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Citation: 71 Fed. Reg. 7683 2006

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

(c) Utah Administrative Code (UAC) rule R307-1-4.12, NationalEmission Standards for Hazardous Air Pollutants (NESHAPs), is removed from Utah's approved State Implementation Plan (SIP). Utah has delegation ofauthority for NESHAPs in 40 CFRpart 61 (49 FR 36368), pursuant to 110(k)(6) ofthe Act.

(d) Utah Administrative Code (UAC) rule R307-1-6, Eligibility ofPollution Control Expenditfilres 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: Finalrule.

SUMMARY: EPA is finalizing approval of revisions to the San Joaquin'Valley Unified Air Pollution Control District's portion ofthe 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 localrule that regulates these emission sources under the Clean Air Act as amended in 1990 (CAA orthe 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 athttp:// www.regulations.govand 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 atthe hardcopy location (e.g., copyrighted material), and

some may notbe 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 toEPA.

I. Proposed Action

OnMarch 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 ofConservation Management Practices (CMP List), into the California SIP. Rule 4550 and the CMP Listwere adopted by the SJVUAPCD on May 20, 2004, and readopted without change onAugust 19, 2004. We proposed to approve Rule 4550 and the CMP Listbecause we determined that they complied with the relevant CAA requirements. Amore detailed discussion ofSJVUAPCD' particulate matter attainment planning, the CAA requirements for serious nonattaininent areas, and how the CMP program complies with these requirements is provided inour proposed rule and technical support document (TSD).

I. Public Comments andEPA 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 bythe commenters in reviewing the proposed rule and providing comments. We have summarized the significant comments and prov)ided our responses below.

Comment 1:Earthjustice comments that the San Joaquin Valley (SJV or the Valley) is subject to the requirements of

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
omment period forthe 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. CAA section 188(e), including most' stringent measures (MSM). Earthjustice
states that nonattainment areas like the Valley "receiving additional time to attain the NAAQS" nmust demonstrate that "the plan for that area includes the
most stringent measures (MSM) that are included inthe implementation plan for
any State orare 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 laterthan that authorized bythe Act, is subject to the requirements ofCAA 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
notapply to the SJV PM-10 nonattainment area. Instead we concluded that, having failed to attain its serious area deadline ofDecember 31, 2001, the areafalls within the scope ofsection 189(d) which does not contain an MSM requirement. 69 FR 30006, 30022 (May 26, 2004). Earthjustice appropriately raised the issue ofthe applicability of section 188(e) inits comments onEPA's proposed approval ofthe 2003 Plan. Earthjustice, representing Latino Issues Forum,Medical Advocates forHealthy Air and Sierra Club, subsequently challenged EPA's final approval inthe U.S. Court ofAppeals forthe Ninth Circuit,raising this issue among others.3

On September 6, 2005, the Ninth Circuit upheld EPA's interpretation of the
statute.AssociationofIrritated Residentseta].v. U.S.E.P.A. et01., 2005 U.S. App. LEXIS 19213 (9th Cir. 2005).

Comment2:Earthjustice comments that the CMPprogram mustprovide for MSM. Earthjustice states that the CMP program does not demonstrate that it implements MSM, nor has EPA evaluated itunder this standard. MSM evaluations are distinct from best available control measure (BACM) evaluations and may identify control

measures that would nothave been considered under a BACM evaluation. For example, EPA has concluded that the de minimis level forBACM "depends on whether requiring the application ofBACM for such sources

2 "State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers forPM-IO Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation ofTitleI ofthe Clean Air Act Amendments of 1990r" 59 FR 41998 (August 16, 1994).

3The Association ofIrritated Residents also. petitioned forreview ofEPA's final action and the

cases were consolidated. 

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

would make the difference between attainment and nonattainment bythe serious area deadline" whereas the de minimis levels forMSM 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
tobe reconsidered.

Response:See response to comment #1. Because ofour position, affirmed by -theNinth Circuit inAssociationof Irritated Residents,that CAA section 188(e) does not apply to the SJV PM-IO 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 orMSM and requiring the selection ofonly one CMP per category does not provide formaximum possible emissions reductions. Operators are allowed to select the least effective (lowestcontrol efficiency) practice in each category. A practice does notmeet 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, ora 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 (68FR 8831; February 26, 2003), that permit flexibility in control options, yetthese programs require a minimum control efficiency. Ifthe 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 anygiven

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 ofthe 2003 SJVPM-ID Plan, flexibility is needed in any program controlling agricultural sources. 69 FR 30006. 30015. Agricultural activities and emissions canbe dependent on a wide range offactors, such as crop type, herd size, equipment type, soiltype, economic circumstances, and facility size. Elements that are oftenbeyond the control ofthe grower, such as weather and market conditions, can change quickly and affect the ability ofgrowers to absorb the costs ofcontrols. There is also alimited amount ofscientific information concerning the cost effectiveness ofthe available and known control measures for agricultural operations..

As a result ofthe above conditions, allowing owners/operators of on-field agricultural sources the discretion to choose from arange ofspecified 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 ofevery 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 isnot 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 CMPsto choose from in orderto tailor PM-10 controls
to their individual circumstances without causing an unnecessary and unreasonable economic burden. For these reasons it would notbe practical
to require each farmer orthe District to justifywhy 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

agroup ofCMlPs that yield a particular emission level cannot be technically justified.

The format of the CMPrule has become the standard model for fugitive dust rules generally and rules governing agricultural operations specifically. This format has developed over timebecause ofthe need to impose effective but Teasonable and feasible controls on a large number ofsimilarbut 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 FR41856, August 4, 1997); South Coast Air Quality Management District (SCAQMD) Rule 403 (providingfor alternative compliance mechanisms forthe control offugitive dust from earthmoving, disturbed surface areas, unpaved roads etc.); and SCAQMD Rule 1186 (requiring owners/operators ofcertain unpaved roads the optionto pave, chemically stabilize, orinstall signage, speedbumps'or maintain roadways to inhibit speeds greater than 15 mph). EPA approved these SCAQMD rules as meeting the RACM and/or BACM requirements pfthe CAA on December 9, 1998 (63FR 67784).

The regulatory approach selected by the SJVUAPCD specifically forthe control ofPM-1O 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 ofthe 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 mustbe required to implement more than one CMP, the decision ofthe Ninth Circuit Court ofAppeals in Vigil v. Leavitt,366 F.3d 1025 (9th Cir. 2004) is instructive. In upholding EPA's approval ofa similar program forthe 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 eachcategory. Petitioners point outthat because, in one sense, Arizona has alreadyfound thesemeasures tobe "feasible,"' more than onemeasure mustbe implemented. As a matter oftheory, petitioners are, ofcourse, correct. Intuitively, it seems obvious to say that ifone measure percategory is good, two ormiaore would be better. Petitioners' argument proves too much,however. By petitioners' logic, iftwo

arebetter than one, three are better than two, and so forth. Wehave little doubt that if Arizona required all ofthese measures, it would achieve greater reductions than under itspresent plan.
Id.at 1034-1035.

The Court further observed that:
Petitioners' argument would becompelling ifthe Actrequired a stateto reduceits emissions to the maximum extent possible, regardless ofcost. EPA, however, has concluded that "best available control measures" means the maximum degree of emissionsreduction ofPM-IO 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, tobe achievable for such source through application ofproduction processes and available methods, systems, and techniques for control ofeach 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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agricultural control measures (known as "best management practices") forthe Phoenix areawas selected and Arizona's rationale for requiring the implementation ofonly one such practice per source category. The
process and rationale in the case ofthe San Joaquin Valley are virtually identical. See "Technical Support Document for EPA's Proposed Rulemaking forthe California State Implementation Plan, SanJoaquin 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 ofthe CMPs and adjust the program, ifneeded, in the future. Based on the conclusions reached by SJVUAPCD and the AgTech Committee and our evaluation ofcomparable 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 ofPM-10 emission reductions achievable from agricultural sources in the SJV and, therefore, meet the CAA's BACM requirement.

Comment4:Earthjustice comments that the Valley must adopt every available measure without delay. The Valley has failed bothto meet its December 3,1, 2001, attainment deadline and to demonstrate attainment by the Act's latest possible extended deadline ofDecember 31, 2006. Underthese circumstances, the Valley must adopt every available measure to control PM10 without delay. Delaneyv. EPA,898 F.2d 687, 691 (9th Cir. 1990). Thus, unless the Air District can demonstrate that a given control measure is infeasible, itmustrequire implementation ofthat measure. The Air District's desire toprovide flexibility in regulating agricultural

sources ofPM-10 cannottrump 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-IO Plan, we approved

a December 31, 2010, attainment deadline forthe 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 ofsection 189(d) apply. Because section 189(d) requires the submittal ofan attainment demonstration but does notcontain 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, Delaneyconcerned a provision ofthe CAA as amended in 1977 inwhich Congress had not provided aback-up deadline for an explicitly absolute deadline. Earthjustice appropriately raised the issue ofthe applicable attainment deadline for the area in its comments on EPA's proposed approval ofthe 2003 Plan. Earthjustice subsequently challenged EPA's final approval in the U.S. Court ofAppeals forthe Ninth Circuit,raising, among other things, its beliefthat Deldneycompels the SJV to attainthe 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 AssociationofIrritatea Residents.

Comment5:Earthjustice comments that the 100-acre threshold for agricultural operations and size-based exemptions for animal feeding operations are notjustified. These

- exemptions are notconsistent withthe

definition of "significant source" inthe CAA oras applied byEPA. A source's significance isbased on its contribution
to an area's violation ofnational ambient air quality standards (NAAQS) and not on its size. Similarly, a source category may avoid implementing BACM under the de minimis exception only ifthe "State demonstrates conclusively that, because ofthe small, contribution ofthe source category's emissions to the attainment problem" the imposition ofBACM would not contribute significantly to the achievement ofNAAQS. Therefore, the Plan must provide BACM for all agricultural sources.

Furthermore, even ifsize-based exemptions were permissible, thePlan fails to demonstrate that itis not technically or-economicallyfeasible to apply the requirements to souroes smaller than 100 acres. Ifpractical considerations are the primary reason forthe exemptions, then the Plan should adopt other mechanisms, such as

a phased implementation schedule, rather than aflat 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 inthe Valley. Therefore, agricultural operations would be a source category

4We note that the Clean Air Act does not define
theterm "significant source." Rather it is a concept that EPAdeveloped in guidance interpreting the Act'sRACM/BACM requirements. 57 FR 13498,
13540 (April 16, 1992); Addendum at 42011. forwhich BACM isrequired. However,

our applicable guidance for evaluating the economic feasibility ofpotential BACM provides that "[s]tates should not restrict their analysis to simple acceptance/rejection decisions based on whether full application ofameasure 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 ofthe sources in a category ifitis determined that 100 percent implementation ofthe measure is infeasible." Addendum at 42014. This is the approach that SJVUAPCD took when it considered the exemptions forRule 4550.

SJVUAPCD's staffreport associated with Rule 4550 (dated August 19, 2004) provides analyses ofvarious CMPs and
assessments ofcosts, feasibility, and impacts associated withthem. SJVUAPCD also considered farm census data, economic impacts, and per farm emissions in selecting the 100-acre threshold for cropland. As explained in the staffreport, agricultural activities in the SJV are significantly more diverse and ofa different scale than activities in the South Coast Air Basin orMaricopa County,where analogous rules apply to operations over 10acres. Rule 4550 (withits 100-acre exemption level) will apply to approximately 91 percent ofall irrigated farmland in the SJV. An economic analysis ofsmaller farms in this region indicates that the farms exempted by Rule 4550 due to the 100-

acre threshold earn, on average, $63,000 insales. It was determined that these farms would have less income and capital available to invest inequipment

orsystems to meet many ofthe CMP requirements in Rule 4550, and would therefore be disadvantaged in selection ofCMPs. SJVUAPCD also estimated emissions from 100-acre farms to determine the emissionimpact ofan exemption."SJVUAPCDstaffanalyzed different commodities and determined that PM-10 emissions would be quite low for smaller farms, less than 1 ton peryear. Therefore, SJVUAPCD concluded that the 100-acre exemption

was appropriate forthe SJV.

SJVUAPCD used a similar approach for the size-based exemptions for animal feeding operations. Rule 4550 is expected to apply to 73% ofdairy cows, 94% offeedlot cattle, and nearly all poultry operations. It was also determined that any sites qualifying for the size-based cut-offs would have emissions nogreater than 1ton peryear.

As discussed in the Addendum, energy andenvironniental impacts of control measures andthe cost ofcontrol shouldbe considered in determining 

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BACM. Economic feasibility considers the cost ofreducing emissions and costs incurred by similar sources. Addendum
at 42012-42013. The SJVUAPCD's analyses have also determined that application ofBACM atthe small operations that are subject to Rule 4550's exemptions would produce an insignificant regulatory benefit. As a result, EPA believes that the exemption ofthese 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 CMPprogram enables operators to avoid implementing controls on windblown dustby merely complying with already existing agricultural burning rules. Windblown dust should be established

as a stand-alone category inthe CMP
program, rather than being included as part ofthe "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 ofthe SJV 2003 PM-10 Plan,the SJVUAPCD used data from various monitoring networks to evaluate episodes for exceedance days atPM-10 monitors in the SJV.The SJVUAPCD's meteorological analysis ofwind speed associated with measured PM-10 exceedances found that exceedances largely occurred during periods oflow winds and stagnant conditions inthe fall and winter. Wind speeds are highest during the springwhen PM-10 levels

are attheir lowest. Only fivePM-10 exceedance days spanning a 13-year period vere identified as associated with strong winds.As aresult, 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 categoiy. Nevertheless, the PM-10 Plan does recognize that windblown dust can occur from agricultural disturbed surfaces by including windblown measures inthe "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, oralter the control categories in the Handbook without public input or SIPrevision. 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 amechanism to

ensure that citizens willbe 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 atool to assist sources in complying .withthe requirements of Rule 4550 and the CMP List. It provides instructions and descriptions ofCMPs
to assist growers in completing CMP applications. The CMP Handbook itself does not contain regulatory requirements. Ifthe APCO were to alter the content ofthe CMPHandbook, it would not alter the requirements ofRule 4550. Any changes to Rule 4550 would need to be adopted through the SJVUAPCD's public rulemaking process before going into effect. 5Even 

### ifthe CMP Handbook were eliminated,
growers would still be required to comply with the requirements ofRule 4550.

Rule 4550 does not allow the APCO
to grant exemptions from the CMP
program. Section 6.2 states that ifno 'feasibleCMP canbe identified from one category, then an owner/operator may select asubstitute CMP from another CMP category. Rule-4550 does specify criteria forthe APCO when evaluating

new or alternative CMP requirements. Section 6.2 states that to obtain approval ofaCMP 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 thePM-10 emission reductiois. CMPs that are notshown to

5Moreover, once approved byEPA into the SIP, Rule 4550 will be federally enforceable and, under CAA section 110(1), anyrevision to it cannot be approved by the Agency ifitwould interfere with
any applicable requirement concerning attainment, reasonable further progress or any other applicable requirement ofthe Act. 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 ofAPCO discretion may be considered appropriate ifexplicit andreplicable procedures within the rule tightly define how the discretion willbe exercised to assure equivalent emission reductions. 6 SJVUAPCD willmaintain a list ofany new CMPs that are approved. Itis expected that the CMP List willbe periodically updated intothe SIP. The CMP plans and the CMP Listare publicly available documents. The District has authority to enforce the requirements ofthis rule. Citizens may verify compliance by growers without
any further rule changes. Any adjustments to rule applicability thresholds will need tobe done through

a public rule development process, and proposed rule amendments willthen be subject to public review and comment.

Comment 8:Earthjustice claims that theemission reductions estimated to be achieved-by the Ag CMP program, 33.8
tons perday, are inaccurate and inflated because the estimate double counts emission reductions already being achieved from practices already in

common useby growers. According to Earthjustice, the failure to incorporate intothe Plan's demonstrations (5% and attainment) an estimate ofwhat percentage ofpractices have already been adopted has one oftwo results: Either the current emissions inventory relied upon inthe AgCMP calculations is highly overstated or the emissions reductions estimates are highly overstated. In either case, Earthjustice believes the validity ofthe 5% and, attainment demonstrations inthe Plan is undermined. To support its contentions, Earthjustice provides examples ofwhat it considers tobe 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-10Plan, we address two issues. First, we must determine whether or notthe rule, as adopted,.meets the CAA section 189(b)(1)(B) requirement for BACM in
terms ofthe stringency ofcontrols applied to agricultural PM-10 sources. Ourproposed action on Rule 4550 and

ourresponses to comments above set.

6"Guidance Document for Correcting Common VOCand 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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### Federal Register/Vol. 71, No. 30/Tuesday, February 14, 2006/Rules and Regulations

-

out our rationale for concluding that the adopted rule does comply with the BACM requirement inits 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'scommitment to achieve specific emission reductions from the rule as needed to meet plan requirements, such as the 5% obligation ofCAA section 189(d) and the attainment demonstration requirements ofCAA sections 189(d) and 179(d)(3). This second level ofanalysis frequently raises complex issues, such as the accuracy offugitive dust emission factors associated with particular activities, that are typically addressed in the context ofplans and plan amendments. These issues were made available forpublic comment during EPA's proposed approval ofthe 2003 SJV PM-10 Plan.

Webelieve the District's efforts'lo quantify emission reductions from Rule 4550 fall within established norms. With respect to the baseline emission inventory we approved as partofthe 2003 SJV PM-10 Plan, theDistrict developed it using emission factors based on field tests performed in the 1990s with standard available equipment (Rule4550 staff report, Appendix A-13).7Whilethe District used a combination ofmethods such as sampling, source tests, field measurements, and emission factor calculations, along withbest available data, to develop the inventory, the District recognized the need tobetter characterize emissions as well as the effectiveness ofcontrols (2003 PM-10 Plan, Appendix, H-2). Moreover, it was understood that some agricultural sites
may have been employing practices not required byregulation at that time, and that these existing practices may not havebeen accounted for inthe emission inventory. Rule 4550 makesthese practices mandatory and federally enforceable, allowing theDistrict to take credit forthe emission reductions (Rule 4550 staffreport, Appendix, A-6).

Emission reduction estimates are also circumscribed by available data, which

7Because ofthe complexity ofcompiling emission inventories, itis common torely on studies a decade ormore old such as done here. For example, the currentinventory estimates for residential wood burning stoves in most of California are based on 1990census data ofhow many homesburn wood forheating, and estimates for non-farm unpaved road dust arebased 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/chO4/index.htin), which provides emission factors used nationally for generating emission estimates and cites to many studies from the 1980s and 1990s. in this case was limited (Rule4550 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 forparticular 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 ofthe 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 ofRule 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 forthe PM-10 Reasonable Further Progress Plan due in 2006,8 then the SJVUAPCD shalltake actions necessary to meet the reduction target forthe CMP program. Those actions may include changing the exemption thresholds, increasing the total number ofCMPs 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 CMPprogram as'implemented is reducing PM-10 emissions from agricultural sources by atleast 35.3 tpd. In reaching this conclusion, the District used new and updated information primarily froih 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 ofRule 4550into the California SIP. Rule 4550 is the most comprehensive and effective regulation
to address agricultural air quality inthe nation and, as such, should be approved by EPAand adopted into the SIP. No other program adopted inthe country to control fugitivePM1 0 emissions from agriculture requires submittal ofthe actual CMP Planfor each location. No other adopted program willbe able to so extensively quantify the emissions

5SJVUAPCD must demonstrate that adequate emission reductions are achieved to meet progress requirements everythree years. 59 FR 42016 (August 16,1994).

9Inaddition, the District intends to undertake research to further refine emission factors as is routinely done toimprove inputs to emission inventories (seeRule 4550 staffreport, Appendix, A-6). reductions generated by the program as the Valley's.

Response:No response needed.

11. 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) ofthe Act, EPA is fully approving Rule 4550 and the CMPList into the California SIP.

IV. Statutoryand 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 ofManagement andBudget. For this reason, this action is also not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (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 nothave 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 notimpose any additional enforceable dutybeyond that required by state law, it does notcontain 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 nothave tribal implications because it will nothave a substantial direct effect on one ormore Indian tribes, on therelationship 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 6.7249, November 9, 2000). This action also does nothave 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 ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does notalter the relationship or the distribution ofpower and responsibilities established in the 

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

Clean AirAct. This rule also is not subject to Executive Order 13045 "Protection ofChildren from Environmental Health Risks and Safety Risks" (62 FR 19885. April 23, 1997), because itis noteconomically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean AirAct. Inthis context, in the absence ofa 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 lawfor EPA, when it reviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the Clean Air Act.Thus, the requirements of sectioth 12(d) ofthe National Techmology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does
notimpose an information collection burden underthe provisions ofthe Paperwork Reduction Act of 1995 (44 U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of1996, generally provides that before a rule may take effect, the
agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to eachHouse ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published inthe Federal Register. This action is not a "major rule" as definedby 5 U.S.C. 804(2).

Under section 307(b)(1) ofthe CAA, petitions forjudicial review ofthis action mustbe filed in the United States Court ofAppeals forthe appropriate circuit by April 17, 2006. Filing a petition forreconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule for the
purposes ofjudicial 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 inproceedings to enforce its requirements (seesection 307(b)(2)).

List ofSubjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental rel Particulate matter, Reporting an recordkeeping requirements.

Authority: 42 U.S.C. 7401 etseq. Dated: January 24, 2006. Wayne Nastri, Regional Administrator, RegionIX.

mPart52, Chapter I,Title 40oftl ofFederal Regulations is amend folrows:

PART 52-[AMENDED]

m 1. The authority citationforpa continues to read as follows:

Authority: 42 U.S.C. 7401 et seq. Subpart F-California

* 2.Section 52.220is amended I adding paragraph (c)(334)(i)(B) t

as follows:
§52.220 Identificationof plan.

* * * * * (c) * * * (334) * * * 

### (i)* * * (B) San Joaquin Valley Unifie Pollution Control District. (1)Rule 4550 and the List of Conservation Management Prac adopted onMay 20, 2004, re-ad August 19, 2004.

[FR Doc. 06-1311 Filed 2-13-06; 8:

BILLING CODE 6560-50-P

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Manageme Agency

44 CFR Part 65
Changesin Flood Elevation Determinations

AGENCY: Federal Emergency Management Agency (FEMA), Department ofHomeland Secur ACTION: Final rule.

SUMMARY:Modified Base (1% ai chance) Flood Elevations (BFEs finalized forthe communities li below. These modified elevatio be used to calculate flood insur premium rates fornew building theircontents. DATES: The effective dates for ti modified BFEs are indicated on table below and revise the Floo Insurance Rate Maps (FIRMs) ii for the listed communities prio date. ations, ADDRESSES: The modified BFEs for each d community are available for inspection
at the office ofthe ChiefExecutive Officer ofeach community. The respective addresses are listed inthe table below.

FOR FURTHER INFORMATION CONTACT: Doug Bellomo, P.E., Hazard he Code Identification Section, Federal ed as Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2903.

SUPPLEMENTARY INFORMATION: The

rt 52 Federal Emergency Management Agency makesthe final determinations listed below forthe modified BFEs for each community listed. These modified elevations have been published in
newspapers oflocal circulation and
y ninety (90) days have elapsed-since that

to read publication. The Mitigation Division Director has resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community inthis notice. However, this rule includes the address ofthe ChiefExecutive Officer ofthe community where the modified BFE
d Air determinations are available for inspection.

The modifications are made pursuant tices, to Section 206 ofthe Flood Disaster otie onProtection Act of 1973, 42 U.S.C. 4105, opted on and are in accordance with the National

Flood Insurance Act of 1968, 42 U.S.C. 4001 etseq., and with 44 CFR part 65. 45 am] For rating purposes, the currently effective community number is shown and must be used forall new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either nt adopt or to show evidence ofbeing 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 ity. the community must change any existing ordinances that are more stringent intheir floodplain nual- management requirements. The
are community may atany time enact sted stricter requirements ofits own, or

ns will pursuant to policies established by other

ance Federal, State, orregional entities.

;s and These modified BFEs are used to meet the floodplain management hese requirements ofthe NFIP and are also the used to calculate the appropriate flood d insurance premium rates fornew ieffect buildings built afterthese elevations are

rto this made final, and for the contents in these buildings. " 

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