4320, which requires operators of units for which
annual fees are paid to ``certify that the units meet federal RACT
control measures at the time the annual fee is provided,'' is not
sufficient to ensure implementation of RACT by covered sources. See
Technical Support Document, ``San Joaquin Valley Unified Air Pollution
Control District's Rule 4320, Advanced Emission Reduction Options for
Boilers, Steam Generators and Process Heaters Greater than 5.0 MMbtu/
hr,'' August 19, 2010 (Rule 4320 TSD).\5\ EPA also noted, however, that
EPA had approved Rule 4306 as satisfying RACT for this source category.
See Rule 4320 TSD at 6 (referencing 75 FR 1715, January 13, 2010)
(final rule approving Rule 4306). EPA further explained that
``[b]ecause sources have a separate obligation to comply with Rule 4306
(which does not allow payment of fees in lieu of compliance), the
necessary regulatory framework is in place to ensure that RACT will be
implemented for this source category'' and that ``[i]f, in the future,
the District intends to rely on Rule 4320 to implement RACT, the
District would need to modify Rule 4320 to delete the provision which
allows sources to pay fees in lieu of compliance or otherwise ensure
RACT implementation.'' Rule 4320 TSD at 6. Accordingly, we noted in our
2011 RACT SIP TSD that ``EPA approved Rule 4320 only as SIP-
strengthening (not as meeting RACT) but determined that the source
category covered by this rule is subject to RACT requirements under
SIP-approved Rule 4306.'' 2011 RACT SIP TSD at 14.
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    \5\  See also Final rule, 76 FR 16696 (March 25, 2011)
(approving Rule 4320 as SIP-strengthening but noting that the rule
is not consistent with EPA guidance on economic incentive programs).
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    Moreover, we disagree with the comment that EPA's 2011 RACT SIP TSD
indicated more stringent control options were available under Rule
4320. EPA's 2011 RACT SIP TSD simply noted that EPA had not approved
Rule 4320 as satisfying RACT requirements because of the option it
provided to pay fees in lieu of compliance with control requirements.
See 2011 RACT SIP TSD

at 14. We note that the SJVUAPCD's supporting documentation for Rule
4320 did include evaluation of alternative NOx RACT requirements that
the State rejected as not economically feasible (see SJVUAPCD, Final
Draft Staff Report, Proposed Amendments to Rule 4306, Proposed
Amendments to Rule 4307, and Proposed New Rule 4320 (October 16, 2008)
at 11, 17, and Appendix C), and the commenter submits no substantive
claims to rebut the State's conclusion. We are not, however, making any
determination in this action as to the stringency of the NOx
requirements in Rule 4320 given our previous conclusion that Rule 4306
adequately implements NOx RACT for this source category.
    Comment 3b (Rule 4354--Glass Melting Furnaces):
    Earthjustice asserts that EPA's 2011 RACT SIP TSD indicates more
stringent glass melting furnace limits have been adopted in the Bay
Area but fails to explain why the Bay Area's limits are not reasonable
for SJV other than the fact that the Bay Area has not implemented them.
    Response 3b:
    EPA approved Rule 4354 (as amended September 16, 2010) on August
29, 2011 as satisfying RACT under CAA section 182. See 76 FR 53640. As
explained in the Technical Support Document for our proposed action on
this rule (76 FR 30744, June 24, 2011), our approval was based on our
evaluation of several sources of information, including EPA's 1994
Alternative Control Techniques (ACT) Document for Glass Manufacturing,
EPA's RACT/BACT/LAER Clearinghouse (RBLC),\6\ emission limits in 40 CFR
part 60 (Standards of Performance for New Stationary Sources) and part
63 (National Emission Standards for Hazardous Air Pollutants), and
several analogous State/local rules. See Technical Support Document,
``San Joaquin Valley Unified Air Pollution Control District's Rule
4354, Glass Melting Furnaces,'' June 2011 (Rule 4354 TSD at 3). In
response to Earthjustice's comment about the Bay Area Air Quality
Management District's (BAAQMD's) NOX limit for glass melting
operations, however, we have further evaluated BAAQMD Regulation 9,
Rule 12 (Nitrogen Oxides from Glass Melting Furnaces) and compared it
to Rule 4354.
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    \6\ EPA's RACT/BACT/LAER Clearinghouse is available at: http://cfpub.epa.gov/RBLC/.
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    BAAQMD Regulation 9, Rule 12 contains a single NOX limit
of 5.5 lbs of NOX per short ton of glass pulled from ``any
glass melting furnace.'' See BAAQMD Rule 9-12-301 (as adopted January
19, 1994). The January 7, 1994 staff report for Regulation 9, Rule 12
indicates that the BAAQMD developed the NOX limit in this
rule to apply specifically to three container glass facilities in the
Bay Area and does not indicate this NOX limit was feasible
for flat glass melting operations. See BAAQMD, ``Staff Report, Proposed
Regulation 9, Rule 12, Nitrogen Oxides from Glass Melting Furnaces,''
January 7, 1994, at 1 (stating that ``[t]he proposed rule would affect
three Bay Area container glass plants operating a total of five
furnaces * * *''). To date, EPA is not aware of any flat glass melting
facility that has operated in the Bay Area and thus been subject to the
NOX emission limit in BAAQMD Regulation 9, Rule 12 (5.5 lbs
of NOX per short ton of glass pulled). See email dated
October 27, 2011, from Julian Elliot (BAAQMD) to Stanley Tong (EPA
Region 9), RE: Glass plants in BAAQMD. We also note that container
glass furnaces generally emit NOX at lower levels compared
to flat glass furnaces. See EPA's Compilation of Air Pollutant Emission
Factors, AP-42 Fifth Edition, Volume I, Chapter 11, at Table 11.15-1
(identifying NOX emission factors of 3.3 to 9.1 lbs of
NOX per ton of glass for container glass furnaces and
emission factors of 5.6 to 10.4 lbs of NOX/ton of glass for
flat glass furnaces). Thus, we do not have information indicating that
any flat glass melting furnaces are located in the Bay Area and are
subject to and meeting the NOX limit in BAAQMD Regulation 9,
Rule 12.
    At the time the SJVUAPCD adopted its 2009 RACT SIP demonstration
(on April 16, 2009), this NOX limit in BAAQMD Rule 9-12-301
was more stringent than the NOX limits in SJVUAPCD Rule 4354
(as adopted August 17, 2006) for flat glass melting operations, which
ranged from 7.0 to 9.2 lbs of NOX per ton of flat glass,
depending on the averaging period. On September 16, 2010, however, the
SJVUAPCD adopted successive tiers of more stringent NOX
limits for flat glass melting operations, including a NOX
limit equivalent to the limit in BAAQMD's Regulation 9, Rule 12.
Specifically, the revised Rule 4354 established new ``Tier 3''
NOX emission limits, which reduced the earlier rule's Tier 2
limits of 9.2 lbs of NOX per ton of flat glass (24-hour
average) and 7.0 lbs of NOX per ton (30-day average) to 5.5
and 5.0 lbs of NOX per ton of flat glass, respectively,
effective January 1, 2011. See Rule 4354 (as amended September 16,
2010), section <IP_ADDRESS>. These amendments to Rule 4354 also provide flat
glass melting facilities with an ``enhanced'' compliance option which
grants them a temporary reprieve from the Tier 3 limits (i.e., allowing
them to continue complying with the Tier 2 limits) if the facilities
comply with the more stringent ``Tier 4'' NOX limits either
by January 1, 2014 (four years earlier than the required compliance
date of January 1, 2018) or by the next furnace rebuild schedule,
whichever is earlier. See Rule 4354, section <IP_ADDRESS>.\7\ Thus,
SJVUAPCD's Rule 4354, as revised September 16, 2010, now contains the
same NOX emission limit for flat glass melting facilities
(effective January 1, 2011) as applied to the three container glass
melting facilities in the Bay Area.\8\ EPA approved these revisions to
Rule 4354 into the California SIP on August 29, 2011. See 76 FR 53640.
We believe the limited option for delayed compliance under section
<IP_ADDRESS> of Rule 4354 is reasonable, given current uncertainty about the
feasibility of a 5.5 lb/ton NOX limit for flat glass melting
furnaces, and given the requirement to meet even lower NOX
limits under the ``Tier 4 early enhanced option'' by the next furnace
rebuild and no later than January 1, 2014 (see fn. 8 and accompanying
text, above).
---------------------------------------------------------------------------

    \7\ The ``Tier 4'' NOX limits in the rule are 3.4
lbs/ton of glass (block 24-hour average) and 2.9 lbs/ton of glass
(rolling 30-day average). See Rule 4354 (as amended September 16,
2010), section 5.1, Table 1.
    \8\ In the 2011 RACT SIP TSD, we stated that the District had
compared its rule with BAAQMD Regulation 9 Rule 12 and ``indicate[d]
that although [Bay Area's] NOX limits are more stringent
than Rule 4354 for flat glass, [Bay Area] staff verified there are
no flat glass furnaces operating within the Bay Area.'' 2011 RACT
SIP TSD at 16. In response to these comments, we are revising our
evaluation of Rule 4354 to take into account the September 16, 2010
revisions to the rule, which strengthened its NOX
emission limits.
---------------------------------------------------------------------------

    Comment 3c (Rule 4606--Wood Products and Flat Wood Paneling
Products Coating Operations):
    Earthjustice asserts that EPA's 2011 RACT SIP TSD indicates Rule
4606 ``includes less stringent requirements'' but fails to explain why
strengthening the rule would not be reasonable.
    Response 3c:
    EPA approved Rule 4606 (as amended October 16, 2008) on October 15,
2009 as satisfying RACT under CAA section 182. See 74 FR 52894. In the
Technical Support Document for our proposed action on this rule (74 FR
33399, July 13, 2009), we noted that Rule 4606 exempts refinishing,
replacement and custom replica furniture operations from VOC control
requirements, while the CTG for this source category (``Control of
Volatile Organic Compound Emissions from Wood Furniture Manufacturing
Operations, EPA-453/R-

96-007'' April 1996 (1996 Wood Furniture CTG)) does not contain such an
exemption. See Technical Support Document, ``San Joaquin Valley Unified
Air Pollution Control District, Rule 4606, Wood Products and Flat Wood
Paneling Product Coating Operations,'' June 2009 (Rule 4606 TSD), at 3-
4. We also noted that a few requirements for wood coatings are more
stringent in other areas. See Rule 4606 TSD at 4. In response to
Earthjustice's comment, we have further evaluated the VOC limits in
Rule 4606 and compared them to CTG recommendations and limits in other
California air district regulations.
    First, with respect to the exemption in Rule 4606 for refinishing,
replacement and custom replica furniture operations, this is not a RACT
deficiency because the only operations of this type in the SJV have
combined potential VOC emissions well below the 1996 Wood Furniture
CTG's applicability threshold. The 1996 Wood Furniture CTG provides
recommendations for control of VOC emissions from wood furniture
coating and cleaning operations located at a manufacturing site. See
1996 Wood Furniture CTG at 1-2, 7-3 and Appendix B at B-1 and B-2. The
guidance applies to affected sources in extreme ozone nonattainment
areas that potentially emit at least 10 tons per year (tpy) of VOC. Id.
at 7-4. Rule 4606 exempts refinishing, replacement, and custom replica
furniture operations from VOC control requirements, but only two such
facilities operate in the SJV area and their combined VOC emissions are
well below 10 tons per year. See Rule 4606 TSD at 4.\9\ Because VOC
emissions from these facilities are well below the major source and CTG
applicability threshold of 10 tpy, section 182 RACT does not apply to
these two facilities. We agree, however, that additional VOC reductions
could be achieved from wood refinishing, replacement and custom replica
furniture operations in the SJV and recommended that SJVUAPCD consider
adopting limits for these operations in the next revision of Rule 4606.
See Rule 4606 TSD at 4.
---------------------------------------------------------------------------

    \9\ The combined VOC emissions from these two facilities amount
to approximately 1 ton per year. See SJV RACT SIP at 4-210.
---------------------------------------------------------------------------

    Second, as to the statement in the Rule 4606 TSD that some
requirements in other areas are more stringent than Rule 4606, we have
reviewed several other California air district rules and do not have
sufficient information to conclude that more stringent controls for
this source category are reasonably available for implementation in the
SJV. Id. According to SJVUAPCD's final staff report for Rule 4606,
Ventura County APCD (VCAPCD) has a VOC limit for sanding sealers of 240
grams/liter (see VCAPCD Rule 74.30 as amended June 27, 2006, section
B.1), which is lower than the limit of 275 grams/liter in SJVUAPCD's
Rule 4606 (see SJVUAPCD Rule 4606 section, 5.1), and San Diego APCD
(SDAPCD) has two rules containing a VOC limit for surface preparation
and paint stripping operations of 200 grams/liter (see SDAPCD Rules
67.11 and 67.11.1, as adopted September 25, 2002, sections (d)(5) and
(d)(3), respectively), which is lower than the limit of 350 grams/liter
in SJVUAPCD's Rule 4606 (see SJVUAPCD Rule 4606, section 5.1). See
SJVUAPCD, Final Staff Report, ``Proposed Amendments to: Rule 4603
(Surface Coating of Metal Parts and Products), Rule 4606 (Wood Products
Coating Operations), October 16, 2008, Appendix A at A-2 and A-3. On
further investigation, it is not clear that the VOC limits for these
wood coating categories in the Ventura and San Diego rules are actually
achievable by the application of reasonably available controls. The VOC
limits in SJVUAPCD Rule 4606 are equivalent to analogous requirements
in several other California regulations that we have evaluated (see,
e.g., SCAQMD Rule 1136 (as amended June 14, 1996), BAAQMD Regulation 8,
Rule 32 (as amended August 5, 2009), and Sacramento Metropolitan AQMD
(SMAQMD) Rule 463 (as amended September 25, 2008)), and Earthjustice
has provided no information to support a conclusion that the SJVUAPCD
has failed to adequately evaluate additional controls for wood coating
operations that are reasonably available.
    Specifically, according to staff at the VCAPCD, the 240 grams/liter
limit for wood sealers in VCAPCD Rule 74.30 was based on a prior
version of SCAQMD Rule 1136 from the mid-1990s. See email dated October
31, 2011, from Stan Cowen (VCAPCD) to Stanley Tong (EPA Region 9), RE:
Wood Coating Rule 74.30. In 1996, however, SCAQMD amended Rule 1136 to
increase the sealer limit from 240 grams/liter up to 275 grams/liter
and extended the compliance date from 1996 to 2005. See SCAQMD Rule
1136 (as amended June 14, 1996), at section (c)(1)(A)(i). EPA approved
these revisions to SCAQMD Rule 1136 into the California SIP on August
18, 1998 (63 FR 44132). The VOC limit in SJVUAPCD's Rule 4606 for wood
sealers (275 g/l) is equivalent to the limits in SCAQMD Rule 1136 (as
amended June 14, 1996), and several other California ozone
nonattainment areas have also adopted VOC limits of 275 grams/liter or
higher for these types of wood coatings. See, e.g., BAAQMD Regulation
8, Rule 32 (as amended August 5, 2009) at section 8-32-302 and
Sacramento SMAQMD Rule 463 (as amended September 25, 2008) at section
302. Although VCAPCD's Rule 74.30 continues to require a VOC limit of
240 grams/liter for wood sealers, this is the only regulation we know
of that contains a limit this low, and we do not have information
indicating that wood sealers can generally meet a 240 grams/liter limit
by the application of reasonably available controls.\10\ Given at least
one district has adopted a limit of 240 grams/liter and at least one
large manufacturer sells wood sealers that apparently can meet a 240
grams/liter limit, we encourage the SJVUAPCD to reevaluate Rule 4606 at
the next opportunity to ensure that it requires all controls for wood
sealers that are reasonably available for implementation in the SJV. At
this time, however, we believe the limits in Rule 4606 for wood sealers
meet RACT under CAA section 182 for the 1997 8-hour ozone standard.
---------------------------------------------------------------------------

    \10\ EPA contacted two manufacturers that sell wood sealers in
California and learned that only one of them, Sherwin Williams,
makes a water-based sealer that meets a 240 grams/liter limit. See
email dated November 3, 2011, from Matt Collins (The Sherwin-
Williams Company) to Stanley Tong (EPA Region 9), RE: Sher-Wood Q&A,
and email dated November 3, 2011 from Robert Wendoll (Dunn-Edwards
Corporation) to Stanley Tong (EPA Region 9), RE: Does Dunn-Edwards
make sanding sealers--240 g/l? Information from Sherwin-Williams
indicates that the performance of this wood sealer may depend upon
the use of its complete ``wood finishing system.'' See Sherwin
Williams, Chemical Coatings, ``CC-F46: SHER-WOOD[supreg] KEM
AQUA[supreg] Lacquer Sanding Sealer'' (stating that ``[d]ue to the
wide variety of substrates, surface preparation methods, application
methods, and environments, the customer should test the complete
[wood finishing] system for adhesion and compatibility prior to full
scale application''), available at http://www.paintdocs.com/webmsds/webPDF.jsp?SITEID=STORECAT&prodno=035777432143&doctype=PDS⟨=E).
---------------------------------------------------------------------------

    Similarly, the VOC limit in SJVUAPCD's Rule 4606 for paint
strippers (350 g/l) is equivalent to or more stringent than the limits
for this category of wood coatings in most other California
nonattainment areas. See, e.g., SCAQMD Rule 1136 (as amended June 14,
1996), at section (c)(1)(B); SMAQMD Rule 463 (as amended September 25,
2008), at section 304; VCAPCD Rule 74-30 (as amended June 27, 2006), at
section B.3. The only California district rules we know of that contain
lower limits for paint strippers are SDAPCD's Rule 67.11 (``Wood
Products Coating Operations'') and Rule 67.11.1 (``Large Coating
Operations for Wood Products''), both of which prohibit the use of VOC
containing

materials for surface preparation or stripping unless at least one of
the following conditions is met: (1) The material contains 200 grams/
liter or less of VOC per liter of material, (2) the material has an
initial boiling point of 190 [deg]C (374 [deg]F or greater), or (3) the
total VOC vapor pressure of the material is 20 mm Hg or less at 20
[deg]C (68 [deg]F). See SDAPCD Rule 67.11 at section (d)(5) and Rule
67.11.1 at section (d)(3).\11\ Thus, although both of these rules
contain a VOC limit of 200 grams/liter for paint strippers, this limit
is only one of three different compliance options and it is not clear
that facilities in the San Diego area have actually achieved the 200
grams/liter VOC limit. We do not have information indicating that paint
strippers can generally meet a 200 grams/liter limit by the application
of reasonably available controls and Earthjustice has not provided any
information to support such a conclusion.
---------------------------------------------------------------------------

    \11\ EPA approved SDAPCD Rule 67.11.1 into the California SIP on
June 5, 2003. See 68 FR 33635. Rule 67.11 is not SIP-approved.
---------------------------------------------------------------------------

    Based on this evaluation, we conclude that SJVUAPCD Rule 4606
satisfies RACT under CAA section 182 for the 1997 8-hour ozone
standard. As discussed above, however, we recommend that the SJVUAPCD
consider revisiting the wood sealer limit and adding VOC limits for
refinishing, replacement, and custom replica furniture operations the
next time Rule 4606 is amended.
    Comment 3d (Rule 4624--Transfer of Organic Liquid):
    Earthjustice states that EPA's 2011 RACT SIP TSD indicates more
stringent limits exist for organic liquid loading activities but fails
to explain why these limits are not reasonable for Rule 4624.
    Response 3d:
    Our 2011 RACT SIP TSD stated that the emission limit in Rule 4624
(0.08 lbs of VOC per 1,000 gallons of liquid transferred) is consistent
with the VOC limits in other districts' regulations, which range from
0.05 to 0.84 lbs of VOC per 1,000 gallons of gasoline. See 2011 RACT
SIP TSD at 19; see also SJVUAPCD Rule 4624 (as amended December 20,
2007) at section 5.0; SCAQMD Rule 1142 (as adopted July 19, 1991) at
section (c)(1)(B); and VCAPCD Rule 70 (as amended April 1, 2009) at
section C.1. We also stated that the South Coast AQMD provides the
option of either meeting a limit of 0.05 lb VOC per 1,000 gallons \12\
or reducing VOC emissions by 95 percent weight from uncontrolled
conditions. See 2011 RACT SIP TSD at 19. In response to the comment, we
are clarifying that this statement was in reference to SCAQMD Rule
1142, ``Marine Tank Vessel Operations,'' which applies to all
``loading, lightering, ballasting, and housekeeping events where a
marine tank vessel is filled with an organic liquid,'' or ``where a
liquid is placed into a marine tank vessel's cargo tanks which had
previously held organic liquid.'' See SCAQMD Rule 1142 (as adopted July
19, 1991), section (a). SCAQMD Rule 1142 prohibits loading, lightering,
ballasting, or housekeeping events in South Coast Waters unless the
owner or operator of the marine tank vessel either limits VOC emissions
to 5.7 grams per cubic meter (2 lbs per 1,000 barrels, which is
approximately equivalent to 0.05 lbs/1000 gallons) of liquid loaded
into a marine tank vessel or reduces VOC emissions by at least 95
percent by weight from uncontrolled conditions. Id. at section (c).
This VOC limit applies only to liquid loading or unloading operations
on a marine tank vessel, which the rule defines as ``any tugboat,
tanker, freighter, passenger ship, barge, boat, ship, or watercraft,
which is specifically constructed or converted to carry liquid cargo in
tanks.'' Id. at section (b). The rule does not apply to liquid loading
or unloading operations at facilities onshore. The SCAQMD has a
separate rule that limits VOC emissions from organic liquid loading or
unloading operations at facilities onshore (Rule 462 Organic Liquid
Loading), which contains the same VOC limit as SJVUAPCD Rule 4624, 0.08
lb or less per 1,000 gallons of liquid transferred. See SCAQMD Rule 462
(as amended May 14, 1999), section (d); see also Antelope Valley AQMD
Rule 462 Organic Liquid Loading (as amended June 9, 1995), section
(d)(1)(D) and Kern County APCD Rule 413 Organic Liquid Loading (as
amended March 7, 1996), section (IV.A).
---------------------------------------------------------------------------

    \12\ SCAQMD Rule 1142 (Marine Tank Vessel Operations) VOC limit
is 2 lbs per 1,000 barrels, which is equivalent to approximately
0.05 lb per 1,000 gallons (assuming 1 barrel = 42 gallons).
---------------------------------------------------------------------------

    We also contacted SJVUAPCD staff to determine whether marine
loading operations occur within the SJV and found that liquid transfers
of ammonia, urea-ammonium nitrate, ammonia based fertilizers, molasses,
and palm oil have occurred at or near the port of Stockton. Since there
is no CTG for marine loading operations and we have no information
indicating that emissions from the transfer of these liquids reach 10
tons per year of VOC or NOX,\13\ we believe it is reasonable
to conclude that section 182 RACT does not apply to these operations.
The SCAQMD marine loading rule is designed to control emissions of
gasoline, aviation fuels, crude oils and other liquids containing
volatile organic compounds. As explained above, SJVUAPCD's Rule 4624,
which regulates VOC emissions from the transfer of organic liquids at
onshore facilities, is equivalent to analogous rules in other
California districts, and Earthjustice does not identify any additional
control option for this source category that the District has failed to
adequately evaluate.
---------------------------------------------------------------------------

    \13\ Ammonia and ammonium nitrate are not VOCs (40 CFR
51.100(s)), molasses is highly viscous and Palm Oil is a semi-solid
at room temperature. Several Materials Safety Data Sheets for Palm
Oil list its vapor pressure as: ``not applicable'', ``N/A'' and
``none listed.'' See, e.g., http://www.sciencelab.com/msds.php?msdsId=9926383.
---------------------------------------------------------------------------

    Comment #4:
    Earthjustice asserts that SJVUAPCD applies ``invalid economic tests
for determining what rules are and are not reasonable'' and rejects
controls ``not based solely on the cost-effectiveness of controls but
based on an overly simplistic ratio of costs to profits for the
industry,'' referred to as the ```10 percent of profits' test, to
determine whether controls are economically feasible.'' Earthjustice
asserts that this 10-percent-of-profits test ``has no connection to
whether an industry is actually capable of bearing the costs of
control, let alone whether the control should be considered cost-
effective on a dollars per ton of emission reduction basis.''
Referencing their own comments on the Open Burning Rule and Confined
Animal Facilities Rule as examples, Earthjustice asserts that the
District ``discards technologically feasible control measures based on
its illegal test of economic feasibility.'' Earthjustice also
references EPA policy in support of its statement that EPA presumes it
is reasonable for similar sources to bear similar costs of emission
reductions and that capital costs, annualized costs, and cost
effectiveness should be determined for all technologically feasible
emission reduction options (quoting 57 FR 18070, 18074, April 28,
1992). Earthjustice further argues that EPA ``reiterates the proper
test for economic feasibility * * * but then fails to explain how the
District has complied with this interpretation of the statute.''
Finally, Earthjustice states that ``[u]ntil this failure has been
corrected, EPA cannot reasonably conclude that the District's rules
satisfy RACT because EPA cannot reasonably claim that all
technologically and economically feasible controls have been adopted by
the District.''
    Response #4:
    We agree generally that an economic feasibility analysis based on
the use of the SJVUAPCD's ``10 percent of profits''

test is not a sufficient basis for rejecting a control option from
consideration as RACT under CAA section 182. As explained in the 2011
RACT SIP TSD, EPA's long-standing guidance on RACT \14\ states that the
cost of using a control measure is considered reasonable if those same
costs are borne by other comparable facilities. See 2011 RACT SIP TSD
at 11 (citing 59 FR 41998 at 42009 (August 16, 1994) and 57 FR 18070 at
18074 (April 28, 1992)). Earthjustice correctly notes that economic
feasibility is largely determined by evidence that other sources in a
source category have in fact applied the control technology in question
and may also be based on cost effectiveness (i.e., calculation of the
cost per amount of emission reduction in $/ton). Id. We therefore do
not endorse the District's use of a ``10 percent of the industry's
profit'' test for evaluating the economic feasibility of an available
control option for purposes of a RACT analysis.
---------------------------------------------------------------------------

    \14\ EPA has defined RACT as ``the lowest emission limitation
that a particular source is capable of meeting by the application of
control technology that is reasonably available considering
technological and economic feasibility.'' See 44 FR 53762 (September
17, 1979).
---------------------------------------------------------------------------

    We disagree, however, with Earthjustice's assertions that the
District has ``discard[ed] technologically feasible control measures
based on its illegal test of economic feasibility'' and that EPA has
failed to explain how the District's analyses are consistent with EPA's
interpretation of the CAA's RACT requirement.
    In numerous guidance documents EPA has stated that several
different factors, including cost effectiveness, may be considered in
evaluating the economic feasibility of an available control option.
See, e.g., 57 FR at 18074 (``[t]he capital costs, annualized costs, and
cost effectiveness of an emission reduction technology should be
considered in determining its economic feasibility'') (emphasis added);
57 FR 55620 at 55625 (November 25, 1992) (``NOX Supplement
to General Preamble'') (``comparability'' of a NOX RACT
control level ``shall be determined on the basis of several factors
including, for example, cost, cost-effectiveness, and emission
reductions''); 59 FR 41998 at 42013 (August 16, 1994) (``PM-10 Addendum
to General Preamble'') (``capital costs, annualized costs, and cost
effectiveness of an emission reduction technology should be considered
in determining its economic feasibility''). EPA has also consistently
stated that States may justify rejection of certain control measures as
not ``reasonably available'' based on the technical and economic
circumstances of the particular sources being regulated. See 2011 RACT
SIP TSD at 11, 12 (referencing, inter alia, 44 FR 53761 (September 17,
1979)).
    As we explained in the 2011 RACT SIP TSD and further in the
individual TSDs associated with EPA's previous actions on the
District's rules, the District generally considered multiple sources of
information about the costs of available control options, including
information from manufacturers, vendors, stakeholders, and other air
districts (see Rule 4308--Final Draft Staff Report, Revised Proposed
Rule 4308 (Boilers, Steam Generators, and Process Heaters--0.075 MMBtu/
hr to 2.0 MMBtu/hr), October 20, 2005 Appendix C at C-3); technical
reports, CTGs, US Economic Census and Internal Revenue Service data
(see Rule 4607--Final Draft Staff Report, Revised Proposed Amendments
to Rule 4607 (Graphic Arts and Paper, Film, Foil and Fabric Coatings),
December 18, 2008, Appendix C at C-3, and Appendix D at D-8); and
annualized costs of control options, California State oil and gas
production reports, and Dun and Bradstreet profits (see Rule 4703--
Final Staff Report Amendments to Rule 4703 (Stationary Gas Turbines),
September 20, 2007, Appendix C at C-4 and Appendix D at D-8). Given
EPA's long-standing position that States may justify rejection of
certain control measures as not ``reasonably available'' based on the
technical and economic circumstances of the particular sources being
regulated, it is appropriate for the District to consider multiple
sources of information about the costs of potential control options to
determine if they are economically feasible with respect to sources
located within the SJV.
    EPA has reviewed the District's technical and economic analyses as
well as supplemental information for each of the RACT rules that we
have categorized under groups 1 and 2.\15\ Based on these evaluations,
we conclude that additional or more stringent controls are not
reasonably available for implementation in the SJV area. See TSD at 13-
32. For example, with respect to those crop categories subject to Rule
4103 (Open Burning) for which the District concluded that alternatives
to burning were not economically feasible (e.g., citrus orchard
material), EPA considered several indicators of technical and economic
feasibility, such as other State/local open burning prohibitions and
information indicating current uncertainty about the feasibility of
sending citrus orchard removal material to biomass facilities. See
Final Rule, ``Revisions to the California State Implementation Plan,
San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD),''
signed September 30, 2011, at Response 2 (pre-publication
notice); see also Technical Support Document, SJVUAPCD Rule 4103, Open
Burning, June 2011, at fn. 14. These evaluations adequately support our
conclusion that additional burn prohibitions under Rule 4103 are not
reasonably available for implementation in the SJV at this time.
Similarly, for those ``Class Two mitigation measures'' that the
SJVUAPCD did not adopt in its October 2010 revisions to Rule 4570
(Confined Animal Facilities), the District evaluated the cost
effectiveness of the rejected VOC control systems (e.g., venting
emissions from livestock barns to biofilters, replacing naturally
ventilated poultry housing with mechanically ventilated housing) by
calculating the annual capital costs, annual operating costs, and
emissions reductions associated with each control option. See Technical
Support Document, SJVUAPCD Rule 4570, Confined Animal Facilities,
August 2011, at 7-8 and Final Rule, signed December 13, 2011 (pre-
publication notice); see also Final Draft Staff Report, Amended Revised
Proposed Amendments to Rule 4570 (Confined Animal Facilities), October
21, 2010, Appendices C and E. These evaluations also adequately support
our conclusion that additional VOC controls under Rule 4570 are not
reasonably available for implementation in the SJV at this time.
---------------------------------------------------------------------------

    \15\ We note that Earthjustice's comments refer to just two
specific rules as examples in which the District applied the 10
percent of profits test--Rule 4103, ``Agricultural Burning,'' and
Rule 4570 ``Confined Animal Feeding Operations.'' We note further
that Earthjustice did not comment on this issue on EPA's most recent
proposal to approve revisions to Rule 4570. See, 76 FR 56706
(September 14, 2011).
---------------------------------------------------------------------------

    Thus, without endorsing the use of a ``10 percent of profits'' test
for economic feasibility, we find that analyses supporting the
District's RACT demonstration for the rules in groups 1 and 2
adequately considered other appropriate factors, such as costs of
control borne by comparable sources in other nonattainment areas and
cost-effectiveness (i.e., the cost per amount of emission reduction in
$/ton).
    Comment #5:
    Earthjustice argues that in preparing a RACT SIP analysis, ``the
District must not only use the correct metric (i.e., cost-effectiveness
rather than affordability) but must also justify the cutoff applied,''
and that neither EPA nor the District purport to do this. Earthjustice
also asserts that ``what is

considered too costly for one area may not be for another because the
attainment needs of the areas are different,'' and that ``what should
be considered economically feasible in the Valley may represent a more
aggressive control option than what would be required elsewhere.''
    Response #5:
    First, we disagree with Earthjustice's assertion that neither EPA
nor the District have used the correct metrics for economic
feasibility. See Response 4 above. Second, as to
Earthjustice's argument about the threshold (``cutoff'') applied to the
analysis supporting the RACT SIP, it is not clear what specific
``cutoff'' the commenter intended to refer to. To the extent
Earthjustice intended to argue that the District should establish and
justify a consistent cost-effectiveness threshold for determining the
economic feasibility of potential RACT measures, we disagree. Neither
EPA nor the District has established such a generalized cost-
effectiveness threshold for RACT purposes. Consistent with EPA policy,
as discussed in Response 4, the District considers multiple
factors in determining the economic feasibility of specific control
options, such as cost effectiveness, the ratio of control costs to
industry profits, control requirements in other nonattainment areas,
and employment impacts. Thus, depending on the specific circumstances
of the source category at issue and the control costs borne by
comparable sources elsewhere, the District's selected cost-
effectiveness ``cutoff'' can vary (e.g., industries dominated by large
highly profitable operators may be subject to more expensive control
requirements than less profitable sources). As discussed above, we
believe the District's economic feasibility analyses with respect to
the source categories identified in group 1 and group 2 of our 2011
RACT SIP TSD were adequate.
    Finally, as to the assertion that an economic feasibility analysis
for sources in the SJV area may need to be more aggressive than
elsewhere in light of the attainment needs, such analysis would need to
be made for purposes of the RACM analysis under CAA section 172(c)(1),
which is a component of the attainment demonstration. See Response
1 above.

III. Final Action and CAA Consequences

A. Final Action

    Since our September 9, 2011 proposal, we have approved the
following SJVUAPCD rules as satisfying RACT under CAA section 182.

----------------------------------------------------------------------------------------------------------------
               Rule                            Title              Amended                  Approved
----------------------------------------------------------------------------------------------------------------
4103..............................  Open Burning..............      4/15/10  Signed 9/30/11.
4311..............................  Flares....................      6/18/09  11/3/11, 76 FR 68106.
4401..............................  Steam Enhanced Crude Oil        6/16/11  11/16/11, 76 FR 70886.
                                     Production Wells.
4565..............................  Biosolids, Animal Manure,       3/15/07  Signed 12/13/11.
                                     and Poultry Litter
                                     Operations.
4570..............................  Confined Animal Facilities     10/21/10  Signed 12/13/11.
4603..............................  Surface Coating of Metal        9/17/09  11/1/11, 76 FR 67369.
                                     Parts and Products,
                                     Plastic Parts and
                                     Products, and Pleasure
                                     Craft.
4605..............................  Aerospace Assembly and          6/16/11  11/16/11, 76 FR 70886.
                                     Component Coating
                                     Operations.
4684..............................  Polyester Resin Operations      8/18/11  Signed 11/18/11.
----------------------------------------------------------------------------------------------------------------

    For the reasons provided in our September 9, 2011 proposed rule and
further explained above in response to comments, EPA is partially
approving under CAA section 110(k)(3) SJVUAPCD's RACT demonstration
adopted on April 16, 2009, based on our conclusion that it satisfies
the requirements of CAA sections 182(b)(2) and (f) for the 1997 8-hour
ozone NAAQS except as provided below.
    Simultaneously under CAA section 110(k)(3), EPA is partially
disapproving the RACT SIP based on our conclusion that the SJVUAPCD has
not demonstrated that the following rules satisfy RACT under CAA
sections 182(b)(2) and (f) for the 1997 8-hour ozone standard.
    1. Rule 4352--Solid Fuel Fired Boilers, Steam Generators, and
Process Heaters.
    2. Rule 4402--Crude Oil Production Sumps.
    3. Rule 4625--Wastewater Separators.
    4. Rule 4682--Polystyrene, Polyethylene, and Polypropylene Products
Manufacturing.
    Additionally, EPA is partially disapproving the RACT SIP with
respect to the following rules, which we have not yet approved as
satisfying RACT under CAA sections 182(b)(2) and (f) for the 1997 8-
hour ozone standard.
    1. Rule 4566--Organic Material Composting Operations.
    2. Rule 4694--Wine Fermentation and Storage Tanks.
    3. Fumigant Volatile Organic Compound Regulations--California
Department of Pesticide Regulation.

B. CAA Consequences of Final Partial Disapproval

    EPA is committed to working with the District and CARB to resolve
the identified RACT deficiencies. We note that SJVUAPCD will not be
required to submit a revised CAA section 182 RACT SIP demonstration for
the 1997 8-hour ozone NAAQS if each of the rule revisions required by
this action is accompanied by adequate supporting analyses
demonstrating that the rule satisfies current RACT requirements and EPA
fully approves it into the SIP.
    However, because we are finalizing a partial disapproval of the
RACT SIP, the offset sanction in CAA section 179(b)(2) will apply in
the SJV ozone nonattainment area 18 months after the effective date of
today's final disapproval. The highway funding sanctions in CAA section
179(b)(1) would apply in the area six months after the offset sanction
is imposed. Neither sanction will be imposed under the CAA if
California submits and we approve prior to the implementation of
sanctions, SIP revisions that correct the RACT deficiencies in the
individual rules identified in our proposed action. In addition to the
sanctions, CAA section 110(c)(1) provides that EPA must promulgate a
federal implementation plan (FIP) addressing the deficient RACT
elements in the individual rules two years after March 12, 2012, the
effective date of this rule, if we have not approved a SIP revision
correcting the deficiencies within two years. EPA previously found that
the State had failed to submit a plan revision for SJV addressing the
CAA section 182 RACT requirements for the 1-hour ozone standard,
starting a FIP clock that expired on January 21, 2011. See 74 FR 3442
(January 21, 2009).

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866,

entitled ``Regulatory Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
    This rule will not have a significant impact on a substantial
number of small entities because SIP approvals and partial approvals/
partial disapprovals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because
this partial approval/partial disapproval action does not create any
new requirements I certify that this action will not have a significant
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
    EPA has determined that the partial approval/partial disapproval
action promulgated does not include a Federal mandate that may result
in estimated costs of $100 million or more to either State, local, or
tribal governments in the aggregate, or to the private sector. This
Federal action approves pre-existing requirements under State or local
law, and imposes no new requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
    This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely approves a State rule implementing a Federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045, because it approves a
State rule implementing a Federal standard.

H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to

perform activities conducive to the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA lacks the discretionary authority to address environmental
justice in this rulemaking. In reviewing SIP submissions, EPA's role is
to approve or disapprove state choices, based on the criteria of the
Clean Air Act. Accordingly, this action merely approves certain State
regulations for inclusion into the SIP under the CAA section 110 and
subchapter I, part D and disapproves others, and will not in-and-of
itself create any new requirements. Accordingly, it does not provide
EPA with the disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898.

K. Congressional Review Act

    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 rule 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). This rule will be effective on March 12, 2012.

L. Petitions for Judicial Review

    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 12, 2012. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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, Intergovernmental
relations, Incorporation by reference, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: December 15, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.

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

PART 52 [AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(407) to read as
follows:

Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (407) A plan was submitted on June 18, 2009 by the Governor's
designee.
    (i) [Reserved]
    (ii) Additional Material.
    (A) San Joaquin Valley Air Pollution Control District.
    (1) Reasonably Available Control Technology (RACT) Demonstration
for Ozone State Implementation Plan (SIP), adopted April 16, 2009.
* * * * *
[FR Doc. 2012-139 Filed 1-9-12; 8:45 am]
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