[Federal Register Volume 71, Number 30 (Tuesday, February 14, 2006)]
[Rules and Regulations]
[Pages 7683-7688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1311]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2006-0033; FRL-8029-4]
Revisions to the California State Implementation Plan; San
Joaquin Valley Unified Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing approval of revisions to the San Joaquin
Valley Unified Air Pollution Control District's portion of the
California State Implementation Plan (SIP). These revisions were
proposed in the Federal Register on March 30, 2005, and concern
particulate matter emissions from agricultural operations. We are
approving a local rule that regulates these emission sources under the
Clean Air Act as amended in 1990 (CAA or the Act).
DATES: Effective Date: This rule is effective on March 16, 2006.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2006-0033 for
this action. The index to the docket is available electronically at
http://www.regulations.gov and in hard copy at EPA Region IX, 75
Hawthorne Street, San Francisco, California. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hardcopy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hardcopy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Andrew Steckel, EPA Region IX,
(415)947-4115, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
I. Proposed Action
On March 30, 2005 (70 FR 16207), EPA proposed to approve San
Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) Rule
4550, Conservation Management Practices, and its associated List of
Conservation Management Practices (CMP List), into the California SIP.
Rule 4550 and the CMP List were adopted by the SJVUAPCD on May 20,
2004, and readopted without change on August 19, 2004. We proposed to
approve Rule 4550 and the CMP List because we determined that they
complied with the relevant CAA requirements. A more detailed discussion
of SJVUAPCD particulate matter attainment planning, the CAA
requirements for serious nonattainment areas, and how the CMP program
complies with these requirements is provided in our proposed rule and
technical support document (TSD).
II. Public Comments and EPA Responses
EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from the following parties:
1. Vanessa Stewart, Earthjustice; letter dated April 29, 2005.\1\
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\1\ Paul Cort, Earthjustice, submitted an additional letter
dated December 2, 2005, in which he seeks to supplement Ms.
Stewart's comment letter. By letter dated December 20, 2005, David
Crow, SJVUAPCD, responded to Mr. Cort's letter. The comment period
for the proposed rule closed on April 29, 2005. Mr. Cort's letter
and Mr. Crow's response are therefore over seven months late and EPA
is not considering them in this final action.
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2. San Joaquin Valley agricultural groups: California Cotton
Ginners and Growers Associations, California Citrus Mutual, California
Grape and Tree Fruit League, Fresno County Farm Bureau, Nisei Farmers
League; letter dated April 29, 2005.
EPA appreciates the time and effort expended by the commenters in
reviewing the proposed rule and providing comments. We have summarized
the significant comments and provided our responses below.
Comment 1: Earthjustice comments that the San Joaquin Valley (SJV
or the Valley) is subject to the requirements of CAA section 188(e),
including most stringent measures (MSM). Earthjustice states that
nonattainment areas like the Valley ``receiving additional time to
attain the NAAQS'' must demonstrate that ``the plan for that area
includes the most stringent measures (MSM) that are included in the
implementation plan for any State or are achieved in practice in any
state, and can feasibly be implemented in the area.'' Addendum at
42010.\2\ The Valley, having submitted a PM-10 Plan with an attainment
deadline almost a decade later than that authorized by the Act, is
subject to the requirements of CAA section 188(e), including the MSM
requirement.
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\2\ ``State Implementation Plans for Serious PM-10 Nonattainment
Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas
Generally; Addendum to the General Preamble for the Implementation
of Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998
(August 16, 1994).
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Response: In our final rule approving the 2003 SJV PM-10 Plan, we
determined that section 188(e), including its MSM requirement, does not
apply to the SJV PM-10 nonattainment area. Instead we concluded that,
having failed to attain its serious area deadline of December 31, 2001,
the area falls within the scope of section 189(d) which does not
contain an MSM requirement. 69 FR 30006, 30022 (May 26, 2004).
Earthjustice appropriately raised the issue of the applicability of
section 188(e) in its comments on EPA's proposed approval of the 2003
Plan. Earthjustice, representing Latino Issues Forum, Medical Advocates
for Healthy Air and Sierra Club, subsequently challenged EPA's final
approval in the U.S. Court of Appeals for the Ninth Circuit, raising
this issue among others.\3\ On September 6, 2005, the Ninth Circuit
upheld EPA's interpretation of the statute. Association of Irritated
Residents et al. v. U.S.E.P.A. et al., 2005 U.S. App. LEXIS 19213 (9th
Cir. 2005).
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\3\ The Association of Irritated Residents also petitioned for
review of EPA's final action and the cases were consolidated.
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Comment 2: Earthjustice comments that the CMP program must provide
for MSM. Earthjustice states that the CMP program does not demonstrate
that it implements MSM, nor has EPA evaluated it under this standard.
MSM evaluations are distinct from best available control measure (BACM)
evaluations and may identify control measures that would not have been
considered under a BACM evaluation. For example, EPA has concluded that
the de minimis level for BACM ``depends on whether requiring the
application of BACM for such sources
[[Page 7684]]
would make the difference between attainment and nonattainment by the
serious area deadline'' whereas the de minimis levels for MSM should be
determined by ``whether MSM controls on the de minimis sources would
result in more expeditious attainment.'' Under a MSM evaluation, the de
minimis levels and size-based exemptions need to be reconsidered.
Response: See response to comment 1. Because of our
position, affirmed by the Ninth Circuit in Association of Irritated
Residents, that CAA section 188(e) does not apply to the SJV PM-10
nonattainment area, we do not address the comments below to the extent
that they address MSM.
Comment 3: Earthjustice comments that the least effective measures
are not BACM or MSM and requiring the selection of only one CMP per
category does not provide for maximum possible emissions reductions.
Operators are allowed to select the least effective (lowest control
efficiency) practice in each category. A practice does not meet MSM or
BACM when a demonstrably more effective measure is available and
feasible. Many CMPs with unusually low control efficiencies will be the
most popular. Operators should be required to implement the most
effective measure from each category, or a combination of measures that
would be equivalent to the most effective measure, or demonstrate why
such control efficiency is not feasible. In the past, EPA has approved
fugitive dust control programs, such as SJVUAPCD Rule 8081 applicable
to off-field agricultural sources (68 FR 8831; February 26, 2003), that
permit flexibility in control options, yet these programs require a
minimum control efficiency. If the CMP program required operators to
adopt practices with minimum control efficiencies, the program would be
more effective.
The CMP program contemplates that growers will select one CMP from
five source categories and Concentrated Animal Feeding Operations
(CAFOs) from three. Thus even if a category contained more than one
available and feasible control measure for any given source, the
program would still only require the operator to include one control
measure from each category, a limitation which is impermissible.
Response: As we observed in our final approval of the 2003 SJV PM-
10 Plan, flexibility is needed in any program controlling agricultural
sources. 69 FR 30006, 30015. Agricultural activities and emissions can
be dependent on a wide range of factors, such as crop type, herd size,
equipment type, soil type, economic circumstances, and facility size.
Elements that are often beyond the control of the grower, such as
weather and market conditions, can change quickly and affect the
ability of growers to absorb the costs of controls. There is also a
limited amount of scientific information concerning the cost
effectiveness of the available and known control measures for
agricultural operations.
As a result of the above conditions, allowing owners/operators of
on-field agricultural sources the discretion to choose from a range of
specified options is particularly important. Although the measures on
the CMP List are generally considered technologically feasible control
requirements, it is simply not practical to require the implementation
of every CMP or specified group of CMPs. We cannot, for example, assume
that all CMPs are available to all sources. It may be that the measure
with the highest estimated control efficiency is not feasible for
particular sources due to source-specific conditions. Thus, while some
CMP options may have lesser control efficiencies than others, the CMP
List gives growers and producers a variety of CMPs to choose from in
order to tailor PM-10 controls to their individual circumstances
without causing an unnecessary and unreasonable economic burden. For
these reasons it would not be practical to require each farmer or the
District to justify why the CMP with the highest control efficiency is
infeasible for any individual operation. Furthermore, given the
rudimentary state of knowledge, requiring a specific CMP or a group of
CMPs that yield a particular emission level cannot be technically
justified.
The format of the CMP rule has become the standard model for
fugitive dust rules generally and rules governing agricultural
operations specifically. This format has developed over time because of
the need to impose effective but reasonable and feasible controls on a
large number of similar but distinct sources. See, e.g., EPA's approval
of Maricopa County Environmental Services Department (MCESD) Rule 310
as meeting CAA reasonably available control measure (RACM) and BACM
requirements (62 FR 41856, August 4, 1997); South Coast Air Quality
Management District (SCAQMD) Rule 403 (providing for alternative
compliance mechanisms for the control of fugitive dust from
earthmoving, disturbed surface areas, unpaved roads etc.); and SCAQMD
Rule 1186 (requiring owners/operators of certain unpaved roads the
option to pave, chemically stabilize, or install signage, speed bumps
or maintain roadways to inhibit speeds greater than 15 mph). EPA
approved these SCAQMD rules as meeting the RACM and/or BACM
requirements of the CAA on December 9, 1998 (63 FR 67784).
The regulatory approach selected by the SJVUAPCD specifically for
the control of PM-10 emissions from agricultural operations is similar
to those adopted and implemented by the SCAQMD for the South Coast Air
Basin and by the Arizona Department of Environmental Quality for the
Phoenix (Maricopa County) PM-10 nonattainment area. See, e.g.,
discussion of the South Coast and Phoenix approaches at 66 FR 50252,
50268-50271 (October 2, 2001) and 67 FR 48730 (July 25, 2002).
Finally, with regard to both comments, i.e., that the least
effective measures will be chosen which are not BACM and that operators
must be required to implement more than one CMP, the decision of the
Ninth Circuit Court of Appeals in Vigil v. Leavitt, 366 F.3d 1025 (9th
Cir. 2004) is instructive. In upholding EPA's approval of a similar
program for the Phoenix serious PM-10 nonatttainment area, the Court
observed:
Petitioners do not challenge any particular practice adopted as
BACM. [footnote omitted] Rather, petitioners contend that there is
no reason why Arizona could not require farmers to implement more
than one control measure in each category. Petitioners point out
that because, in one sense, Arizona has already found these measures
to be ``feasible,'' more than one measure must be implemented. As a
matter of theory, petitioners are, of course, correct. Intuitively,
it seems obvious to say that if one measure per category is good,
two or more would be better. Petitioners' argument proves too much,
however. By petitioners' logic, if two are better than one, three
are better than two, and so forth. We have little doubt that if
Arizona required all of these measures, it would achieve greater
reductions than under its present plan.
Id. at 1034-1035.
The Court further observed that:
Petitioners' argument would be compelling if the Act required a
state to reduce its emissions to the maximum extent possible,
regardless of cost. EPA, however, has concluded that ``best
available control measures'' means the maximum degree of emissions
reduction of PM-10 and PM-10 precursors from a source * * * which is
determined on a case-by-case basis, taking into account energy,
environmental, and economic impacts and other costs, to be
achievable for such source through application of production
processes and available methods, systems, and techniques for control
of each such pollutant. Addendum, 59 FR at 42010.
Id. at 1035.
The Court then proceeded to review the process by which the list of
[[Page 7685]]
agricultural control measures (known as ``best management practices'')
for the Phoenix area was selected and Arizona's rationale for requiring
the implementation of only one such practice per source category. The
process and rationale in the case of the San Joaquin Valley are
virtually identical. See ``Technical Support Document for EPA's
Proposed Rulemaking for the California State Implementation Plan, San
Joaquin Valley Unified Air Pollution Control District Rule 4550,
Conservation Management Practices, and List of Conservation Management
Practices,'' EPA, March 8, 2005.
The SJVUAPCD intends to monitor the effectiveness of the CMPs and
adjust the program, if needed, in the future. Based on the conclusions
reached by SJVUAPCD and the AgTech Committee and our evaluation of
comparable programs in other serious PM-10 nonattainment areas
regarding technological feasibility and economic effects, we believe
that Rule 4550 and the CMP List provide the maximum degree of PM-10
emission reductions achievable from agricultural sources in the SJV
and, therefore, meet the CAA's BACM requirement.
Comment 4: Earthjustice comments that the Valley must adopt every
available measure without delay. The Valley has failed both to meet its
December 31, 2001, attainment deadline and to demonstrate attainment by
the Act's latest possible extended deadline of December 31, 2006. Under
these circumstances, the Valley must adopt every available measure to
control PM-10 without delay. Delaney v. EPA, 898 F.2d 687, 691 (9th
Cir. 1990). Thus, unless the Air District can demonstrate that a given
control measure is infeasible, it must require implementation of that
measure. The Air District's desire to provide flexibility in regulating
agricultural sources of PM-10 cannot trump its obligation to require
implementation of all available control measures to control
agricultural fugitive dust.
Response: In our final rule approving the 2003 SJV PM-10 Plan, we
approved a December 31, 2010, attainment deadline for the SJV PM-10
nonattainment area. In so doing, we explained that after a serious PM-
10 nonattainment area such as the SJV fails to meet its attainment
deadline (either December 31, 2001 under section 188(c)(2) or an
extended deadline under section 188(e)), the provisions of section
189(d) apply. Because section 189(d) requires the submittal of an
attainment demonstration but does not contain an attainment deadline,
EPA looked to sections 179(d)(3) and 172(a)(2) to determine the outer
bounds of that deadline. 69 FR 30006, 30023.
In contrast, Delaney concerned a provision of the CAA as amended in
1977 in which Congress had not provided a back-up deadline for an
explicitly absolute deadline. Earthjustice appropriately raised the
issue of the applicable attainment deadline for the area in its
comments on EPA's proposed approval of the 2003 Plan. Earthjustice
subsequently challenged EPA's final approval in the U.S. Court of
Appeals for the Ninth Circuit, raising, among other things, its belief
that Delaney compels the SJV to attain the PM-10 standards as soon as
possible with all available measures. As stated above, the Ninth
Circuit upheld EPA's statutory interpretation in its opinion in
Association of Irritated Residents.
Comment 5: Earthjustice comments that the 100-acre threshold for
agricultural operations and size-based exemptions for animal feeding
operations are not justified. These exemptions are not consistent with
the definition of ``significant source'' in the CAA or as applied by
EPA. A source's significance is based on its contribution to an area's
violation of national ambient air quality standards (NAAQS) and not on
its size. Similarly, a source category may avoid implementing BACM
under the de minimis exception only if the ``State demonstrates
conclusively that, because of the small contribution of the source
category's emissions to the attainment problem'' the imposition of BACM
would not contribute significantly to the achievement of NAAQS.
Therefore, the Plan must provide BACM for all agricultural sources.
Furthermore, even if size-based exemptions were permissible, the
Plan fails to demonstrate that it is not technically or economically
feasible to apply the requirements to sources smaller than 100 acres.
If practical considerations are the primary reason for the exemptions,
then the Plan should adopt other mechanisms, such as a phased
implementation schedule, rather than a flat out size-based exemption.
Response: As mentioned by the commenter, agricultural operations in
the aggregate are a significant source \4\ of PM-10 and PM-10
precursors in the Valley. Therefore, agricultural operations would be a
source category for which BACM is required. However, our applicable
guidance for evaluating the economic feasibility of potential BACM
provides that ``[s]tates should not restrict their analysis to simple
acceptance/rejection decisions based on whether full application of a
measure to all sources in a particular category is feasible. Rather, a
State should consider implementing a control measure on a more limited
basis, e.g., for a percentage of the sources in a category if it is
determined that 100 percent implementation of the measure is
infeasible.'' Addendum at 42014. This is the approach that SJVUAPCD
took when it considered the exemptions for Rule 4550.
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\4\ We note that the Clean Air Act does not define the term
``significant source.'' Rather it is a concept that EPA developed in
guidance interpreting the Act's RACM/BACM requirements. 57 FR 13498,
13540 (April 16, 1992); Addendum at 42011.
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SJVUAPCD's staff report associated with Rule 4550 (dated August 19,
2004) provides analyses of various CMPs and assessments of costs,
feasibility, and impacts associated with them. SJVUAPCD also considered
farm census data, economic impacts, and per farm emissions in selecting
the 100-acre threshold for cropland. As explained in the staff report,
agricultural activities in the SJV are significantly more diverse and
of a different scale than activities in the South Coast Air Basin or
Maricopa County, where analogous rules apply to operations over 10
acres. Rule 4550 (with its 100-acre exemption level) will apply to
approximately 91 percent of all irrigated farmland in the SJV. An
economic analysis of smaller farms in this region indicates that the
farms exempted by Rule 4550 due to the 100-acre threshold earn, on
average, $63,000 in sales. It was determined that these farms would
have less income and capital available to invest in equipment or
systems to meet many of the CMP requirements in Rule 4550, and would
therefore be disadvantaged in selection of CMPs. SJVUAPCD also
estimated emissions from 100-acre farms to determine the emission
impact of an exemption. SJVUAPCD staff analyzed different commodities
and determined that PM-10 emissions would be quite low for smaller
farms, less than 1 ton per year. Therefore, SJVUAPCD concluded that the
100-acre exemption was appropriate for the SJV.
SJVUAPCD used a similar approach for the size-based exemptions for
animal feeding operations. Rule 4550 is expected to apply to 73% of
dairy cows, 94% of feedlot cattle, and nearly all poultry operations.
It was also determined that any sites qualifying for the size-based
cut-offs would have emissions no greater than 1 ton per year.
As discussed in the Addendum, energy and environmental impacts of
control measures and the cost of control should be considered in
determining
[[Page 7686]]
BACM. Economic feasibility considers the cost of reducing emissions and
costs incurred by similar sources. Addendum at 42012-42013. The
SJVUAPCD's analyses have also determined that application of BACM at
the small operations that are subject to Rule 4550's exemptions would
produce an insignificant regulatory benefit. As a result, EPA believes
that the exemption of these smaller operations is considered reasonable
and consistent with general procedures for making BACM determinations.
Comment 6: Earthjustice comments that the CMP program must require
MSM and BACM for agricultural windblown dust. The CMP program combines
windblown dust with agricultural burning. As written, the CMP program
enables operators to avoid implementing controls on windblown dust by
merely complying with already existing agricultural burning rules.
Windblown dust should be established as a stand-alone category in the
CMP program, rather than being included as part of the ``Other''
category.
Response: As mentioned in the staff report for Rule 4550, the
SJVUAPCD evaluated control measures in all other serious nonattainment
areas for consideration in the SJV and has included similar measures in
Regulation VIII and the CMP Program. Additionally, during development
of the SJV 2003 PM-10 Plan, the SJVUAPCD used data from various
monitoring networks to evaluate episodes for exceedance days at PM-10
monitors in the SJV. The SJVUAPCD's meteorological analysis of wind
speed associated with measured PM-10 exceedances found that exceedances
largely occurred during periods of low winds and stagnant conditions in
the fall and winter. Wind speeds are highest during the spring when PM-
10 levels are at their lowest. Only five PM-10 exceedance days spanning
a 13-year period were identified as associated with strong winds. As a
result, the SJVUAPCD concluded that, unlike other arid western PM-10
serious nonattainment areas, the SJV does not have a regular and
repeated windblown dust problem. Therefore it was not necessary to
establish windblown dust as a stand-alone category. Nevertheless, the
PM-10 Plan does recognize that windblown dust can occur from
agricultural disturbed surfaces by including windblown measures in the
``Other'' category in the agricultural CMP program. SJV 2003 PM-10
Plan, pages 2-4 through 2-6.
Comment 7: Earthjustice comments that Rule 4550 fails to set forth
criteria by which the Air Pollution Control Officer (APCO) will
implement the CMP Program. Rule 4550 grants the APCO undue authority to
weaken the Handbook, grant exemptions, approve new CMPs, or alter the
control categories in the Handbook without public input or SIP
revision. The CMP rule fails to provide any criteria for the APCO to
exempt an operation from the CMP requirements. The rule also fails to
identify the criteria that the APCO will use to evaluate and approve
new CMPs. The Plan should explicitly commit to: (1) Make the CMP plans
available for public review to the degree that Title V or any other
operating permit is available; (2) contain a mechanism to ensure that
citizens will be able to verify that growers subject to the rule are
participating and that CMP plans are being implemented; and (3) ensure
that adjustments to rule applicability thresholds are subject to public
review.
Response: The CMP Handbook is designed as a tool to assist sources
in complying with the requirements of Rule 4550 and the CMP List. It
provides instructions and descriptions of CMPs to assist growers in
completing CMP applications. The CMP Handbook itself does not contain
regulatory requirements. If the APCO were to alter the content of the
CMP Handbook, it would not alter the requirements of Rule 4550. Any
changes to Rule 4550 would need to be adopted through the SJVUAPCD's
public rulemaking process before going into effect.\5\ Even if the CMP
Handbook were eliminated, growers would still be required to comply
with the requirements of Rule 4550.
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\5\ Moreover, once approved by EPA into the SIP, Rule 4550 will
be federally enforceable and, under CAA section 110(l), any revision
to it cannot be approved by the Agency if it would interfere with
any applicable requirement concerning attainment, reasonable further
progress or any other applicable requirement of the Act.
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Rule 4550 does not allow the APCO to grant exemptions from the CMP
program. Section 6.2 states that if no feasible CMP can be identified
from one category, then an owner/operator may select a substitute CMP
from another CMP category. Rule 4550 does specify criteria for the APCO
when evaluating new or alternative CMP requirements. Section 6.2 states
that to obtain approval of a CMP that is not on the CMP List, the
owner/operator must demonstrate that the new CMP achieves PM-10
emission reductions that are at least equivalent to other appropriate
CMPs on the CMP List. The APCO is required to perform an independent
analysis to evaluate the PM-10 emission reductions. CMPs that are not
shown to achieve equivalent reductions will be disapproved.
EPA's general policy regarding director's discretion is stated in
52 FR 45109 (November 24, 1987). Provisions allowing for a degree of
APCO discretion may be considered appropriate if explicit and
replicable procedures within the rule tightly define how the discretion
will be exercised to assure equivalent emission reductions.\6\ SJVUAPCD
will maintain a list of any new CMPs that are approved. It is expected
that the CMP List will be periodically updated into the SIP. The CMP
plans and the CMP List are publicly available documents. The District
has authority to enforce the requirements of this rule. Citizens may
verify compliance by growers without any further rule changes. Any
adjustments to rule applicability thresholds will need to be done
through a public rule development process, and proposed rule amendments
will then be subject to public review and comment.
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\6\ ``Guidance Document for Correcting Common VOC and Other Rule
Deficiencies (a.k.a. The Little Bluebook)'', U.S. EPA Region IX,
originally issued April 1991, revised August 21, 2001.
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Comment 8: Earthjustice claims that the emission reductions
estimated to be achieved by the Ag CMP program, 33.8 tons per day, are
inaccurate and inflated because the estimate double counts emission
reductions already being achieved from practices already in common use
by growers. According to Earthjustice, the failure to incorporate into
the Plan's demonstrations (5% and attainment) an estimate of what
percentage of practices have already been adopted has one of two
results: Either the current emissions inventory relied upon in the Ag
CMP calculations is highly overstated or the emissions reductions
estimates are highly overstated. In either case, Earthjustice believes
the validity of the 5% and attainment demonstrations in the Plan is
undermined. To support its contentions, Earthjustice provides examples
of what it considers to be overstatements of emission reduction
estimates due to the failure to account for already adopted practices
and recent updates to the emissions inventory.
Response: In reviewing this rule as fulfilling the commitments in
the approved 2003 SJV PM-10 Plan, we address two issues. First, we must
determine whether or not the rule, as adopted, meets the CAA section
189(b)(1)(B) requirement for BACM in terms of the stringency of
controls applied to agricultural PM-10 sources. Our proposed action on
Rule 4550 and our responses to comments above set
[[Page 7687]]
out our rationale for concluding that the adopted rule does comply with
the BACM requirement in its level of stringency.
Second, we may look to the emission reductions projected to be
achieved by the adopted rule compared to the 2003 SJV PM-10 Plan's
commitment to achieve specific emission reductions from the rule as
needed to meet plan requirements, such as the 5% obligation of CAA
section 189(d) and the attainment demonstration requirements of CAA
sections 189(d) and 179(d)(3). This second level of analysis frequently
raises complex issues, such as the accuracy of fugitive dust emission
factors associated with particular activities, that are typically
addressed in the context of plans and plan amendments. These issues
were made available for public comment during EPA's proposed approval
of the 2003 SJV PM-10 Plan.
We believe the District's efforts to quantify emission reductions
from Rule 4550 fall within established norms. With respect to the
baseline emission inventory we approved as part of the 2003 SJV PM-10
Plan, the District developed it using emission factors based on field
tests performed in the 1990s with standard available equipment (Rule
4550 staff report, Appendix A-13).\7\ While the District used a
combination of methods such as sampling, source tests, field
measurements, and emission factor calculations, along with best
available data, to develop the inventory, the District recognized the
need to better characterize emissions as well as the effectiveness of
controls (2003 PM-10 Plan, Appendix, H-2). Moreover, it was understood
that some agricultural sites may have been employing practices not
required by regulation at that time, and that these existing practices
may not have been accounted for in the emission inventory. Rule 4550
makes these practices mandatory and federally enforceable, allowing the
District to take credit for the emission reductions (Rule 4550 staff
report, Appendix, A-6).
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\7\ Because of the complexity of compiling emission inventories,
it is common to rely on studies a decade or more old such as done
here. For example, the current inventory estimates for residential
wood burning stoves in most of California are based on 1990 census
data of how many homes burn wood for heating, and estimates for non-
farm unpaved road dust are based on a 1993 Caltrans study. See
http://www.arb.ca.gov/app/emsinv/. See also EPA's AP-42 (http://www.epa.gov/ttn/chief/ap42/ch04/index.html), which provides emission
factors used nationally for generating emission estimates and cites
to many studies from the 1980s and 1990s.
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Emission reduction estimates are also circumscribed by available
data, which in this case was limited (Rule 4550 staff report, Appendix
B). Because it is highly impractical to directly measure emissions from
every activity and source, emission factors are not currently available
for every CMP. Therefore, emission reduction estimates are often
dependent on generally available emission factors for particular
operations. Here, the District identified major groupings and used
available information to quantify the emissions reductions achievable
from the CMP Program. Furthermore, because of the flexible nature of
the CMP Program, it was not possible in advance of implementation to
anticipate which specific practices would be chosen by each individual
owner or producer.
Section 8.0 of Rule 4550, however, contains a backstop provision
that states that if, by December 31, 2005, the CMP program has not
achieved the PM-10 emission reduction commitment for the PM-10
Reasonable Further Progress Plan due in 2006,\8\ then the SJVUAPCD
shall take actions necessary to meet the reduction target for the CMP
program. Those actions may include changing the exemption thresholds,
increasing the total number of CMPs required, or other revisions to the
program.
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\8\ SJVUAPCD must demonstrate that adequate emission reductions
are achieved to meet progress requirements every three years. 59 FR
42016 (August 16, 1994).
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The District recently released the ``Conservation Management
Practices Program Report for 2005,'' January 19, 2005, addressing Rule
4550's backstop provision. The report concluded that the CMP program as
implemented is reducing PM-10 emissions from agricultural sources by at
least 35.3 tpd. In reaching this conclusion, the District used new and
updated information primarily from the CMP applications submitted by
growers, e.g., the actual CMPs selected and the acreage to which they
are to be applied.\9\
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\9\ In addition, the District intends to undertake research to
further refine emission factors as is routinely done to improve
inputs to emission inventories (see Rule 4550 staff report,
Appendix, A-6).
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Comment #9: The San Joaquin Valley agricultural groups support
EPA's proposed approval of Rule 4550 into the California SIP. Rule 4550
is the most comprehensive and effective regulation to address
agricultural air quality in the nation and, as such, should be approved
by EPA and adopted into the SIP. No other program adopted in the
country to control fugitive PM10 emissions from agriculture
requires submittal of the actual CMP Plan for each location. No other
adopted program will be able to so extensively quantify the emissions
reductions generated by the program as the Valley's.
Response: No response needed.
III. EPA Action
No comments were submitted that change our assessment that the
submitted rule complies with the relevant CAA requirements. Therefore,
as authorized in section 110(k)(3) of the Act, EPA is fully approving
Rule 4550 and the CMP List into the California SIP.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this proposed rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this rule approves pre-existing requirements under state law
and does not impose any additional enforceable duty beyond that
required by state law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the
[[Page 7688]]
Clean Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 17, 2006. 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, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 24, 2006.
Wayne Nastri,
Regional Administrator, Region IX.
0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraph (c)(334)(i)(B) to read
as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(334) * * *
(i) * * *
(B) San Joaquin Valley Unified Air Pollution Control District.
(1) Rule 4550 and the List of Conservation Management Practices,
adopted on May 20, 2004, re-adopted on August 19, 2004.
* * * * *
[FR Doc. 06-1311 Filed 2-13-06; 8:45 am]
BILLING CODE 6560-50-P