Revisions to the California State Implementation Plan; San Joaquin Valley Unified Air Pollution Control District, 7683-7688 [06-1311]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 30 (Tuesday, February 14, 2006)]
[Rules and Regulations]
[Pages 7683-7688]
From the Federal Register Online via the Government Printing 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 
https://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, steckel.andrew@epa.gov.

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 
https://www.arb.ca.gov/app/emsinv/. See also EPA's AP-42 (https://
www.epa.gov/ttn/chief/ap42/ch04/), 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.
---------------------------------------------------------------------------

    \8\ SJVUAPCD must demonstrate that adequate emission reductions 
are achieved to meet progress requirements every three years. 59 FR 
42016 (August 16, 1994).
---------------------------------------------------------------------------

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

    \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).
---------------------------------------------------------------------------

    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