81 FR 59876 - Approval and Promulgation of Air Quality State Implementation Plans; California; San Joaquin Valley; Moderate Area Plan for the 2006 PM2.5
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 169 (August 31, 2016)
Federal Register Volume 81, Issue 169 (August 31, 2016)
| Page Range | 59876-59901 | |
| FR Document | 2016-20413 |
[Federal Register Volume 81, Number 169 (Wednesday, August 31, 2016)] [Rules and Regulations] [Pages 59876-59901] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-20413] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2014-0636; FRL-9951-42-Region 9] Approval and Promulgation of Air Quality State Implementation Plans; California; San Joaquin Valley; Moderate Area Plan for the 2006 PM2.5 NAAQS AGENCY: U.S. Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is approving elements of the state implementation plan revisions (SIP) submitted by California to address Clean Air Act requirements for the 2006 fine particulate matter (PM2.5 ) National Ambient Air Quality Standards in the San Joaquin Valley Moderate PM2.5 nonattainment area. These SIP revisions are the 2012 PM2.5 Plan, submitted March 4, 2013, the 2014 Supplement, submitted November 6, 2014, and the [[Page 59877]] motor vehicle emission budgets for the 2006 PM2.5 NAAQS submitted November 13, 2015. The EPA is disapproving interpollutant trading ratios identified in the SIP submission for nonattainment new source review permitting purposes because the ratios are not supported by a sufficient technical demonstration. DATES: This rule is effective on September 30, 2016. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2014-0636. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the For Further Information Contact section for additional availability information. FOR FURTHER INFORMATION CONTACT: Wienke Tax, EPA Region 9, (415) 947- 4192, [email protected]. SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and ``our'' refer to the EPA. Table of Contents I. Background II. Public Comments and the EPA's Responses III. Final Action IV. Statutory and Executive Order Reviews I. Background A. Proposed Action On January 13, 2015, we proposed to approve SIP revisions submitted by California to address Clean Air Act (CAA or ``the Act'') requirements for the 2006 primary and secondary 24-hour PM2.5 national ambient air quality standards (NAAQS or ``standards'') in the San Joaquin Valley (SJV) PM2.5 nonattainment area.\1\ These SIP revisions are the 2012 PM2.5 Plan, submitted March 4, 2013, and the ``Supplemental Document, Clean Air Act Subpart 4: The 2012 PM2.5 Plan for the 2006 PM2.5 Standard, and District Rule 2201 (New and Modified Stationary Source Review)'' (2014 Supplement), submitted November 6, 2014. We also proposed to approve, through parallel processing, the proposed motor vehicle emissions budgets (MVEBs) for the 2006 PM2.5 NAAQS submitted on November 6, 2014, which California submitted in final form on December 29, 2014, and the related trading mechanism for transportation conformity purposes. We refer to these submissions collectively herein as ``the 2012 PM2.5 Plan'' or simply ``the Plan.'' --------------------------------------------------------------------------- \1\ 80 FR 1816 (January 13, 2015). --------------------------------------------------------------------------- The EPA proposed to approve the following elements of the 2012 PM2.5 Plan as satisfying applicable CAA requirements: (1) The 2007 base year emissions inventories, (2) the demonstration that attainment by the Moderate area attainment date of December 31, 2015 is impracticable, (3) the reasonably available control measures/reasonably available control technology (RACM/RACT) demonstration, (4) the reasonable further progress (RFP) demonstration, (5) the San Joaquin Valley Unified Air Pollution Control District's (SJVUAPCD's or ``District's'') commitments to adopt and implement specific rules and measures by specific dates, and (6) the 2014 and 2017 MVEBs for direct PM2.5 and oxides of nitrogen (NOX ). The EPA also proposed to determine that volatile organic compounds (VOC) emissions do not contribute significantly to ambient PM2.5 levels that exceed the 2006 PM2.5 NAAQS in the SJV but to find the State's and District's demonstration concerning ammonia emissions insufficient to rebut the regulatory presumption for ammonia. The EPA proposed to disapprove interpollutant trading ratios identified in these SIP submittals for nonattainment new source review (NNSR) permitting purposes. Finally, the EPA proposed to reclassify the SJV area, including Indian country within it, as a Serious nonattainment area for the 2006 PM2.5 NAAQS, based on the EPA's determination that the area could not practicably attain these standards by the applicable Moderate area attainment date of December 31, 2015. B. Final Reclassification of the SJV Area From Moderate to Serious for the 2006 PM2.5 NAAQS On December 22, 2015, we finalized our January 13, 2015 proposal to reclassify the SJV area from Moderate to Serious for the 2006 PM2.5 NAAQS.\2\ As a result of that action, by August 21, 2017, California is required to submit additional SIP revisions to satisfy the statutory requirements that apply to Serious PM2.5 nonattainment areas, including the requirements of subpart 4 of part D, title I of the Act. The Serious area plan must provide for attainment of the 2006 PM2.5 NAAQS in the SJV area as expeditiously as practicable, but no later than December 31, 2019, in accordance with the requirements of part D of title I of the Act. --------------------------------------------------------------------------- \2\ 81 FR 2993 (January 20, 2016) (final rule) and 81 FR 42263 (June 29, 2016) (correcting amendment). --------------------------------------------------------------------------- C. Motor Vehicle Emissions Budgets in the 2012 PM2.5 Plan As part of our January 13, 2015 proposed action, we proposed to approve the proposed 2014 and 2017 MVEBs for the 2006 PM2.5 NAAQS submitted by the California Air Resources Board (CARB) on November 6, 2014 with a request for parallel processing. CARB formally submitted the final budgets to the EPA on December 29, 2014.\3\ On April 1, 2016, we found the NOX and direct PM2.5 budgets in the 2012 PM2.5 Plan and 2014 Supplement, as submitted December 29, 2014, to be adequate for conformity purposes.\4\ On November 13, 2015, CARB submitted a SIP revision to replace several previously-submitted MVEBs developed using EMFAC2011 with revised MVEBs developed using EMFAC2014.\5\ --------------------------------------------------------------------------- \3\ Letter dated December 29, 2014, from Richard W. Corey, Executive Officer, CARB, to Jared Blumenfeld, Regional Administrator, EPA Region 9, with enclosures. \4\ Letter dated April 1, 2016, from Deborah Jordan, Director, Air Division, EPA Region 9, to Richard W. Corey, Executive Officer, CARB, and 81 FR 22194 (April 15, 2016). \5\ Letter dated November 13, 2015, from Richard W. Corey, Executive Officer, CARB, to Jared Blumenfeld, Regional Administrator, EPA Region 9, with enclosures. --------------------------------------------------------------------------- On May 18, 2016, we proposed to approve the revised MVEBs submitted on November 13, 2015, which address the 1997 8-hour ozone standards, the 2006 PM2.5 standards, and the 1987 coarse particulate matter (PM10 ) standard for the SJV area.\6\ We received no public comments on this proposal. Today, we are finalizing action only on the revised 2017 MVEBs addressing the 2006 PM2.5 NAAQS in the SJV, as submitted November 13, 2015.\7\ These NOX and direct PM2.5 budgets were revised using EMFAC2014, the most recent version of California's motor vehicle emission factor model approved by the EPA for use in SIPs and conformity analyses.\8\ The revised budgets, presented in Table 1 below, were developed in consultation with the [[Page 59878]] SJVUAPCD, the eight SJV metropolitan planning organizations (MPOs), the EPA and CARB. These budgets replace the NOX and direct PM2.5 budgets submitted on December 29, 2014. --------------------------------------------------------------------------- \6\ 81 FR 31212 (May 18, 2016). \7\ The EPA took final action on the revised ozone and PM10 budgets at 81 FR 53294 (August 12, 2016). Although the 2012 PM2.5 Plan contained MVEBs for both 2014 and 2017, MVEBs for 2014 are no longer relevant for conformity analyses since that year has passed. \8\ 80 FR 77337 (December 14, 2015). Table 1--San Joaquin Valley Revised Budgets Developed Using EMFAC2014 ------------------------------------------------------------------------ 2017 (tons per winter day) County ------------------------- PM2.5 NOX ------------------------------------------------------------------------ Fresno........................................ 1.0 32.1 Kern (SJV).................................... 0.8 28.8 Kings......................................... 0.2 5.9 Madera........................................ 0.2 6.0 Merced........................................ 0.3 11.0 San Joaquin................................... 0.6 15.5 Stanislaus.................................... 0.4 12.3 Tulare........................................ 0.4 11.2 ------------------------------------------------------------------------ Note: CARB calculated the revised PM2.5 budgets by taking the sum of the county-by-county emissions results from EMFAC and rounding the SJV- wide total up to the nearest whole ton for NOX and to the nearest tenth of a ton for direct PM2.5, then reallocating to the individual counties based on the ratio of each county's contribution to the total, and then rounding each county's emissions to the nearest tenth of a ton using the conventional rounding method. The existing adequate PM2.5 budgets submitted December 29, 2014 were calculated in the same manner. As part of our January 13, 2015 proposed action, the EPA also proposed to approve, in accordance with 40 CFR 93.124, the trading mechanism as described on p. C-32 in Appendix C of the 2012 PM2.5 Plan as an enforceable component of the transportation conformity program for the SJV for the 2006 PM2.5 NAAQS, with the condition that trades are limited to substituting excess reductions in NOX for increases in PM2.5 . This trading mechanism was not revised by the November 13, 2015 MVEB submittal.\9\ We are finalizing our proposal to approve the trading mechanism identified in the Plan for transportation conformity purposes. --------------------------------------------------------------------------- \9\ 81 FR 31212, 31218 (May 18, 2016). --------------------------------------------------------------------------- The budgets that the EPA is approving herein relate to the 2006 PM2.5 NAAQS only, and our approval of them does not affect the status of the previously-approved MVEBs for the 1997 PM2.5 NAAQS and related trading mechanism, which remain in effect for that PM2.5 NAAQS. II. Public Comments and the EPA's Responses The EPA provided a 45-day period for the public to comment on our proposed rule. During this comment period, which ended on February 27, 2015, we received two sets of public comments, one from the SJVUAPCD and another from Earthjustice on behalf of the Central Valley Air Quality Coalition, Greenaction, the Association of Irritated Residents, the Sierra Club--Tehipite Chapter, and Global Community Monitor (Earthjustice).\10\ Copies of these comment letters can be found in the docket. --------------------------------------------------------------------------- \10\ See letter dated February 27, 2015 from Sheraz Gill, Director of Strategies and Incentives at SJVAPCD, to Wienke Tax, EPA Region 9, ``Re: Docket No. EPA-R09-OAR-2014-0636, Comments on Proposed Approval and Promulgation of Implementation Plans; Designation of Areas for Air Quality Planning Purposes; California; San Joaquin Valley Moderate Area Plan and Reclassification as Serious Nonattainment for the 2006 PM2.5 NAAQS,'' and letter dated February 27, 2015 from Paul Cort and Adenike Adeyeye, Earthjustice, to Ms. Wienke Tax, Air Planning Office, EPA Region 9. --------------------------------------------------------------------------- In our December 22, 2015 final action to reclassify the SJV area as a ``Serious'' PM2.5 nonattainment area, we summarized and responded to public comments pertaining to the reclassification and its consequences and stated that we would, in a separate rulemaking, respond to comments pertaining to our proposed action on the submitted plan.\11\ In our April 15, 2016 notice of adequacy, we responded to a public comment pertaining to the adequacy of the budgets.\12\ --------------------------------------------------------------------------- \11\ 81 FR 2993 (January 20, 2016). \12\ 81 FR 22194 (April 15, 2016). --------------------------------------------------------------------------- We summarize below and provide our responses to all remaining public comments on our proposed action on the 2012 PM2.5 Plan. A. Comment Regarding Emissions Inventories Comment 1: Earthjustice comments on the importance of emissions inventories, noting that CAA section 172(c)(3) requires that nonattainment plans ``include a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in such area'' (emphasis by commenter). Earthjustice argues that the EPA's proposed determination that the 2012 PM2.5 inventories ``are based on the most current and accurate information available to the State and District at the time the Plan and its inventories were being developed,'' does not satisfy the requirements of section 172(c)(3) that the inventory be accurate and current. While acknowledging that it is unaware of information calling into question the inventories used in the Plan, Earthjustice asserts that the EPA must take further steps to confirm that the inventories ``are'' (i.e., remain) current and accurate before it approves the inventories. Citing Sierra Club v. United States EPA, 671 F.3d 955, 968 (9th Cir. 2012), Earthjustice states that the EPA's failure to confirm that the inventories are current and accurate ``undermines the rational basis for the approval.'' Response 1: The EPA does not dispute the importance of emissions inventories. We evaluated the emissions inventories in the 2012 PM2.5 Plan to determine whether they satisfy the requirements of CAA section 172(c)(3) and adequately support the Plan's RACM, RFP, and impracticability demonstrations. Based on this evaluation, we have concluded that the Plan's 2007 base year emissions inventory was based on the most current and accurate information available to the State and District at the time the Plan was developed and submitted, and that it comprehensively addresses all source categories in the SJV area, consistent with applicable CAA requirements and EPA guidance.\13\ --------------------------------------------------------------------------- \13\ 80 FR 1816 at 1819-1820; see also ``General Preamble for Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 FR 13498, 13502 (April 16, 1992) (``General Preamble''). --------------------------------------------------------------------------- CAA section 172(b) provides that a state containing a nonattainment area shall submit a plan or plan revision (including the plan items) meeting the applicable requirements of CAA section 172(c) and section 110 on the schedule established by the EPA. Section 172(c) contains, inter alia, the requirement that nonattainment area plans include a ``comprehensive, accurate, current inventory'' of actual emissions from all sources of the relevant pollutant or pollutants in the area. We believe it is reasonable to read these provisions together as requiring that the state submit an inventory that is comprehensive, accurate, and current at the time the state submitted it to the EPA, rather than requiring that the state continually revise its plan as new emissions data become available.\14\ Air quality planning is an iterative process and states and the EPA must rely on the best available data at the time the plans are created. Nothing in the Sierra Club decision cited by the commenters (671 F.3d 955, 9th Cir. 2012) compels the EPA to alter this longstanding interpretation of the CAA.\15\ --------------------------------------------------------------------------- \14\ EPA, Office of Transportation and Air Quality (OTAQ), ``Policy Guidance on the Use of MOVES2010 for State Implementation Plan Development, Transportation Conformity, and Other Purposes,'' December 2009; see also Memorandum from John Seitz, EPA, Office of Air Quality Planning and Standards and Margo Oge, OTAQ, ``Policy Guidance on the Use of MOBILE6 for SIP Development and Transportation Conformity,'' January 18, 2002. \15\ In Sierra Club v. EPA, 671 F.3d 955 (9th Cir. 2012), the Ninth Circuit remanded the EPA's final action approving an ozone plan for the SJV on the ground that the EPA's failure to consider new inventory data submitted by CARB long before the EPA's action on the plan was arbitrary and capricious under the Administrative Procedure Act. See 671 F.3d at 966 (``EPA stands on shaky legal ground relying on significantly outdated data, given the amount of time that EMFAC2007 was available and authorized for use before the EPA approved the 2004 SIP''). The decision did not disturb the EPA's longstanding policy of requiring states to use the most current emissions estimate models available at the time of SIP development. --------------------------------------------------------------------------- [[Page 59879]] B. Comments Regarding Precursors Comment 2: The SJVUAPCD argues that ammonia is not a significant precursor for PM2.5 and that additional ammonia controls are not required. The District asserts that the EPA's proposal to reject these findings is based on ``technical assertions not supported by the extensive scientific research and modeling'' conducted for the Plan, and that the technical analyses in the Plan demonstrate that ammonia reductions are ineffective for attaining the PM2.5 NAAQS. Although the District recognizes that ammonia is an integral component of ammonium nitrate, which contributes substantially to wintertime PM2.5 mass in the SJV, it argues that its scientific evaluations in the Plan provide ``sufficient substantiation that controls on ammonia are known to be very insensitive to reducing ammonium nitrate mass concentrations.'' The District also comments that the EPA did not provide references or support for statements in its technical support document that ``a detailed evaluation of the modeling shows that ammonia controls can be effective at reducing ambient PM2.5 in some locations,'' and that ``[i]n the various studies, when ammonia emissions were reduced by up to 50 percent, ambient ammonium nitrate decreased by 5 to 25 percent, depending on the episode modeled and the geographic location evaluated . . . . These percentages for ammonia benefits are generally smaller than those for NOX reductions, but these modeling results show that reductions in ammonia emissions under certain circumstances can effectively reduce ambient PM2.5 '' (internal citations omitted). The District argues that these statements are contrary to the Plan's Weight of Evidence Analysis in Appendix G of the 2012 PM2.5 Plan. Response 2: We disagree with the District's claim that we did not provide support for our conclusions about ammonia impacts in the SJV. As stated on pg. 56 of the EPA's technical support document (TSD) for the proposed rule (hereafter ``Proposal TSD''),\16\ the EPA's conclusion that ammonia controls can be effective at reducing ambient PM2.5 in some locations in the SJV is based on (1) sensitivity to ammonia reductions in the air quality modeling and Weight of Evidence Analysis in the 2012 PM2.5 Plan, (2) a number of peer-reviewed journal papers cited in the Plan showing ammonium nitrate reductions of up to 25 percent when ammonia emissions are reduced by 50 percent, and (3) the severity of PM2.5 nonattainment in the area.\17\ --------------------------------------------------------------------------- \16\ EPA, Region 9, Air Division, Technical Support Document, ``Proposed Action on the San Joaquin Valley 2012 PM2.5 State Implementation Plan and 2014 Supplemental Document and Proposed Reclassification of the San Joaquin Valley as Serious Nonattainment for the 2006 PM2.5 Standard,'' December 2014 [``Proposal TSD'']. \17\ Id. at p. 56. --------------------------------------------------------------------------- Comment 3: The SJVUAPCD recognizes that ammonia is a large component of ammonium nitrate and that ammonium nitrate contributes substantially to wintertime PM2.5 mass, but asserts that this does not necessarily mean that reductions in ammonia emissions are effective in reducing PM2.5 concentrations in the SJV. Similarly, the District acknowledges that ammonia is found in the SJV at higher wintertime concentrations than NOX but states that ammonia's physical abundance does not solely determine its significance as a precursor. The District cites language in the EPA's Proposal TSD stating that the EPA reviews a determination to exclude a PM2.5 precursor by considering both ``the magnitude of the precursor's contribution to ambient PM2.5 concentrations'' and ``the sensitivity of ambient PM2.5 concentrations in the area to reductions in emissions of that precursor.'' The District interprets this language to establish two necessary elements for precursor significance: (1) A ``relatively high contribution'' to overall PM2.5 mass, and (2) availability of control mechanisms for the precursor that demonstrate a ``reasonable rather than negligible'' reduction in PM2.5 mass. The District asserts that PM2.5 concentrations in the SJV are highly insensitive to ammonia controls, particularly when compared to alternative controls on NOX, which it claims is the limiting precursor for ammonia nitrate formation. While the District agrees with the EPA that the decision of whether to require reductions of a precursor should not be based solely on the control effectiveness of the precursor relative to other precursors, the District comments that an ``additional key issue that must also be taken under consideration is the development and implementation of effective emission reductions strategies for reducing ambient PM2.5 and bringing the [SJV] into attainment.'' Response 3: The EPA generally agrees with the District's statement that both the contribution of a precursor to PM2.5 concentrations in the area and the area's sensitivity to reductions in emissions of the precursor may be relevant for assessing the level of contribution of a PM2.5 precursor to ambient PM2.5 levels. The EPA also agrees with the District's conclusion that ambient PM2.5 concentrations are more sensitive to NOX emission reductions than to ammonia emission reductions. We disagree, however, with the District's suggestion that the effectiveness of reductions of a particular precursor in improving PM2.5 air quality relative to a different precursor may support a conclusion that a given precursor does not contribute significantly to ambient PM2.5 levels that exceed the NAAQS. We also disagree with the District's suggestion that the ``availability of control mechanisms for the precursor that demonstrate a `reasonable rather than negligible' reduction in PM2.5 mass'' is a necessary consideration in determining whether a particular PM2.5 precursor is subject to control evaluation under subpart 4. As explained in our proposed rule, ammonia is a precursor to the formation of PM2.5 and is, therefore, presumptively regulated under subpart 4 of part D, title I of the Act.\18\ Thus, CARB and the District must evaluate ammonia emissions for potential controls unless the State submits a demonstration adequate to rebut the regulatory presumption in the SJV area. The pertinent question in a demonstration to rebut the regulatory presumption for ammonia is whether ammonia emission sources ``contribute significantly'' to PM2.5 levels that exceed the PM2.5 NAAQS in the SJV, not whether existing emission control measures can achieve a specified amount of emission reductions in the area or how effective ammonia reductions are compared to reductions of other PM2.5 precursors.\19\ More specifically, with respect to the sensitivity- based contribution analysis, the pertinent question is whether PM2.5 concentrations in the nonattainment area are ``insensitive'' to emissions reductions of the precursor.\20\ We note that the EPA may, in some cases, require a state to identify and evaluate potential control measures to reduce emissions of a particular PM2.5 precursor from existing sources as part of a sensitivity-based contribution analysis, i.e., in order to adequately demonstrate that regulation of the precursor would not [[Page 59880]] provide meaningful improvements in ambient air quality.\21\ --------------------------------------------------------------------------- \18\ 80 FR 1816, 1821 (January 13, 2015) (citing NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 2013)). \19\ CAA section 189(e). \20\ See EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at Section III.C.3.d, pp. 50-54 (discussing technical issues associated with sensitivity-based contribution analysis). \21\ See EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at 40 CFR 51.1009(a)(2)(ii). Although this regulatory text is not yet effective, it reflects the EPA's interpretation of the statutory requirements. See also EPA, Response to Comments on the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements, July 29, 2016, at p. 23 (noting that ``while a valid sensitivity-based precursor demonstration generally will not require an evaluation of available controls, the EPA may determine, based on the facts and circumstances of the area, that the state needs to conduct a control measure evaluation for the relevant precursor to adequately demonstrate that regulation of the precursor would not provide meaningful reductions in ambient air quality''). --------------------------------------------------------------------------- Given the severity of PM2.5 nonattainment in the SJV area, the ambient contribution of ammonia emissions, the area's demonstrated sensitivity to ammonia control,\22\ and our finding that the precursor demonstration in the Plan is insufficient to rebut the regulatory presumption for ammonia, we conclude that ammonia emissions contribute significantly to ambient PM2.5 levels that exceed the PM2.5 NAAQS in the SJV area and that the 2012 PM2.5 Plan must, therefore, contain an evaluation of potential ammonia controls. --------------------------------------------------------------------------- \22\ Proposal TSD at p. 57; see also 80 FR 1816, 1825 (January 13, 2015). --------------------------------------------------------------------------- Comment 4: Earthjustice challenges the EPA's method for identifying PM2.5 precursors subject to regulation by the Plan. Specifically, Earthjustice objects to the EPA's consideration of ``both the magnitude of the precursor's contribution to ambient PM2.5 concentrations in the nonattainment areas and the sensitivity of ambient PM2.5 concentrations in the area to reductions in emissions of that precursor.'' Earthjustice argues that this language differs from CAA section 189(e), which provides that control requirements shall apply to major stationary sources of particulate matter (PM) precursors unless the EPA finds that these sources ``do not contribute significantly to PM-10 levels which exceed the standard in the area.'' Thus, according to Earthjustice, ``the statute allows for consideration only of the significance of the contribution'' and does not allow for consideration of the effectiveness of controls in determining whether a precursor must be subject to control. Earthjustice also characterizes the EPA's consideration of the sensitivity of ambient concentrations to precursor emissions reductions as a ``bad'' policy assessment and argues that ``looking merely at the sensitivity ratios ignores the fact that pollutants like ammonia have been historically under-regulated and very well may represent the cheapest opportunities for emission reductions.'' Earthjustice argues that even if much larger amounts of ammonia reductions would be required to achieve the benefits of a few tons of NOX reductions, ammonia controls may still be the ``best'' policy option because incremental NOX emissions, which have already been heavily regulated, may be much more expensive. Earthjustice claims that the EPA's sensitivity test is a policy-based test but that it is not a rational policy test, because it does not consider the full regulatory context. According to Earthjustice, ``decisions on how to balance controls on sources of ammonia versus sources of NOX are for the control strategy of the Plan,'' and that if additional reductions beyond those achieved through the required RACM or BACM controls are necessary, ``that is where the `effectiveness' of the controls can and should be considered--not in the determination of whether a pollutant is a precursor subject to control under the Act.'' Earthjustice states that the EPA has correctly proposed to determine that ammonia emissions ``contribute significantly'' to PM2.5 nonattainment in the SJV given that ammonium nitrate is the largest component of the Valley's PM2.5 levels. Thus, according to Earthjustice, ammonia controls are mandated under CAA section 189(e) regardless of the relative sensitivity of ambient concentrations to emission reductions. Response 4: We disagree with the commenter's characterization of the legal test for determining whether or not a particular PM2.5 precursor must be subject to control evaluation. With respect to ammonia emissions, however, this issue does not affect our action on the 2012 PM2.5 Plan because the EPA is not determining that ammonia emission sources ``do not contribute significantly'' to PM2.5 levels that exceed the 2006 PM2.5 NAAQS in the SJV area. Instead, the EPA has concluded that the State's and District's demonstration concerning ammonia emissions in the 2012 PM2.5 Plan and 2014 Supplement is insufficient to rebut the regulatory presumption under subpart 4 and that ammonia is, therefore, a PM2.5 precursor subject to control evaluation for purposes of attaining the 2006 PM2.5 NAAQS in the SJV. As explained in our proposed rule, section 189(e) of the Act requires that the control requirements for major stationary sources of direct PM10 also apply to major stationary sources of PM10 precursors, except where the Administrator determines that such sources do not contribute significantly to PM10 levels that exceed the standard in the area. Section 189(e) contains the only express exception to the control requirements under subpart 4 (e.g., requirements for RACM and RACT, best available control measures (BACM) and best available control technology (BACT), most stringent measures, and NSR) for sources of direct PM2.5 and PM2.5 precursor emissions. Although section 189(e) explicitly addresses only major stationary sources, the EPA interprets the Act as authorizing it also to determine, under appropriate circumstances, that regulation of specific PM2.5 precursors from other source categories in a given nonattainment area is not necessary. For example, under the EPA's longstanding interpretation of the control requirements that apply to stationary, area, and mobile sources of PM10 precursors area-wide under CAA section 172(c)(1) and subpart 4 (see General Preamble, 57 FR 13498 at 13539- 42), a state may demonstrate in a SIP submittal that control of a certain precursor pollutant is not necessary in light of its insignificant contribution to PM10 levels in the nonattainment area.\23\ --------------------------------------------------------------------------- \23\ 80 FR 1816, 1821-1822 (January 13, 2015). Courts have upheld this approach to the requirements of subpart 4 for PM10 . See, e.g., Assoc. of Irritated Residents v. EPA, et al., 423 F.3d 989, 997 (9th Cir. 2005) (noting discretion vested in the EPA to consider various factors in determining whether a precursor ``contributes significantly'' to PM10 levels). --------------------------------------------------------------------------- We evaluated the SJV PM2.5 Plan in accordance with the presumption embodied within subpart 4 that all PM2.5 precursors must be addressed in the state's evaluation of potential control measures, unless the state adequately demonstrates that emissions of a particular precursor do not ``contribute significantly'' to ambient PM2.5 levels that exceed the PM2.5 NAAQS in the nonattainment area. Both the magnitude of a precursor's contribution to ambient PM2.5 concentrations in the nonattainment area and the sensitivity of ambient PM2.5 concentrations in the area to reductions in emissions of that precursor may be relevant to an assessment of whether the precursor contributes significantly to ambient PM2.5 levels that exceed the PM2.5 NAAQS in the area. As explained in the preamble to the EPA's July 29, 2016 final rule to implement the PM2.5 NAAQS: The EPA . . . believes that a sensitivity-based contribution analysis is consistent with the language and intent of CAA section 189(e). As applied to attainment plans, CAA section 189(e) allows states to evaluate whether PM2.5 precursors significantly [[Page 59881]] contribute to levels which exceed the standard in the area. The intent of CAA section 189(e) in applying control requirements to PM2.5 precursors is to ensure expeditious attainment of the standard. However, if conditions in a particular area are such that control of sources of one or more precursors does not reduce PM2.5 concentrations in the area, then those controls will not help the area attain (expeditiously or otherwise). Therefore, the EPA disagrees with commenters who argue that sensitivity-based contribution analyses are not appropriate for determining if precursors do not significantly contribute to PM2.5 levels in the area. The EPA believes that sensitivity-based contribution analyses can be useful for determining whether adoption of control requirements for sources of a particular precursor would be effective in reducing PM2.5 concentrations, and can be useful for determining whether potential emissions increases under the NNSR program would lead to insignificant air quality changes. For this reason, the final rule allows states to conduct sensitivity-based contribution analyses for the comprehensive, major stationary source, and NNSR precursor demonstrations.\24\ --------------------------------------------------------------------------- \24\ EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at Section III.C, p. 59. Based on our evaluation of the precursor demonstrations in the 2012 PM2.5 Plan, we agree with Earthjustice's claim that ammonia emission sources ``contribute significantly'' to PM2.5 levels that exceed the PM2.5 NAAQS in the SJV and that an ammonia control evaluation is therefore necessary to satisfy the requirements of the Act for the 2006 PM2.5 NAAQS. For the reasons provided in our proposed rule, however, we conclude that VOC emissions do not ``contribute significantly'' to ambient PM2.5 levels that exceed the 2006 PM2.5 NAAQS in the SJV area and that a VOC control evaluation therefore is not necessary in this Plan. As the commenter has not raised any specific concern regarding our proposal on VOC emissions, we are not addressing these issues further with respect to VOCs. Comment 5: The District states that it is important to acknowledge the public health co-benefits of reducing NOX emissions in the region. The District states that ozone production in the SJV is limited by NOX concentrations relative to VOC concentrations, and that NOX reductions typically involve the elimination, reduction, and/or control of hydrocarbon combustion sources, and produce net reductions in direct particulates, metals, organic carbon, elemental carbon, and hazardous air pollutants. The District asserts that reductions in secondary ammonium nitrate are not accompanied by these additional co-benefits. Response 5: We agree with the commenter that it is important to reduce NOX emissions for improved public health in the San Joaquin Valley, because it is a precursor to both PM2.5 and ozone. As to the air quality benefits of reductions in secondary ammonium nitrate, theoretically these air quality benefits could be achieved by reductions in either NOX emissions or ammonia emissions. Reductions in secondary ammonium nitrate through NOX control would achieve the co-benefits identified by the commenter. Given that there is no atmospheric chemistry connection between ammonia emissions and ozone production, we agree with the commenter that ammonia reductions would not achieve the same co- benefits with respect to ozone that NOX reductions achieve. Ammonia reductions may, however, achieve other air quality co-benefits depending on the specifics of the ammonia controls, which are not explored in the Plan but may be uncovered by additional analysis. In any case, this issue does not affect our conclusion that ammonia is a PM2.5 precursor subject to control evaluation for purposes of the 2006 PM2.5 NAAQS in the SJV. C. Comments Regarding RACM/RACT and Adopted Control Strategy Comment 6: Earthjustice argues that the EPA should disapprove the Plan's RACM/RACT demonstration because it does not include all reasonably available control measures. Earthjustice asserts that the EPA's review of this demonstration in its proposed rule ``does little more than rubberstamp the District's unsupported assertions'' that all reasonable controls have been exhausted, and identifies six source categories for which it claims that existing control measures could reasonably be strengthened or other reasonable new control measures have yet to be adopted and implemented. Response 6: We disagree with these arguments. Section 107(a) of the CAA provides states with both authority and primary responsibility for developing SIPs that meet applicable statutory and regulatory requirements for attaining, maintaining, and enforcing the NAAQS. States have discretion in formulating their SIPs, and the EPA is required to approve a SIP submission that satisfies the applicable requirements of the Act.\25\ --------------------------------------------------------------------------- \25\ CAA section 110(k)(3), 42 U.S.C. 7410(k)(3) and 40 CFR 52.02(a); see also Union Elec. Co. v. EPA, 427 U.S. 246, 250 (1976); Train v. Natural Res. Def. Council, 421 U.S. 60, 79 (1975). --------------------------------------------------------------------------- As explained in our proposed rule, the 2012 PM2.5 Plan discusses the District's process for evaluating potential RACM/RACT in accordance with the EPA's recommendations in the General Preamble and describes each of the control measures for sources of direct PM2.5 , NOX , SO2 , and ammonia that the Plan relies on to satisfy the RACM/RACT requirement for the 2006 PM2.5 NAAQS.\26\ For the reasons provided in our proposed rule and further below, we conclude that the 2012 PM2.5 Plan provides for the implementation of all RACM/RACT that could reasonably be implemented in the SJV by the statutory implementation deadline, as required by CAA sections 172(c) and 189(a)(1)(C). --------------------------------------------------------------------------- \26\ 80 FR 1816, 1827-1830. --------------------------------------------------------------------------- We note that, as of the date of our proposed action on the 2012 PM2.5 Plan and 2014 Supplement, which published on January 13, 2015, it was not practicable for the state to adopt additional control measures for implementation by the RACM implementation deadline under CAA section 189(a)(1)(C), which was December 14, 2013.\27\ The State and District must, however, include in the Serious area plan for the 2006 PM2.5 NAAQS, which is due August 21, 2017, provisions to assure that the best available control measures (BACM) for the control of PM2.5 and PM2.5 precursors shall be implemented no later than 4 years after the date the area was reclassified as a Serious area, i.e., by February 19, 2020.\28\ The required evaluation of BACM/BACT control measures in the Serious area plan must address sources of direct PM2.5 and all PM2.5 precursors, except for any PM2.5 precursor(s) for which the State submits and the EPA approves a comprehensive precursor demonstration consistent with the requirements of subpart 4 of part D, title I of the Act. In accordance with the requirements of CAA section 172(c)(6), the Serious area plan must also include any additional feasible measures to control emissions of direct PM2.5 and PM2.5 precursors that are necessary or appropriate to provide for attainment of the 2006 PM2.5 NAAQS as expeditiously [[Page 59882]] as practicable and no later than December 31, 2019.\29\ --------------------------------------------------------------------------- \27\ The SJV area was designated nonattainment for the 2006 PM2.5 NAAQS effective December 14, 2009. 74 FR 58688 (November 13, 2009) and 40 CFR 81.305. Therefore, the statutory deadline for implementation of RACM in the SJV under CAA section 189(a)(1)(C) for this NAAQS was December 14, 2013. \28\ The EPA reclassified the SJV area as a Serious nonattainment area for the 2006 PM2.5 NAAQS effective February 19, 2016. 81 FR 2993 (January 20, 2016) (final reclassification) and 81 FR 42263 (June 29, 2016) (correcting amendment). Therefore, the statutory deadline for implementation of BACM in the SJV under CAA section 189(b)(1)(B) for this NAAQS is February 19, 2020. \29\ See EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at 40 CFR 51.1010(a)(4)(ii). Although this regulatory text is not yet effective, it reflects the EPA's interpretation of the statutory requirements. --------------------------------------------------------------------------- We respond below to the specific comments pertaining to the six source categories highlighted by Earthjustice. Comment 6a: Standards for Agricultural Equipment. Earthjustice asserts that the District's ``replacement of more than 1,000 pieces of off-road equipment and agricultural equipment'' through implementation of incentive programs has demonstrated the feasibility of emission controls on off-road agricultural equipment and argues that CARB has the ability to create binding, enforceable regulations to reduce NOX emissions from off-road agricultural equipment to hasten attainment of the 2006 PM2.5 NAAQS in the SJV. Response 6a: To the extent Earthjustice intended to argue that the replacement of off-road agricultural equipment through incentive programs implemented in the SJV demonstrates that NOX controls for such equipment are both technologically and economically feasible, we disagree. Given the commenter did not specify the types and/or sizes of off- road equipment for which it believes NOX controls are feasible, we evaluated several types of off-road agricultural equipment replacement projects funded through the Carl Moyer Memorial Air Quality Standards Attainment Program in the SJV in recent years to determine the costs and technical issues associated with such replacements. We used the SJVUAPCD's ``Annual Demonstration Report'' data sheets for 2013,\30\ 2014,\31\ and 2015,\32\ which the District submitted pursuant to SJVUAPCD Rule 9610, to determine the cost effectiveness and technological feasibility of off-road agricultural equipment replacements. We limited our analysis to projects categorized as ``off- road'' and as ``vehicle replacements,'' and that included data for ``cost of new equip vehicle'' \33\ and non-zero emission reductions values reported for NOX and/or particulate matter (PM).\34\ Off-road agricultural equipment encompasses a wide variety of types of equipment. The 1807 pieces of equipment listed in the data sheets that we reviewed include: Almond shakers, almond sweepers, backhoes, bale wagons, balers, bulk carriers, combines, cotton pickers, forage harvesters, forklifts, harvesters, hay haulers, loaders, silage baggers, sprayers, swathers, tomato harvesters, tractors, tractor crawlers, and wheel loaders. Additionally, as seen in Tables 2, 3, and 4 below, the data sheets identify a wide range of equipment horsepower levels and capital costs of replacing agricultural off-road equipment, from which the EPA calculated mean and median values and cost- effectiveness values for NOX controls.\35\ --------------------------------------------------------------------------- \30\ Available at http://www.valleyair.org/MOP/docs/069610ProjectDataforPublicUNLOCKED-1-30-14.xlsx. \31\ Available at http://www.valleyair.org/MOP/docs/9610ProjectDataforPublicUNLOCKED-8-11-14.xlsx. \32\ Available at http://www.valleyair.org/MOP/docs/9610ProjectDataforPublic2015.xlsx. \33\ We did not evaluate the 125 projects in the 2014 Data Sheet categorized as ``off-road'' and as ``vehicle replacements'' for which the Data Sheet identified ``cost retrofit'' instead of ``cost of new equip vehicle'' values. \34\ We did not evaluate the 29 projects in the 2013 Data Sheet categorized as ``off-road'' and as ``vehicle replacements'' for which the Data Sheet identified zero NOX and PM emission reductions. \35\ We calculated the cost-effectiveness of NOX controls by dividing the ``Cost of New Equipment'' values by the ``NOX Lifetime Reduced (tons)'' values for each of the identified projects to obtain $/ton values. Table 2--Horsepower for Off-Road Agricultural Equipment ---------------------------------------------------------------------------------------------------------------- Date of ``Annual Demonstration Horsepower Project ID Report'' data (HP) sheet identifying project ---------------------------------------------------------------------------------------------------------------- Minimum......................................................... 28 C-21377-A 2014 Maximum......................................................... 653 C-21973-A 2014 Mean............................................................ 128 .............. .............. Median.......................................................... 105 .............. .............. ---------------------------------------------------------------------------------------------------------------- Source: Minimum and maximum horsepower based on EPA review of SJVUAPCD, ``Annual Demonstration Report'' data sheets for 2013, 2014, and 2015. Mean and median values calculated by EPA. Table 3--Cost of Off-Road Agricultural Equipment ---------------------------------------------------------------------------------------------------------------- Date of ``Annual Demonstration Cost of new Project ID Report'' data equipment ($) sheet identifying project ---------------------------------------------------------------------------------------------------------------- Minimum......................................................... 10,031.50 C-22064-A 2014 Maximum......................................................... 685,736.52 C-27498-A 2015 Mean............................................................ 82,182.69 .............. .............. Median.......................................................... 51,212.29 .............. .............. ---------------------------------------------------------------------------------------------------------------- Source: Minimum and maximum cost based on EPA review of SJVUAPCD, ``Annual Demonstration Report'' data sheets for 2013, 2014, and 2015. Mean and median values calculated by EPA. [[Page 59883]] Table 4--Cost Effectiveness of NOX Control for Off-Road Agricultural Equipment ---------------------------------------------------------------------------------------------------------------- Date of ``Annual Cost Demonstration effectiveness Project ID Report'' data ($/ton) sheet identifying project ---------------------------------------------------------------------------------------------------------------- Minimum......................................................... 1,141.00 C-8160A 2013 Maximum......................................................... 436,140.00 C-22654-A 2014 Mean............................................................ 38,687.61 .............. .............. Median.......................................................... 18,863.95 .............. .............. ---------------------------------------------------------------------------------------------------------------- Source: EPA, ``Agricultural Mobile Engine Projects--EPA cost-effectiveness calculations,'' July 21, 2016. The significant costs associated with replacing off-road agricultural equipment in the SJV indicate that replacement of such equipment without funding assistance generally is not economically feasible at this time. In addition, the wide variations in the sizes and uses of such equipment in the SJV and the available control technologies indicate that replacement of off-road agricultural equipment in the SJV may not be technically feasible for many types of equipment. Accordingly, we disagree with Earthjustice's suggestion that requirements to replace off-road agricultural equipment are required RACM in the SJV. Comment 6b: Fleet Rules. Earthjustice comments that the District can further reduce emissions from mobile sources by adopting additional ``fleet'' rules to regulate emissions from publicly-owned vehicles. Earthjustice notes that while the District currently maintains a fleet rule only for school buses, the South Coast Air Quality Management District (SCAQMD) has adopted rules for buses; light-, medium-, and heavy-duty public fleet vehicles; waste collection vehicles; airport ground transportation such as taxis and shuttles; and street sweepers. Earthjustice states that the District should implement similar restrictions on publicly-owned vehicles. Response 6b: We disagree with Earthjustice's suggestion that adoption of additional ``fleet'' rules is necessary to satisfy the RACM/RACT requirement for the 2006 PM2.5 NAAQS in the SJV. As the commenter notes, the SCAQMD has adopted several rules to encourage public agencies and some private entities to shift to the use of lower emissions vehicles,\36\ including the following: --------------------------------------------------------------------------- \36\ The applicability of these rules was narrowed to exclude federal fleets and certain private fleets. See http://www.aqmd.gov/docs/default-source/Regulations/Fleet-Rules/fleetruleadvisory-july202005.pdf?sfvrsn=0. Rule 1186.1 Less-Polluting Street Sweepers, adopted August 18, 2000; Rule 1191 Clean On-Road Light and Medium Duty Public Fleet Vehicles, adopted June 16, 2000; Rule 1192 Clean On-Road Transit Buses, adopted June 16, 2000; Rule 1193 Clean On-Road Residential and Commercial Refuse Collection Vehicles, adopted June 16, 2000. Rule 1194 Commercial Airport Ground Access Vehicles, adopted August 18, 2000; Rule 1195 Clean On-Road School Buses, adopted April 20, 2001; and Rule 1196 Clean On-Road Heavy-Duty Public Fleet Vehicles, adopted October 20, 2000. As explained in Appendix C of the 2012 PM2.5 Plan, both CARB and the SJVUAPCD have adopted fleet rules to reduce emissions from specific types of on-road vehicle fleets, e.g., CARB's Fleet Rule for Public Agencies and Utilities, which addresses diesel particulate matter from vehicle fleets operated by public agencies and utilities, and SJVUAPCD Rule 9310 (School Bus Fleets), which requires replacement, retrofit, or repowering of older diesel-fueled school buses.\37\ The District acknowledges in Appendix C of the Plan that the SCAQMD is implementing a fleet rule that requires solid waste collection vehicle fleets to operate entirely on alternative fuel beginning in 2011 but explains that transitioning a fleet from diesel to alternative fuel can be costly and may not be economically feasible in the SJV.\38\ Additionally, according to the SJVUAPCD, the emissions benefit associated with such a transition is minimal given the stringent particulate matter requirements under CARB's Fleet Rule for Public Agencies, and the relatively small difference in NOX emissions, if any, between diesel and alternative fuel vehicles.\39\ The commenter provides no information to support a claim that the SJVUAPCD could reasonably have adopted and implemented identical or similar rules in the SJV prior to the RACM/RACT implementation deadline, which was December 14, 2013. We note that none of the SCAQMD fleet rules identified above has been submitted for approved into the California SIP. --------------------------------------------------------------------------- \37\ 2012 PM2.5 Plan, Appendix C at C-7 to C-11. \38\ Id. at C-8, C-9 (noting that ``establishing new alternative fuel infrastructure can cost millions of dollars and alternative fuel SWCVs generally cost $25,000 more than diesel''). \39\ Id. --------------------------------------------------------------------------- Comment 6c: Indirect Source Review (ISR) Improvements. Earthjustice comments that the District can obtain additional emissions reductions by expanding the applicability of its ISR rule, which Earthjustice notes was last updated in 2005. Earthjustice suggests that the District could eliminate provisions that allow businesses to mitigate their emissions by paying fees (or establish a minimum emission level for when a business may use this option), add limits for PM2.5 emissions, and require projects to achieve greater emissions reductions. Response 6c: We disagree with the commenter's suggestion that revisions to SJVUAPCD Rule 9510 (``Indirect Source Review'') are necessary to satisfy RACM requirements for the 2006 PM2.5 NAAQS in the SJV. SJVUAPCD Rule 9510, as adopted December 15, 2005, requires applicants for development projects of certain sizes and certain transportation or transit projects to reduce NOX and particulate matter (PM) emissions from the development and use of such projects through various on-site mitigation measures or payment of fees to fund off-site emission reduction projects. The EPA approved SJVUAPCD Rule 9510 into the California SIP at 76 FR 26609 (May 9, 2011) but explained in that action that the EPA and the District were acting under section 110(a)(5) of the CAA. Under that section, the EPA is prohibited from requiring states to include ISR programs in SIPs. Specifically, CAA section 110(a)(5)(A)(i) states that any State may include in a State implementation plan, but the Administrator may not require as a condition of approval of such plan under this section, any indirect source review program. Section 110(a)(5)(A)(i) also states that the Administrator may approve and enforce, as part of an [[Page 59884]] applicable implementation plan, an indirect source review program which the State chooses to adopt and submit as part of its plan.\40\ Because SJVUAPCD Rule 9510 constitutes an ISR program, the EPA may not require the District to consider revisions to this rule, for RACM purposes or otherwise. --------------------------------------------------------------------------- \40\ CAA section 110(a)(5)(A)(i). --------------------------------------------------------------------------- Comment 6d: Fireplace Rule Improvements. Earthjustice comments that the District could reduce direct PM2.5 emissions by making SJVUAPCD Rule 4901 (Wood Burning Fireplaces and Wood Burning Heaters) more stringent. Earthjustice notes that this rule was updated in 2014, but argues that this update did not make the rule ``as stringent as it reasonably could,'' because it allows cleaner classes of wood-burning heaters to be used at ambient concentrations up to 65 microgram per meter cubed ([mu]g/m\3\). Earthjustice argues that a more appropriate threshold would be 35 [mu]g/m\3\, the attainment level for the 2006 PM2.5 NAAQS, and that the District should amend the rule to disallow use of these heaters when concentrations are expected to exceed this level. Earthjustice asserts that the District ``should prioritize making the rule as protective as possible'' to reduce direct PM2.5 emissions. Response 6d: We disagree with the commenter's suggestion that revisions to SJVUAPCD Rule 4901 are necessary to satisfy RACM requirements for the 2006 PM2.5 NAAQS in the SJV. Consistent with the District's rule amendment commitments in the 2012 PM2.5 Plan,\41\ the SJVUAPCD amended Rule 4901 on September 18, 2014, and CARB submitted the amended rule to the EPA for SIP action on November 6, 2014.\42\ On August 15, 2016, Acting Regional Administrator Alexis Strauss signed a notice of final rulemaking to approve SJVUAPCD Rule 4901, as amended September 18, 2014, as meeting applicable CAA requirements and implementing RACM/RACT for PM2.5 emissions from wood burning devices.\43\ --------------------------------------------------------------------------- \41\ 80 FR 1816, 1832 at Table 3 (January 13, 2015); see also 2012 PM2.5 Plan, Chapter 5 (``Control Strategy''), Section 5.3 (``New Control Measures''), p. 5-21 to 5-22. \42\ 80 FR 58637 (September 30, 2015). \43\ EPA, Final Rule, ``Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control District,'' August 15, 2016 (pre-publication notice). --------------------------------------------------------------------------- Comment 6e: Interim Charbroiling Regulations. Earthjustice argues that the District has delayed updating its charbroiler rule even though the Bay Area Air Quality Management District (BAAQMD) has already implemented regulations on under-fired charbroilers. Earthjustice points out that in 2012, it and other organizations asked the District to update the rule sooner, to include controls similar to those in the Bay Area and to follow up with another rule update when new technologies are reasonably available. Response 6e: We disagree with the commenter's suggestion that SJVUAPCD Rule 4692 (Commercial Charbroiling) fails to satisfy RACM requirements for the 2006 PM2.5 NAAQS in the SJV and that control measures for under-fired charbroilers are necessary to satisfy these requirements. SJVUAPCD Rule 4692, as amended September 17, 2009, applies to chain-driven charbroilers used in commercial meat cooking and requires a catalytic oxidizer or alternative controls with a control efficiency of at least 83 percent for PM10 emissions and 86 percent for VOC emissions. The rule exempts charbroilers used to cook less than 400 pounds of meat in a calendar week, and other limited-use charbroilers that do not exceed weekly and rolling 12-month maximum use limits and that have not previously been required to comply with the rule's control requirements. It does not regulate under-fired charbroilers.\44\ --------------------------------------------------------------------------- \44\ SJVUAPCD Rule 4692 (amended September 17, 2009), sections 4.1, 5.1, and 5.2. --------------------------------------------------------------------------- The BAAQMD is the only air district that we are aware of that has adopted regulations to reduce emissions from under-fired charbroilers. BAAQMD Regulation 6, Rule 2 (Commercial Cooking Equipment),\45\ applies to chain-driven charbroilers in restaurants that purchase 500 pounds or more of beef per week, and to under-fired charbroilers in restaurants that purchase 1,000 pounds or more of beef per week. The rule requires these restaurants to control emissions using a certified control device and to register charbroilers and associated emission control devices with the BAAQMD. The rule exempts low-utilized charbroilers, including under-fired charbroilers used to grill less than 800 pounds of beef per week.\46\ --------------------------------------------------------------------------- \45\ BAAQMD Regulation 6, Rule 2 (adopted December 5, 2007), available at http://www.arb.ca.gov/DRDB/BA/CURHTML/R6-2.PDF. \46\ BAAQMD Regulation 6, Rule 2 (adopted December 5, 2007), sections 6-2-102, 6-2-110, 6-2-111, 6-2-300, and 6-2-400. --------------------------------------------------------------------------- According to BAAQMD planning and compliance staff, the control requirements in Regulation 6, Rule 2 for under-fired charbroilers have not yet been implemented in practice.\47\ BAAQMD staff noted that no under-fired charbroilers in the Bay Area are currently registered pursuant to Regulation 6 Rule 2, indicating that restaurants in the Bay Area are operating below the thresholds that trigger the requirements. In addition, the BAAQMD's most recent inspections found that restaurants were below these thresholds.\48\ Significantly, the BAAQMD has not yet certified any emission control devices for under-fired charbroilers. BAAQMD staff explained that they are waiting to receive and review final test reports from the University of California at Riverside, Center for Environmental Research and Technology (CE-CERT) before making certifications.\49\ --------------------------------------------------------------------------- \47\ Email dated April 4, 2016, from Virginia Lau of the BAAQMD to Stanley Tong of EPA Region 9, regarding ``Update on Bay Area charbroiler registration.'' \48\ BAAQMD staff noted that these inspections occurred during a period of economic recession, and that conditions may have changed since. Email dated April 4, 2016, from Virginia Lau of the BAAQMD to Stanley Tong of EPA Region 9, regarding ``Update on Bay Area charbroiler registration.'' \49\ CE-CERT informed SCAQMD that charbroiler testing will be delayed for up to four months due to fire suppression system upgrades in its test kitchen. Email dated March 16, 2016 from Michael Laybourn of the SCAQMD to Stanley Tong of EPA Region 9, regarding ``Charbroiler Testing.'' --------------------------------------------------------------------------- The SJVUAPCD's 2012 PM2.5 Plan summarizes PM control technology for under-fired charbroilers.\50\ It finds that catalytic oxidizers are not effective for under-fired charbroilers because the exhaust from these devices loses too much heat before it reaches the catalyst. The Plan lists High Efficiency Particulate-Arresting (HEPA) filtration, Electrostatic Precipitators (ESP), and Wet Scrubbers as potentially more effective control technology for under-fired charbroilers, but notes that the SJVUAPCD found these technologies were ``unproven and extremely costly'' when it amended SJVUAPCD Rule 4692 in 2009. During that amendment process, the District found that the initial costs for these controls ranged from $37,500 to $104,000, which results in a cost of approximately $58,200 per ton of PM2.5 reduced. The District has estimated the total costs of installing, operating, and maintaining these controls to be as much as 20 to 30 percent of a restaurant's net profits.\51\ As a result, the District decided not to adopt regulations for under-fired charbroilers as part of its rule amendments in 2009. We note that the Plan contains the District Governing Board's commitment to adopt control [[Page 59885]] measures for under-fired charbroilers in 2016.\52\ --------------------------------------------------------------------------- \50\ 2012 PM2.5 Plan, Appendix D at D-111 to D-117. \51\ Action Summary Minutes, San Joaquin Unified Air Pollution Control District, Governing Board, August 20, 2009, page 7, available at http://www.valleyair.org/Board_meetings/GB/agenda_minutes/Minutes/2009/Minutes_GB_2009_Aug.pdf. \52\ 2012 PM2.5 Plan, Chapter 5 (``Control Strategy''), Section 5.3 (``New Control Measures''), p. 5-21 to 5- 22, and SJVUAPCD Governing Board Resolution 2012-12-19 (December 20, 2012), page 4; see also 80 FR 1816, 1832 at Table 3 (January 13, 2015). --------------------------------------------------------------------------- A study conducted by the University of California at Berkeley \53\ arrives at a similar conclusion regarding the cost of PM controls for under-fired charbroilers. Using 2007 economic census data, the study estimates the average annual profit of restaurants in the SJVUAPCD area to be $23,000-$47,000 per establishment, for a profit margin of 3.5-5.9 percent. Similarly, the study estimates the annual profit for average large restaurants (i.e., restaurants averaging 60 employees) to be approximately $110,000. The study also finds that the average capital cost for particulate matter (PM) emission controls such as an ESP, HEPA filtration, or wet scrubber can range from approximately $38,750 to $50,000, with average annualized costs for installation and operation of $11,000-$15,000. The study calculates the total costs associated with these controls to be approximately 10-14 percent of an average large restaurant's profits. The study states that ``[t]hese figures may appear modest . . . given that installing control technologies would amount to only a tenth of [large] restaurant profits. However . . . this figure is several times larger than the case of successful chain- driven charbroiler regulations, where the cost of installing catalytic oxidizers represented just 2.2 percent of average restaurant profits.'' \54\ The study notes that its annualized cost estimates parallel SJVUAPCD's estimates, even though the data were drawn from different sources.\55\ --------------------------------------------------------------------------- \53\ Bellisario, J., Mandel, B., Perkins, J., Ruan, Y., ``Regulating Emissions from Under-fired Charbroilers,'' University of California, Berkeley, Goldman School of Public Policy, May 2012. \54\ Id. at p. 24. \55\ Id. at p. 24. --------------------------------------------------------------------------- We anticipate the CE-CERT research report will help clarify the cost effectiveness of various under-fired charbroiler emission control technologies, some of which are prototypes, which will supplement the earlier Berkeley study to help inform more effective rule development.\56\ Additionally, the District is currently undertaking efforts that may yield additional information relevant to whether additional controls for charbroilers would be appropriate and feasible in the SJV. To help study the technological feasibility and effectiveness of potential control technologies, the SJVUAPCD Governing Board approved $750,000 for its Restaurant Charbroiler Technology Partnership program to fund PM control technology demonstration projects for under-fired charbroilers at Valley restaurants.\57\ The District's funding would include the full purchase cost, installation, operation, maintenance, and other costs such as modifications to existing system configurations and structural reinforcements, and will help evaluate control systems operations, maintenance, and labor costs in the field. Completion of these research efforts will allow regulatory agencies to evaluate overall PM reduction strategies, which will help in designing economically and technically feasible regulations that can achieve the necessary PM reductions. --------------------------------------------------------------------------- \56\ The SCAQMD, BAAQMD, SJVUAPCD, and EPA Region 9 are part of a workgroup to provide input on the CE-CERT under-fired charbroiler testing research. \57\ See Restaurant Charbroiler Technology Partnership, available at http://valleyair.org/grants/rctp.htm, and ``Charbroilers Come Under San Joaquin Valley Air District's Microscope,'' The Modesto Bee, December 27, 2015, http://www.recordnet.com/article/20160101/NEWS/160109993. --------------------------------------------------------------------------- Based on these evaluations, we find that SJVUAPCD Rule 4692 implements RACM/RACT for charbroilers for purposes of the 2006 PM2.5 NAAQS in the SJV. Comment 6f: Performance Standards for Flares. Earthjustice comments that the District could strengthen Rule 4311 (Flares) by adopting a performance-based standard for flaring. Earthjustice states that the District should assess the strength of its rule against rules in other areas with high oil and gas production, and suggests North Dakota as an example. As explained by Earthjustice, North Dakota requires operators to meet targets for natural gas capture that increase over time from 74 percent in 2014 to an expected 90 percent by 2020, and allows state regulators to restrict oil production if the operators do not meet these targets. Earthjustice says that the District could ``borrow from'' this approach by assessing the percentage of natural gas flared in the San Joaquin Valley and developing regulations to reduce flaring. Response 6f: We disagree with the commenter's suggestion that revisions to SJVUAPCD Rule 4311 (Flares) are necessary to satisfy RACM requirements for the 2006 PM2.5 NAAQS in the SJV. SJVUAPCD Rule 4311, as amended June 18, 2009, limits VOC, NOX , and sulfur oxides (SOX ) emissions from industrial operations involving the use of flares. The rule includes general requirements for combusting waste gases, emission standards for ground-level enclosed flares, and performance targets for petroleum refinery flares. Operators of refinery flares and flares with capacity greater than 5.0 MMBtu/hour are required to submit flare minimization plans (FMPs) containing information such as detailed process diagrams, descriptions of upstream equipment, and evaluations of preventive measures to reduce flaring.\58\ The rule prohibits flaring unless it is done consistently with a District-approved FMP.\59\ Additionally, the rule includes monitoring, recordkeeping, and reporting requirements, including a requirement for operators to investigate and report flaring events.\60\ --------------------------------------------------------------------------- \58\ SJVUAPCD Rule 4311 (adopted June 18, 2009), sections 5.8 and 6.5. \59\ Id. \60\ Id. at sections 6.1 and 6.2. --------------------------------------------------------------------------- As the commenter notes, North Dakota has adopted rules governing flaring in the oil and gas industry, through provisions of the North Dakota Century Code and an Order issued by the Industrial Commission of North Dakota. Section 38-08-06.4 of the North Dakota Century Code allows oil wells to flare gas during the first year of production, and thereafter requires wells either to be capped or to be equipped with approved capture or control measures that, at a minimum, reduce flared gas by at least 60 percent, unless the operator can demonstrate that such measures are not economically feasible.\61\ Industrial Commission Order 24665 adopts tiered gas capture goals that include a target of 74 percent capture in 2014 and an end target of 90 percent capture in 2020.\62\ --------------------------------------------------------------------------- \61\ North Dakota Century Code, Section 38-08-06.4, as effective January 2016. \62\ State of North Dakota, Industrial Commission Order No. 24665 (dated July 1, 2014). --------------------------------------------------------------------------- The SJVUAPCD's 2012 PM2.5 Plan states that Rule 4311 is more stringent than flare rules in other California air districts. Appendix D of the Plan compares Rule 4311 to SCAQMD Rule 1118, BAAQMD Rules 12-11 and 12-12, and Santa Barbara County Air Pollution Control District (SBCAPCD) Rule 359.\63\ According to the District, these rules contain requirements for FMPs and monitoring, recordkeeping, and reporting provisions similar to those in SJVUAPCD Rule 4311, and emission standards for ground-level enclosed flares, but Rule 4311 applies to a wider range of operations and does not include certain exemptions present in the other districts' rules.\64\ The District [[Page 59886]] also states that the Sacramento Metropolitan Air Quality Management District (SMAQMD) and Ventura County Air Pollution Control District (VCAPCD) do not have specific prohibitory rules for flares.\65\ --------------------------------------------------------------------------- \63\ The 2012 PM2.5 Plan mistakenly identifies the Santa Barbara rule as ``Rule 4359.'' 2012 PM2.5 Plan, Appendix D at D-71. \64\ 2012 PM2.5 Plan, Appendix D at D-71. \65\ Id. The VCAPCD does not have a specific flaring rule, but VACPCD Rule 54, ``Sulfur Compounds'' includes requirements for flaring events, including FMPs. The District's ``2015 Plan for the 1997 PM2.5 Standard'' (``2015 PM2.5 Plan'') includes this rule in a table comparing Rule 4311 to other California air district rules, and states that SJVUAPCD Rule 4311 is at least as stringent. 2015 PM2.5 Plan, Appendix C: BACM and MSM for Stationary and Area Sources, at page C-79. --------------------------------------------------------------------------- The District has addressed the North Dakota Century Code and the Industrial Commission Order in Appendix C of the ``2015 Plan for the 1997 PM2.5 Standard'' (hereafter ``2015 PM2.5 Plan'').\66\ There, the District concludes that SJVUAPCD Rule 4311 is more stringent than the North Dakota rule. Among its findings in support of this conclusion, the District notes that Rule 4311 applies to a broader range of sources and achieves a higher percentage of gas capture.\67\ Appendix C of the 2015 PM2.5 Plan also discusses SBCAPCD Rule 359, which includes a performance standard for gas volume.\68\ The District concludes that Rule 4311 is more stringent than this rule, citing reasons that include Rule 4311's applicability to a broader range of sources, fewer exemptions, and greater percentage gas capture.\69\ --------------------------------------------------------------------------- \66\ 2015 PM2.5 Plan, Appendix C: BACM and MSM for Stationary and Area Sources, at page C-81. \67\ In its comparison of Rule 4311 to the North Dakota provisions, the 2015 PM2.5 Plan states that Rule 4311 ``requires 95% capture and treatment of produced gas.'' 2015 PM2.5 Plan, Appendix C: BACM and MSM for Stationary and Area Sources, at page C-82. We interpret this to mean that the rule achieves at least 95 percent capture in practice, as demonstrated at Table C-11 of the Plan. 2015 PM2.5 Plan, Appendix C: BACM and MSM for Stationary and Area Sources, at page C-80. See email dated May 20, 2016, from Sheraz Gill of the SJVUAPCD to Andrew Steckel of EPA Region 9, regarding Small flares question. \68\ 2015 PM2.5 Plan, Appendix C: BACM and MSM for Stationary and Area Sources, at pp. C-79 to C-81. \69\ Id. at C-81. --------------------------------------------------------------------------- We agree with the District's analysis and conclusion that SJVUAPCD Rule 4311 is at least as stringent as the rules adopted by the other California air districts and the requirements in place in North Dakota. Therefore, we disagree with the commenter's assertion that a performance-based standard like North Dakota's would be more protective than Rule 4311. While Rule 4311 does not set performance targets for reducing flared gas, information in the record indicates that it achieves emission reductions greater than those targets. Table C-11 of the 2015 PM2.5 Plan shows that the percentage of gas flared in the SJV in the years between 2009 and 2013 has never exceeded 5 percent.\70\ This analysis addresses the commenter's suggestion that the District should assess the percentage of natural gas flared in the District, and it indicates that adoption of requirements like North Dakota's would not reduce emissions from flaring in the SJV. --------------------------------------------------------------------------- \70\ 2015 PM2.5 Plan, Appendix C: BACM and MSM for Stationary and Area Sources, at page C-79. SJVUAPCD staff confirmed that the data in this table comes from the annual emissions inventory reports submitted by sources to the District. Email dated April 27, 2016, from Sheraz Gill of the SJVUAPCD to Andrew Steckel of EPA Region 9, regarding SJV flares data inquiry. --------------------------------------------------------------------------- Based on this assessment, we find that SJVUAPCD Rule 4311 represents RACT for flaring operations in the SJV, and that the alternatives suggested by the commenter would not achieve additional emission reductions. Comment 7: Earthjustice comments that the RACM/RACT analysis in the Plan does not include reasonable controls for condensable emissions, and that the EPA must therefore disapprove the RACM/RACT demonstration. Earthjustice states that 40 CFR 51.1002(c) requires agencies to set controls for condensable emissions beginning January 1, 2011, and quotes the EPA's prior statement at 72 FR 20586, 20652 that ``[w]e expect States to address the control of direct PM2.5 emissions, including condensables [sic] \71\ with any new actions taken after January 1, 2011.'' --------------------------------------------------------------------------- \71\ The Federal Register notice uses the term ``condensable PM.'' --------------------------------------------------------------------------- Response 7: We agree with Earthjustice's statement that the transition period under 40 CFR 51.1002(c) (as effective May 29, 2007) \72\ allowing state and local agencies to submit plans that do not address condensable emissions ended on January 1, 2011. We disagree, however, with the claim that the EPA must disapprove the RACM/RACT demonstration in the Plan for failure to assess controls on condensable PM2.5 emissions. --------------------------------------------------------------------------- \72\ 72 FR 20586 (April 25, 2007). The EPA's recent final rule to implement the PM2.5 NAAQS also requires that emission limitations for PM2.5 sources address condensable PM2.5 . See EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at p. 567 (requiring at 40 CFR 51.1009(c) that, for new or revised source emissions limitations on sources of direct PM2.5 emissions, states apply such emissions limitations either to the total of the filterable plus condensable fractions of direct PM2.5, or to filterable PM2.5 and condensable PM2.5 separately). --------------------------------------------------------------------------- EPA regulations at 40 CFR 51.1002(c), as effective May 29, 2007, provide that, after January 1, 2011, for purposes of establishing emissions limits to satisfy requirements for RFP and reasonably available control measures/reasonably available control technology (RACM/RACT), states must establish such limits taking into consideration the condensable fraction of direct PM2.5 emissions. Because direct PM2.5 is comprised of both filterable PM2.5 and condensable PM2.5 ,\73\ the EPA has explained that both the emissions inventories underlying a PM2.5 attainment plan and any emission limits for sources of direct PM2.5 in the control strategy must take into consideration the condensable fraction of PM2.5 emissions.\74\ As the EPA stated in the July 29, 2016 final rule to implement the PM2.5 NAAQS, it is particularly important to ensure that both the filterable and condensable components of direct PM2.5 emissions are accurately represented in the base year emissions inventory underlying a RACM/RACT control analysis.\75\ --------------------------------------------------------------------------- \73\ Certain commercial or industrial activities involving high temperature processes (e.g., fuel combustion, metal processing, and cooking operations) emit gaseous pollutants into the ambient air which rapidly condense into particle form. These ``condensable'' particulate matter emissions exist almost entirely in the 2.5 or less micron range and can consist of organic material, sulfuric acid and metals. 80 FR 15340, 15343 at n. 7 (March 23, 2015); see also 72 FR 20586, 20651 (April 25, 2007). \74\ See, e.g., 80 FR 15340, 15412 (March 23, 2015) (discussing requirement to address condensable PM2.5 in base year emissions inventory and related SIP control strategies). \75\ See EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at pp. 66-77, 90-104 and 139-140 (discussing requirements to include condensable PM2.5 in base year emissions inventories and in RACM/RACT control evaluations); see also 80 FR 15340 at 15378, 15412. --------------------------------------------------------------------------- Chapter 4 of the 2012 PM2.5 Plan contains a brief discussion of the District's approach to condensable PM2.5 emissions and states that condensable particulates are included in the District's total emissions inventory for direct PM2.5 .\76\ The base year inventory for direct PM2.5 emissions is provided in Appendix B of the 2012 PM2.5 Plan and includes condensable emissions. Specifically, the PM2.5 emissions inventory for commercial cooking operations incorporates emission factors from a source testing study that collected both filterable and condensable particulate matter (PM).\77\ [[Page 59887]] Similarly, the SJVUAPCD's PM2.5 emission factors for natural gas fired boilers, turbines and engines in the manufacturing and industrial category are based on the EPA's AP-42 emission factors, which include both filterable and condensable PM.\78\ Also, PM in the emissions inventory from biomass boilers and natural gas turbines for the electric utilities sector is based on PM10 testing required by operating permits and includes both filterable and condensable PM.\79\ According to the emissions inventories in the 2012 PM2.5 Plan, approximately 38 percent of the 2007 direct PM2.5 inventory for stationary and area sources comes from fugitive dust and farming, emission sources that generally do not produce condensable PM emissions. Stationary source combustion processes that emit condensable PM, such as electric utilities, commercial cooking operations and glass melting furnaces, account for approximately 13.5 percent of the 2007 PM2.5 inventory for stationary and area sources. Residential fuel combustion, fires, and managed burning activities account for 44 percent of the stationary and area source inventory, and miscellaneous industrial processes make up the remainder of the non-mobile source inventory.\80\ --------------------------------------------------------------------------- \76\ See 2012 PM2.5 Plan at p. 4-22. \77\ See ``2006 Area Source Emissions Inventory Methodology 690--Commercial Cooking Operations,'' available at http://www.valleyair.org/Air_Quality_Plans/EmissionsMethods/MethodForms/Current/CommercialCooking2006.pdf. See also Welch, W.A. and Norbeck, J.M., 1998, ``Development of Emission Test Methods and Emission Factors for Various Commercial Cooking Operations,'' TO-98-14-3 and email dated May 20, 2016, from W. Welch of the SCAQMD to Stanley Tong of USEPA, RE: Development of PM Charbroiling Emission Factors using SC 5.1 (confirming that tests were performed using SCAQMD Method 5.1 which includes both filterable and condensable PM). \78\ SJVUAPCD. ``2006 Area Source Emissions Inventory Methodology 050--Industrial Natural Gas Combustion'' at p. 3 (identifying emission factors are based on the EPA's AP-42 chapters 1.4 and 3.2, which include filterable and condensable PM). \79\ Email dated May 18, 2016, from Chay Thao of the SJVUAPCD to Stanley Tong of EPA Region 9, regarding ``Gas Turbine PM source testing condensible''; see also SJVUAPCD, Notice of Final Action, Minor Title V Permit Modification, District Facility #C-14 (April 26, 2012), permit condition 21, available at https:// yosemite.epa.gov/R9/air/EPSS.NSF/0201370ee436adf08825653000726dc1/ e76e9625e609621088257a0e00535d9c/$FILE/Public%20Notice%20Pkg.pdf and SJVUAPCD, Notice of Final Action, Revised Final Determination of Compliance, Project Number: N-1113502 (January 18, 2012), permit condition 51, available at https://yosemite.epa.gov/R9/air/EPSS.NSF/ 0201370ee436adf08825653000726dc1/5f867ce070483067882579c300793cbe/ $FILE/Public%20Notice%20Package.pdf. \80\ 2012 PM2.5 Plan, Appendix B at B-3. --------------------------------------------------------------------------- The 2012 PM2.5 Plan relies on several SJVUAPCD rules regulating direct PM emissions as part of the PM2.5 control strategy, including Rule 4692 (Commercial Charbroiling, amended September 17, 2009), Rule 4103 (Open Burning, amended April 15, 2010), Rule 4354 (Glass Melting Furnaces, amended May 19, 2011), and Rule 4901 (Wood Burning Fireplaces and Wood Burning Heaters, amended September 18, 2014).\81\ Of the SJVUAPCD rules that control direct PM emissions, only two establish emission limits for PM: Rule 4692 and Rule 4354. Both of these rules contain control requirements that apply to condensable PM and require sources to use test methods that measure condensable PM. --------------------------------------------------------------------------- \81\ 81 FR 6936 at 6951-52, Table 3 (February 9, 2016). --------------------------------------------------------------------------- Specifically, section 5.2 of SJVUAPCD Rule 4692 requires that each chain-driven charbroiler be equipped and operated with a catalytic oxidizer that has a control efficiency of at least 83 percent for PM10 emissions, and section 6.5.1 of the rule requires testing in accordance with the ``South Coast Air Quality Management District's Protocol,'' which requires measurement of both condensable and filterable PM in accordance with SCAQMD Test Method 5.1.\82\ SJVUAPCD Rule 4692 defines PM10 as defined in SJVUAPCD Rule 1020 and states that ``[f]or purposes of determining control efficiency, all particulate collected using the test method specified in Section 6.5 shall be considered PM10 .'' \83\ Because section 6.5 of SJVUAPCD Rule 4692 requires measurement of both condensable and filterable PM, both condensable and filterable PM are considered PM10 under the rule.\84\ Similarly, section 5.4 of SJVUAPCD Rule 4354 establishes emission limits for PM10, also defined as in SJVUAPCD Rule 1020,\85\ and states that ``total PM10 includes both filterable PM10 and condensable PM10 .'' Section 6.5.9 of SJVUAPCD Rule 4354 requires testing for condensable PM emissions using EPA Method 202.\86\ No other SIP control measure in the RACM/RACT demonstrations in the 2012 PM2.5 Plan establishes direct PM emission limitations. --------------------------------------------------------------------------- \82\ See SCAQMD Protocol, Determination of Particulate and Volatile Organic Compound Emissions From Restaurant Operations, November 14, 1997, available at http://yosemite.epa.gov/R9/ R9Testmethod.nsf/0/3D4DEB4D21AB4AAF882570AD005DFF69/$file/ SC%20Rest%20emiss.pdf and SCAQMD Test Method 5.1, Determination of Particulate Matter Emissions From Stationary Sources Using a Wet Impingement Train, March 1989, available at http://www.aqmd.gov/docs/default-source/laboratory-procedures/methods-procedures/stm-005-1.pdf?sfvrsn=2. \83\ SJVUAPCD Rule 4692 (amended September 17, 2009), section 3.6, defining PM10 ``as defined in Rule 1020 (Definitions).'' SJVUAPCD Rule 1020 defines ``particulate matter'' as ``any material except uncombined water, which exists in a finely divided form as a liquid or solid at standard conditions,'' and defines ``PM-10'' as ``particulate matter with an aerodynamic diameter smaller than or equal to a nominal ten (10) microns as measured by the applicable state and federal reference test methods.'' SJVUAPCD Rule 1020 (amended February 21, 2013), sections 3.32 and 3.36, approved at 79 FR 59433 (October 2, 2014). \84\ Welch, W.A. and Norbeck, J.M., 1998, ``Development of Emission Test Methods and Emission Factors for Various Commercial Cooking Operations,'' TO-98-14-3 (indicating that the majority of PM emitted from commercial cooking operations is less than 2.5 microns). \85\ See SJVUAPCD Rule 4354 (amended May 19, 2011), section 3.30, defining PM10 ``as defined in Rule 1020 (Definitions).'' SJVUAPCD Rule 1020 defines ``particulate matter'' as ``any material except uncombined water, which exists in a finely divided form as a liquid or solid at standard conditions,'' and defines ``PM10 '' as ``particulate matter with an aerodynamic diameter smaller than or equal to a nominal ten (10) microns as measured by the applicable state and federal reference test methods.'' SJVUAPCD Rule 1020 (amended February 21, 2013), sections 3.32 and 3.36, approved at 79 FR 59433 (October 2, 2014). \86\ 75 FR 80118 (December 21, 2010). --------------------------------------------------------------------------- We therefore find that the 2012 PM2.5 Plan adequately addresses the condensable fraction of direct PM2.5 both in the base year emissions inventory and in the SIP control strategy. Comment 8: Earthjustice argues that the EPA must disapprove the ammonia RACM/RACT demonstration because the District has not demonstrated that it has adopted all reasonably available control measures. According to Earthjustice, the Plan ``includes no analysis of how Rules 4565, 4566, and 4570 actually control ammonia emissions,'' and the District's ammonia RACM/RACT demonstration ``is little more than the District's rationalizations for not adopting reasonable controls'' (emphasis in comment). Earthjustice says that the EPA has proposed to excuse the Plan's failure to analyze ammonia controls ``because it was submitted too soon after the decision in NRDC for the District to have incorporated a full analysis of ammonia controls into the Plan.'' Earthjustice asserts that this consideration ``provides no basis for finding that the statutory requirements have been met.'' Response 8: We disagree with Earthjustice's assertion that the EPA must disapprove the ammonia RACM/RACT demonstration in the Plan. As we explained in our proposed rule, the 2014 Supplement contains a discussion of three SIP-approved District rules that regulate VOCs but also have the effect of reducing ammonia emissions in the SJV, as well as ammonia control measures implemented elsewhere that the District evaluated for technical and economic feasibility.\87\ These analyses, which the EPA has developed further below, demonstrate that SJVUAPCD Rule 4565, Rule 4566, and Rule 4570 reduce ammonia emissions from confined animal facilities (CAFs) and composting operations in the SJV, which together account for [[Page 59888]] approximately 76 percent of the District's estimates of total 2015 ammonia emissions in the SJV.\88\ We find these evaluations sufficient to demonstrate that the District has adopted RACM/RACT for ammonia emissions for purposes of the 2006 PM2.5 NAAQS in the SJV. --------------------------------------------------------------------------- \87\ 80 FR 1816 at 1827-1830 (referencing 2014 Supplement at Attachment A). \88\ 2012 PM2.5 Plan, Appendix B at B-17 and 2014 Supplement at Attachment A, p. A-1 (indicating that ``farming operations'' account for 239.2 tpd of ammonia emission and that ``waste disposal,'' which includes composting solid waste operations, accounts for 20.5 tpd of ammonia emissions in 2015, from a total 2015 ammonia inventory of 340.7 tpd). --------------------------------------------------------------------------- SJVUAPCD Rule 4565 (Biosolids, Animal Manure, and Poultry Litter Operations), as adopted March 15, 2007, requires that each operator of a composting/co-composting facility with a throughput of at least 100,000 wet tons per year conduct all active or curing composting either in aerated static pile(s) vented to an emission control device with a VOC control efficiency of at least 80 percent by weight, or in an in-vessel composting system vented to an emission control device with a VOC control efficiency of at least 80 percent by weight.\89\ Alternatively, the operator may implement an ``alternative Class Two mitigation measure'' that is determined by the SJVUAPCD Air Pollution Control Officer (APCO) and the EPA to achieve equivalent VOC emission reductions.\90\ According to the District's staff report for SJVUAPCD Rule 4565, the most commonly used VOC emission control devices at composting facilities are biofilters, which are used at over twenty composting facilities in the U.S. and at least five composting facilities in California.\91\ Biofilters reduce both VOC and ammonia emissions by oxidizing VOC to carbon dioxide and water and degrading ammonia emissions into nitrate.\92\ For operators that use a biofilter as an emission control device, SJVUAPCD Rule 4565 contains detailed requirements for regularly maintaining, monitoring, and testing the biofilter.\93\ --------------------------------------------------------------------------- \89\ SJVUAPCD Rule 4565 (adopted March 15, 2007), section 5.3.3 (requiring implementation of at least one ``Class Two mitigation measure''); see also 2014 Supplement at Attachment A, p. A-36 to A- 39. \90\ SJVUAPCD Rule 4565 (adopted March 15, 2007), section 5.3.3 and section 3.3 (defining ``alternative mitigation measure''). \91\ SJVUAPCD, Final Staff Report, Revised Proposed New Rule 4565 (Biosolids, Animal Manure, and Poultry Litter Operations), March 30, 2007, at p. 9. \92\ SCAQMD, ``Technology Assessment for Proposed Rule 1133 (Emission Reductions from Composting and Related Operations),'' March 22, 2002, at p. 3-4 and 3-5 (``biofilters use microorganism that live in the biofilm . . . to adsorb and biologically degrade contaminated air into non-harmful substances. In particular, VOC is oxidized to carbon dioxide and water, and ammonia is degraded into nitrate without creating aggravating pollution issues''); see also SCAQMD Rule 1133.2 (adopted January 10, 2003), section (c)(5) (defining ``biofiltration'' as ``a pollution control technology that removes and oxidizes VOC and ammonia through the action of bacteria and other microorganisms''). \93\ SJVUAPCD Rule 4565 (adopted March 15, 2007), sections 5.5 and 5.7. --------------------------------------------------------------------------- Similarly, SCAQMD Rule 1133.2, as adopted January 10, 2003, generally requires operators of ``new'' co-composting facilities (i.e., those that started operations after January 10, 2003) with design capacities of at least 1,000 tons of throughput per year to conduct all active co-composting within the confines of an enclosure meeting certain conditions, to conduct all curing using an aeration system meeting certain conditions, and to vent the exhaust from the enclosure and aeration system to an emissions control system designed and operated with a control efficiency of at least 80 percent, by weight, for both VOC and ammonia emissions.\94\ Alternatively, an operator of a new co-composting facility may submit a compliance plan, for approval by the SCAQMD Executive Officer, that demonstrates an overall emission reduction of 80 percent, by weight, from specified baseline emission factors for both VOC and ammonia emissions.\95\ Existing co-composting facilities with design capacities of at least 35,000 tons of throughput per year must submit a compliance plan that demonstrates an overall emission reduction of 70 percent, by weight, from specified baseline emission factors for both VOC and ammonia emissions.\96\ For existing facilities or new facilities that elect to submit alternative compliance plans, the compliance plan must specify the operator's selected control method(s), which may include (among others) enclosure design or technology; aeration system design and operation; biofiltration; process controls; or best management practices.\97\ According to the final staff report for SCAQMD Rule 1133.2, a well- designed, well-operated, and well-maintained biofilter can achieve 80 percent control efficiency for both VOC and ammonia emissions.\98\ --------------------------------------------------------------------------- \94\ SCAQMD Rule 1133.2 (adopted January 10, 2003), section (d)(1). \95\ Id. at section (d)(2). \96\ Id. at sections (d)(3) and (j)(1). \97\ Id. at section (e). \98\ SCAQMD, Final Staff Report, ``Proposed Rule 1133-- Composting and Related Operations: General Administrative Requirements; Proposed Rule 1133.1--Chipping and Grinding Activities; Proposed Rule 1133.2--Emission Reductions from Co- Composting Operations,'' January 10, 2003, at p. 18 (stating that ``[b]ased on the information collected so far on existing biofilter composting applications, control efficiencies of about 80% to 90% for VOC and 70% to over 90% for ammonia have been achieved. . . . [demonstrating] that a well-designed, well-operated, and well- maintained biofilter is capable of achieving 80 percent control efficiency for VOC and ammonia''). --------------------------------------------------------------------------- Although SJVUAPCD Rule 4565 does not explicitly require operators of composting/co-composting facilities to achieve specified levels of ammonia emission reductions, as does SCAQMD Rule 1133.2, both rules generally require composting facilities to use enclosures and/or aeration systems vented to an emission control device with a VOC control efficiency of 70 or 80 percent. Given the similarity in the control requirements contained in these rules, we find the requirements of SJVUAPCD Rule 4565 sufficient to satisfy RACM/RACT requirements for ammonia control for the 2006 PM2.5 NAAQS. We also disagree with Earthjustice's claim that the EPA has ``proposed to excuse the Plan's failure to analyze ammonia controls'' because of the timing of its submission after the D.C. Circuit's decision in NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 2013). In our proposed rule, we noted that ``the timing of the NRDC decision in early 2013 may have constrained the State's and District's ability to fully evaluate additional ammonia control measures as part of a RACM/RACT control strategy ahead of the applicable Moderate area attainment date (December 31, 2015)'' and stated that we were taking this unique circumstance into account in our evaluation of the Plan.\99\ We also noted the absence of specific information regarding more stringent ammonia air emission control measures that may be technologically and economically feasible for implementation in the SJV area and recommended that the State and District conduct a more thorough evaluation of all available ammonia control measures as part of its development of a Serious area plan for the area.\100\ The commenter argues generally that the Plan includes no analysis of how the District's rules control ammonia emissions but provides no specific information to show that more stringent control measures are technologically and economically feasible for implementation in the SJV area. --------------------------------------------------------------------------- \99\ 80 FR 1816, 1830 (January 13, 2015). \100\ Id. --------------------------------------------------------------------------- As explained in our proposed rule, sections 172(c)(1) and 189(a)(1)(C) of the Act require that attainment plans for Moderate nonattainment areas provide for the implementation of RACM and RACT for existing sources of PM2.5 and PM2.5 precursors in the nonattainment area as expeditiously as practicable but no later than 4 years after designation. In longstanding guidance, the EPA has [[Page 59889]] interpreted the RACM requirement to include any potential control measure for a point, area, on-road or non-road emission source that is technologically and economically feasible and is not ``absurd, unenforceable, or impracticable.'' \101\ The Act does not require adoption of every conceivable control measure to satisfy the RACM requirement in a Moderate PM2.5 nonattainment area.\102\ Consistent with the EPA's recommended process for determining RACM/RACT for a given area, the District compiled a list of potential control measures for ammonia emission sources in the SJV; evaluated the identified control measures for ``reasonableness,'' considering technological and economic feasibility and potentially adverse impacts; and identified the SIP-approved control measures in the Plan that it was relying on to implement RACM for ammonia emission sources.\103\ Although the Plan does not contain every conceivable control measure for ammonia emissions, we find the control evaluations in the Plan sufficient to demonstrate that it provides for the implementation of all RACM/RACT for ammonia sources that could reasonably be implemented by the statutory implementation deadline under CAA section 189(a)(1)(C) for the 2006 PM2.5 NAAQS. We discuss Earthjustice's specific comments about SJVUAPCD Rule 4566 in Response 9 below, and its specific comments about SJVUAPCD Rule 4570 in Response 10 below. --------------------------------------------------------------------------- \101\ 80 FR 1816, 1826 (January 13, 2015) (citing ``State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 FR 13498 (April 16, 1992) (General Preamble) at 13540, 13560). \102\ See 55 FR 38326 (September 18, 1990) (revoking prior EPA guidance to the extent it suggested or stated that areas with severe pollution problems must implement every conceivable control measure including those that would cause severe socioeconomic disruption to satisfy RACM). \103\ 2014 Supplement at Attachment A (ammonia controls). --------------------------------------------------------------------------- Comment 9: Earthjustice disputes the District's finding that its composting rule, Rule 4566, is at least as stringent as SCAQMD Rule 1133.3, and argues that the District failed to consider some of the requirements of SCAQMD Rule 1133.3 in the table that it used to compare the two rules. Earthjustice notes that SCAQMD Rule 1133.3 requires implementation of a mitigation measure that demonstrates emissions reductions, by weight, of at least 40 percent for VOC and at least 20 percent for ammonia, and that SJVUAPCD Rule 4566 requires a mitigation measure that demonstrates emissions reductions of VOC of at least 19 percent, and does not regulate ammonia. While noting that ``VOC emissions reductions may result in some ammonia emissions reductions,'' Earthjustice asserts that because Rule 4566 does not regulate ammonia, the District cannot rely on the rule to result in a certain amount of ammonia emissions. Response 9: Although SJVUAPCD Rule 4566 does not explicitly regulate ammonia emissions, we disagree with Earthjustice's suggestion that the District cannot rely on this rule as part of its RACM/RACT control strategy for the 2006 PM2.5 NAAQS. SJVUAPCD Rule 4566, as adopted August 18, 2011, requires smaller composting operations to implement at least three turns during active- phase composting and one of several mitigation measures listed in Table 1 of the rule, such as application of water or a finished compost cover, or in the alternative to implement an alternative mitigation measure approved by the APCO and the EPA that demonstrates at least 19 percent reduction, by weight, in VOC emissions.\104\ For larger composting operations (i.e., those with a total throughput between 200,000 and 750,000 wet tons per year of organic material), Rule 4566 requires operators to apply both watering and a finished compost cover in addition to implementation of at least three turns during active- phase composting, or in the alternative to implement an alternative mitigation measure approved by the APCO and the EPA that demonstrates at least 60 percent reduction, by weight, in VOC emissions.\105\ For the largest composting operations (i.e., those with a total throughput of at least 750,000 wet tons per year of organic material), Rule 4566 requires operators to implement an alternative mitigation measure approved by the APCO and the EPA that demonstrates at least 80 percent reduction, by weight, in VOC emissions.\106\ --------------------------------------------------------------------------- \104\ SJVUAPCD Rule 4566 (adopted August 18, 2011), section 5.2.1. \105\ Id. at section 5.2.2. \106\ Id. at section 5.2.3. --------------------------------------------------------------------------- SCAQMD Rule 1133.3, as adopted July 8, 2011, establishes similar requirements for greenwaste composting operations to periodically turn and water active compost piles and to apply finished compost covers.\107\ According to the SCAQMD's staff report for Rule 1133.3, these types of ``good composting practices'' minimize both VOC and ammonia emissions by balancing the carbon-to-nitrogen ratio and providing adequate aeration and moisture in the compost.\108\ As Earthjustice correctly notes, SCAQMD Rule 1133.3 also allows operators of such operations to implement an alternate mitigation measure approved by the SCAQMD Executive Officer, CARB, and the EPA that demonstrates VOC emission reductions by at least 40 percent by weight and ammonia emission reductions by at least 20 percent by weight.\109\ For composting operations involving greater than 5,000 tons per year of foodwaste throughput, SCAQMD Rule 1133.3 establishes requirements to conduct the active phase composting using an emission control device designed and operated with an overall system control efficiency of at least 80 percent, by weight, each for VOC and ammonia emissions, or to implement an alternate mitigation measure approved by the SCAQMD Executive Officer, CARB, and the EPA that achieves equivalent reductions in both VOCs and ammonia.\110\ --------------------------------------------------------------------------- \107\ SCAQMD Rule 1133.3 (adopted July 8, 2011), section (d)(2). \108\ SCAQMD, Final Staff Report, ``Proposed Amended Rule 1133.1--Chipping and Grinding Activities; Proposed Rule 1133.3-- Emission Reductions from Greenwaste Composting Operations,'' July 2011, at p. 3 (``[g]ood composting practices, which balance the carbon-to-nitrogen (C:N) ratio and provide adequate aeration and moisture, will minimize VOC, ammonia and GHG emissions''). \109\ SCAQMD Rule 1133.3 (adopted July 8, 2011), section (d)(2)(E). \110\ Id. at section (d)(3). --------------------------------------------------------------------------- According to CARB, the water management requirements in SJVUAPCD Rule 4566 and SCAQMD Rule 1133.3 achieve an ammonia control efficiency of 19 percent, while use of certain kinds of aerated static piles (ASP) vented to a biofilter achieves an ammonia control efficiency ranging from 20 to 99 percent.\111\ In the absence of specific information about more stringent ammonia control requirements for composting operations that the District could reasonably have implemented by the statutory implementation deadline for RACM/RACT in this area (December 14, 2013), we find the requirements of SJVUAPCD Rule 4566 adequate to satisfy RACM/RACT requirements for composting operations for purposes of the 2006 PM2.5 NAAQS in the SJV. --------------------------------------------------------------------------- \111\ CARB, ``ARB Emissions Inventory Methodology for Composting Facilities'' (posted 2015) at Table III-3 (``Control Techniques for Composting Operations''), available at http://www.arb.ca.gov/ei/areasrc/Composting%20Emissions%20Inventory%20Methodology%20Final%20Combined.pdf. --------------------------------------------------------------------------- Comment 10: Earthjustice comments that the District did not adequately review Rule 4570 (Confined Animal Facilities) when it compared it to similar rules in other California districts and the state of Idaho. According to [[Page 59890]] Earthjustice, SJVUAPCD Rule 4570 and Idaho's rule ``employ drastically different methods to reduce emissions from dairies,'' and the District has not fully explored aspects of the Idaho rule that could strengthen SJVUAPCD Rule 4570. In particular, Earthjustice asserts that the District misconstrued a statement by the Idaho Department of Environmental Quality (Idaho DEQ) that described the Idaho rule as employing an ``arbitrary'' point system. According to Earthjustice, the maximum number of points in the system's rating scale was ``arbitrary'' in the sense that another number could have been selected, but the Idaho DEQ ``thoroughly analyzed the control measures and their associated ammonia emission reductions,'' and allocated points based on these reductions. Because the District has not done a similar evaluation of the measures in SJVUAPCD Rule 4570, Earthjustice asserts, it has not fully compared the stringency of the rule against the Idaho rule. Earthjustice asserts that the District's comparison of the stringency of SJVUAPCD Rule 4570 and other California air district rules is insufficient because the District considered only the number of mitigation measures required by each district. Earthjustice states that the District should consider instead the ammonia emissions reductions achieved under each rule. Further, Earthjustice states, if the District finds that other air districts' mitigation measures are more effective in reducing emissions, it should incorporate those measures into its rule. Response 10: We agree that the District appears to have misconstrued the Idaho DEQ's statement about the point system in Idaho Rule 58.01.01, sections 760-764 (Rules for the Control of Ammonia from Dairy Farms) (hereafter ``Idaho CAF Rule'') and that the District should have considered the ammonia emission reductions achieved under the rules that it evaluated, rather than simply addressing the number of mitigation measures required in each rule. For the reasons provided below, however, we find SJVUAPCD Rule 4570 adequate to satisfy RACM/ RACT requirements for the 2006 PM2.5 NAAQS in the SJV. SJVUAPCD Rule 4570, as amended October 21, 2010, requires that CAFs of certain sizes for dairy cows, other cattle, swine, poultry, and layer hens implement measures to reduce VOC emissions during feed operations, manure management and other CAF processes.\112\ Both VOCs and ammonia are emitted during these activities at CAFs. Given the large proportion of ammonia emissions that come from cow manure produced at CAFs,\113\ we focus our evaluation below on measures to reduce ammonia from the production and handling of cow manure at dairy CAFs. --------------------------------------------------------------------------- \112\ See generally SJVUAPCD Rule 4570 (amended October 21, 2010). \113\ ``Ammonia Emissions and Animal Agriculture,'' Susan W. Gay and Katharine F. Knowlton, Virginia Cooperative Extension, Virginia Tech, 2009 (noting that ``[a]mmonia is a common by-product of animal waste due to the often inefficient conversion of feed nitrogen into animal product. Livestock and poultry are often fed high-protein feed, which contains surplus nitrogen, to ensure that the animals' nutritional requirements are met. Nitrogen that is not metabolized into animal protein (i.e., milk, meat, or eggs) is excreted in the urine and feces of livestock and poultry where further microbial action releases ammonia into the air during manure decomposition''). --------------------------------------------------------------------------- Ammonia emissions from CAF manure processes may be reduced by flushing lanes in freestall barns \114\ and limiting manure exposure to air through land incorporation.\115\ According to the SJVUAPCD, freestall barns are the largest source of manure at SJV dairies.\116\ Rule 4570 contains mandatory requirements for all dairy CAFs subject to the rule that house animals in freestalls to frequently clean the housing flush lanes--specifically, to ``flush or scrape freestall flush lanes at least three (3) times per day'' or to ``flush, scrape, or vacuum freestall flush lanes'' immediately before, after, or during each milking.\117\ In practice, most CAFs in the SJV comply with the SJVUAPCD Rule 4570 manure management requirements by flushing manure to dilute the urea in urine, which reduces ammonia emissions,\118\ and by incorporating solid manure into crop land within 72 hours of land application.\119\ --------------------------------------------------------------------------- \114\ W. Kroodsma, J.W.H. Huis In 't Veld & R. Scholtens, 1993, ``Ammonia emissions and its reduction from cubicle houses by flushing,'' Livestock Production Science 35: 293-302. \115\ Ndegwa, P.M., A.N. Hristov, J. Arogo, and R.E. Sheffield, ``A review of ammonia emission mitigation techniques for concentrated animal feeding operations,'' J. Bioengineering Systems, ed. 100, 2008, p. 463-464. \116\ SJVUAPCD, Final Staff Report: Rule 4570 (October 21, 2010), at p. 9. \117\ SJVUAPCD Rule 4570 (amended October 21, 2010) at Section 5.6.1 and Table 4.1.D.2. Milking generally occurs at least twice a day at a typical dairy CAF. See Walter L. Hurley, Lactation Biology Web site, ANSC 438, University of Illinois, available at http://ansci.illinois.edu/static/ansc438/Lactation/milkingfrequency.html. \118\ Memorandum dated June 15, 2016, from Andy Steckel to Kerry Drake, EPA Region 9, ``Summary of our 6/10/16 Discussion with Kevin Abernathy, Milk Producers Council'' and W. Kroodsma, et al., 1993, ``Ammonia emissions and its reduction from cubicle houses by flushing,'' Livestock Production Science 35: 293-302, at p. 300 (noting that ``[f]lushing has a significant emission reducing effect [because] . . . the urea concentration on slats, concrete floors and in the top layer of the slurry is lowered by dilution''); see also SJVUAPCD, Final Staff Report: Rule 4570 (October 21, 2010), at p. 10 (noting that ``[l]iquid systems are common in large dairies due to their lower labor costs and ease of use with automatic flushing systems''). \119\ Memorandum dated June 15, 2016, from Andy Steckel to Kerry Drake, EPA Region 9, ``Summary of our 6/10/16 Discussion with Kevin Abernathy, Milk Producers Council''; see also email dated June 9, 2016, from Samir Sheikh of the SJVUAPCD to Kerry Drake of EPA Region 9, regarding ``Manure Land Application.'' --------------------------------------------------------------------------- In addition, SJVUAPCD Rule 4570 requires each owner/operator of a large dairy CAF that handles or stores solid manure or separated solids outside the animal housing to remove dry manure or separated solids from the facility or cover it with a weatherproof covering from October through May, within 72 hours of collecting it, or to implement an ``alternative mitigation measure'' \120\ approved by CARB and the EPA.\121\ SJVUAPCD Rule 4570 provides, in Table 4.1.H, specific requirements for applying manure to agricultural lands on the facility including the option to incorporate all solid manure within 72 hours. --------------------------------------------------------------------------- \120\ ``Alternative Mitigation Measure'' is defined in Rule 4570 as ``a mitigation measure that is determined by the APCO, CARB, and EPA to achieve reductions that are equal to or exceed the reductions that would be achieved by other mitigation measures listed in this rule that owners/operators could choose to comply with rule requirements.'' SJVUAPCD Rule 4570 (amended October 21, 2010), Section 3.4. \121\ SJVUAPCD Rule 4570 (amended October 21, 2010), Section 5.6.1 at Table 4.1.F. --------------------------------------------------------------------------- We are aware of only two rules implemented in other areas that explicitly regulate ammonia emissions from dairy facilities--the Idaho CAF Rule and SCAQMD Rule 1127 (Emission Reductions from Livestock Waste).\122\ The Idaho CAF Rule assigns points to each ammonia mitigation measure listed in the rule and requires dairy farm operators to implement measures that collectively achieve at least 27 points.\123\ The rule only applies, [[Page 59891]] however, to dairy farms containing between 1,638 and 5,063 cows, depending on the type of dairy facility.\124\ SJVUAPCD Rule 4570, on the other hand, applies to dairy CAFs containing at least 500 milking cows and also applies to other types of CAFs, including beef cattle feedlots, other cattle facilities, poultry facilities, and swine facilities.\125\ As we stated in our proposed rule, because the structure of the Idaho CAF Rule differs substantially from the structure of SJVUAPCD Rule 4570, it is difficult to compare the requirements in these two rules directly.\126\ --------------------------------------------------------------------------- \122\ See Idaho Administrative Code 58.01.01, section 760, and SCAQMD Rule 1127 (adopted August 6, 2004), paragraph (a). Other CAF rules in California include SCAQMD Rule 223, BAAQMD Rule 2-10, SMAQMD Rule 496, VCAPCD Rule 23, Imperial County APCD (ICAPCD) Rule 217, and Butte County AQMD Rule 450. Each of these rules also regulates CAFs but does not establish specific requirements for ammonia control. For example, SCAQMD Rule 223 (adopted June 2, 2006) identifies ammonia as a precursor to particulates, but its requirements are very similar to SJVUAPCD Rule 4570 as originally adopted June 15, 2006. Similarly, ICAPCD Rule 217 states that its purpose is to limit emissions of VOC and ammonia, but the mitigation requirements are generally equivalent to those in SJVUAPCD Rule 4570. \123\ Idaho Administrative Code 58.01.01, section 764, paragraph 01 (``Dairy farm best management practices'') (requiring dairies to ``employ BMPs for the control of ammonia to total twenty-seven (27) points''). \124\ Id. at section 761 (``General applicability''). \125\ SJVUAPCD Rule 4570 (amended October 21, 2010), Table 2 and Section 5.6. \126\ 80 FR 1816, 1829-30 (January 13, 2015) (noting, for example, that the Idaho CAF Rule identifies certain mitigation measures that are not included in SJVUAPCD Rule 4570, while Rule 4570 contains more stringent applicability thresholds and provisions for testing and records retention). --------------------------------------------------------------------------- Additionally, according to information submitted by the SJVUAPCD, the option in the Idaho CAF Rule to cover synthetic lagoons (one of the key mitigation measures in the rule) would not be effective in the SJV and could increase ammonia emissions at CAFs in the SJV.\127\ Furthermore, the Idaho CAF Rule states that ``[p]oints may be obtained through third party export with sufficient documentation'' and that ``[a]s new information becomes available or upon request, the Director may determine a practice not listed in the table constitutes a BMP and assign a point value.'' \128\ These ambiguously phrased provisions allow CAF owners/operators to comply with the rule by implementing measures entirely different from those listed in the rule that may or may not be effective in reducing ammonia emissions. The commenter has provided no information to support a conclusion that the requirements of the Idaho CAF Rule will actually achieve ammonia emission reductions, nor any information to indicate that the requirements of this rule are more stringent than those in SJVUAPCD Rule 4570. --------------------------------------------------------------------------- \127\ Email dated June 25, 2015 from Sheraz Gill of the SJVUAPCD to Andrew Steckel of EPA Region 9, regarding ``Requested Information'' and attachment, ``Evaluation of Covers Lagoons Manure Piles for NH3 .pdf.'' \128\ Idaho Administrative Code 58.01.01, at section 764-01 (``BMPs''). --------------------------------------------------------------------------- SCAQMD Rule 1127, as adopted August 6, 2004, applies only to livestock waste (i.e., manure management) at dairy farms and related operations. Unlike SJVUAPCD Rule 4570, which explicitly requires that dairy CAFs regularly flush, scrape, or vacuum freestall flush lanes,\129\ SCAQMD Rule 1127 contains no analogous requirement to regularly clean flush lanes in freestall barns.\130\ SCAQMD Rule 223, as adopted June 2, 2006, contains menu-based options for flushing, scraping, or vacuuming freestall barns but does not specifically mandate such measures.\131\ --------------------------------------------------------------------------- \129\ SJVUAPCD Rule 4570 (amended October 21, 2010) at Section 5.6.1 and Table 4.1.D.2. Milking generally occurs at least twice a day at a typical dairy CAF. Walter L. Hurley, Lactation Biology Web site, ANSC 438, University of Illinois at http://ansci.illinois.edu/static/ansc438/Lactation/milkingfrequency.html. \130\ SCAQMD Rule 1127 does require dairies to remove manure accumulated in corrals at least 4 times per year and to remove manure stockpiles within 3 months of the last corral clearing day, and no more than 3 months after the date that previous stockpiles were last completely cleared. SCAQMD Rule 1127 (adopted August 6, 2004), sections (d)(4) and (d)(5). \131\ SCAQMD Rule 223, Appendix A, Table 1.C (requiring owners/ operations at large dairy CAFs that house animals in freestall barns to implement at least 2 of 9 listed mitigation measures, including measures to regularly flush, scrape or vacuum freestalls). --------------------------------------------------------------------------- Additionally, SCAQMD Rule 1127 requires that a dairy operator disposing of manure within the South Coast area remove or contract to remove the manure to a manure processing operation approved in accordance with specific requirements and/or to agricultural land within the SCAQMD approved by local ordinance and/or the regional water quality board for the spreading of manure.\132\ Rule 1127 does not require that manure be incorporated into agricultural land within any specific timeframe to reduce ammonia emissions. --------------------------------------------------------------------------- \132\ Id. at section (e). --------------------------------------------------------------------------- Thus, neither SJVUAPCD Rule 4570 nor SCAQMD Rule 1127 strictly requires dairy CAF operators to promptly remove and dispose of collected manure to minimize ammonia emissions. The commenter has failed to identify any measure implemented in the South Coast or elsewhere that is more stringent than the requirements of SJVUAPCD Rule 4570 for this particular component of the manure handling process. On balance, we find that SJVUAPCD Rule 4570 is more stringent than the Idaho CAF Rule and SCAQMD Rule 1127 given SJVUAPCD Rule 4570 establishes specific requirements for the frequency of flushing manure from freestall barns, which are a significant source of manure and ammonia emissions at dairy CAFs in SJV, while the Idaho CAF Rule and SCAQMD Rule 1127 contain no analogous requirements. In the absence of specific information about more stringent ammonia control requirements for CAFs that the District could reasonably have implemented by the statutory implementation deadline for RACM/RACT in this area (December 14, 2013), we find the requirements of SJVUAPCD Rule 4570 adequate to satisfy RACM/RACT requirements for CAFs for purposes of the 2006 PM2.5 NAAQS in the SJV. Comment 11: Earthjustice argues that the RACM/RACT demonstration fails to comply with CAA section 189(a)(1)(C), which requires a plan to include provisions to assure that RACM is implemented no later than four years after a moderate nonattainment designation. Earthjustice asserts that this section required the District to implement RACM for the 2006 PM2.5 standards by December 14, 2013. According to Earthjustice, because the District has not implemented controls identified by Earthjustice as RACM/RACT and has delayed additional charbroiling and residential furnace controls, the EPA must disapprove the demonstration and place the District on a clock to ensure that the missing measures are adopted expeditiously. Response 11: We disagree. Section 107(a) of the CAA provides states with both the authority and primary responsibility to develop SIPs that meet applicable statutory and regulatory requirements for attaining, maintaining, and enforcing the NAAQS. States have discretion in formulating their SIPs, and the EPA is required to approve a SIP submission that satisfies the applicable requirements of the Act.\133\ --------------------------------------------------------------------------- \133\ CAA section 110(k)(3), 42 U.S.C. 7410(k)(3) and 40 CFR 52.02(a); see also Union Elec. Co. v. EPA, 427 U.S. 246, 250 (1976); Train v. Natural Res. Def. Council, 421 U.S. 60, 79 (1975). --------------------------------------------------------------------------- As the commenter notes, CAA section 189(a)(1)(C) requires that each attainment plan for a Moderate PM2.5 nonattainment area include provisions to assure that RACM for the control of PM2.5 and PM2.5 precursors are implemented no later than four years after the area's designation as nonattainment. For the SJV area, the deadline for implementation of RACM for the 2006 PM2.5 NAAQS under CAA section 189(a)(1)(C) was December 14, 2013. For the reasons provided in our proposed rule and further explained above in Response 6 through Response 10, we conclude that the 2012 PM2.5 Plan and 2014 Supplement provide for the implementation of all RACM/RACT that could reasonably be implemented in the SJV by the statutory implementation deadline, as required by CAA sections 172(c) and 189(a)(1)(C). Additionally, we disagree with the commenter's assertion that revisions to SJVUAPCD Rule 4901 (``Wood Burning [[Page 59892]] Fireplaces and Wood Burning Heaters'') are necessary to satisfy RACM requirements for the 2006 PM2.5 NAAQS in the SJV. See Response 6.d. Similarly, we disagree with the commenter's assertion that SJVUAPCD Rule 4692 (Commercial Charbroiling) fails to satisfy RACM requirements for the 2006 PM2.5 NAAQS in the SJV. See Response 6.e. Comment 12: Earthjustice argues that much of the Plan's control strategy is unenforceable and that this is inconsistent with CAA section 110(a)(2)(A), which requires SIPs to ``include enforceable emissions limitations and other control measures.'' Specifically, Earthjustice argues that three control strategies challenged in recent litigation are not enforceable: (1) Mobile sources measures that are not included in the SIP; (2) open-ended tonnage commitments; and (3) voluntary incentive programs. Comment 12a: Mobile source ``waiver'' measures. Earthjustice notes that a significant portion of the emissions reductions in the Plan come from state mobile source measures for which the EPA has issued a waiver under CAA section 209. Earthjustice argues that because these measures are not included in the SIP, they are not enforceable by either the EPA or citizens, and therefore do not meet the requirements of CAA section 110(a)(2)(A). Earthjustice also criticizes the EPA's general policy of not including these ``waiver measures'' in the SIP. Earthjustice argues that requiring the EPA to approve waiver measures into the SIP is not inconsistent with Congress' intent to provide California with ``the broadest possible discretion'' to develop mobile source measures, and that there is no conflict between CAA sections 110 and 209 that would prevent the EPA from adding these measures to the SIP. Additionally, Earthjustice argues that Congress has not ratified the EPA's policy of excluding waiver measures from SIPs, asserting that the EPA had not affirmatively expressed its policy until recently and that the agency has contradicted this policy in previous statements. Response 12a: The EPA has historically allowed California to take credit for measures for which the state has obtained a waiver of federal preemption under CAA section 209 (``waiver'' measures) even though the waiver measures themselves (i.e., CARB's regulations) had not been adopted and approved as part of the California SIP. However, a recent decision by the Ninth Circuit Court of Appeals held that the EPA's longstanding practice in this regard was at odds with the CAA requirement that state and local emissions limits relied upon to meet the NAAQS be enforceable by the EPA or private citizens through adoption and approval of such limits in the SIP.\134\ --------------------------------------------------------------------------- \134\ See Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir. 2015). --------------------------------------------------------------------------- In response to the court's decision, CARB has adopted the necessary waiver measures as revisions to the California SIP and submitted them to the EPA for approval.\135\ The EPA proposed to approve the waiver measures into the California SIP at 80 FR 69915 (November 12, 2015) and took final action to approve these measures into the SIP at 81 FR 39424 (June 16, 2016). Accordingly, these waiver measures are now enforceable by the EPA or private citizens under the CAA, consistent with the enforceability requirement in CAA section 110(a)(2)(A). --------------------------------------------------------------------------- \135\ See letter dated August 14, 2015, from Richard W. Corey, Executive Officer, California Air Resources Board, to Jared Blumenfeld, Regional Administrator, EPA Region 9, with attachments. --------------------------------------------------------------------------- Comment 12b: Open-ended commitments. Earthjustice asserts that the District's commitment to reduce direct PM2.5 by 1.9 tons per day (tpd) by 2019 is not enforceable. According to Earthjustice, although the District has committed to proposing certain measures to its board, it has not specified when it will implement those measures or committed to achieving reductions as a result of the measures. Earthjustice characterizes these measures as ``goals'' that have been found by courts to be unenforceable, citing Bayview Hunters Point Community Advocates v. Metropolitan Transportation Commission, 366 F.3d 692 (9th Cir. 2004). According to Earthjustice, it will be ``virtually impossible'' for either citizens or the EPA to determine whether the District has in fact met its 2019 reduction target, citing the EPA's statement at 57 FR at 13,568 that ``[a] regulatory limit is not enforceable if, for example, it is impractical to determine compliance with the published limit.'' Additionally, citing CAA section 182(e)(5), Earthjustice asserts that the CAA allows ``open-ended commitments'' only in limited circumstances and that there is no parallel provision for creating such a ``black box'' in PM2.5 plans. Response 12b: We disagree with the commenter's claim that the District's commitments in the 2012 PM2.5 Plan are not enforceable. We also disagree with the commenter's suggestion that the long-term strategy provision for ozone attainment plans in CAA section 182(e)(5) is the only statutory provision that allows for approval of attainment plans that rely on state commitments, and that commitments such as those identified in the 2012 PM2.5 Plan are not permissible in PM2.5 attainment plans. Section 182(e)(5) of the CAA authorizes the EPA to approve provisions of an attainment plan for an extreme ozone nonattainment area that anticipate development of new control techniques or improvement of existing control technologies, and to approve an attainment demonstration based on such provisions, if, inter alia, the State has submitted enforceable commitments to submit adopted contingency measures meeting certain criteria no later than three years before proposed implementation of the new technology measures.\136\ Contrary to the commenter's suggestion, section 182(e)(5) is not the only provision in the CAA that allows for approval of attainment plans that rely on enforceable commitments. Sections 110(a)(2)(A) and 172(c)(6) of the CAA require that SIPs include enforceable emission limitations and such other control measures, means or techniques, as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment of the NAAQS by the applicable attainment date. For over 20 years, the EPA has consistently maintained its interpretation of these provisions as allowing for approval, under certain circumstances, of a SIP that contains an enforceable commitment to adopt additional controls as part of a comprehensive control strategy for attaining the NAAQS.\137\ The EPA's interpretation of the Act as allowing for approval of limited enforceable commitments has been upheld by several courts of appeals.\138\ --------------------------------------------------------------------------- \136\ CAA section 182(e)(5). \137\ See, e.g., 62 FR 1150, 1187 (Jan. 8, 1997) (approving ozone attainment demonstration for the South Coast Air Basin); 65 FR 18903 (Apr. 10, 2000) (approving revisions to ozone attainment demonstration for the South Coast Air Basin); 63 FR 41326 (Aug. 3, 1998) (promulgating federal implementation plan for PM-10 for Phoenix); 69 FR 30005 (May 26, 2004) (approving PM-10 attainment demonstration for San Joaquin Valley); 48 FR 51472 (approving ozone attainment demonstration for New Jersey). \138\ See, e.g., City of Seabrook v. EPA, 659 F.2d 1349 (5th Cir. 1981); Connecticut Fund for the Environment v. EPA, 672 F.2d 998 (2d Cir.), cert. denied 459 U.S. 1035 (1982); BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003), reh'g denied, 2004 U.S. App. LEXIS 215 (5th Cir., January 8, 2004); Environmental Defense v. EPA, 369 F.3d 193, 209 (2d Cir. 2004); and Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir. 2015) (upholding EPA approval of CARB and SJVUAPCD commitments as enforceable SIP measures consistent with requirements of CAA section 110(a)(2)(A)). --------------------------------------------------------------------------- As explained in our proposed rule, we generally consider three factors in [[Page 59893]] determining whether to approve the use of an enforceable commitment to meet a CAA requirement: (1) Does the commitment address a limited portion of the CAA-required program; (2) is the state capable of fulfilling its commitment; and (3) is the commitment for a reasonable and appropriate period of time. We stated in our proposed rule that we were not evaluating the commitments in the 2012 PM2.5 Plan in accordance with this three-factor test because the Plan did not rely on any of these commitments to satisfy CAA requirements.\139\ In response to these comments, however, we have evaluated the commitments in the 2012 PM2.5 Plan to amend SJVUAPCD Rule 4308 in 2013 and to adopt Rule 4905 in 2014 in accordance with our three-factor test, because these commitments were part of the control strategy to be implemented prior to the Moderate area attainment date (December 31, 2015) for the 2006 PM2.5 NAAQS in the SJV area.\140\ We find that these commitments satisfy the EPA's three-factor test as follows: (1) The commitments address a limited portion of the CAA-required program because the Plan relies on them only to supplement the RACM and RFP control strategies in the impracticability demonstration and does not rely on either commitment for necessary emission reductions; (2) the state has fulfilled both commitments, as explained further below in this response; and (3) each commitment was for a reasonable and appropriate period of time--i.e., to be fulfilled by 2013 and 2014, ahead of the December 31, 2015 Moderate area attainment date. Accordingly, we are approving the District's commitment to amend Rule 4308 as a RACM and approving the District's commitment to adopt Rule 4905 in 2014 as an additional reasonable measure under CAA section 172(c)(6).\141\ --------------------------------------------------------------------------- \139\ 80 FR 1816, 1833 (January 13, 2015). \140\ We did not evaluate the District's commitments to amend Rule 4692 and Rule 4901 in 2016 or to achieve an aggregate reduction of 1.9 tpd of direct PM2.5 by 2019 in accordance with our three-factor test because these commitments address actions to be undertaken after the Moderate area attainment date (December 31, 2015) and, therefore, are not part of the control strategy for this impracticability demonstration. Additionally, we did not evaluate the District's commitment to adopt Rule 9610 in 2013 in accordance with our three-factor test because this rule is not a control measure and therefore is not eligible for SIP emission reduction credit. See Response 12c, infra. \141\ The District's commitment to adopt Rule 4905 in 2014 does not qualify as a RACM because it is a measure implemented after the RACM implementation deadline (December 14, 2013). It is, however, an additional measure implemented before the Moderate area attainment date (December 31, 2015) and therefore may be treated as part of the Moderate area control strategy for the area under CAA section 172(c)(6). --------------------------------------------------------------------------- We also find that the commitments are enforceable and therefore appropriate for approval under CAA section 110.\142\ Specifically, SJVUAPCD Governing Board Resolution 2012-12-19 states: --------------------------------------------------------------------------- \142\ See Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir. 2015) (upholding EPA approval of CARB and SJVUAPCD commitments as enforceable SIP measures consistent with requirements of CAA section 110(a)(2)(A)). The District Governing Board commits to adopt and implement the rules and measures in the Plan by the dates specified in Chapter 5 to achieve the emissions reductions shown in Chapter 5, and to submit these rules and measures to ARB within 30 days of adoption for transmittal to EPA as a revision to the State Implementation Plan (SIP). If the total emission reductions from the adopted rules are less than those committed to in the Plan, the District Governing Board commits to adopt, submit, and implement substitute rules that will achieve equivalent reductions in emissions of direct PM2.5 or PM2.5 precursors in the same adoption and implementation timeframes or in the timeframes needed to meet CAA milestones.\143\ --------------------------------------------------------------------------- \143\ SJVUAPCD Governing Board Resolution 2012-12-19, ``In the Matter of: Adopting the San Joaquin Valley Unified Air Pollution Control District 2012 PM2.5 Plan.'' Chapter 5 of the 2012 PM2.5 Plan identifies, in Table 5- 3, the ``regulatory control measure commitments'' and related amendment dates, compliance dates, and amounts of emission reductions shown in Table 5. Table 5--San Joaquin Valley Unified Air Pollution Control District, 2012 PM2.5 Plan, Specific Rule Adoption/ Amendment Commitments ---------------------------------------------------------------------------------------------------------------- Compliance Rule number Rule title Amendment date date Emission reductions ---------------------------------------------------------------------------------------------------------------- 4308............................. Boilers, Steam 2013 2015 TBD. Generators, and Process Heaters 0.075 to <2 MMBtu/ hr \144\. 4692............................. Commercial 2016 2017 0.4 tpd PM2.5. Charbroiling. 4901............................. Wood Burning 2016 2016/2017 1.5 tpd of PM2.5. Fireplaces and Wood Burning Heaters. 4905............................. Natural Gas-Fired, 2014 2015 TBD. Fan-Type Residential Central Furnaces. 9610............................. SIP Creditability of 2013 2013 TBD. Incentives. ---------------------------------------------------------------------------------------------------------------- Source: 2012 PM2.5 Plan, Chapter 5, Table 5-3 (``Regulatory Control Measure Commitments''). Thus, the District Governing Board's commitment specifies the actions the Board committed to undertake, the dates by which it would take such actions, and the emission reductions (if any) that it would achieve through these actions. We find these commitments specific enough to be enforced by the EPA or by citizens under the CAA and are, therefore, approving them into the California SIP. --------------------------------------------------------------------------- \144\ ``MMBtu'' means million British Thermal Units. --------------------------------------------------------------------------- We note that the SJVUAPCD has made substantial progress on satisfying the commitments identified in the Plan, as follows: Rule 4308. The District amended SJVUAPCD Rule 4308 on November 14, 2013, and CARB submitted it to the EPA for SIP action on May 13, 2014. The EPA approved amended SJVUAPCD Rule 4308 at 80 FR 7813 (February 12, 2015). Rule 4905. The District adopted Rule 4905 on January 22, 2015, and CARB submitted the rule to the EPA for SIP action on April 7, 2015. The EPA approved Rule 4905 at 81 FR 17390 (March 29, 2016). Rule 9610. The District adopted Rule 9610 on June 20, 2013, and CARB submitted the rule to the EPA for SIP action on June 26, 2013. The EPA finalized a limited approval and limited disapproval of Rule 9610 at 80 FR 19020 (April 9, 2015). Rule 4901. The District amended Rule 4901 on September 18, 2014, and CARB submitted the rule to the EPA for SIP action on November 6, 2014. On August 15, 2016, Acting Regional Administrator Alexis Strauss signed a notice of final [[Page 59894]] rulemaking to approve SJVUAPCD Rule 4901.\145\ --------------------------------------------------------------------------- \145\ EPA, Final Rule, ``Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control District,'' August 15, 2016 (pre-publication notice). --------------------------------------------------------------------------- Comment 12c: Voluntary incentive programs. Earthjustice states that the EPA's suggestion that Rule 9610 (State Implementation Plan Credit for Emission Reductions Generated Through Incentive Programs) may provide emission reductions to help satisfy the District's tonnage commitment is particularly confusing. Earthjustice understands the EPA's proposed approval of Rule 9610 and related technical support document to say that an incentive program's compliance with the rule's SIP-creditability definitions does not mean that the incentive program is, in fact, SIP-creditable. Thus, Earthjustice states, commenters ``do not understand how Rule 9610 itself will provide any creditable emission reductions.'' More fundamentally, Earthjustice asserts, the emissions reductions that may be achieved through the District's incentive programs cannot be credited in a SIP unless they are treated under the EPA's voluntary emissions reductions policy. Earthjustice states that ``[t]he requirement to reduce emissions in exchange for incentive funding is not enshrined in any sort of control measure that is included in the [SIP] and enforceable by EPA or citizens'' and that, as with ``waiver measures,'' approval of a strategy built upon these reductions would (again) violate Clean Air Act section 110(a)(2)(A).'' Response 12c: We agree with Earthjustice's statement that SJVUAPCD Rule 9610 itself is not a SIP-creditable control measure and that the District therefore cannot rely on this rule to satisfy any SIP emission reduction commitments. SJVUAPCD Rule 9610, as adopted June 20, 2013, establishes a regulatory framework for the District's quantification of emission reductions achieved through incentive programs and provides opportunities for the EPA, CARB, and the public to review and comment on the District's evaluations on an annual basis. As we stated in our May 19, 2014 proposal to approve Rule 9610, the rule ``does not establish any emission limitation, control measure, or other requirement that applies directly to an emission source'' and therefore ``is not intended to implement the reasonably available control technology (RACT) standard or any other control standard under the Act.'' \146\ Instead, Rule 9610 ``establishes an administrative mechanism designed to ensure that each SIP submittal in which the District relies upon emission reductions achieved through implementation of incentive programs in the SJV will adequately address the requirements of the Act.'' \147\ The requirements and procedures in Rule 9610 apply only to the District and lay the groundwork for the District's incorporation of incentive programs into air quality plans going forward.\148\ The EPA finalized a limited approval and limited disapproval of Rule 9610 on April 9, 2015, thereby making its requirements and procedures enforceable by the EPA or citizens against the District.\149\ --------------------------------------------------------------------------- \146\ 79 FR 28650, 28652 and n. 5 (May 19, 2014). \147\ Id. \148\ Id. \149\ 80 FR 19020 (April 9, 2015) (concluding that Rule 9610 largely satisfies CAA requirements but contains several deficiencies warranting limited disapproval). --------------------------------------------------------------------------- As part of our proposed action on the 2012 PM2.5 Plan, we listed SJVUAPCD Rule 9610 among the District's rule amendment commitments \150\ and explained that the District had committed to adopt, submit, and implement Rule 9610 to ``provide a process for quantifying emissions reductions from the use of incentive funds.'' \151\ To the extent our proposed rule suggested that SJVUAPCD Rule 9610 may itself be a SIP-creditable control measure, we hereby clarify that this rule does not achieve any SIP-creditable emission reductions and therefore cannot be credited for any SIP purpose. --------------------------------------------------------------------------- \150\ 80 FR 1816 at 1827 (Table 2), 1832 (Table 3). \151\ 80 FR 1816, 1831 (emphasis added). --------------------------------------------------------------------------- Additionally, to the extent Earthjustice intended to assert that emissions reductions achieved through a state or local incentive program cannot be credited in a SIP except through a SIP submission that satisfies the requirement of the Act as interpreted in EPA guidance, we agree. As we explained in our final action on SJVUAPCD Rule 9610: We expect the District to address the applicable requirements of the CAA in each individual SIP submittal that relies on incentive programs, and our recommendations in both the proposal and today's final rule are intended to provide the District with general guidance on how these requirements, as interpreted in EPA guidance, apply to future SIP submittals developed pursuant to Rule 9610 and the requirements of the Act. . . . EPA will review each SIP submittal developed pursuant to Rule 9610 (including the necessary evaluation of the applicable incentive program guidelines) on a case-by-case basis, following notice-and-comment rulemaking, to determine whether the applicable requirements of the Act are met [internal citations omitted]. Nothing in today's action prohibits EPA from disapproving a SIP relying on incentive-based emission reductions that fails to satisfy the requirements of the CAA.\152\ --------------------------------------------------------------------------- \152\ 80 FR 19020, 19022 (April 9, 2015). With respect to Earthjustice's statement that ``[t]he requirement to reduce emissions in exchange for incentive funding is not enshrined in any sort of control measure that is included in the [SIP] and enforceable by EPA or citizens,'' we note that under longstanding EPA guidance, SIP credit may be allowed for a voluntary or other nontraditional measure only where the State submits enforceable mechanisms to ensure that the emission reductions necessary to meet applicable CAA requirements are achieved--e.g., an enforceable commitment to monitor and report on emission reductions achieved and to rectify any shortfall in a timely manner.\153\ Thus, if California intends to satisfy a SIP requirement through reliance on an incentive program that the EPA and citizens may not directly enforce against participating sources, the State/District must take responsibility for assuring that SIP emission reduction requirements are met through an enforceable commitment, which the EPA and citizens may enforce against the State/District upon the EPA's approval of the commitment into the SIP.\154\ Approval of a control strategy built upon emission reductions achieved through incentive programs may satisfy CAA section 110(a)(2)(A) only if these enforceability requirements are met.\155\ --------------------------------------------------------------------------- \153\ Id. at 19026. \154\ Id. \155\ The EPA has recommended presumptive limits on the amounts of emission reductions from certain voluntary and other nontraditional measures that may be credited in a SIP. Specifically, for voluntary mobile source emission reduction programs (VMEPs), the EPA has identified a presumptive limit of three percent (3%) of the total projected future year emission reductions required to attain the appropriate NAAQS, and for any particular SIP submittal to demonstrate attainment or maintenance of the NAAQS or progress toward attainment (e.g., RFP), 3% of the specific statutory requirement. See, e.g., ``Guidance on Incorporating Voluntary Mobile Source Emission Reduction Programs in State Implementation Plans (SIPs),'' EPA, Office of Air and Radiation (OAR), October 24, 1997, at 5 and ``Improving Air Quality with Economic Incentive Programs,'' EPA, OAR, January 2001, at 158. For voluntary stationary and area source measures, the EPA has identified a presumptive limit of 6% of the total amount of emission reductions required for RFP, attainment, or maintenance demonstration purposes. See, e.g., ``Incorporating Emerging and Voluntary Measures in a State Implementation Plan,'' EPA, OAR, September 2004 (``2004 Emerging and Voluntary Measures Guidance'') at 9 and ``Incorporating Bundled Measures in a State Implementation Plan (SIP),'' August 2005 (``2005 Bundled Measures Guidance''), at 8. The EPA has also long stated, however, that states may justify higher amounts of SIP emission reduction credit for voluntary programs on a case-by-case basis, and that the EPA may approve measures for SIP credit in excess of the presumptive limits ``where a clear and convincing justification is made by the State as to why a higher limit should apply in [its] case.'' 2004 Emerging and Voluntary Measures Guidance at 9; see also 2005 Bundled Measures Guidance at 8, n. 6 and ``Diesel Retrofits: Quantifying and Using Their Emission Benefits in SIPs and Conformity,'' EPA, OTAQ, February 2014, at 12. --------------------------------------------------------------------------- [[Page 59895]] D. Comments on RFP, RFP Contingency Measures, and Quantitative Milestones Comment 13: Earthjustice disagrees with the EPA's proposal to approve the RFP demonstration in the Plan, quoting the statutory definition of ``reasonable further progress'' in CAA section 171(1) and asserting that the EPA's approach to RFP ``divorces the RFP targets from attainment altogether by claiming that the RFP requirement of CAA section 172(c)(2) can be met by assuring implementation of RACM/RACT.'' Earthjustice asserts that RFP is a requirement separate and independent from RACM/RACT and that the EPA's approach undermines Congress' intent for RFP and milestones to serve as enforceable targets that will trigger consequences when RACM/RACT controls are not implemented on a particular schedule. Earthjustice also states that the Plan's RACM/RACT demonstration cannot support the RFP targets approved by the EPA because it is incomplete, particularly for ammonia. According to Earthjustice, the ammonia RACM/RACT demonstration sets no RACM/RACT requirements and therefore makes it impossible to assess whether the Plan will achieve RFP. Further, Earthjustice says, because the Plan allows ammonia emissions to increase after 2012, it does not provide ``annual incremental reductions'' (emphasis in comment) as required by CAA section 171. Earthjustice states that the EPA must disapprove the RFP demonstration because it has no basis for concluding that the Plan will provide such annual incremental reductions in emissions of the relevant air pollutant as are required for the purpose of ensuring attainment by the applicable date. Response 13: We disagree with the commenter's assertion that the EPA's approach to RFP in this action is inconsistent with the statutory RFP requirements. Section 172(c)(2) of the Act requires that plan provisions for all PM2.5 nonattainment areas require RFP, which is defined in section 171(1) as such annual incremental reductions in emissions of the relevant air pollutant as are required by part D, title I of the Act or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date. In the EPA's July 29, 2016 final rule to implement the PM2.5 NAAQS, the EPA explained that for areas that cannot demonstrate attainment by the statutory deadline for Moderate areas in CAA section 188(c)(1), the state must demonstrate either generally linear or stepwise emissions reductions toward the full amount of reductions that will be achieved by that deadline, i.e., the amount that reflects implementation of all of the control measures identified as RACM and RACT and additional reasonable measures for the entire period of the applicable attainment plan.\156\ The EPA explained that generally linear progress toward this full amount would meet the RFP requirement, while slower progress would require further justification.\157\ --------------------------------------------------------------------------- \156\ EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at pp. 178- 179. \157\ Id. --------------------------------------------------------------------------- As we explained in our proposed rule, the 2012 PM2.5 Plan shows that emissions of direct PM2.5 , NOX and SOX will decline from the 2007 base year through 2015 and states that emissions will remain below the levels needed to show ``generally linear progress'' from 2007 to 2019, the year that the Plan projects to be the earliest practicable attainment date.\158\ The Plan also demonstrates that all RACM/RACT and additional reasonable measures for sources of direct PM2.5 , NOX , SOX and ammonia are being implemented as expeditiously as practicable \159\ and identifies projected emission levels for each of these pollutants in 2014 and 2017 that reflect full implementation of the State's and District's Moderate area control strategy for the area.\160\ In an area that cannot practicably attain the PM2.5 NAAQS by the applicable Moderate area attainment date, we believe it is reasonable to find that full implementation of a control strategy that satisfies the Moderate area control requirements (i.e., RACM/RACT and additional reasonable measures) represents reasonable further progress toward attainment. --------------------------------------------------------------------------- \158\ 80 FR 1816, 1835 (January 13, 2015) (citing 2012 PM2.5 Plan, section 9.3). \159\ As explained in Response 12b, supra, we are approving the District's commitment in the 2012 PM2.5 Plan to adopt Rule 4905 in 2014 as an additional reasonable measure under CAA section 172(c)(6) because it is a control measure implemented after the RACM implementation deadline (December 14, 2013) but before the Moderate area attainment date (December 31, 2015). \160\ Id. at 1835, 1836. --------------------------------------------------------------------------- We also disagree with the commenter's claim that the Plan's RACM/ RACT demonstration for ammonia cannot support the RFP targets approved by the EPA because it is incomplete and lacks any RACM/RACT requirements. For the reasons provided above in Response 6 through Response 10, we find the RACM/RACT demonstration in the 2012 PM2.5 Plan consistent with the statutory requirement for RACM/RACT in CAA section 189(a)(1)(C). Finally, we disagree with Earthjustice's claim that the Plan fails to satisfy the RFP requirement because it allows ammonia emissions to increase after 2012 and, therefore, does not provide annual incremental reductions as required by CAA section 171. As the EPA explained in the preamble to the July 29, 2016 final rule to implement the PM2.5 NAAQS, states may in certain circumstances develop approvable RFP plans in which emissions of one or more PM2.5 precursors subject to control evaluation are not decreasing. The EPA explained that in this scenario: . . . The state must demonstrate that the emissions reductions of direct PM2.5 combined with the aggregate emissions reductions of PM2.5 plan precursors support expeditious attainment of the applicable PM2.5 NAAQS. To accomplish this, the EPA expects that a state could use the relative air quality impacts of the different PM2.5 plan precursors identified in the attainment modeling to demonstrate that the emissions reductions of direct PM2.5 and aggregate PM2.5 plan precursors constitute an acceptable RFP plan. For example, the state could demonstrate that even if one or more PM2.5 plan precursor is not decreasing, the emissions reductions of direct PM2.5 and the remaining PM2.5 plan precursors are the dominant factors in reducing ambient PM2.5 levels and are therefore adequate to support expeditious attainment. In providing this flexibility, the EPA recognizes that control measures for certain pollutants may be more effective at reducing PM2.5 concentrations than others, and that states may be able to implement some measures more quickly than others while still achieving reasonable overall progress toward attainment.\161\ --------------------------------------------------------------------------- \161\ EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at p. 179. Consistent with these recommendations, the 2012 PM2.5 Plan demonstrates that despite the increase in ammonia emissions after 2012, the reductions in emissions of direct PM2.5 , NOX and SOX are the dominant factors in reducing ambient PM2.5 levels and are therefore adequate to support [[Page 59896]] expeditious attainment.\162\ Because the Plan provides for generally linear reductions in emissions of direct PM2.5 and PM2.5 precursors in the aggregate, we find that it provides for such annual incremental reductions in emissions of the relevant air pollutant as are required by part D, title I of the Act or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date. --------------------------------------------------------------------------- \162\ 80 FR 1816, 1835-1836 (January 13, 2015). --------------------------------------------------------------------------- As a result of our December 22, 2015 action reclassifying the SJV area as a Serious nonattainment area for the 2006 PM2.5 NAAQS, the area is now subject to Serious area planning requirements under subpart 4 and must reevaluate and strengthen its SIP control strategy as necessary to meet the Serious area requirement for BACM and BACT, among other requirements.\163\ The State must also demonstrate attainment as expeditiously as practicable, but no later than December 31, 2019, and provide a revised RFP demonstration, both taking into consideration the implementation of the Serious Area control strategy.\164\ Today, we are approving certain elements of the 2012 PM2.5 Plan only for the limited purpose of satisfying the statutory control requirements that apply to Moderate areas demonstrating that attainment by the Moderate Area attainment date under subpart 4 is impracticable. --------------------------------------------------------------------------- \163\ 81 FR 2993 (January 20, 2016) (final rule) and 81 FR 42263 (June 29, 2016) (correcting amendment). \164\ Id. --------------------------------------------------------------------------- Comment 14: Earthjustice asserts that the EPA does not have authority to defer action on quantitative milestones and RFP contingency measures. Earthjustice notes that the EPA has deemed the District's SIP revision complete and asserts that the EPA is under a mandatory duty as a result to take one of the actions enumerated in CAA section 110(k). Earthjustice contends that disapproval of the quantitative milestones and RFP contingency measures is the only reasonable option. According to Earthjustice, deferring action on these parts effectively waives the statutory consequences for failing to submit a complete plan, including sanctions, and leaves the District with ``no actual plan for attaining the PM2.5 standards.'' Earthjustice says that interim milestones and RFP targets will be needed to ensure progress before the District's next attainment plan is adopted. Response 14: These comments are outside the scope of this action. We did not propose any action concerning quantitative milestones or RFP contingency measures in the Plan and, therefore, are not finalizing any action with respect to these requirements at this time. For all areas designated nonattainment for the 2006 PM2.5 NAAQS effective December 14, 2009, including the SJV area, the EPA has established December 31, 2014 as the starting point for the first 3-year period for quantitative milestones under CAA section 189(c).\165\ This is because December 31, 2014, was the due date for states to submit additional SIP elements necessary to satisfy the subpart 4 Moderate area requirements for the 1997 and 2006 PM2.5 standards.\166\ Establishing December 31, 2014 as the starting point for the first 3-year period under CAA section 189(c) for the 2006 PM2.5 NAAQS is in keeping with the EPA's historical approach to quantitative milestone dates (i.e., using the due date for the Moderate area plan submission as the starting point for the first 3-year milestone period). Thus, for the SJV PM2.5 Serious nonattainment area, the state must submit quantitative milestones to be achieved by December 31, 2017 (the first milestone date) and every 3 years thereafter until the milestone date that falls within 3 years after the Serious area attainment date.\167\ --------------------------------------------------------------------------- \165\ See EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at 40 CFR 51.1013(a)(4). Although this regulatory text is not yet effective, it reflects the EPA's interpretation of the statutory requirements. \166\ EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at p. 203 (referencing 79 FR 31566 (June 2, 2014) (final rule establishing subpart 4 moderate area classifications and deadline for related SIP submissions)); see also 80 FR 1816, 1835 (January 13, 2015). \167\ See EPA, Final Rule, ``Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,'' July 29, 2016 (pre-publication notice) at 40 CFR 51.1013(a)(4). Although this regulatory text is not yet effective, it reflects the EPA's interpretation of the statutory requirements. --------------------------------------------------------------------------- With respect to RFP contingency measures, we explained in our proposed rule that once the SJV area is reclassified as a Serious area, the State would be obligated to demonstrate that the SIP provides for the implementation of BACM and BACT and for attainment as expeditiously as practicable, and no later than 2019.\168\ We also noted that as part of this demonstration, the State would need to revise its RFP demonstration to establish new RFP targets, quantitative milestones, and RFP contingency measures for the 2006 PM2.5 NAAQS. As a consequence of our January 20, 2016 final action reclassifying the SJV area as a Serious area for the 2006 PM2.5 NAAQS, California is subject to an August 21, 2017 deadline to submit these Serious area plan elements.\169\ --------------------------------------------------------------------------- \168\ 80 FR 1816, 1837 (January 13, 2015). \169\ 81 FR 2993, 3000 (January 20, 2016) and 40 CFR 52.247(e). --------------------------------------------------------------------------- Following the State's submission of a Serious area plan to provide for attainment of the 2006 PM2.5 NAAQS in the SJV area, the EPA intends to review the submitted plan for compliance with these requirements for quantitative milestones and RFP contingency measures. E. Comments Regarding Interpollutant Trading Ratios for NNSR Comment 15: The SJVUAPCD disagrees with the EPA's proposal to disapprove the District's NNSR interpollutant trading (IPT) ratios to offset PM2.5 emission increases with NOX and SOX emissions reductions. The District asserts that its use of a single IPT ratio for each pollutant based on the average of different calculated ratios across the District is simpler and more equitable than the EPA's suggestion that ratios should either differ across the regions of the SJV or be set based on a maximum calculated value for any point in the SJV. The District believes the EPA's suggested geographically-based ratios would be unfair, since the ratio used for a particular source could depend on which side of the road it is located on. The SJVUAPCD further asserts that the District's reliance on the use of a basin-wide average for each pollutant is consistent with the EPA's NNSR regulations at 40 CFR part 51, Appendix S, as well as prior EPA approvals of NNSR programs that mitigate emission increases across an air basin. The District also states that it models local impacts of increased PM2.5 emissions for every facility subject to NNSR and will not issue a permit to a facility if the modeled impacts indicate a significant health risk or a significant increase in PM2.5 emissions. The SJVUAPCD concludes that its NNSR modeling analysis and proposed IPT ratios prevent localized impacts and appropriately offset regional impacts, and that the EPA should therefore approve the ratios. Response 15: We disagree with the District's assertion that the EPA should approve the NNSR IPT ratios in the 2012 PM2.5 Plan. Our primary concern regarding the District's approach to interpollutant trading for NSR purposes is that the Plan provided only a ratio calculation, without a rationale to [[Page 59897]] support the use of this ratio for NNSR purposes. Under section IV.G.5 of 40 CFR part 51, Appendix S, interpollutant trades to meet NNSR offset requirements for emissions of direct PM2.5 or PM2.5 precursors may be allowed if such offsets comply with an interprecursor trading hierarchy and ratio approved by the Administrator. As stated in our proposal, the EPA issued a 2011 guidance memorandum on interpollutant trading stating that ``any ratio involving PM2.5 precursors submitted to the EPA for approval for use in a state's interpollutant offset program for PM2.5 nonattainment areas must be accompanied by a technical demonstration that shows the net air quality benefits of such ratio for the PM2.5 nonattainment area in which it will be applied.'' \170\ Therefore, a PM2.5 NNSR SIP submittal containing interpollutant trading ratios for use in NNSR offsetting must describe a method for calculating ratios and provide a rationale demonstrating that the method is consistent with the purpose of NNSR offsets. --------------------------------------------------------------------------- \170\ Memorandum dated July 21, 2011, from Gina McCarthy, Assistant Administrator, to Regional Air Division Directors, Regions 1-10, Subject: Revised Policy to Address Reconsideration of Interpollutant Trading Provisions for Fine Particles (PM2.5 ) (``IPT memo''). --------------------------------------------------------------------------- The EPA disagrees with the District's claim that the use of a single trading ratio, even the maximum ratio over an area, is necessarily more equitable or less complex than using multiple ratios. While the use of a single interpollutant trading ratio for all locations in a nonattainment area may be simpler than separate ratios for different geographic zones, the District has provided no rationale concerning the net air quality benefits of such an approach. The impact of emissions of a given pollutant varies by the chemical environment the emissions occur in, and that chemical environment varies by location. The ratio of impacts between emissions of NOX and SOX precursors will also necessarily vary by geographic location. The importance of that impact for total concentration is another consideration; emissions from a remote, relatively clean area used to offset emissions in a highly polluted area may not meet the requirement in Condition 3 of 40 CFR part 51, Appendix S, section IV.A, which states that offsets from existing sources in the area of the proposed source are required such that there will be reasonable progress toward attainment of the applicable NAAQS. The use of a ratio that is an average over a broad geographic area, or any ratio less than the maximum ratio for such an area, could allow for a new source whose location-specific modeling gives the maximum ratio to obtain a permit without offsetting its full impact and, thus, potentially interfere with progress toward attainment. The District suggests that the use of the maximum ratio poses an equity problem for a source whose location-specific ratio is lower, as such a source would have to offset more than it should. However, the use of an average ratio across the entire nonattainment area poses a different equity problem: A source whose location-specific ratio is the maximum would be offsetting less than it should while other sources would have to offset more. Use of different ratios tailored to specific geographic zones would be one way to help address these issues. Although the District correctly notes that a source located to one side of a zone boundary may have a different ratio than one located just to the other side of the boundary, creating potential inequities, we believe such an approach is generally more appropriate and equitable as sources in each zone would offset approximately their fair share. In any case, the EPA will review each technical demonstration accompanying an NNSR SIP submission to determine whether the state's requested interpollutant trading ratio(s) will achieve a net air quality benefit in the PM2.5 nonattainment area. Comment 16: The SJVUAPCD disagrees with the EPA's proposal to disapprove the District's interpollutant trading ratio sensitivity calculation based on a 50 percent reduction in stationary source emissions. The District comments that the EPA has provided only limited guidance on the development of interpollutant trading ratios and has failed to propose a mechanism to determine the sensitivity of PM2.5 formation to NOX and SOX emission decreases for NNSR, even though, according to the District, federal law requires the EPA to do so. The District asserts that its method is consistent with the EPA's existing guidance on NNSR IPT ratios and with state techniques that the EPA has approved for attainment demonstration purposes. The District contends that the EPA's disapproval of its approach creates new standards not reflected in previous guidance, and that the EPA should establish new standards only through the proper regulatory approval process. The District states that the EPA should therefore approve its 50 percent reduction sensitivity approach. Response 16: Although it may be reasonable to use modeling of 50 percent reductions in calculating interpollutant trading ratios,\171\ consistent with the provisions of 40 CFR part 51, Appendix S and EPA guidance, the state must provide a rationale for the reduction used and demonstrate its appropriateness for NSR offsetting purposes. As we stated in our proposed rule, the Plan provides no rationale for the appropriateness of a 50 percent reduction. Generally, the emission reductions model should have a direct connection to the emission reductions expected in IPT trades for NSR offsetting. --------------------------------------------------------------------------- \171\ We note, however, that such a level of reduction does not match the scale of reductions involved in a typical NNSR offsetting transaction. --------------------------------------------------------------------------- Comment 17: The District disagrees with the EPA's general comment that the Plan fails to provide an overall rationale for the District's methodology that is grounded in the statutory purpose of NSR offsets, and also with the EPA's specific concern that the 2012 PM2.5 Plan does not show that its offsets provide a ``net air quality benefit in the affected area,'' as required by 40 CFR part 51, Appendix S, section IV.A. The District asserts that Appendix H of the Plan demonstrates that the Plan's interpollutant trading ratios are consistent with the federal NNSR requirements and that the use of credits would not interfere with attainment efforts. The District states that the proposed trading ratios substitute only one precursor pollutant to the current offsetting requirements that the EPA has already found ``to comply with the CAA and EPA's NSR implementation regulations,'' and that this substitution uses a predetermined ratio demonstrated to be equal in ability to offset PM2.5. For this reason, the District argues that the ratios have already been demonstrated to provide an air quality benefit to the area and should be approved. Response 17: The EPA disagrees with the District's claim that the Plan demonstrates that its proposed interpollutant offsets would not interfere with attainment efforts, and that its ratio represents equivalent PM2.5 offsetting impacts. As we explained above in Response 15 concerning location-specific ratios, depending on the locations of the new or modified sources and the offsetting sources, offsets based on interpollutant trades could interfere with progress toward attainment of the PM2.5 NAAQS. The District used modeling of emission reductions occurring over a large geographic area and calculated ratios of the effects at multiple monitor locations, without providing a rationale for the procedure used. The modeling reflects [[Page 59898]] the average response of geographically distributed emission reductions but does not show the effect of any particular offset for a new source, and it is unclear how it is related to the aggregate effect of many such trades. Because the 2012 PM2.5 Plan does not address the locations of either the PM2.5 precursor emission increases and offsets or the ambient PM2.5 effects, we find the technical analyses in the Plan insufficient to demonstrate that the District's proposed offset ratio will assure reasonable progress toward attainment of the PM2.5 NAAQS in the SJV. F. Comments on Motor Vehicle Emissions Budgets Comment 18: Earthjustice agrees with the EPA's proposal to disapprove the interpollutant trading ratios for NSR but argues that the EPA should also disapprove the District's 8:1 ratio for offsetting mobile source emission increases of PM2.5 for conformity purposes. Earthjustice claims that the EPA did not evaluate the methodology supporting this ratio and instead approved it on the basis that it was more stringent than regional modeling determinations. According to Earthjustice, given the EPA concluded that the regional modeling was arbitrary and lacked any rationale for its methodology, the mere fact that the conformity ratios are ``more stringent'' does not provide the EPA with any rational basis for approving an 8:1 ratio for conformity purposes. Response 18: The EPA disagrees with Earthjustice's claim that the 8:1 NOX :direct PM2.5 ratio for transportation conformity has no rational basis. As an initial matter, we note that the EPA did not state that the regional modeling was arbitrary, but rather that the Plan had not provided a rationale for its particular approach to using modeled sensitivity ratios to derive IPT ratios for NSR offsetting purposes.\172\ The EPA made these statements in the context of NNSR permitting requirements, not trading mechanisms for transportation conformity purposes. --------------------------------------------------------------------------- \172\ 80 FR 1816, 1838 (January 13, 2015). --------------------------------------------------------------------------- The District's methodology for estimating the IPT ratio for conformity purposes is essentially an update (based on newer modeling) of the approach that the EPA previously approved for the 2008 PM2.5 Plan for the 1997 PM2.5 NAAQS in the SJV.\173\ The District's approach in the 2008 PM2.5 Plan was to model the ambient PM2.5 effect of areawide NOX emissions reductions and of areawide direct PM2.5 reductions, and to express the ratio of these modeled sensitivities as an interpollutant trading ratio. Variable factors in this method included the extent of the area over which emission reductions were applied and the location(s) at which the resulting ambient PM2.5 effect was evaluated. As part of the EPA's November 2011 action partially approving the 2008 PM2.5 Plan for the 1997 PM2.5 NAAQS in the SJV, the EPA stated that this methodology ``is adequate for purposes of assessing the effect of area- wide emissions changes, such as are used in RFP, contingency measures, and conformity budgets.'' \174\ In the TSD supporting that action, we stated that ``[t]he method modeled `across the board' emission changes over the entire modeling domain; emissions considered in transportation conformity are also domain-wide.'' \175\ --------------------------------------------------------------------------- \173\ See 80 FR 1816, 1841 (January 13, 2015) (noting the EPA's prior approval of MVEBs for the 1997 annual and 24-hour PM2.5 standards in the 2008 PM2.5 Plan at 76 FR 69896, November 9, 2011). \174\ 76 FR 69896, 69919 (November 9, 2011). \175\ EPA, Region 9, Air Division, ``Technical Support Document and Responses to Comments, Final Rule on the San Joaquin Valley 2008 PM2.5 State Implementation Plan,'' September 30, 2011, at pp. 46 and 165. --------------------------------------------------------------------------- As part of our proposed action on the 2012 PM2.5 Plan, we stated that the areawide methodology used in the 2008 PM2.5 Plan gave a range of IPT ratios from 2.8 to 4.7, depending on the ambient location chosen.\176\ Using the same method would entail using the IPT ratio evaluated at the California Street, Bakersfield design value site, 4:3. The 8:1 ratio used in the Plan is larger than both the Bakersfield ratio and any ratio using variants of the previously-approved approach, and is thus a more stringent (and conservatively high) trading mechanism to use for estimating the NOX reductions needed to offset PM2.5 increases.\177\ We are approving the 8:1 trading ratio for transportation conformity purposes because it is significantly more stringent than any of the other ratios calculated in the Plan for different locations in the SJV, all of which were calculated using a methodology that the EPA previously approved for transportation conformity purposes in the SJV. --------------------------------------------------------------------------- \176\ The maximum ratio for the 1st Street location in Fresno was actually 5:2, based on emission reduction sensitivities for NOX and for direct PM in the State's Weight of Evidence Analysis, Appendix G to the 2012 PM2.5 Plan, Table 7, p. G-65. \177\ The Bakersfield ratio is based on values in ``Table 7. Modeled PM2.5 air quality benefit per ton of valley wide precursor emission reductions'', 2012 PM2.5 Plan, Appendix G, p. 65. --------------------------------------------------------------------------- Comment 19: Earthjustice comments that the EPA's conformity regulations require MVEB to be consistent with the requirements for RFP. Earthjustice argues that because the RFP demonstration is not approvable, the EPA also should not approve the MVEBs. Response 19: We disagree with Earthjustice's claim that the EPA should disapprove the MVEBs in the Plan. As we explained above in Response 13, we are approving the RFP demonstration in the 2012 PM2.5 Plan based on our conclusion that it provides for generally linear reductions in emissions of direct PM2.5 and PM2.5 precursors in the aggregate and, therefore, provides for such annual incremental reductions in emissions of the relevant air pollutant as are required by part D, title I of the Act or may reasonably be required by the Administrator for the purpose of ensuring attainment of the 2006 PM2.5 NAAQS by the applicable attainment date. The 2012 PM2.5 Plan contains 2014 and 2017 MVEBs for emissions of direct PM2.5 and NOX . We proposed to approve these budgets based on a conclusion that they are consistent with applicable requirements for RFP, are clearly identified and precisely quantified, and meet all other applicable statutory and regulatory requirements including the adequacy criteria in 40 CFR 93.118(e)(4).\178\ Additionally, in accordance with 40 CFR 93.102(b)(2)(v), we proposed to find that on-road emissions of VOCs, SO2 and ammonia are not significant contributors to the PM2.5 nonattainment problem in the SJV area, and accordingly, that transportation conformity requirements do not apply for these pollutants in this area.\179\ In April 2016, the EPA found the direct PM2.5 and NOX MVEBs in the Plan, as submitted December 29, 2014, adequate for transportation conformity purposes.\180\ On November 13, 2015, the State submitted revised direct PM2.5 and NOX budgets based on EMFAC2014 for the 2006 PM2.5 NAAQS. The EPA proposed to approve these revised budgets based on our conclusion that the 2012 PM2.5 Plan continues to meet applicable requirements for RFP in 2017 when the EMFAC2011-based budgets are replaced with the new EMFAC2014-based budgets and that these budgets are clearly identified, precisely quantified, and meet all of the other criteria in 40 CFR 93.118(e)(4).\181\ --------------------------------------------------------------------------- \178\ 80 FR 1816, 1840 (January 13, 2015). \179\ Id. \180\ Letter dated April 1, 2016, from Deborah Jordan, Director, Air Division, EPA, to Richard W. Corey, Executive Officer, California Air Resources Board, and 81 FR 22194 (April 15, 2016). \181\ 81 FR 31212, 31218 (May 18, 2016). --------------------------------------------------------------------------- The commenter has not identified any information that compels us to [[Page 59899]] reconsider our conclusion that the MVEBs in the 2012 PM2.5 Plan are consistent with applicable requirements for reasonable further progress. Therefore, we are approving the 2017 MVEBs for direct PM2.5 and NOX , as submitted November 13, 2015.\182\ --------------------------------------------------------------------------- \182\ Although the 2012 PM2.5 Plan contained MVEBs for both 2014 and 2017, MVEBs for 2014 are no longer relevant for conformity analyses since that year has passed. --------------------------------------------------------------------------- We note that, because the provisions of 40 CFR part 93, subpart A, apply only with respect to emissions of NOX and direct PM2.5 for purposes of the 2006 PM2.5 NAAQS in the SJV area, the commenter's arguments about ammonia emissions are not germane to our action on these MVEBs. G. Other Comments Comment 20: Earthjustice asserts that the EPA has no basis for deferring action on the NSR component of the Plan and that deferral will put the EPA in violation of the statutory deadlines under CAA section 110(k)(2). Earthjustice states that the District's NSR program does not meet all subpart 4 requirements because it does not regulate ammonia, which according to Earthjustice is required under CAA section 189(e). Response 20: These comments are outside the scope of this action. We did not propose any action on the portions of the 2014 Supplement that address NNSR requirements for PM2.5 in the SJV and, therefore, are not finalizing any action with respect to these Plan elements at this time. The EPA intends to act on these components of the Plan through a separate rulemaking. We note that as a consequence of the EPA's January 20, 2016 final action reclassifying the SJV area as a Serious nonattainment area for the 2006 PM2.5 NAAQS, California is subject to a February 21, 2017 deadline to submit NNSR rule revisions for the SJV that satisfy the requirements of sections 189(b)(3) and 189(e) and all other applicable requirements of the CAA for implementation of the 2006 PM2.5 NAAQS.\183\ These SIP revisions must appropriately address the NNSR requirements for direct PM2.5 and all PM2.5 precursors, including ammonia. --------------------------------------------------------------------------- \183\ 81 FR 2993, 3000 (January 20, 2016) and 40 CFR 52.245(e). --------------------------------------------------------------------------- III. Final Action The EPA is taking final action to approve elements of the following SIP revisions submitted by California to address Clean Air Act requirements for implementation of the 2006 PM2.5 NAAQS in the SJV: The 2012 PM2.5 Plan, submitted March 4, 2013; the 2014 Supplement, submitted November 6, 2014; and the motor vehicle emissions budgets for direct PM2.5 and NOX , as submitted November 13, 2015. Specifically, under CAA section 110(k)(3), the EPA is proposing to approve the following elements of the 2012 PM2.5 Plan and 2014 Supplement: 1. The 2007 base year emissions inventories as meeting the requirements of CAA section 172(c)(3); 2. the demonstration that attainment by the Moderate area attainment date of December 31, 2015 is impracticable as meeting the requirements of CAA section 189(a)(1)(B)(ii); 3. the reasonably available control measures/reasonably available control technology demonstration as meeting the requirements of CAA sections 172(c)(1) and 189(a)(1)(C); 4. the reasonable further progress demonstration as meeting the requirements of CAA section 172(c)(2); and 5. SJVUAPCD's commitments to adopt and implement specific rules and measures by the dates specified in Chapter 5 of the 2012 PM2.5 Plan to achieve the emissions reductions shown therein, and to submit these rules and measures to CARB within 30 days of adoption for transmittal to the EPA as a revision to the SIP, or if the total emission reductions from the adopted rules are less than those committed to in the Plan, to adopt, submit, and implement substitute rules that will achieve equivalent reductions in emissions of direct PM2.5 or PM2.5 precursors in the same adoption and implementation timeframes or in the timeframes needed to meet CAA milestones, as stated on p. 4 of SJVUAPCD Governing Board Resolution 12-12-19, dated December 20, 2012, ``In the Matter of Adopting the San Joaquin Valley Unified Air Pollution Control District 2012 PM2.5 Plan.'' In addition, the EPA is approving the 2017 NOX and PM2.5 motor vehicle emissions budgets submitted November 13, 2015,\184\ as shown in Table 1 above, because they are derived from an approvable RFP demonstration and meet the applicable requirements of CAA section 176(c) and 40 CFR part 93, subpart A. We are also approving, in accordance with 40 CFR 93.124, the trading mechanism described on p. C-32 in Appendix C of the 2012 PM2.5 Plan as an enforceable component of the transportation conformity program for the 2006 PM2.5 NAAQS in the SJV, with the condition that the trades are limited to substituting excess reductions in NOX for increases in PM2.5 . The budgets that the EPA is approving herein relate to the 2006 PM2.5 NAAQS only, and our approval of them does not affect the status of the previously- approved MVEBs for the 1997 PM2.5 NAAQS and related trading mechanism, which remain in effect for that PM2.5 NAAQS. --------------------------------------------------------------------------- \184\ See letter dated November 13, 2015, from Richard W. Corey, Executive Officer, CARB to Jared Blumenfeld, Regional Administrator, EPA Region 9, with enclosures. --------------------------------------------------------------------------- The EPA is disapproving the PM2.5 interpollutant trading ratios provided in Appendix H of the 2012 PM2.5 Plan for NNSR permitting purposes. Under section 179(a) of the CAA, final disapproval of a SIP submittal that addresses a requirement of part D, title I of the Act or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) starts a sanctions clock. The NNSR interpollutant trading ratios provided in the 2012 PM2.5 Plan were not submitted to meet either of these requirements. Therefore, our final action to disapprove this component of the Plan does not trigger a sanctions clock. Disapproval of a SIP element also triggers the requirement under CAA section 110(c) for the EPA to promulgate a Federal Implementation Plan (FIP) no later than two years from the date of the disapproval unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such FIP. Disapproval of these NNSR interpollutant trading ratios, however, does not create any deficiency in the Plan, and therefore does not trigger the obligation on the EPA to promulgate a FIP under section 110(c). IV. Statutory and Executive Order Reviews Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders. A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. B. Paperwork Reduction Act (PRA) This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law. C. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a [[Page 59900]] substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law. D. Unfunded Mandates Reform Act (UMRA) This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action. E. Executive Order 13132: Federalism This action does not have federalism implications. It 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. F. Executive Order 13175: Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175, because 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, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of ``covered regulatory action'' in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act (NTTAA) Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population The EPA lacks the discretionary authority to address environmental justice in this rulemaking. K. Congressional Review Act (CRA) This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). 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 October 31, 2016. 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, Ammonia, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: August 16, 2016. Alexis Strauss, Acting Regional Administrator, EPA Region 9. Chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLMENTATION 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)(476)(ii)(A)(2), (c)(478), and (c)(479) to read as follows: Sec. 52.220 Identification of plan--in part. * * * * * (c) * * * (476) * * * (ii) * * * (A) * * * (2) Attachment A to Resolution 15-50, ``Updates to the Transportation Conformity Budgets for the San Joaquin Valley 2007 PM10, 2007 Ozone and 2012 PM2.5 SIPs,'' Table A-2 (Updated Transportation Conformity Budgets for the 2012 PM2.5 Plan (Tons per winter day). * * * * * (478) The following plan was submitted on March 4, 2013, by the Governor's Designee. (i) [Reserved] (ii) Additional materials. (A) San Joaquin Valley Unified Air Pollution Control District. (1) ``2012 PM2.5 Plan'' (dated December 20, 2012), adopted December 20, 2012, except for the motor vehicle emission budgets used for transportation conformity purposes. (2) SJVUAPCD Governing Board Resolution No. 12-12-19, dated December 20, 2012, ``In the Matter of Adopting the San Joaquin Valley Unified Air Pollution Control District 2012 PM2.5 Plan.'' (3) SJVUAPCD's commitments to adopt and implement specific rules and measures by the dates specified in Chapter 5 of the 2012 PM2.5 Plan to achieve the emissions reductions shown therein, and to submit these rules and measures to CARB within 30 days of adoption for transmittal to EPA as a revision to the SIP, or if the total emission reductions from the adopted rules are less than those committed to in the Plan, to adopt, submit, and implement substitute rules that will achieve equivalent reductions in emissions of direct PM2.5 or PM2.5 precursors in the same adoption and implementation timeframes or in the timeframes needed to meet CAA milestones, as stated on p. 4 of SJVUAPCD Governing Board Resolution 12-12-19, dated December 20, 2012. (B) California Air Resources Board. [[Page 59901]] (1) CARB Resolution 13-2, dated January 24, 2013, ``San Joaquin Valley PM2.5 State Implementation Plan.'' (479) The following plan was submitted on November 6, 2014, by the Governor's Designee. (i) [Reserved] (ii) Additional materials. (A) San Joaquin Valley Unified Air Pollution Control District. (1) ``Supplemental Document, Clean Air Act Subpart 4: The 2012 PM2.5 Plan for the 2006 PM2.5 Standard and District Rule 2201 (New and Modified Stationary Source Review)'' (dated September 18, 2014), adopted September 18, 2014. (2) SJVUAPCD Governing Board Resolution No. 14-09-01, dated September 18, 2014, ``In the Matter of: Authorizing Submittal of ``Supplemental Document for the 2012 PM2.5 Plan'' to EPA.'' (B) California Air Resources Board. (1) CARB Resolution 14-37, dated October 24, 2014, ``Supplemental Document for the San Joaquin Valley 24-Hour PM2.5 State Implementation Plan.'' [FR Doc. 2016-20413 Filed 8-30-16; 8:45 am] BILLING CODE 6560-50-P
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EPA APPROVED ALABAMA REGULATIONS—Continued
State effective
State citation Title/subject EPA approval date Explanation
date
* * * * * * *
Section 335–3–8– Submission of TR NOX Annual Allow- 11/24/2015 8/31/2016 [Insert ci- Both sections of 335–3–8–.25 are in-
.25. ance Transfers. tation of publica- cluded in the approved SIP.
tion].
* * * * * * *
Section 335–3–8– Recordation of TR NOX Annual Allow- 11/24/2015 8/31/2016 [Insert ci- Both sections of 335–3–8–.26 are in-
.26. ance Transfers. tation of publica- cluded in the approved SIP.
tion].
* * * * * * *
Section 335–3–8– Compliance with TR NOX Annual Emis- 11/24/2015 8/31/2016 [Insert ci- Both sections of 335–3–8–.27 are in-
.27. sions Limitation. tation of publica- cluded in the approved SIP.
tion].
Section 335–3–8– Compliance with TR NOX Annual As- 11/24/2015 8/31/2016 [Insert ci-
.28. surance Provisions. tation of publica-
tion].
* * * * * * *
Section 335–3–8– Banking .................................................. 11/24/2015 8/31/2016 [Insert ci- Both sections of 335–3–8–.297 are in-
.29. tation of publica- cluded in the approved SIP.
tion].
* * * * * * *
Section 335–3–8– Account Error ......................................... 11/24/2015 8/31/2016 [Insert ci- Both sections of 335–3–8–.30 are in-
.30. tation of publica- cluded in the approved SIP.
tion].
Section 335–3–8– Administrator’s Action on Submissions 11/24/2015 8/31/2016 [Insert ci-
.31. tation of publica-
tion].
* * * * * * *
Section 335–3–8– General Monitoring, Recordkeeping, 11/24/2015 8/31/2016 [Insert ci- Both sections of 335–3–8–.33 are in-
.33. and Reporting Requirements. tation of publica- cluded in the approved SIP.
tion].
Section 335–3–8– Initial Monitoring System Certification 11/24/2015 8/31/2016 [Insert ci-
.34. and Recertification Procedures. tation of publica-
tion].
Section 335–3–8– Monitoring System Out-of-Control Peri- 11/24/2015 8/31/2016 [Insert ci-
.35. ods. tation of publica-
tion].
Section 335–3–8– Notifications Concerning Monitoring ...... 11/24/2015 8/31/2016 [Insert ci-
.36. tation of publica-
tion].
Section 335–3–8– Recordkeeping and Reporting ............... 11/24/2015 8/31/2016 [Insert ci-
.37. tation of publica-
tion].
Section 335–3–8– Petitions for Alternatives to Monitoring, 11/24/2015 8/31/2016 [Insert ci-
.38. Recordkeeping, or Reporting Re- tation of publica-
quirements. tion].
* * * * * * *
* * * * * ENVIRONMENTAL PROTECTION ACTION: Final rule.
[FR Doc. 2016–20854 Filed 8–30–16; 8:45 am] AGENCY
BILLING CODE 6560–50–P SUMMARY: The Environmental Protection
40 CFR Part 52 Agency (EPA) is approving elements of
[EPA–R09–OAR–2014–0636; FRL–9951–42– the state implementation plan revisions
Region 9] (SIP) submitted by California to address
Clean Air Act requirements for the 2006
Approval and Promulgation of Air fine particulate matter (PM2.5) National
ehiers on DSK5VPTVN1PROD with RULES
Quality State Implementation Plans; Ambient Air Quality Standards in the
California; San Joaquin Valley; San Joaquin Valley Moderate PM2.5
Moderate Area Plan for the 2006 PM2.5 nonattainment area. These SIP revisions
NAAQS
are the 2012 PM2.5 Plan, submitted
AGENCY: U.S. Environmental Protection March 4, 2013, the 2014 Supplement,
Agency (EPA). submitted November 6, 2014, and the
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B. Comments Regarding Precursors some locations in the SJV is based on (1) the precursor may be relevant for
Comment 2: The SJVUAPCD argues sensitivity to ammonia reductions in the assessing the level of contribution of a
that ammonia is not a significant air quality modeling and Weight of PM2.5 precursor to ambient PM2.5 levels.
precursor for PM2.5 and that additional Evidence Analysis in the 2012 PM2.5 The EPA also agrees with the District’s
ammonia controls are not required. The Plan, (2) a number of peer-reviewed conclusion that ambient PM2.5
District asserts that the EPA’s proposal journal papers cited in the Plan showing concentrations are more sensitive to
to reject these findings is based on ammonium nitrate reductions of up to NOX emission reductions than to
‘‘technical assertions not supported by 25 percent when ammonia emissions ammonia emission reductions. We
the extensive scientific research and are reduced by 50 percent, and (3) the disagree, however, with the District’s
modeling’’ conducted for the Plan, and severity of PM2.5 nonattainment in the suggestion that the effectiveness of
that the technical analyses in the Plan area.17 reductions of a particular precursor in
demonstrate that ammonia reductions Comment 3: The SJVUAPCD improving PM2.5 air quality relative to a
are ineffective for attaining the PM2.5 recognizes that ammonia is a large different precursor may support a
NAAQS. Although the District component of ammonium nitrate and conclusion that a given precursor does
recognizes that ammonia is an integral that ammonium nitrate contributes not contribute significantly to ambient
component of ammonium nitrate, which substantially to wintertime PM2.5 mass, PM2.5 levels that exceed the NAAQS.
contributes substantially to wintertime but asserts that this does not necessarily We also disagree with the District’s
PM2.5 mass in the SJV, it argues that its mean that reductions in ammonia suggestion that the ‘‘availability of
scientific evaluations in the Plan emissions are effective in reducing control mechanisms for the precursor
provide ‘‘sufficient substantiation that PM2.5 concentrations in the SJV. that demonstrate a ‘reasonable rather
controls on ammonia are known to be Similarly, the District acknowledges than negligible’ reduction in PM2.5
very insensitive to reducing ammonium that ammonia is found in the SJV at mass’’ is a necessary consideration in
nitrate mass concentrations.’’ The higher wintertime concentrations than determining whether a particular PM2.5
District also comments that the EPA did NOX but states that ammonia’s physical precursor is subject to control
not provide references or support for abundance does not solely determine its evaluation under subpart 4.
statements in its technical support significance as a precursor. The District As explained in our proposed rule,
document that ‘‘a detailed evaluation of cites language in the EPA’s Proposal ammonia is a precursor to the formation
the modeling shows that ammonia TSD stating that the EPA reviews a of PM2.5 and is, therefore, presumptively
controls can be effective at reducing determination to exclude a PM2.5 regulated under subpart 4 of part D, title
ambient PM2.5 in some locations,’’ and precursor by considering both ‘‘the I of the Act.18 Thus, CARB and the
that ‘‘[i]n the various studies, when magnitude of the precursor’s District must evaluate ammonia
ammonia emissions were reduced by up contribution to ambient PM2.5 emissions for potential controls unless
to 50 percent, ambient ammonium concentrations’’ and ‘‘the sensitivity of the State submits a demonstration
nitrate decreased by 5 to 25 percent, ambient PM2.5 concentrations in the area adequate to rebut the regulatory
depending on the episode modeled and to reductions in emissions of that presumption in the SJV area. The
the geographic location evaluated . . . . precursor.’’ The District interprets this pertinent question in a demonstration to
These percentages for ammonia benefits language to establish two necessary rebut the regulatory presumption for
are generally smaller than those for NOX elements for precursor significance: (1) ammonia is whether ammonia emission
reductions, but these modeling results A ‘‘relatively high contribution’’ to sources ‘‘contribute significantly’’ to
show that reductions in ammonia overall PM2.5 mass, and (2) availability PM2.5 levels that exceed the PM2.5
emissions under certain circumstances of control mechanisms for the precursor NAAQS in the SJV, not whether existing
can effectively reduce ambient PM2.5’’ that demonstrate a ‘‘reasonable rather emission control measures can achieve
(internal citations omitted). The District than negligible’’ reduction in PM2.5 a specified amount of emission
argues that these statements are contrary mass. The District asserts that PM2.5 reductions in the area or how effective
to the Plan’s Weight of Evidence concentrations in the SJV are highly ammonia reductions are compared to
Analysis in Appendix G of the 2012 insensitive to ammonia controls, reductions of other PM2.5 precursors.19
PM2.5 Plan. particularly when compared to More specifically, with respect to the
Response 2: We disagree with the alternative controls on NOX, which it sensitivity-based contribution analysis,
District’s claim that we did not provide claims is the limiting precursor for the pertinent question is whether PM2.5
support for our conclusions about ammonia nitrate formation. While the concentrations in the nonattainment
ammonia impacts in the SJV. As stated District agrees with the EPA that the area are ‘‘insensitive’’ to emissions
on pg. 56 of the EPA’s technical support decision of whether to require reductions of the precursor.20 We note
document (TSD) for the proposed rule reductions of a precursor should not be that the EPA may, in some cases, require
(hereafter ‘‘Proposal TSD’’),16 the EPA’s based solely on the control effectiveness a state to identify and evaluate potential
conclusion that ammonia controls can of the precursor relative to other control measures to reduce emissions of
be effective at reducing ambient PM2.5 in precursors, the District comments that a particular PM2.5 precursor from
an ‘‘additional key issue that must also existing sources as part of a sensitivity-
ground relying on significantly outdated data, given be taken under consideration is the based contribution analysis, i.e., in
the amount of time that EMFAC2007 was available development and implementation of order to adequately demonstrate that
and authorized for use before the EPA approved the effective emission reductions strategies regulation of the precursor would not
2004 SIP’’). The decision did not disturb the EPA’s for reducing ambient PM2.5 and bringing
longstanding policy of requiring states to use the
most current emissions estimate models available at
the [SJV] into attainment.’’ 18 80 FR 1816, 1821 (January 13, 2015) (citing
the time of SIP development. Response 3: The EPA generally agrees NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 2013)).
ehiers on DSK5VPTVN1PROD with RULES
16 EPA, Region 9, Air Division, Technical Support with the District’s statement that both 19 CAA section 189(e).
Document, ‘‘Proposed Action on the San Joaquin the contribution of a precursor to PM2.5 20 See EPA, Final Rule, ‘‘Fine Particulate Matter
Valley 2012 PM2.5 State Implementation Plan and concentrations in the area and the area’s National Ambient Air Quality Standards: State
2014 Supplemental Document and Proposed Implementation Plan Requirements,’’ July 29, 2016
Reclassification of the San Joaquin Valley as sensitivity to reductions in emissions of (pre-publication notice) at Section III.C.3.d, pp. 50–
Serious Nonattainment for the 2006 PM2.5 54 (discussing technical issues associated with
Standard,’’ December 2014 [‘‘Proposal TSD’’]. 17 Id. at p. 56. sensitivity-based contribution analysis).
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measures for under-fired charbroilers in feasible in the SJV. To help study the gases, emission standards for ground-
2016.52 technological feasibility and level enclosed flares, and performance
A study conducted by the University effectiveness of potential control targets for petroleum refinery flares.
of California at Berkeley 53 arrives at a technologies, the SJVUAPCD Governing Operators of refinery flares and flares
similar conclusion regarding the cost of Board approved $750,000 for its with capacity greater than 5.0 MMBtu/
PM controls for under-fired charbroilers. Restaurant Charbroiler Technology hour are required to submit flare
Using 2007 economic census data, the Partnership program to fund PM control minimization plans (FMPs) containing
study estimates the average annual technology demonstration projects for information such as detailed process
profit of restaurants in the SJVUAPCD under-fired charbroilers at Valley diagrams, descriptions of upstream
area to be $23,000–$47,000 per restaurants.57 The District’s funding equipment, and evaluations of
establishment, for a profit margin of would include the full purchase cost, preventive measures to reduce flaring.58
3.5–5.9 percent. Similarly, the study installation, operation, maintenance, The rule prohibits flaring unless it is
estimates the annual profit for average and other costs such as modifications to done consistently with a District-
large restaurants (i.e., restaurants existing system configurations and approved FMP.59 Additionally, the rule
averaging 60 employees) to be structural reinforcements, and will help includes monitoring, recordkeeping,
approximately $110,000. The study also evaluate control systems operations, and reporting requirements, including a
finds that the average capital cost for maintenance, and labor costs in the requirement for operators to investigate
particulate matter (PM) emission field. Completion of these research and report flaring events.60
controls such as an ESP, HEPA efforts will allow regulatory agencies to As the commenter notes, North
filtration, or wet scrubber can range evaluate overall PM reduction strategies, Dakota has adopted rules governing
from approximately $38,750 to $50,000, which will help in designing flaring in the oil and gas industry,
with average annualized costs for economically and technically feasible through provisions of the North Dakota
installation and operation of $11,000– regulations that can achieve the Century Code and an Order issued by
$15,000. The study calculates the total necessary PM reductions. the Industrial Commission of North
costs associated with these controls to Based on these evaluations, we find Dakota. Section 38–08–06.4 of the North
be approximately 10–14 percent of an that SJVUAPCD Rule 4692 implements Dakota Century Code allows oil wells to
average large restaurant’s profits. The RACM/RACT for charbroilers for flare gas during the first year of
study states that ‘‘[t]hese figures may purposes of the 2006 PM2.5 NAAQS in production, and thereafter requires
appear modest . . . given that installing the SJV. wells either to be capped or to be
control technologies would amount to Comment 6f: Performance Standards equipped with approved capture or
only a tenth of [large] restaurant profits. for Flares. Earthjustice comments that control measures that, at a minimum,
However . . . this figure is several times the District could strengthen Rule 4311 reduce flared gas by at least 60 percent,
larger than the case of successful chain- (Flares) by adopting a performance- unless the operator can demonstrate that
driven charbroiler regulations, where based standard for flaring. Earthjustice such measures are not economically
the cost of installing catalytic oxidizers states that the District should assess the feasible.61 Industrial Commission Order
represented just 2.2 percent of average strength of its rule against rules in other 24665 adopts tiered gas capture goals
restaurant profits.’’ 54 The study notes areas with high oil and gas production, that include a target of 74 percent
that its annualized cost estimates and suggests North Dakota as an capture in 2014 and an end target of 90
parallel SJVUAPCD’s estimates, even example. As explained by Earthjustice, percent capture in 2020.62
though the data were drawn from North Dakota requires operators to meet The SJVUAPCD’s 2012 PM2.5 Plan
different sources.55 targets for natural gas capture that states that Rule 4311 is more stringent
We anticipate the CE–CERT research increase over time from 74 percent in than flare rules in other California air
report will help clarify the cost 2014 to an expected 90 percent by 2020, districts. Appendix D of the Plan
effectiveness of various under-fired and allows state regulators to restrict oil compares Rule 4311 to SCAQMD Rule
charbroiler emission control production if the operators do not meet 1118, BAAQMD Rules 12–11 and 12–12,
technologies, some of which are these targets. Earthjustice says that the and Santa Barbara County Air Pollution
prototypes, which will supplement the District could ‘‘borrow from’’ this Control District (SBCAPCD) Rule 359.63
earlier Berkeley study to help inform approach by assessing the percentage of According to the District, these rules
more effective rule development.56 natural gas flared in the San Joaquin contain requirements for FMPs and
Additionally, the District is currently Valley and developing regulations to monitoring, recordkeeping, and
undertaking efforts that may yield reduce flaring. reporting provisions similar to those in
additional information relevant to Response 6f: We disagree with the SJVUAPCD Rule 4311, and emission
whether additional controls for commenter’s suggestion that revisions to standards for ground-level enclosed
charbroilers would be appropriate and SJVUAPCD Rule 4311 (Flares) are flares, but Rule 4311 applies to a wider
necessary to satisfy RACM requirements range of operations and does not
52 2012 PM
2.5 Plan, Chapter 5 (‘‘Control
for the 2006 PM2.5 NAAQS in the SJV. include certain exemptions present in
Strategy’’), Section 5.3 (‘‘New Control Measures’’), SJVUAPCD Rule 4311, as amended the other districts’ rules.64 The District
p. 5–21 to 5–22, and SJVUAPCD Governing Board June 18, 2009, limits VOC, NOX, and
Resolution 2012–12–19 (December 20, 2012), page sulfur oxides (SOX) emissions from 58 SJVUAPCD Rule 4311 (adopted June 18, 2009),
4; see also 80 FR 1816, 1832 at Table 3 (January 13,
2015). industrial operations involving the use sections 5.8 and 6.5.
53 Bellisario, J., Mandel, B., Perkins, J., Ruan, Y., of flares. The rule includes general 59 Id.
‘‘Regulating Emissions from Under-fired requirements for combusting waste 60 Id. at sections 6.1 and 6.2.
Charbroilers,’’ University of California, Berkeley, 61 North Dakota Century Code, Section 38–08–
ehiers on DSK5VPTVN1PROD with RULES
Goldman School of Public Policy, May 2012. 57 See Restaurant Charbroiler Technology 06.4, as effective January 2016.
54 Id. at p. 24. 62 State of North Dakota, Industrial Commission
Partnership, available at http://valleyair.org/grants/
55 Id. at p. 24.
rctp.htm, and ‘‘Charbroilers Come Under San Order No. 24665 (dated July 1, 2014).
63 The 2012 PM
56 The SCAQMD, BAAQMD, SJVUAPCD, and Joaquin Valley Air District’s Microscope,’’ The 2.5 Plan mistakenly identifies the
EPA Region 9 are part of a workgroup to provide Modesto Bee, December 27, 2015, http:// Santa Barbara rule as ‘‘Rule 4359.’’ 2012 PM2.5 Plan,
input on the CE–CERT under-fired charbroiler www.recordnet.com/article/20160101/NEWS/ Appendix D at D–71.
testing research. 160109993. 64 2012 PM
2.5 Plan, Appendix D at D–71.
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also states that the Sacramento exceeded 5 percent.70 This analysis available control measures/reasonably
Metropolitan Air Quality Management addresses the commenter’s suggestion available control technology (RACM/
District (SMAQMD) and Ventura County that the District should assess the RACT), states must establish such limits
Air Pollution Control District (VCAPCD) percentage of natural gas flared in the taking into consideration the
do not have specific prohibitory rules District, and it indicates that adoption of condensable fraction of direct PM2.5
for flares.65 requirements like North Dakota’s would emissions. Because direct PM2.5 is
The District has addressed the North not reduce emissions from flaring in the comprised of both filterable PM2.5 and
Dakota Century Code and the Industrial SJV. condensable PM2.5,73 the EPA has
Commission Order in Appendix C of the Based on this assessment, we find that explained that both the emissions
‘‘2015 Plan for the 1997 PM2.5 Standard’’ SJVUAPCD Rule 4311 represents RACT inventories underlying a PM2.5
(hereafter ‘‘2015 PM2.5 Plan’’).66 There, for flaring operations in the SJV, and attainment plan and any emission limits
the District concludes that SJVUAPCD that the alternatives suggested by the for sources of direct PM2.5 in the control
Rule 4311 is more stringent than the commenter would not achieve strategy must take into consideration the
North Dakota rule. Among its findings additional emission reductions. condensable fraction of PM2.5
in support of this conclusion, the Comment 7: Earthjustice comments emissions.74 As the EPA stated in the
District notes that Rule 4311 applies to that the RACM/RACT analysis in the July 29, 2016 final rule to implement the
a broader range of sources and achieves Plan does not include reasonable PM2.5 NAAQS, it is particularly
a higher percentage of gas capture.67 controls for condensable emissions, and important to ensure that both the
Appendix C of the 2015 PM2.5 Plan also that the EPA must therefore disapprove filterable and condensable components
discusses SBCAPCD Rule 359, which the RACM/RACT demonstration. of direct PM2.5 emissions are accurately
includes a performance standard for gas Earthjustice states that 40 CFR represented in the base year emissions
volume.68 The District concludes that 51.1002(c) requires agencies to set inventory underlying a RACM/RACT
Rule 4311 is more stringent than this controls for condensable emissions control analysis.75
rule, citing reasons that include Rule beginning January 1, 2011, and quotes Chapter 4 of the 2012 PM2.5 Plan
4311’s applicability to a broader range the EPA’s prior statement at 72 FR contains a brief discussion of the
of sources, fewer exemptions, and 20586, 20652 that ‘‘[w]e expect States to District’s approach to condensable PM2.5
greater percentage gas capture.69 address the control of direct PM2.5 emissions and states that condensable
We agree with the District’s analysis emissions, including condensables particulates are included in the
and conclusion that SJVUAPCD Rule [sic] 71 with any new actions taken after District’s total emissions inventory for
4311 is at least as stringent as the rules January 1, 2011.’’ direct PM2.5.76 The base year inventory
adopted by the other California air Response 7: We agree with for direct PM2.5 emissions is provided in
districts and the requirements in place Earthjustice’s statement that the Appendix B of the 2012 PM2.5 Plan and
in North Dakota. Therefore, we disagree transition period under 40 CFR includes condensable emissions.
with the commenter’s assertion that a 51.1002(c) (as effective May 29, 2007) 72 Specifically, the PM2.5 emissions
performance-based standard like North allowing state and local agencies to inventory for commercial cooking
Dakota’s would be more protective than submit plans that do not address operations incorporates emission factors
Rule 4311. While Rule 4311 does not set condensable emissions ended on from a source testing study that
performance targets for reducing flared January 1, 2011. We disagree, however, collected both filterable and
gas, information in the record indicates with the claim that the EPA must condensable particulate matter (PM).77
that it achieves emission reductions disapprove the RACM/RACT
greater than those targets. Table C–11 of demonstration in the Plan for failure to 73 Certain commercial or industrial activities
the 2015 PM2.5 Plan shows that the assess controls on condensable PM2.5 involving high temperature processes (e.g., fuel
percentage of gas flared in the SJV in the combustion, metal processing, and cooking
emissions. operations) emit gaseous pollutants into the
years between 2009 and 2013 has never EPA regulations at 40 CFR 51.1002(c), ambient air which rapidly condense into particle
as effective May 29, 2007, provide that, form. These ‘‘condensable’’ particulate matter
65 Id. The VCAPCD does not have a specific emissions exist almost entirely in the 2.5 or less
after January 1, 2011, for purposes of
flaring rule, but VACPCD Rule 54, ‘‘Sulfur micron range and can consist of organic material,
Compounds’’ includes requirements for flaring establishing emissions limits to satisfy sulfuric acid and metals. 80 FR 15340, 15343 at n.
events, including FMPs. The District’s ‘‘2015 Plan requirements for RFP and reasonably 7 (March 23, 2015); see also 72 FR 20586, 20651
for the 1997 PM2.5 Standard’’ (‘‘2015 PM2.5 Plan’’) (April 25, 2007).
includes this rule in a table comparing Rule 4311 70 2015 PM
2.5 Plan, Appendix C: BACM and MSM
74 See, e.g., 80 FR 15340, 15412 (March 23, 2015)
to other California air district rules, and states that for Stationary and Area Sources, at page C–79. (discussing requirement to address condensable
SJVUAPCD Rule 4311 is at least as stringent. 2015 SJVUAPCD staff confirmed that the data in this PM2.5 in base year emissions inventory and related
PM2.5 Plan, Appendix C: BACM and MSM for table comes from the annual emissions inventory SIP control strategies).
Stationary and Area Sources, at page C–79. reports submitted by sources to the District. Email 75 See EPA, Final Rule, ‘‘Fine Particulate Matter
66 2015 PM
2.5 Plan, Appendix C: BACM and MSM dated April 27, 2016, from Sheraz Gill of the National Ambient Air Quality Standards: State
for Stationary and Area Sources, at page C–81. SJVUAPCD to Andrew Steckel of EPA Region 9, Implementation Plan Requirements,’’ July 29, 2016
67 In its comparison of Rule 4311 to the North regarding SJV flares data inquiry. (pre-publication notice) at pp. 66–77, 90–104 and
Dakota provisions, the 2015 PM2.5 Plan states that 71 The Federal Register notice uses the term 139–140 (discussing requirements to include
Rule 4311 ‘‘requires 95% capture and treatment of ‘‘condensable PM.’’ condensable PM2.5 in base year emissions
produced gas.’’ 2015 PM2.5 Plan, Appendix C: 72 72 FR 20586 (April 25, 2007). The EPA’s recent inventories and in RACM/RACT control
BACM and MSM for Stationary and Area Sources, final rule to implement the PM2.5 NAAQS also evaluations); see also 80 FR 15340 at 15378, 15412.
at page C–82. We interpret this to mean that the rule requires that emission limitations for PM2.5 sources 76 See 2012 PM
2.5 Plan at p. 4–22.
achieves at least 95 percent capture in practice, as address condensable PM2.5. See EPA, Final Rule, 77 See ‘‘2006 Area Source Emissions Inventory
demonstrated at Table C–11 of the Plan. 2015 PM2.5 ‘‘Fine Particulate Matter National Ambient Air Methodology 690—Commercial Cooking
Plan, Appendix C: BACM and MSM for Stationary Quality Standards: State Implementation Plan Operations,’’ available at http://www.valleyair.org/
and Area Sources, at page C–80. See email dated
ehiers on DSK5VPTVN1PROD with RULES
Requirements,’’ July 29, 2016 (pre-publication Air_Quality_Plans/EmissionsMethods/
May 20, 2016, from Sheraz Gill of the SJVUAPCD notice) at p. 567 (requiring at 40 CFR 51.1009(c) MethodForms/Current/
to Andrew Steckel of EPA Region 9, regarding that, for new or revised source emissions CommercialCooking2006.pdf. See also Welch, W.A.
Small flares question. limitations on sources of direct PM2.5 emissions, and Norbeck, J.M., 1998, ‘‘Development of Emission
68 2015 PM
2.5 Plan, Appendix C: BACM and MSM states apply such emissions limitations either to the Test Methods and Emission Factors for Various
for Stationary and Area Sources, at pp. C–79 to C– total of the filterable plus condensable fractions of Commercial Cooking Operations,’’ TO–98–14–3 and
81. direct PM2.5, or to filterable PM2.5 and condensable email dated May 20, 2016, from W. Welch of the
69 Id. at C–81. PM2.5 separately). SCAQMD to Stanley Tong of USEPA, RE:
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Similarly, the SJVUAPCD’s PM2.5 2014).81 Of the SJVUAPCD rules that that ‘‘total PM10 includes both filterable
emission factors for natural gas fired control direct PM emissions, only two PM10 and condensable PM10.’’ Section
boilers, turbines and engines in the establish emission limits for PM: Rule 6.5.9 of SJVUAPCD Rule 4354 requires
manufacturing and industrial category 4692 and Rule 4354. Both of these rules testing for condensable PM emissions
are based on the EPA’s AP–42 emission contain control requirements that apply using EPA Method 202.86 No other SIP
factors, which include both filterable to condensable PM and require sources control measure in the RACM/RACT
and condensable PM.78 Also, PM in the to use test methods that measure demonstrations in the 2012 PM2.5 Plan
emissions inventory from biomass condensable PM. establishes direct PM emission
boilers and natural gas turbines for the Specifically, section 5.2 of SJVUAPCD limitations.
electric utilities sector is based on PM10 Rule 4692 requires that each chain- We therefore find that the 2012 PM2.5
testing required by operating permits driven charbroiler be equipped and Plan adequately addresses the
and includes both filterable and operated with a catalytic oxidizer that condensable fraction of direct PM2.5
condensable PM.79 According to the has a control efficiency of at least 83 both in the base year emissions
percent for PM10 emissions, and section inventory and in the SIP control
emissions inventories in the 2012 PM2.5
6.5.1 of the rule requires testing in strategy.
Plan, approximately 38 percent of the
accordance with the ‘‘South Coast Air Comment 8: Earthjustice argues that
2007 direct PM2.5 inventory for
Quality Management District’s the EPA must disapprove the ammonia
stationary and area sources comes from Protocol,’’ which requires measurement
fugitive dust and farming, emission RACM/RACT demonstration because
of both condensable and filterable PM in the District has not demonstrated that it
sources that generally do not produce accordance with SCAQMD Test Method has adopted all reasonably available
condensable PM emissions. Stationary 5.1.82 SJVUAPCD Rule 4692 defines control measures. According to
source combustion processes that emit PM10 as defined in SJVUAPCD Rule Earthjustice, the Plan ‘‘includes no
condensable PM, such as electric 1020 and states that ‘‘[f]or purposes of analysis of how Rules 4565, 4566, and
utilities, commercial cooking operations determining control efficiency, all 4570 actually control ammonia
and glass melting furnaces, account for particulate collected using the test emissions,’’ and the District’s ammonia
approximately 13.5 percent of the 2007 method specified in Section 6.5 shall be RACM/RACT demonstration ‘‘is little
PM2.5 inventory for stationary and area considered PM10.’’ 83 Because section more than the District’s rationalizations
sources. Residential fuel combustion, 6.5 of SJVUAPCD Rule 4692 requires for not adopting reasonable controls’’
fires, and managed burning activities measurement of both condensable and (emphasis in comment). Earthjustice
account for 44 percent of the stationary filterable PM, both condensable and says that the EPA has proposed to
and area source inventory, and filterable PM are considered PM10 under excuse the Plan’s failure to analyze
miscellaneous industrial processes the rule.84 Similarly, section 5.4 of ammonia controls ‘‘because it was
make up the remainder of the non- SJVUAPCD Rule 4354 establishes submitted too soon after the decision in
mobile source inventory.80 emission limits for PM10, also defined as NRDC for the District to have
The 2012 PM2.5 Plan relies on several in SJVUAPCD Rule 1020,85 and states incorporated a full analysis of ammonia
SJVUAPCD rules regulating direct PM controls into the Plan.’’ Earthjustice
81 81 FR 6936 at 6951–52, Table 3 (February 9,
emissions as part of the PM2.5 control asserts that this consideration ‘‘provides
2016).
strategy, including Rule 4692 82 See SCAQMD Protocol, Determination of no basis for finding that the statutory
(Commercial Charbroiling, amended Particulate and Volatile Organic Compound requirements have been met.’’
September 17, 2009), Rule 4103 (Open Emissions From Restaurant Operations, November Response 8: We disagree with
Burning, amended April 15, 2010), Rule 14, 1997, available at http://yosemite.epa.gov/R9/ Earthjustice’s assertion that the EPA
R9Testmethod.nsf/0/
4354 (Glass Melting Furnaces, amended 3D4DEB4D21AB4AAF882570AD005DFF69/$file/
must disapprove the ammonia RACM/
May 19, 2011), and Rule 4901 (Wood SC%20Rest%20emiss.pdf and SCAQMD Test RACT demonstration in the Plan. As we
Burning Fireplaces and Wood Burning Method 5.1, Determination of Particulate Matter explained in our proposed rule, the
Heaters, amended September 18, Emissions From Stationary Sources Using a Wet 2014 Supplement contains a discussion
Impingement Train, March 1989, available at http://
www.aqmd.gov/docs/default-source/laboratory-
of three SIP-approved District rules that
Development of PM Charbroiling Emission Factors procedures/methods-procedures/stm-005- regulate VOCs but also have the effect
using SC 5.1 (confirming that tests were performed 1.pdf?sfvrsn=2. of reducing ammonia emissions in the
using SCAQMD Method 5.1 which includes both 83 SJVUAPCD Rule 4692 (amended September 17,
SJV, as well as ammonia control
filterable and condensable PM). 2009), section 3.6, defining PM10 ‘‘as defined in
78 SJVUAPCD. ‘‘2006 Area Source Emissions
measures implemented elsewhere that
Rule 1020 (Definitions).’’ SJVUAPCD Rule 1020
Inventory Methodology 050—Industrial Natural Gas defines ‘‘particulate matter’’ as ‘‘any material except the District evaluated for technical and
Combustion’’ at p. 3 (identifying emission factors uncombined water, which exists in a finely divided economic feasibility.87 These analyses,
are based on the EPA’s AP–42 chapters 1.4 and 3.2, form as a liquid or solid at standard conditions,’’ which the EPA has developed further
which include filterable and condensable PM). and defines ‘‘PM–10’’ as ‘‘particulate matter with an below, demonstrate that SJVUAPCD
79 Email dated May 18, 2016, from Chay Thao of aerodynamic diameter smaller than or equal to a
the SJVUAPCD to Stanley Tong of EPA Region 9, nominal ten (10) microns as measured by the Rule 4565, Rule 4566, and Rule 4570
regarding ‘‘Gas Turbine PM source testing applicable state and federal reference test reduce ammonia emissions from
condensible’’; see also SJVUAPCD, Notice of Final methods.’’ SJVUAPCD Rule 1020 (amended confined animal facilities (CAFs) and
Action, Minor Title V Permit Modification, District February 21, 2013), sections 3.32 and 3.36, composting operations in the SJV,
Facility #C–14 (April 26, 2012), permit condition approved at 79 FR 59433 (October 2, 2014).
21, available at https://yosemite.epa.gov/R9/air/ 84 Welch, W.A. and Norbeck, J.M., 1998,
which together account for
EPSS.NSF/0201370ee436adf08825653000726dc1/ ‘‘Development of Emission Test Methods and
e76e9625e609621088257a0e00535d9c/$FILE/ Emission Factors for Various Commercial Cooking and defines ‘‘PM10’’ as ‘‘particulate matter with an
Public%20Notice%20Pkg.pdf and SJVUAPCD, Operations,’’ TO–98–14–3 (indicating that the aerodynamic diameter smaller than or equal to a
Notice of Final Action, Revised Final Determination majority of PM emitted from commercial cooking nominal ten (10) microns as measured by the
ehiers on DSK5VPTVN1PROD with RULES
of Compliance, Project Number: N–1113502 operations is less than 2.5 microns). applicable state and federal reference test
(January 18, 2012), permit condition 51, available 85 See SJVUAPCD Rule 4354 (amended May 19, methods.’’ SJVUAPCD Rule 1020 (amended
at https://yosemite.epa.gov/R9/air/EPSS.NSF/ 2011), section 3.30, defining PM10 ‘‘as defined in February 21, 2013), sections 3.32 and 3.36,
0201370ee436adf08825653000726dc1/ Rule 1020 (Definitions).’’ SJVUAPCD Rule 1020 approved at 79 FR 59433 (October 2, 2014).
5f867ce070483067882579c300793cbe/$FILE/ 86 75 FR 80118 (December 21, 2010).
defines ‘‘particulate matter’’ as ‘‘any material except
Public%20Notice%20Package.pdf. uncombined water, which exists in a finely divided 87 80 FR 1816 at 1827–1830 (referencing 2014
80 2012 PM
2.5 Plan, Appendix B at B–3. form as a liquid or solid at standard conditions,’’ Supplement at Attachment A).
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approximately 76 percent of the biofilter as an emission control device, Although SJVUAPCD Rule 4565 does
District’s estimates of total 2015 SJVUAPCD Rule 4565 contains detailed not explicitly require operators of
ammonia emissions in the SJV.88 We requirements for regularly maintaining, composting/co-composting facilities to
find these evaluations sufficient to monitoring, and testing the biofilter.93 achieve specified levels of ammonia
demonstrate that the District has Similarly, SCAQMD Rule 1133.2, as emission reductions, as does SCAQMD
adopted RACM/RACT for ammonia adopted January 10, 2003, generally Rule 1133.2, both rules generally require
emissions for purposes of the 2006 requires operators of ‘‘new’’ co- composting facilities to use enclosures
PM2.5 NAAQS in the SJV. composting facilities (i.e., those that and/or aeration systems vented to an
SJVUAPCD Rule 4565 (Biosolids, started operations after January 10, emission control device with a VOC
Animal Manure, and Poultry Litter 2003) with design capacities of at least control efficiency of 70 or 80 percent.
Operations), as adopted March 15, 2007, 1,000 tons of throughput per year to Given the similarity in the control
requires that each operator of a conduct all active co-composting within requirements contained in these rules,
composting/co-composting facility with the confines of an enclosure meeting we find the requirements of SJVUAPCD
a throughput of at least 100,000 wet tons certain conditions, to conduct all curing Rule 4565 sufficient to satisfy RACM/
per year conduct all active or curing using an aeration system meeting RACT requirements for ammonia
composting either in aerated static certain conditions, and to vent the control for the 2006 PM2.5 NAAQS.
pile(s) vented to an emission control exhaust from the enclosure and aeration We also disagree with Earthjustice’s
device with a VOC control efficiency of system to an emissions control system claim that the EPA has ‘‘proposed to
at least 80 percent by weight, or in an designed and operated with a control excuse the Plan’s failure to analyze
in-vessel composting system vented to efficiency of at least 80 percent, by ammonia controls’’ because of the
an emission control device with a VOC weight, for both VOC and ammonia timing of its submission after the D.C.
control efficiency of at least 80 percent emissions.94 Alternatively, an operator Circuit’s decision in NRDC v. EPA, 706
by weight.89 Alternatively, the operator of a new co-composting facility may F.3d 428 (D.C. Cir. 2013). In our
may implement an ‘‘alternative Class submit a compliance plan, for approval proposed rule, we noted that ‘‘the
Two mitigation measure’’ that is by the SCAQMD Executive Officer, that timing of the NRDC decision in early
determined by the SJVUAPCD Air demonstrates an overall emission 2013 may have constrained the State’s
Pollution Control Officer (APCO) and reduction of 80 percent, by weight, from and District’s ability to fully evaluate
the EPA to achieve equivalent VOC specified baseline emission factors for additional ammonia control measures as
emission reductions.90 According to the both VOC and ammonia emissions.95 part of a RACM/RACT control strategy
District’s staff report for SJVUAPCD Existing co-composting facilities with ahead of the applicable Moderate area
Rule 4565, the most commonly used design capacities of at least 35,000 tons attainment date (December 31, 2015)’’
VOC emission control devices at of throughput per year must submit a and stated that we were taking this
composting facilities are biofilters, compliance plan that demonstrates an unique circumstance into account in our
which are used at over twenty overall emission reduction of 70 evaluation of the Plan.99 We also noted
composting facilities in the U.S. and at percent, by weight, from specified the absence of specific information
least five composting facilities in baseline emission factors for both VOC regarding more stringent ammonia air
California.91 Biofilters reduce both VOC and ammonia emissions.96 For existing emission control measures that may be
and ammonia emissions by oxidizing facilities or new facilities that elect to technologically and economically
VOC to carbon dioxide and water and submit alternative compliance plans, feasible for implementation in the SJV
degrading ammonia emissions into the compliance plan must specify the area and recommended that the State
nitrate.92 For operators that use a operator’s selected control method(s), and District conduct a more thorough
which may include (among others) evaluation of all available ammonia
88 2012 PM
2.5 Plan, Appendix B at B–17 and 2014 enclosure design or technology; aeration control measures as part of its
Supplement at Attachment A, p. A–1 (indicating system design and operation;
that ‘‘farming operations’’ account for 239.2 tpd of development of a Serious area plan for
ammonia emission and that ‘‘waste disposal,’’ biofiltration; process controls; or best the area.100 The commenter argues
which includes composting solid waste operations, management practices.97 According to generally that the Plan includes no
accounts for 20.5 tpd of ammonia emissions in the final staff report for SCAQMD Rule analysis of how the District’s rules
2015, from a total 2015 ammonia inventory of 340.7 1133.2, a well-designed, well-operated,
tpd). control ammonia emissions but
89 SJVUAPCD Rule 4565 (adopted March 15, and well-maintained biofilter can provides no specific information to
2007), section 5.3.3 (requiring implementation of at achieve 80 percent control efficiency for show that more stringent control
least one ‘‘Class Two mitigation measure’’); see also both VOC and ammonia emissions.98 measures are technologically and
2014 Supplement at Attachment A, p. A–36 to A–
39. economically feasible for
through the action of bacteria and other
90 SJVUAPCD Rule 4565 (adopted March 15,
microorganisms’’). implementation in the SJV area.
2007), section 5.3.3 and section 3.3 (defining 93 SJVUAPCD Rule 4565 (adopted March 15, As explained in our proposed rule,
‘‘alternative mitigation measure’’). sections 172(c)(1) and 189(a)(1)(C) of the
91 SJVUAPCD, Final Staff Report, Revised
2007), sections 5.5 and 5.7.
Proposed New Rule 4565 (Biosolids, Animal
94 SCAQMD Rule 1133.2 (adopted January 10,
Act require that attainment plans for
2003), section (d)(1). Moderate nonattainment areas provide
Manure, and Poultry Litter Operations), March 30, 95 Id. at section (d)(2).
2007, at p. 9.
96 Id. at sections (d)(3) and (j)(1).
for the implementation of RACM and
92 SCAQMD, ‘‘Technology Assessment for
97 Id. at section (e).
RACT for existing sources of PM2.5 and
Proposed Rule 1133 (Emission Reductions from
Composting and Related Operations),’’ March 22, 98 SCAQMD, Final Staff Report, ‘‘Proposed Rule PM2.5 precursors in the nonattainment
2002, at p. 3–4 and 3–5 (‘‘biofilters use 1133—Composting and Related Operations: General area as expeditiously as practicable but
microorganism that live in the biofilm . . . to Administrative Requirements; Proposed Rule no later than 4 years after designation.
ehiers on DSK5VPTVN1PROD with RULES
adsorb and biologically degrade contaminated air 1133.1—Chipping and Grinding Activities; In longstanding guidance, the EPA has
into non-harmful substances. In particular, VOC is Proposed Rule 1133.2—Emission Reductions from
oxidized to carbon dioxide and water, and ammonia Co-Composting Operations,’’ January 10, 2003, at p.
is degraded into nitrate without creating aggravating 18 (stating that ‘‘[b]ased on the information well-designed, well-operated, and well-maintained
pollution issues’’); see also SCAQMD Rule 1133.2 collected so far on existing biofilter composting biofilter is capable of achieving 80 percent control
(adopted January 10, 2003), section (c)(5) (defining applications, control efficiencies of about 80% to efficiency for VOC and ammonia’’).
99 80 FR 1816, 1830 (January 13, 2015).
‘‘biofiltration’’ as ‘‘a pollution control technology 90% for VOC and 70% to over 90% for ammonia
that removes and oxidizes VOC and ammonia have been achieved. . . . [demonstrating] that a 100 Id.
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interpreted the RACM requirement to ‘‘VOC emissions reductions may result compost.108 As Earthjustice correctly
include any potential control measure in some ammonia emissions notes, SCAQMD Rule 1133.3 also allows
for a point, area, on-road or non-road reductions,’’ Earthjustice asserts that operators of such operations to
emission source that is technologically because Rule 4566 does not regulate implement an alternate mitigation
and economically feasible and is not ammonia, the District cannot rely on the measure approved by the SCAQMD
‘‘absurd, unenforceable, or rule to result in a certain amount of Executive Officer, CARB, and the EPA
impracticable.’’ 101 The Act does not ammonia emissions. that demonstrates VOC emission
require adoption of every conceivable Response 9: Although SJVUAPCD reductions by at least 40 percent by
control measure to satisfy the RACM Rule 4566 does not explicitly regulate weight and ammonia emission
requirement in a Moderate PM2.5 ammonia emissions, we disagree with reductions by at least 20 percent by
nonattainment area.102 Consistent with Earthjustice’s suggestion that the weight.109 For composting operations
the EPA’s recommended process for District cannot rely on this rule as part involving greater than 5,000 tons per
determining RACM/RACT for a given of its RACM/RACT control strategy for year of foodwaste throughput, SCAQMD
area, the District compiled a list of the 2006 PM2.5 NAAQS. Rule 1133.3 establishes requirements to
potential control measures for ammonia SJVUAPCD Rule 4566, as adopted conduct the active phase composting
emission sources in the SJV; evaluated August 18, 2011, requires smaller using an emission control device
the identified control measures for composting operations to implement at designed and operated with an overall
‘‘reasonableness,’’ considering least three turns during active-phase system control efficiency of at least 80
technological and economic feasibility composting and one of several percent, by weight, each for VOC and
and potentially adverse impacts; and mitigation measures listed in Table 1 of ammonia emissions, or to implement an
identified the SIP-approved control the rule, such as application of water or alternate mitigation measure approved
measures in the Plan that it was relying a finished compost cover, or in the by the SCAQMD Executive Officer,
on to implement RACM for ammonia alternative to implement an alternative CARB, and the EPA that achieves
emission sources.103 Although the Plan mitigation measure approved by the equivalent reductions in both VOCs and
does not contain every conceivable APCO and the EPA that demonstrates at ammonia.110
control measure for ammonia emissions, least 19 percent reduction, by weight, in According to CARB, the water
we find the control evaluations in the VOC emissions.104 For larger management requirements in
Plan sufficient to demonstrate that it composting operations (i.e., those with SJVUAPCD Rule 4566 and SCAQMD
provides for the implementation of all a total throughput between 200,000 and Rule 1133.3 achieve an ammonia
RACM/RACT for ammonia sources that 750,000 wet tons per year of organic control efficiency of 19 percent, while
could reasonably be implemented by the material), Rule 4566 requires operators use of certain kinds of aerated static
statutory implementation deadline to apply both watering and a finished piles (ASP) vented to a biofilter achieves
under CAA section 189(a)(1)(C) for the compost cover in addition to an ammonia control efficiency ranging
2006 PM2.5 NAAQS. We discuss implementation of at least three turns from 20 to 99 percent.111 In the absence
Earthjustice’s specific comments about during active-phase composting, or in of specific information about more
SJVUAPCD Rule 4566 in Response 9 the alternative to implement an stringent ammonia control requirements
below, and its specific comments about alternative mitigation measure approved for composting operations that the
SJVUAPCD Rule 4570 in Response 10 by the APCO and the EPA that District could reasonably have
below. demonstrates at least 60 percent implemented by the statutory
Comment 9: Earthjustice disputes the implementation deadline for RACM/
reduction, by weight, in VOC
District’s finding that its composting RACT in this area (December 14, 2013),
emissions.105 For the largest composting
rule, Rule 4566, is at least as stringent we find the requirements of SJVUAPCD
operations (i.e., those with a total
as SCAQMD Rule 1133.3, and argues Rule 4566 adequate to satisfy RACM/
throughput of at least 750,000 wet tons
that the District failed to consider some RACT requirements for composting
per year of organic material), Rule 4566
of the requirements of SCAQMD Rule operations for purposes of the 2006
requires operators to implement an
1133.3 in the table that it used to PM2.5 NAAQS in the SJV.
alternative mitigation measure approved
compare the two rules. Earthjustice Comment 10: Earthjustice comments
by the APCO and the EPA that
notes that SCAQMD Rule 1133.3 that the District did not adequately
demonstrates at least 80 percent
requires implementation of a mitigation review Rule 4570 (Confined Animal
reduction, by weight, in VOC
measure that demonstrates emissions Facilities) when it compared it to
emissions.106
reductions, by weight, of at least 40 similar rules in other California districts
percent for VOC and at least 20 percent SCAQMD Rule 1133.3, as adopted
and the state of Idaho. According to
for ammonia, and that SJVUAPCD Rule July 8, 2011, establishes similar
4566 requires a mitigation measure that requirements for greenwaste composting 108 SCAQMD, Final Staff Report, ‘‘Proposed
demonstrates emissions reductions of operations to periodically turn and Amended Rule 1133.1—Chipping and Grinding
VOC of at least 19 percent, and does not water active compost piles and to apply Activities; Proposed Rule 1133.3—Emission
regulate ammonia. While noting that finished compost covers.107 According Reductions from Greenwaste Composting
to the SCAQMD’s staff report for Rule Operations,’’ July 2011, at p. 3 (‘‘[g]ood composting
practices, which balance the carbon-to-nitrogen
101 80 FR 1816, 1826 (January 13, 2015) (citing 1133.3, these types of ‘‘good composting (C:N) ratio and provide adequate aeration and
‘‘State Implementation Plans; General Preamble for practices’’ minimize both VOC and moisture, will minimize VOC, ammonia and GHG
the Implementation of Title I of the Clean Air Act ammonia emissions by balancing the emissions’’).
Amendments of 1990,’’ 57 FR 13498 (April 16, carbon-to-nitrogen ratio and providing 109 SCAQMD Rule 1133.3 (adopted July 8, 2011),
1992) (General Preamble) at 13540, 13560). section (d)(2)(E).
102 See 55 FR 38326 (September 18, 1990)
adequate aeration and moisture in the 110 Id. at section (d)(3).
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(revoking prior EPA guidance to the extent it 111 CARB, ‘‘ARB Emissions Inventory
104 SJVUAPCD Rule 4566 (adopted August 18,
suggested or stated that areas with severe pollution Methodology for Composting Facilities’’ (posted
problems must implement every conceivable 2011), section 5.2.1. 2015) at Table III–3 (‘‘Control Techniques for
105 Id. at section 5.2.2.
control measure including those that would cause Composting Operations’’), available at http://
severe socioeconomic disruption to satisfy RACM). 106 Id. at section 5.2.3.
www.arb.ca.gov/ei/areasrc/Composting%20
103 2014 Supplement at Attachment A (ammonia 107 SCAQMD Rule 1133.3 (adopted July 8, 2011), Emissions%20Inventory%20Methodology%20
controls). section (d)(2). Final%20Combined.pdf.
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Earthjustice, SJVUAPCD Rule 4570 and processes.112 Both VOCs and ammonia and by incorporating solid manure into
Idaho’s rule ‘‘employ drastically are emitted during these activities at crop land within 72 hours of land
different methods to reduce emissions CAFs. Given the large proportion of application.119
from dairies,’’ and the District has not ammonia emissions that come from cow In addition, SJVUAPCD Rule 4570
fully explored aspects of the Idaho rule manure produced at CAFs,113 we focus requires each owner/operator of a large
that could strengthen SJVUAPCD Rule our evaluation below on measures to dairy CAF that handles or stores solid
4570. In particular, Earthjustice asserts reduce ammonia from the production manure or separated solids outside the
that the District misconstrued a and handling of cow manure at dairy animal housing to remove dry manure
statement by the Idaho Department of CAFs. or separated solids from the facility or
Environmental Quality (Idaho DEQ) that Ammonia emissions from CAF cover it with a weatherproof covering
described the Idaho rule as employing manure processes may be reduced by from October through May, within 72
an ‘‘arbitrary’’ point system. According flushing lanes in freestall barns 114 and hours of collecting it, or to implement
to Earthjustice, the maximum number of limiting manure exposure to air through an ‘‘alternative mitigation measure’’ 120
land incorporation.115 According to the approved by CARB and the EPA.121
points in the system’s rating scale was
SJVUAPCD, freestall barns are the SJVUAPCD Rule 4570 provides, in
‘‘arbitrary’’ in the sense that another
largest source of manure at SJV Table 4.1.H, specific requirements for
number could have been selected, but
dairies.116 Rule 4570 contains applying manure to agricultural lands
the Idaho DEQ ‘‘thoroughly analyzed mandatory requirements for all dairy on the facility including the option to
the control measures and their CAFs subject to the rule that house incorporate all solid manure within 72
associated ammonia emission animals in freestalls to frequently clean hours.
reductions,’’ and allocated points based the housing flush lanes—specifically, to We are aware of only two rules
on these reductions. Because the District ‘‘flush or scrape freestall flush lanes at implemented in other areas that
has not done a similar evaluation of the least three (3) times per day’’ or to explicitly regulate ammonia emissions
measures in SJVUAPCD Rule 4570, ‘‘flush, scrape, or vacuum freestall flush from dairy facilities—the Idaho CAF
Earthjustice asserts, it has not fully lanes’’ immediately before, after, or Rule and SCAQMD Rule 1127 (Emission
compared the stringency of the rule during each milking.117 In practice, Reductions from Livestock Waste).122
against the Idaho rule. most CAFs in the SJV comply with the The Idaho CAF Rule assigns points to
Earthjustice asserts that the District’s SJVUAPCD Rule 4570 manure each ammonia mitigation measure listed
comparison of the stringency of management requirements by flushing in the rule and requires dairy farm
SJVUAPCD Rule 4570 and other manure to dilute the urea in urine, operators to implement measures that
California air district rules is which reduces ammonia emissions,118 collectively achieve at least 27
insufficient because the District points.123 The rule only applies,
112 See generally SJVUAPCD Rule 4570 (amended
considered only the number of October 21, 2010). Staff Report: Rule 4570 (October 21, 2010), at p. 10
mitigation measures required by each 113 ‘‘Ammonia Emissions and Animal (noting that ‘‘[l]iquid systems are common in large
district. Earthjustice states that the Agriculture,’’ Susan W. Gay and Katharine F. dairies due to their lower labor costs and ease of
District should consider instead the Knowlton, Virginia Cooperative Extension, Virginia use with automatic flushing systems’’).
Tech, 2009 (noting that ‘‘[a]mmonia is a common 119 Memorandum dated June 15, 2016, from Andy
ammonia emissions reductions achieved by-product of animal waste due to the often Steckel to Kerry Drake, EPA Region 9, ‘‘Summary
under each rule. Further, Earthjustice inefficient conversion of feed nitrogen into animal of our 6/10/16 Discussion with Kevin Abernathy,
states, if the District finds that other air product. Livestock and poultry are often fed high- Milk Producers Council’’; see also email dated June
districts’ mitigation measures are more protein feed, which contains surplus nitrogen, to 9, 2016, from Samir Sheikh of the SJVUAPCD to
ensure that the animals’ nutritional requirements Kerry Drake of EPA Region 9, regarding ‘‘Manure
effective in reducing emissions, it are met. Nitrogen that is not metabolized into Land Application.’’
should incorporate those measures into animal protein (i.e., milk, meat, or eggs) is excreted 120 ‘‘Alternative Mitigation Measure’’ is defined in
its rule. in the urine and feces of livestock and poultry Rule 4570 as ‘‘a mitigation measure that is
where further microbial action releases ammonia determined by the APCO, CARB, and EPA to
Response 10: We agree that the into the air during manure decomposition’’). achieve reductions that are equal to or exceed the
District appears to have misconstrued 114 W. Kroodsma, J.W.H. Huis In ’t Veld & R.
reductions that would be achieved by other
the Idaho DEQ’s statement about the Scholtens, 1993, ‘‘Ammonia emissions and its mitigation measures listed in this rule that owners/
reduction from cubicle houses by flushing,’’ operators could choose to comply with rule
point system in Idaho Rule 58.01.01, Livestock Production Science 35: 293–302. requirements.’’ SJVUAPCD Rule 4570 (amended
sections 760–764 (Rules for the Control 115 Ndegwa, P.M., A.N. Hristov, J. Arogo, and R.E. October 21, 2010), Section 3.4.
of Ammonia from Dairy Farms) Sheffield, ‘‘A review of ammonia emission 121 SJVUAPCD Rule 4570 (amended October 21,
(hereafter ‘‘Idaho CAF Rule’’) and that mitigation techniques for concentrated animal 2010), Section 5.6.1 at Table 4.1.F.
feeding operations,’’ J. Bioengineering Systems, ed. 122 See Idaho Administrative Code 58.01.01,
the District should have considered the 100, 2008, p. 463–464. section 760, and SCAQMD Rule 1127 (adopted
ammonia emission reductions achieved 116 SJVUAPCD, Final Staff Report: Rule 4570
August 6, 2004), paragraph (a). Other CAF rules in
under the rules that it evaluated, rather (October 21, 2010), at p. 9. California include SCAQMD Rule 223, BAAQMD
than simply addressing the number of 117 SJVUAPCD Rule 4570 (amended October 21, Rule 2–10, SMAQMD Rule 496, VCAPCD Rule 23,
mitigation measures required in each 2010) at Section 5.6.1 and Table 4.1.D.2. Milking Imperial County APCD (ICAPCD) Rule 217, and
generally occurs at least twice a day at a typical Butte County AQMD Rule 450. Each of these rules
rule. For the reasons provided below, dairy CAF. See Walter L. Hurley, Lactation Biology also regulates CAFs but does not establish specific
however, we find SJVUAPCD Rule 4570 Web site, ANSC 438, University of Illinois, requirements for ammonia control. For example,
adequate to satisfy RACM/RACT available at http://ansci.illinois.edu/static/ansc438/ SCAQMD Rule 223 (adopted June 2, 2006)
requirements for the 2006 PM2.5 NAAQS Lactation/milkingfrequency.html. identifies ammonia as a precursor to particulates,
118 Memorandum dated June 15, 2016, from Andy but its requirements are very similar to SJVUAPCD
in the SJV. Steckel to Kerry Drake, EPA Region 9, ‘‘Summary Rule 4570 as originally adopted June 15, 2006.
SJVUAPCD Rule 4570, as amended of our 6/10/16 Discussion with Kevin Abernathy, Similarly, ICAPCD Rule 217 states that its purpose
is to limit emissions of VOC and ammonia, but the
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Milk Producers Council’’ and W. Kroodsma, et al.,
October 21, 2010, requires that CAFs of 1993, ‘‘Ammonia emissions and its reduction from mitigation requirements are generally equivalent to
certain sizes for dairy cows, other cattle, cubicle houses by flushing,’’ Livestock Production those in SJVUAPCD Rule 4570.
swine, poultry, and layer hens Science 35: 293–302, at p. 300 (noting that 123 Idaho Administrative Code 58.01.01, section
implement measures to reduce VOC ‘‘[f]lushing has a significant emission reducing 764, paragraph 01 (‘‘Dairy farm best management
effect [because] . . . the urea concentration on slats, practices’’) (requiring dairies to ‘‘employ BMPs for
emissions during feed operations, concrete floors and in the top layer of the slurry is the control of ammonia to total twenty-seven (27)
manure management and other CAF lowered by dilution’’); see also SJVUAPCD, Final points’’).
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however, to dairy farms containing freestall flush lanes,129 SCAQMD Rule implemented by the statutory
between 1,638 and 5,063 cows, 1127 contains no analogous requirement implementation deadline for RACM/
depending on the type of dairy to regularly clean flush lanes in freestall RACT in this area (December 14, 2013),
facility.124 SJVUAPCD Rule 4570, on the barns.130 SCAQMD Rule 223, as adopted we find the requirements of SJVUAPCD
other hand, applies to dairy CAFs June 2, 2006, contains menu-based Rule 4570 adequate to satisfy RACM/
containing at least 500 milking cows options for flushing, scraping, or RACT requirements for CAFs for
and also applies to other types of CAFs, vacuuming freestall barns but does not purposes of the 2006 PM2.5 NAAQS in
including beef cattle feedlots, other specifically mandate such measures.131 the SJV.
cattle facilities, poultry facilities, and Additionally, SCAQMD Rule 1127 Comment 11: Earthjustice argues that
swine facilities.125 As we stated in our requires that a dairy operator disposing the RACM/RACT demonstration fails to
proposed rule, because the structure of of manure within the South Coast area comply with CAA section 189(a)(1)(C),
the Idaho CAF Rule differs substantially remove or contract to remove the which requires a plan to include
from the structure of SJVUAPCD Rule manure to a manure processing provisions to assure that RACM is
4570, it is difficult to compare the operation approved in accordance with implemented no later than four years
requirements in these two rules specific requirements and/or to after a moderate nonattainment
directly.126 agricultural land within the SCAQMD designation. Earthjustice asserts that
approved by local ordinance and/or the this section required the District to
Additionally, according to regional water quality board for the
information submitted by the implement RACM for the 2006 PM2.5
spreading of manure.132 Rule 1127 does standards by December 14, 2013.
SJVUAPCD, the option in the Idaho CAF not require that manure be incorporated According to Earthjustice, because the
Rule to cover synthetic lagoons (one of into agricultural land within any
the key mitigation measures in the rule) District has not implemented controls
specific timeframe to reduce ammonia identified by Earthjustice as RACM/
would not be effective in the SJV and emissions.
could increase ammonia emissions at RACT and has delayed additional
Thus, neither SJVUAPCD Rule 4570 charbroiling and residential furnace
CAFs in the SJV.127 Furthermore, the nor SCAQMD Rule 1127 strictly
Idaho CAF Rule states that ‘‘[p]oints controls, the EPA must disapprove the
requires dairy CAF operators to demonstration and place the District on
may be obtained through third party promptly remove and dispose of
export with sufficient documentation’’ a clock to ensure that the missing
collected manure to minimize ammonia measures are adopted expeditiously.
and that ‘‘[a]s new information becomes emissions. The commenter has failed to Response 11: We disagree. Section
available or upon request, the Director identify any measure implemented in 107(a) of the CAA provides states with
may determine a practice not listed in the South Coast or elsewhere that is both the authority and primary
the table constitutes a BMP and assign more stringent than the requirements of responsibility to develop SIPs that meet
a point value.’’ 128 These ambiguously SJVUAPCD Rule 4570 for this particular applicable statutory and regulatory
phrased provisions allow CAF owners/ component of the manure handling requirements for attaining, maintaining,
operators to comply with the rule by process. and enforcing the NAAQS. States have
implementing measures entirely On balance, we find that SJVUAPCD
discretion in formulating their SIPs, and
different from those listed in the rule Rule 4570 is more stringent than the
the EPA is required to approve a SIP
that may or may not be effective in Idaho CAF Rule and SCAQMD Rule
submission that satisfies the applicable
reducing ammonia emissions. The 1127 given SJVUAPCD Rule 4570
requirements of the Act.133
commenter has provided no information establishes specific requirements for the
As the commenter notes, CAA section
to support a conclusion that the frequency of flushing manure from
189(a)(1)(C) requires that each
requirements of the Idaho CAF Rule will freestall barns, which are a significant
attainment plan for a Moderate PM2.5
actually achieve ammonia emission source of manure and ammonia
nonattainment area include provisions
reductions, nor any information to emissions at dairy CAFs in SJV, while
to assure that RACM for the control of
indicate that the requirements of this the Idaho CAF Rule and SCAQMD Rule
PM2.5 and PM2.5 precursors are
rule are more stringent than those in 1127 contain no analogous
requirements. In the absence of specific implemented no later than four years
SJVUAPCD Rule 4570.
information about more stringent after the area’s designation as
SCAQMD Rule 1127, as adopted nonattainment. For the SJV area, the
August 6, 2004, applies only to livestock ammonia control requirements for CAFs
that the District could reasonably have deadline for implementation of RACM
waste (i.e., manure management) at for the 2006 PM2.5 NAAQS under CAA
dairy farms and related operations. 129 SJVUAPCD Rule 4570 (amended October 21, section 189(a)(1)(C) was December 14,
Unlike SJVUAPCD Rule 4570, which 2010) at Section 5.6.1 and Table 4.1.D.2. Milking 2013. For the reasons provided in our
explicitly requires that dairy CAFs generally occurs at least twice a day at a typical proposed rule and further explained
regularly flush, scrape, or vacuum dairy CAF. Walter L. Hurley, Lactation Biology Web above in Response 6 through Response
site, ANSC 438, University of Illinois at http://
ansci.illinois.edu/static/ansc438/Lactation/ 10, we conclude that the 2012 PM2.5
124 Id. at section 761 (‘‘General applicability’’). milkingfrequency.html. Plan and 2014 Supplement provide for
125 SJVUAPCD Rule 4570 (amended October 21, 130 SCAQMD Rule 1127 does require dairies to the implementation of all RACM/RACT
2010), Table 2 and Section 5.6. remove manure accumulated in corrals at least 4
126 80 FR 1816, 1829–30 (January 13, 2015)
that could reasonably be implemented
times per year and to remove manure stockpiles
(noting, for example, that the Idaho CAF Rule within 3 months of the last corral clearing day, and
in the SJV by the statutory
identifies certain mitigation measures that are not no more than 3 months after the date that previous implementation deadline, as required by
included in SJVUAPCD Rule 4570, while Rule 4570 stockpiles were last completely cleared. SCAQMD CAA sections 172(c) and 189(a)(1)(C).
contains more stringent applicability thresholds Rule 1127 (adopted August 6, 2004), sections (d)(4) Additionally, we disagree with the
and provisions for testing and records retention). and (d)(5).
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127 Email dated June 25, 2015 from Sheraz Gill of 131 SCAQMD Rule 223, Appendix A, Table 1.C
commenter’s assertion that revisions to
the SJVUAPCD to Andrew Steckel of EPA Region (requiring owners/operations at large dairy CAFs SJVUAPCD Rule 4901 (‘‘Wood Burning
9, regarding ‘‘Requested Information’’ and that house animals in freestall barns to implement
attachment, ‘‘Evaluation of Covers Lagoons Manure at least 2 of 9 listed mitigation measures, including 133 CAA section 110(k)(3), 42 U.S.C. 7410(k)(3)
Piles for NH3.pdf.’’ measures to regularly flush, scrape or vacuum and 40 CFR 52.02(a); see also Union Elec. Co. v.
128 Idaho Administrative Code 58.01.01, at section freestalls). EPA, 427 U.S. 246, 250 (1976); Train v. Natural Res.
764–01 (‘‘BMPs’’). 132 Id. at section (e). Def. Council, 421 U.S. 60, 79 (1975).
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Fireplaces and Wood Burning Heaters’’) longstanding practice in this regard was that allows for approval of attainment
are necessary to satisfy RACM at odds with the CAA requirement that plans that rely on state commitments,
requirements for the 2006 PM2.5 NAAQS state and local emissions limits relied and that commitments such as those
in the SJV. See Response 6.d. Similarly, upon to meet the NAAQS be enforceable identified in the 2012 PM2.5 Plan are not
we disagree with the commenter’s by the EPA or private citizens through permissible in PM2.5 attainment plans.
assertion that SJVUAPCD Rule 4692 adoption and approval of such limits in Section 182(e)(5) of the CAA
(Commercial Charbroiling) fails to the SIP.134 authorizes the EPA to approve
satisfy RACM requirements for the 2006 In response to the court’s decision, provisions of an attainment plan for an
PM2.5 NAAQS in the SJV. See Response CARB has adopted the necessary waiver extreme ozone nonattainment area that
6.e. measures as revisions to the California anticipate development of new control
Comment 12: Earthjustice argues that SIP and submitted them to the EPA for techniques or improvement of existing
much of the Plan’s control strategy is approval.135 The EPA proposed to control technologies, and to approve an
unenforceable and that this is approve the waiver measures into the attainment demonstration based on such
inconsistent with CAA section California SIP at 80 FR 69915 provisions, if, inter alia, the State has
110(a)(2)(A), which requires SIPs to (November 12, 2015) and took final submitted enforceable commitments to
‘‘include enforceable emissions action to approve these measures into submit adopted contingency measures
limitations and other control measures.’’ the SIP at 81 FR 39424 (June 16, 2016). meeting certain criteria no later than
Specifically, Earthjustice argues that Accordingly, these waiver measures are three years before proposed
three control strategies challenged in now enforceable by the EPA or private implementation of the new technology
recent litigation are not enforceable: (1) citizens under the CAA, consistent with measures.136 Contrary to the
Mobile sources measures that are not the enforceability requirement in CAA commenter’s suggestion, section
included in the SIP; (2) open-ended section 110(a)(2)(A). 182(e)(5) is not the only provision in the
tonnage commitments; and (3) voluntary Comment 12b: Open-ended CAA that allows for approval of
incentive programs. commitments. Earthjustice asserts that attainment plans that rely on
Comment 12a: Mobile source the District’s commitment to reduce enforceable commitments. Sections
‘‘waiver’’ measures. Earthjustice notes direct PM2.5 by 1.9 tons per day (tpd) by 110(a)(2)(A) and 172(c)(6) of the CAA
that a significant portion of the 2019 is not enforceable. According to require that SIPs include enforceable
emissions reductions in the Plan come Earthjustice, although the District has emission limitations and such other
from state mobile source measures for committed to proposing certain control measures, means or techniques,
which the EPA has issued a waiver measures to its board, it has not as well as schedules and timetables for
under CAA section 209. Earthjustice specified when it will implement those compliance, as may be necessary or
argues that because these measures are measures or committed to achieving appropriate to provide for attainment of
not included in the SIP, they are not reductions as a result of the measures. the NAAQS by the applicable
enforceable by either the EPA or Earthjustice characterizes these attainment date. For over 20 years, the
citizens, and therefore do not meet the measures as ‘‘goals’’ that have been EPA has consistently maintained its
requirements of CAA section found by courts to be unenforceable, interpretation of these provisions as
110(a)(2)(A). citing Bayview Hunters Point allowing for approval, under certain
Earthjustice also criticizes the EPA’s Community Advocates v. Metropolitan circumstances, of a SIP that contains an
general policy of not including these Transportation Commission, 366 F.3d enforceable commitment to adopt
‘‘waiver measures’’ in the SIP. 692 (9th Cir. 2004). According to additional controls as part of a
Earthjustice argues that requiring the Earthjustice, it will be ‘‘virtually comprehensive control strategy for
EPA to approve waiver measures into impossible’’ for either citizens or the attaining the NAAQS.137 The EPA’s
the SIP is not inconsistent with EPA to determine whether the District interpretation of the Act as allowing for
Congress’ intent to provide California has in fact met its 2019 reduction target, approval of limited enforceable
with ‘‘the broadest possible discretion’’ citing the EPA’s statement at 57 FR at commitments has been upheld by
to develop mobile source measures, and 13,568 that ‘‘[a] regulatory limit is not several courts of appeals.138
that there is no conflict between CAA enforceable if, for example, it is As explained in our proposed rule, we
sections 110 and 209 that would prevent impractical to determine compliance generally consider three factors in
the EPA from adding these measures to with the published limit.’’ Additionally,
the SIP. Additionally, Earthjustice citing CAA section 182(e)(5), 136 CAA section 182(e)(5).
argues that Congress has not ratified the Earthjustice asserts that the CAA allows 137 See, e.g., 62 FR 1150, 1187 (Jan. 8, 1997)
EPA’s policy of excluding waiver (approving ozone attainment demonstration for the
‘‘open-ended commitments’’ only in South Coast Air Basin); 65 FR 18903 (Apr. 10, 2000)
measures from SIPs, asserting that the limited circumstances and that there is (approving revisions to ozone attainment
EPA had not affirmatively expressed its no parallel provision for creating such a demonstration for the South Coast Air Basin); 63 FR
policy until recently and that the agency ‘‘black box’’ in PM2.5 plans. 41326 (Aug. 3, 1998) (promulgating federal
implementation plan for PM–10 for Phoenix); 69 FR
has contradicted this policy in previous Response 12b: We disagree with the 30005 (May 26, 2004) (approving PM–10 attainment
statements. commenter’s claim that the District’s demonstration for San Joaquin Valley); 48 FR 51472
Response 12a: The EPA has commitments in the 2012 PM2.5 Plan are (approving ozone attainment demonstration for
historically allowed California to take not enforceable. We also disagree with New Jersey).
138 See, e.g., City of Seabrook v. EPA, 659 F.2d
credit for measures for which the state the commenter’s suggestion that the 1349 (5th Cir. 1981); Connecticut Fund for the
has obtained a waiver of federal long-term strategy provision for ozone Environment v. EPA, 672 F.2d 998 (2d Cir.), cert.
preemption under CAA section 209 attainment plans in CAA section denied 459 U.S. 1035 (1982); BCCA Appeal Group
(‘‘waiver’’ measures) even though the 182(e)(5) is the only statutory provision v. EPA, 355 F.3d 817 (5th Cir. 2003), reh’g denied,
ehiers on DSK5VPTVN1PROD with RULES
2004 U.S. App. LEXIS 215 (5th Cir., January 8,
waiver measures themselves (i.e., 2004); Environmental Defense v. EPA, 369 F.3d 193,
CARB’s regulations) had not been 134 See Committee for a Better Arvin v. EPA, 786
209 (2d Cir. 2004); and Committee for a Better Arvin
adopted and approved as part of the F.3d 1169 (9th Cir. 2015). v. EPA, 786 F.3d 1169 (9th Cir. 2015) (upholding
135 See letter dated August 14, 2015, from Richard
California SIP. However, a recent EPA approval of CARB and SJVUAPCD
W. Corey, Executive Officer, California Air commitments as enforceable SIP measures
decision by the Ninth Circuit Court of Resources Board, to Jared Blumenfeld, Regional consistent with requirements of CAA section
Appeals held that the EPA’s Administrator, EPA Region 9, with attachments. 110(a)(2)(A)).
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rulemaking to approve SJVUAPCD Rule Rule 9610 ‘‘establishes an rulemaking, to determine whether the
4901.145 administrative mechanism designed to applicable requirements of the Act are met
Comment 12c: Voluntary incentive ensure that each SIP submittal in which [internal citations omitted]. Nothing in
programs. Earthjustice states that the today’s action prohibits EPA from
the District relies upon emission disapproving a SIP relying on incentive-
EPA’s suggestion that Rule 9610 (State reductions achieved through based emission reductions that fails to satisfy
Implementation Plan Credit for implementation of incentive programs the requirements of the CAA.152
Emission Reductions Generated in the SJV will adequately address the
Through Incentive Programs) may requirements of the Act.’’ 147 The With respect to Earthjustice’s
provide emission reductions to help requirements and procedures in Rule statement that ‘‘[t]he requirement to
satisfy the District’s tonnage 9610 apply only to the District and lay reduce emissions in exchange for
commitment is particularly confusing. incentive funding is not enshrined in
the groundwork for the District’s
Earthjustice understands the EPA’s any sort of control measure that is
incorporation of incentive programs into
proposed approval of Rule 9610 and included in the [SIP] and enforceable by
air quality plans going forward.148 The
related technical support document to EPA or citizens,’’ we note that under
EPA finalized a limited approval and
say that an incentive program’s longstanding EPA guidance, SIP credit
limited disapproval of Rule 9610 on
compliance with the rule’s SIP- may be allowed for a voluntary or other
April 9, 2015, thereby making its
creditability definitions does not mean nontraditional measure only where the
requirements and procedures
that the incentive program is, in fact, State submits enforceable mechanisms
enforceable by the EPA or citizens
SIP-creditable. Thus, Earthjustice states, to ensure that the emission reductions
against the District.149
commenters ‘‘do not understand how necessary to meet applicable CAA
As part of our proposed action on the
Rule 9610 itself will provide any requirements are achieved—e.g., an
2012 PM2.5 Plan, we listed SJVUAPCD
creditable emission reductions.’’ enforceable commitment to monitor and
Rule 9610 among the District’s rule
More fundamentally, Earthjustice report on emission reductions achieved
amendment commitments 150 and
asserts, the emissions reductions that and to rectify any shortfall in a timely
explained that the District had
may be achieved through the District’s manner.153 Thus, if California intends to
committed to adopt, submit, and
incentive programs cannot be credited satisfy a SIP requirement through
implement Rule 9610 to ‘‘provide a
in a SIP unless they are treated under reliance on an incentive program that
process for quantifying emissions
the EPA’s voluntary emissions the EPA and citizens may not directly
reductions from the use of incentive enforce against participating sources,
reductions policy. Earthjustice states funds.’’ 151 To the extent our proposed
that ‘‘[t]he requirement to reduce the State/District must take
rule suggested that SJVUAPCD Rule responsibility for assuring that SIP
emissions in exchange for incentive 9610 may itself be a SIP-creditable
funding is not enshrined in any sort of emission reduction requirements are
control measure, we hereby clarify that met through an enforceable
control measure that is included in the this rule does not achieve any SIP-
[SIP] and enforceable by EPA or commitment, which the EPA and
creditable emission reductions and citizens may enforce against the State/
citizens’’ and that, as with ‘‘waiver therefore cannot be credited for any SIP
measures,’’ approval of a strategy built District upon the EPA’s approval of the
purpose. commitment into the SIP.154 Approval
upon these reductions would (again) Additionally, to the extent
violate Clean Air Act section of a control strategy built upon emission
Earthjustice intended to assert that reductions achieved through incentive
110(a)(2)(A).’’ emissions reductions achieved through
Response 12c: We agree with programs may satisfy CAA section
a state or local incentive program cannot 110(a)(2)(A) only if these enforceability
Earthjustice’s statement that SJVUAPCD be credited in a SIP except through a
Rule 9610 itself is not a SIP-creditable requirements are met.155
SIP submission that satisfies the
control measure and that the District requirement of the Act as interpreted in 152 80 FR 19020, 19022 (April 9, 2015).
therefore cannot rely on this rule to EPA guidance, we agree. As we 153 Id. at 19026.
satisfy any SIP emission reduction explained in our final action on 154 Id.
commitments. SJVUAPCD Rule 9610: 155 The EPA has recommended presumptive
SJVUAPCD Rule 9610, as adopted limits on the amounts of emission reductions from
June 20, 2013, establishes a regulatory We expect the District to address the certain voluntary and other nontraditional measures
framework for the District’s applicable requirements of the CAA in each that may be credited in a SIP. Specifically, for
individual SIP submittal that relies on voluntary mobile source emission reduction
quantification of emission reductions
incentive programs, and our programs (VMEPs), the EPA has identified a
achieved through incentive programs recommendations in both the proposal and presumptive limit of three percent (3%) of the total
and provides opportunities for the EPA, today’s final rule are intended to provide the projected future year emission reductions required
CARB, and the public to review and District with general guidance on how these to attain the appropriate NAAQS, and for any
comment on the District’s evaluations requirements, as interpreted in EPA particular SIP submittal to demonstrate attainment
guidance, apply to future SIP submittals or maintenance of the NAAQS or progress toward
on an annual basis. As we stated in our attainment (e.g., RFP), 3% of the specific statutory
May 19, 2014 proposal to approve Rule developed pursuant to Rule 9610 and the
requirement. See, e.g., ‘‘Guidance on Incorporating
9610, the rule ‘‘does not establish any requirements of the Act. . . . EPA will Voluntary Mobile Source Emission Reduction
review each SIP submittal developed Programs in State Implementation Plans (SIPs),’’
emission limitation, control measure, or
pursuant to Rule 9610 (including the EPA, Office of Air and Radiation (OAR), October 24,
other requirement that applies directly necessary evaluation of the applicable 1997, at 5 and ‘‘Improving Air Quality with
to an emission source’’ and therefore ‘‘is incentive program guidelines) on a case-by- Economic Incentive Programs,’’ EPA, OAR, January
not intended to implement the case basis, following notice-and-comment 2001, at 158. For voluntary stationary and area
reasonably available control technology source measures, the EPA has identified a
(RACT) standard or any other control 147 Id. presumptive limit of 6% of the total amount of
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emission reductions required for RFP, attainment,
standard under the Act.’’ 146 Instead, 148 Id.
or maintenance demonstration purposes. See, e.g.,
149 80 FR 19020 (April 9, 2015) (concluding that
‘‘Incorporating Emerging and Voluntary Measures
145 EPA, Final Rule, ‘‘Approval of California Air Rule 9610 largely satisfies CAA requirements but in a State Implementation Plan,’’ EPA, OAR,
Plan Revisions, San Joaquin Valley Unified Air contains several deficiencies warranting limited September 2004 (‘‘2004 Emerging and Voluntary
Pollution Control District,’’ August 15, 2016 (pre- disapproval). Measures Guidance’’) at 9 and ‘‘Incorporating
publication notice). 150 80 FR 1816 at 1827 (Table 2), 1832 (Table 3).
Bundled Measures in a State Implementation Plan
146 79 FR 28650, 28652 and n. 5 (May 19, 2014). 151 80 FR 1816, 1831 (emphasis added). (SIP),’’ August 2005 (‘‘2005 Bundled Measures
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D. Comments on RFP, RFP Contingency or may reasonably be required by the represents reasonable further progress
Measures, and Quantitative Milestones Administrator for the purpose of toward attainment.
Comment 13: Earthjustice disagrees ensuring attainment of the applicable We also disagree with the
with the EPA’s proposal to approve the NAAQS by the applicable date. In the commenter’s claim that the Plan’s
RFP demonstration in the Plan, quoting EPA’s July 29, 2016 final rule to RACM/RACT demonstration for
the statutory definition of ‘‘reasonable implement the PM2.5 NAAQS, the EPA ammonia cannot support the RFP targets
further progress’’ in CAA section 171(1) explained that for areas that cannot approved by the EPA because it is
and asserting that the EPA’s approach to demonstrate attainment by the statutory incomplete and lacks any RACM/RACT
RFP ‘‘divorces the RFP targets from deadline for Moderate areas in CAA requirements. For the reasons provided
attainment altogether by claiming that section 188(c)(1), the state must above in Response 6 through Response
the RFP requirement of CAA section demonstrate either generally linear or 10, we find the RACM/RACT
172(c)(2) can be met by assuring stepwise emissions reductions toward demonstration in the 2012 PM2.5 Plan
implementation of RACM/RACT.’’ the full amount of reductions that will consistent with the statutory
Earthjustice asserts that RFP is a be achieved by that deadline, i.e., the requirement for RACM/RACT in CAA
requirement separate and independent amount that reflects implementation of section 189(a)(1)(C).
from RACM/RACT and that the EPA’s all of the control measures identified as Finally, we disagree with
approach undermines Congress’ intent RACM and RACT and additional Earthjustice’s claim that the Plan fails to
for RFP and milestones to serve as reasonable measures for the entire satisfy the RFP requirement because it
enforceable targets that will trigger period of the applicable attainment allows ammonia emissions to increase
consequences when RACM/RACT plan.156 The EPA explained that after 2012 and, therefore, does not
controls are not implemented on a provide annual incremental reductions
generally linear progress toward this full
particular schedule. as required by CAA section 171. As the
Earthjustice also states that the Plan’s amount would meet the RFP
requirement, while slower progress EPA explained in the preamble to the
RACM/RACT demonstration cannot July 29, 2016 final rule to implement the
support the RFP targets approved by the would require further justification.157
PM2.5 NAAQS, states may in certain
EPA because it is incomplete, As we explained in our proposed rule, circumstances develop approvable RFP
particularly for ammonia. According to the 2012 PM2.5 Plan shows that plans in which emissions of one or more
Earthjustice, the ammonia RACM/RACT emissions of direct PM2.5, NOX and SOX PM2.5 precursors subject to control
demonstration sets no RACM/RACT will decline from the 2007 base year evaluation are not decreasing. The EPA
requirements and therefore makes it through 2015 and states that emissions explained that in this scenario:
impossible to assess whether the Plan will remain below the levels needed to
will achieve RFP. Further, Earthjustice . . . The state must demonstrate that the
show ‘‘generally linear progress’’ from emissions reductions of direct PM2.5
says, because the Plan allows ammonia 2007 to 2019, the year that the Plan combined with the aggregate emissions
emissions to increase after 2012, it does projects to be the earliest practicable reductions of PM2.5 plan precursors support
not provide ‘‘annual incremental attainment date.158 The Plan also expeditious attainment of the applicable
reductions’’ (emphasis in comment) as demonstrates that all RACM/RACT and PM2.5 NAAQS. To accomplish this, the EPA
required by CAA section 171. additional reasonable measures for expects that a state could use the relative air
Earthjustice states that the EPA must quality impacts of the different PM2.5 plan
sources of direct PM2.5, NOX, SOX and
disapprove the RFP demonstration precursors identified in the attainment
ammonia are being implemented as
because it has no basis for concluding modeling to demonstrate that the emissions
that the Plan will provide such annual expeditiously as practicable 159 and reductions of direct PM2.5 and aggregate
incremental reductions in emissions of identifies projected emission levels for PM2.5 plan precursors constitute an
the relevant air pollutant as are required each of these pollutants in 2014 and acceptable RFP plan. For example, the state
2017 that reflect full implementation of could demonstrate that even if one or more
for the purpose of ensuring attainment
the State’s and District’s Moderate area PM2.5 plan precursor is not decreasing, the
by the applicable date. emissions reductions of direct PM2.5 and the
Response 13: We disagree with the control strategy for the area.160 In an
remaining PM2.5 plan precursors are the
commenter’s assertion that the EPA’s area that cannot practicably attain the dominant factors in reducing ambient PM2.5
approach to RFP in this action is PM2.5 NAAQS by the applicable levels and are therefore adequate to support
inconsistent with the statutory RFP Moderate area attainment date, we expeditious attainment. In providing this
requirements. believe it is reasonable to find that full flexibility, the EPA recognizes that control
Section 172(c)(2) of the Act requires implementation of a control strategy measures for certain pollutants may be more
that plan provisions for all PM2.5 that satisfies the Moderate area control effective at reducing PM2.5 concentrations
nonattainment areas require RFP, which requirements (i.e., RACM/RACT and than others, and that states may be able to
is defined in section 171(1) as such additional reasonable measures) implement some measures more quickly than
others while still achieving reasonable
annual incremental reductions in
overall progress toward attainment.161
emissions of the relevant air pollutant as 156 EPA, Final Rule, ‘‘Fine Particulate Matter
are required by part D, title I of the Act National Ambient Air Quality Standards: State Consistent with these
Implementation Plan Requirements,’’ July 29, 2016 recommendations, the 2012 PM2.5 Plan
(pre-publication notice) at pp. 178–179.
Guidance’’), at 8. The EPA has also long stated, 157 Id. demonstrates that despite the increase
however, that states may justify higher amounts of in ammonia emissions after 2012, the
158 80 FR 1816, 1835 (January 13, 2015) (citing
SIP emission reduction credit for voluntary
programs on a case-by-case basis, and that the EPA 2012 PM2.5 Plan, section 9.3). reductions in emissions of direct PM2.5,
may approve measures for SIP credit in excess of 159 As explained in Response 12b, supra, we are NOX and SOX are the dominant factors
approving the District’s commitment in the 2012
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the presumptive limits ‘‘where a clear and in reducing ambient PM2.5 levels and are
convincing justification is made by the State as to PM2.5 Plan to adopt Rule 4905 in 2014 as an
additional reasonable measure under CAA section
therefore adequate to support
why a higher limit should apply in [its] case.’’ 2004
Emerging and Voluntary Measures Guidance at 9; 172(c)(6) because it is a control measure
see also 2005 Bundled Measures Guidance at 8, n. implemented after the RACM implementation 161 EPA, Final Rule, ‘‘Fine Particulate Matter
6 and ‘‘Diesel Retrofits: Quantifying and Using deadline (December 14, 2013) but before the National Ambient Air Quality Standards: State
Their Emission Benefits in SIPs and Conformity,’’ Moderate area attainment date (December 31, 2015). Implementation Plan Requirements,’’ July 29, 2016
EPA, OTAQ, February 2014, at 12. 160 Id. at 1835, 1836. (pre-publication notice) at p. 179.
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the average response of geographically areawide NOX emissions reductions and argues that because the RFP
distributed emission reductions but of areawide direct PM2.5 reductions, and demonstration is not approvable, the
does not show the effect of any to express the ratio of these modeled EPA also should not approve the
particular offset for a new source, and sensitivities as an interpollutant trading MVEBs.
it is unclear how it is related to the ratio. Variable factors in this method Response 19: We disagree with
aggregate effect of many such trades. included the extent of the area over Earthjustice’s claim that the EPA should
Because the 2012 PM2.5 Plan does not which emission reductions were disapprove the MVEBs in the Plan.
address the locations of either the PM2.5 applied and the location(s) at which the As we explained above in Response
precursor emission increases and offsets resulting ambient PM2.5 effect was 13, we are approving the RFP
or the ambient PM2.5 effects, we find the evaluated. As part of the EPA’s demonstration in the 2012 PM2.5 Plan
technical analyses in the Plan November 2011 action partially based on our conclusion that it provides
insufficient to demonstrate that the approving the 2008 PM2.5 Plan for the for generally linear reductions in
District’s proposed offset ratio will 1997 PM2.5 NAAQS in the SJV, the EPA emissions of direct PM2.5 and PM2.5
assure reasonable progress toward stated that this methodology ‘‘is precursors in the aggregate and,
attainment of the PM2.5 NAAQS in the adequate for purposes of assessing the therefore, provides for such annual
SJV. effect of area-wide emissions changes, incremental reductions in emissions of
such as are used in RFP, contingency the relevant air pollutant as are required
F. Comments on Motor Vehicle by part D, title I of the Act or may
Emissions Budgets measures, and conformity budgets.’’ 174
In the TSD supporting that action, we reasonably be required by the
Comment 18: Earthjustice agrees with stated that ‘‘[t]he method modeled Administrator for the purpose of
the EPA’s proposal to disapprove the ‘across the board’ emission changes over ensuring attainment of the 2006 PM2.5
interpollutant trading ratios for NSR but the entire modeling domain; emissions NAAQS by the applicable attainment
argues that the EPA should also considered in transportation conformity date.
disapprove the District’s 8:1 ratio for are also domain-wide.’’ 175 The 2012 PM2.5 Plan contains 2014
offsetting mobile source emission As part of our proposed action on the and 2017 MVEBs for emissions of direct
increases of PM2.5 for conformity PM2.5 and NOX. We proposed to
2012 PM2.5 Plan, we stated that the
purposes. Earthjustice claims that the approve these budgets based on a
areawide methodology used in the 2008
EPA did not evaluate the methodology conclusion that they are consistent with
PM2.5 Plan gave a range of IPT ratios
supporting this ratio and instead applicable requirements for RFP, are
from 2.8 to 4.7, depending on the
approved it on the basis that it was more clearly identified and precisely
ambient location chosen.176 Using the
stringent than regional modeling quantified, and meet all other applicable
same method would entail using the IPT
determinations. According to statutory and regulatory requirements
ratio evaluated at the California Street,
Earthjustice, given the EPA concluded including the adequacy criteria in 40
Bakersfield design value site, 4:3. The
that the regional modeling was arbitrary CFR 93.118(e)(4).178 Additionally, in
8:1 ratio used in the Plan is larger than
and lacked any rationale for its accordance with 40 CFR 93.102(b)(2)(v),
both the Bakersfield ratio and any ratio we proposed to find that on-road
methodology, the mere fact that the
using variants of the previously- emissions of VOCs, SO2 and ammonia
conformity ratios are ‘‘more stringent’’
approved approach, and is thus a more are not significant contributors to the
does not provide the EPA with any
stringent (and conservatively high) PM2.5 nonattainment problem in the SJV
rational basis for approving an 8:1 ratio
for conformity purposes. trading mechanism to use for estimating area, and accordingly, that
Response 18: The EPA disagrees with the NOX reductions needed to offset transportation conformity requirements
Earthjustice’s claim that the 8:1 PM2.5 increases.177 We are approving do not apply for these pollutants in this
NOX:direct PM2.5 ratio for transportation the 8:1 trading ratio for transportation area.179 In April 2016, the EPA found
conformity has no rational basis. As an conformity purposes because it is the direct PM2.5 and NOX MVEBs in the
initial matter, we note that the EPA did significantly more stringent than any of Plan, as submitted December 29, 2014,
not state that the regional modeling was the other ratios calculated in the Plan adequate for transportation conformity
arbitrary, but rather that the Plan had for different locations in the SJV, all of purposes.180 On November 13, 2015, the
not provided a rationale for its which were calculated using a State submitted revised direct PM2.5 and
particular approach to using modeled methodology that the EPA previously NOX budgets based on EMFAC2014 for
sensitivity ratios to derive IPT ratios for approved for transportation conformity the 2006 PM2.5 NAAQS. The EPA
NSR offsetting purposes.172 The EPA purposes in the SJV. proposed to approve these revised
made these statements in the context of Comment 19: Earthjustice comments budgets based on our conclusion that
NNSR permitting requirements, not that the EPA’s conformity regulations the 2012 PM2.5 Plan continues to meet
trading mechanisms for transportation require MVEB to be consistent with the applicable requirements for RFP in 2017
conformity purposes. requirements for RFP. Earthjustice when the EMFAC2011-based budgets
The District’s methodology for are replaced with the new EMFAC2014-
174 76 FR 69896, 69919 (November 9, 2011).
estimating the IPT ratio for conformity based budgets and that these budgets are
175 EPA, Region 9, Air Division, ‘‘Technical
purposes is essentially an update (based clearly identified, precisely quantified,
Support Document and Responses to Comments,
on newer modeling) of the approach Final Rule on the San Joaquin Valley 2008 PM2.5 and meet all of the other criteria in 40
that the EPA previously approved for State Implementation Plan,’’ September 30, 2011, at CFR 93.118(e)(4).181
the 2008 PM2.5 Plan for the 1997 PM2.5 pp. 46 and 165. The commenter has not identified any
176 The maximum ratio for the 1st Street location
NAAQS in the SJV.173 The District’s information that compels us to
in Fresno was actually 5:2, based on emission
approach in the 2008 PM2.5 Plan was to reduction sensitivities for NOX and for direct PM
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model the ambient PM2.5 effect of in the State’s Weight of Evidence Analysis,
178 80 FR 1816, 1840 (January 13, 2015).
179 Id.
Appendix G to the 2012 PM2.5 Plan, Table 7, p. G–
172 80 FR 1816, 1838 (January 13, 2015). 65. 180 Letter dated April 1, 2016, from Deborah
173 See 80 FR 1816, 1841 (January 13, 2015) 177 The Bakersfield ratio is based on values in Jordan, Director, Air Division, EPA, to Richard W.
(noting the EPA’s prior approval of MVEBs for the ‘‘Table 7. Modeled PM2.5 air quality benefit per ton Corey, Executive Officer, California Air Resources
1997 annual and 24-hour PM2.5 standards in the of valley wide precursor emission reductions’’, Board, and 81 FR 22194 (April 15, 2016).
2008 PM2.5 Plan at 76 FR 69896, November 9, 2011). 2012 PM2.5 Plan, Appendix G, p. 65. 181 81 FR 31212, 31218 (May 18, 2016).
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substantial number of small entities I. National Technology Transfer and PART 52—APPROVAL AND
under the RFA. This action will not Advancement Act (NTTAA) PROMULGATION OF IMPLMENTATION
impose any requirements on small PLANS
entities beyond those imposed by state Section 12(d) of the NTTAA directs
law. the EPA to use voluntary consensus ■ 1. The authority citation for part 52
standards in its regulatory activities continues to read as follows:
D. Unfunded Mandates Reform Act unless to do so would be inconsistent
(UMRA) Authority: 42 U.S.C. 7401 et seq.
with applicable law or otherwise
This action does not contain any impractical. The EPA believes that this Subpart F—California
unfunded mandate as described in action is not subject to the requirements
UMRA, 2 U.S.C. 1531–1538, and does of section 12(d) of the NTTAA because ■ 2. Section 52.220 is amended by
not significantly or uniquely affect small application of those requirements would adding paragraphs (c)(476)(ii)(A)(2),
governments. This action does not be inconsistent with the CAA. (c)(478), and (c)(479) to read as follows:
impose additional requirements beyond
those imposed by state law. J. Executive Order 12898: Federal § 52.220 Identification of plan—in part.
Accordingly, no additional costs to Actions To Address Environmental * * * * *
State, local, or tribal governments, or to Justice in Minority Populations and (c) * * *
the private sector, will result from this Low-Income Population (476) * * *
action. (ii) * * *
The EPA lacks the discretionary (A) * * *
E. Executive Order 13132: Federalism authority to address environmental (2) Attachment A to Resolution 15–50,
This action does not have federalism justice in this rulemaking. ‘‘Updates to the Transportation
implications. It will not have substantial Conformity Budgets for the San Joaquin
K. Congressional Review Act (CRA) Valley 2007 PM10, 2007 Ozone and 2012
direct effects on the states, on the
relationship between the national PM2.5 SIPs,’’ Table A–2 (Updated
This action is subject to the CRA, and
government and the states, or on the Transportation Conformity Budgets for
the EPA will submit a rule report to the 2012 PM2.5 Plan (Tons per winter
distribution of power and each House of the Congress and to the
responsibilities among the various day).
Comptroller General of the United
levels of government. * * * * *
States. This action is not a ‘‘major rule’’
(478) The following plan was
F. Executive Order 13175: Coordination as defined by 5 U.S.C. 804(2). submitted on March 4, 2013, by the
With Indian Tribal Governments Governor’s Designee.
L. Petitions for Judicial Review
This action does not have tribal (i) [Reserved]
implications, as specified in Executive Under section 307(b)(1) of the Clean (ii) Additional materials.
Order 13175, because the SIP is not Air Act, petitions for judicial review of (A) San Joaquin Valley Unified Air
approved to apply on any Indian this action must be filed in the United Pollution Control District.
reservation land or in any other area States Court of Appeals for the (1) ‘‘2012 PM2.5 Plan’’ (dated
where the EPA or an Indian tribe has appropriate circuit by October 31, 2016. December 20, 2012), adopted December
demonstrated that a tribe has Filing a petition for reconsideration by 20, 2012, except for the motor vehicle
jurisdiction, and will not impose the Administrator of this final rule does emission budgets used for
substantial direct costs on tribal not affect the finality of this rule for the transportation conformity purposes.
governments or preempt tribal law. purposes of judicial review nor does it (2) SJVUAPCD Governing Board
Thus, Executive Order 13175 does not Resolution No. 12–12–19, dated
extend the time within which a petition
apply to this action. December 20, 2012, ‘‘In the Matter of
for judicial review may be filed, and
Adopting the San Joaquin Valley
G. Executive Order 13045: Protection of shall not postpone the effectiveness of Unified Air Pollution Control District
Children From Environmental Health such rule or action. This action may not 2012 PM2.5 Plan.’’
Risks and Safety Risks be challenged later in proceedings to (3) SJVUAPCD’s commitments to
The EPA interprets Executive Order enforce its requirements (see section adopt and implement specific rules and
13045 as applying only to those 307(b)(2)). measures by the dates specified in
regulatory actions that concern List of Subjects in 40 CFR Part 52 Chapter 5 of the 2012 PM2.5 Plan to
environmental health or safety risks that achieve the emissions reductions shown
the EPA has reason to believe may Environmental protection, Air therein, and to submit these rules and
disproportionately affect children, per pollution control, Ammonia, measures to CARB within 30 days of
the definition of ‘‘covered regulatory Incorporation by reference, adoption for transmittal to EPA as a
action’’ in section 2–202 of the Intergovernmental relations, Nitrogen revision to the SIP, or if the total
Executive Order. This action is not dioxide, Particulate matter, Reporting emission reductions from the adopted
subject to Executive Order 13045 and recordkeeping requirements, Sulfur rules are less than those committed to
because it does not impose additional oxides, Volatile organic compounds. in the Plan, to adopt, submit, and
requirements beyond those imposed by implement substitute rules that will
Authority: 42 U.S.C. 7401 et seq. achieve equivalent reductions in
state law.
Dated: August 16, 2016. emissions of direct PM2.5 or PM2.5
H. Executive Order 13211: Actions That precursors in the same adoption and
Alexis Strauss,
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Significantly Affect Energy Supply, implementation timeframes or in the
Distribution, or Use Acting Regional Administrator, EPA Region
9. timeframes needed to meet CAA
This action is not subject to Executive milestones, as stated on p. 4 of
Order 13211, because it is not a Chapter I, title 40 of the Code of SJVUAPCD Governing Board Resolution
significant regulatory action under Federal Regulations is amended as 12–12–19, dated December 20, 2012.
Executive Order 12866. follows: (B) California Air Resources Board.
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![Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Rules and Regulations 59901
(1) CARB Resolution 13–2, dated ‘‘Medicare Program; Inpatient Federal Register and provide a period
January 24, 2013, ‘‘San Joaquin Valley Rehabilitation Facility Prospective for public comment before the
PM2.5 State Implementation Plan.’’ Payment System for Federal Fiscal Year provisions of a rule take effect.
(479) The following plan was 2017’’ (hereinafter referred as the FY Similarly, section 1871(b)(1) of the Act
submitted on November 6, 2014, by the 2017 IRF PPS final rule), there were requires the Secretary to provide for
Governor’s Designee. typographical errors that are identified notice of the proposed rule in the
(i) [Reserved] and corrected in this correcting Federal Register and provide a period of
(ii) Additional materials. document. The correction is applicable not less than 60 days for public
(A) San Joaquin Valley Unified Air as of August 30, 2016. comment. In addition, section 553(d) of
Pollution Control District. the APA and section 1871(e)(1)(B)(i) of
(1) ‘‘Supplemental Document, Clean II. Summary of Errors in the Preamble the Act mandate a 30-day delay in
Air Act Subpart 4: The 2012 PM2.5 Plan On page 52118 of the FY 2017 IRF effective date after issuance or
for the 2006 PM2.5 Standard and District PPS final rule, we inadvertently publication of a rule. Sections 553(b)(B)
Rule 2201 (New and Modified included a reference to Table 10 instead and 553(d)(3) of the APA provide for
Stationary Source Review)’’ (dated of Table 18. exceptions from the APA notice and
September 18, 2014), adopted On page 52118 of the FY 2017 IRF comment and delay in effective date
September 18, 2014. PPS final rule, we inadvertently requirements; in cases in which these
(2) SJVUAPCD Governing Board included a reference to Table 10 instead exceptions apply, sections 1871(b)(2)(C)
Resolution No. 14–09–01, dated of Table 11. and 1871(e)(1)(B)(ii) of the Act provide
September 18, 2014, ‘‘In the Matter of: On page 52118 of the FY 2017 IRF exceptions from the notice and 60-day
Authorizing Submittal of PPS final rule, we inadvertently comment period and delay in effective
‘‘Supplemental Document for the 2012 included a reference to Table 10 instead date requirements of the Act, as well.
PM2.5 Plan’’ to EPA.’’ of Table 16. Section 553(b)(B) of the APA and
(B) California Air Resources Board. On page 52118 of the FY 2017 IRF
(1) CARB Resolution 14–37, dated section 1871(b)(2)(C) of the Act
PPS final rule, we inadvertently authorize an agency to dispense with
October 24, 2014, ‘‘Supplemental
included a reference to Table 10 instead normal notice and comment rulemaking
Document for the San Joaquin Valley
of Table 17. procedures for good cause if the agency
24-Hour PM2.5 State Implementation
On page 52118 of the FY 2017 IRF makes a finding that the notice and
Plan.’’
PPS final rule, in the footnote to Table comment process is impracticable,
[FR Doc. 2016–20413 Filed 8–30–16; 8:45 am] 10, we inadvertently included a unnecessary, or contrary to the public
BILLING CODE 6560–50–P reference to Table 10 instead of Table interest; and includes a statement of the
17. finding and the reasons for it in the rule.
On page 52118 of the FY 2017 IRF In addition, section 553(d)(3) of the
DEPARTMENT OF HEALTH AND PPS final rule, in the footnote to Table APA and section 1871(e)(1)(B)(ii) of the
HUMAN SERVICES 10, we inadvertently included a Act allow the agency to avoid the 30-
reference to Table 10 instead of Table day delay in effective date where such
Centers for Medicare & Medicaid 16. delay is contrary to the public interest
Services On page 52119 of the FY 2017 IRF and the agency includes in the rule a
PPS final rule, in the footnote to Table statement of the finding and the reasons
42 CFR Part 412 11, we inadvertently included a for it.
[CMS–1647–CN] reference to Table 11 instead of Table In our view, this correcting document
10. does not constitute a rulemaking that
RIN 0938–AS78 On page 52119 of the FY 2017 IRF would be subject to these requirements.
Medicare Program; Inpatient PPS final rule, in the footnote to Table This document merely corrects
Rehabilitation Facility Prospective 13, we inadvertently included a typographical errors in the preamble of
Payment System for Federal Fiscal reference to Table 12 instead of Table the FY 2017 IRF PPS final rule. The
Year 2017; Correction 10. corrections contained in this document
On page 52120 of the FY 2017 IRF are consistent with, and do not make
AGENCY: Centers for Medicare & PPS final rule, in the footnote to Table substantive changes to, the policies and
Medicaid Services (CMS), HHS. 14, in two instances, we inadvertently payment methodologies that were
ACTION: Final rule; correction. included a reference to Table 14 instead adopted subject to notice and comment
of Table 10. procedures in the FY 2017 IRF PPS final
SUMMARY: This document corrects On page 52120 of the FY 2017 IRF rule. As a result, the correction made
typographical errors in the final rule PPS final rule, in the footnote to Table through this correcting document is
that appeared in the August 5, 2016 15, in two instances, we inadvertently intended to resolve inadvertent
Federal Register entitled, ‘‘Medicare included a reference to Table 15 instead typographical errors.
Program; Inpatient Rehabilitation of Table 10. Even if this were a rulemaking to
Facility Prospective Payment System for On page 52121 of the FY 2017 IRF which the notice and comment and
Federal Fiscal Year 2017’’. PPS final rule, in the footnote to Table delayed effective date requirements
DATES: The final rule published August 16, we inadvertently included a applied, we find that there is good cause
5, 2016 (81 FR 52056 through 52141) is reference to Table 16 instead of Table to waive such requirements.
corrected as of August 30, 2016. 10. Undertaking further notice and
FOR FURTHER INFORMATION CONTACT: comment procedures to incorporate the
ehiers on DSK5VPTVN1PROD with RULES
Christine Grose, (410) 786- 1362. III. Waiver of Proposed Rulemaking corrections in this document into the FY
and Delay in Effective Date 2017 IRF PPS final rule or delaying the
SUPPLEMENTARY INFORMATION:
Under 5 U.S.C. 553(b) of the effective date of the corrections would
I. Background Administrative Procedure Act (APA), be contrary to the public interest
In FR Doc. 2016–18196 (81 FR 52056 the agency is required to publish a because it is in the public interest to
through 52141), the final rule entitled, notice of the proposed rule in the ensure that the rule accurately reflects
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Document Created: 2018-02-02 12:15:22
Document Modified: 2018-02-02 12:15:22
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective on September 30, 2016. | |
| Contact | Wienke Tax, EPA Region 9, (415) 947- 4192, [email protected] | |
| FR Citation | 81 FR 59876 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Ammonia; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds |
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