Federal Register / Vol. 71, No. 30 / Tuesday, February 14, 2006 / Rules and Regulations 7683 

1Paul 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. 

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). 

3The Association of Irritated Residents also 

petitioned for review of EPA’s final action and the 

cases were consolidated. 

(c) Utah Administrative Code (UAC) 

rule R307–1–4.12, National Emission 

Standards for Hazardous Air Pollutants 

(NESHAPs), is removed from Utah’s 

approved State Implementation Plan 

(SIP). Utah has delegation of authority 

for NESHAPs in 40 CFR part 61 (49 FR 

36368), pursuant to 110(k)(6) of the Act. 

(d) Utah Administrative Code (UAC) 

rule R307–1–6, Eligibility of Pollution 

Control Expenditures for Sales Tax 

Exemption, is removed from Utah’s 

approved State Implementation Plan 

(SIP). This rule language pertains to 

State Sales Tax Exemptions for 

Pollution Control Expenditures and is 

not generally related to attainment of 

the National Ambient Air Quality 

Standards (NAAQS) and is therefore not 

appropriate to be in Utah’s SIP. 

[FR Doc. 06–1310 Filed 2–13–06; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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, 

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

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. 

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). 

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 


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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 


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4We 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. 

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. 

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 


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7686 Federal Register / Vol. 71, No. 30 / Tuesday, February 14, 2006 / Rules and Regulations 

5Moreover, 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. 

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. 

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. 

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. 

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 


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Federal Register / Vol. 71, No. 30 / Tuesday, February 14, 2006 / Rules and Regulations 7687 

7Because 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. 

8SJVUAPCD must demonstrate that adequate 

emission reductions are achieved to meet progress 

requirements every three years. 59 FR 42016 

(August 16, 1994). 

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). 

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). 

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. 

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

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 preexisting 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 


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7688 Federal Register / Vol. 71, No. 30 / Tuesday, February 14, 2006 / Rules and Regulations 

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. 

■ Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraph (c)(334)(i)(B) to read 

as follows: 

§ 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 65 

Changes in Flood Elevation 

Determinations 

AGENCY: Federal Emergency 

Management Agency (FEMA), 

Department of Homeland Security. 

ACTION: Final rule. 

SUMMARY: Modified Base (1% annualchance) Flood Elevations (BFEs) are 

finalized for the communities listed 

below. These modified elevations will 

be used to calculate flood insurance 

premium rates for new buildings and 

their contents. 

DATES: The effective dates for these 

modified BFEs are indicated on the 

table below and revise the Flood 

Insurance Rate Maps (FIRMs) in effect 

for the listed communities prior to this 

date. 

ADDRESSES: The modified BFEs for each 

community are available for inspection 

at the office of the Chief Executive 

Officer of each community. The 

respective addresses are listed in the 

table below. 

FOR FURTHER INFORMATION CONTACT: 

Doug Bellomo, P.E., Hazard 

Identification Section, Federal 

Emergency Management Agency, 500 C 

Street, SW., Washington, DC 20472, 

(202) 646–2903. 

SUPPLEMENTARY INFORMATION: The 

Federal Emergency Management Agency 

makes the final determinations listed 

below for the modified BFEs for each 

community listed. These modified 

elevations have been published in 

newspapers of local circulation and 

ninety (90) days have elapsed since that 

publication. The Mitigation Division 

Director has resolved any appeals 

resulting from this notification. 

The modified BFEs are not listed for 

each community in this notice. 

However, this rule includes the address 

of the Chief Executive Officer of the 

community where the modified BFE 

determinations are available for 

inspection. 

The modifications are made pursuant 

to Section 206 of the Flood Disaster 

Protection Act of 1973, 42 U.S.C. 4105, 

and are in accordance with the National 

Flood Insurance Act of 1968, 42 U.S.C. 

4001 et seq., and with 44 CFR part 65. 

For rating purposes, the currently 

effective community number is shown 

and must be used for all new policies 

and renewals. 

The modified BFEs are the basis for 

the floodplain management measures 

that the community is required to either 

adopt or to show evidence of being 

already in effect in order to qualify or 

to remain qualified for participation in 

the National Flood Insurance Program 

(NFIP). 

These modified BFEs, together with 

the floodplain management criteria 

required by 44 CFR 60.3, are the 

minimum that are required. They 

should not be construed to mean that 

the community must change any 

existing ordinances that are more 

stringent in their floodplain 

management requirements. The 

community may at any time enact 

stricter requirements of its own, or 

pursuant to policies established by other 

Federal, State, or regional entities. 

These modified BFEs are used to meet 

the floodplain management 

requirements of the NFIP and are also 

used to calculate the appropriate flood 

insurance premium rates for new 

buildings built after these elevations are 

made final, and for the contents in these 

buildings. 


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