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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, 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 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: 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

nonattaininent areas, and how the CMP

program complies with these

requirements is provided in our

proposed rule and technical support

document (TSD).

I. 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 prov)ided our responses below.

Comment 1: Earthjustice comments

that the San Joaquin Valley (SJV or the

Valley) is subject to the requirements of

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

omment 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.

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 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 a]. v. U.S.E.P.A. et 01., 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

2 "State Implementation Plans for Serious PM-10

Nonattainment Areas, and Attainment Date Waivers

for PM-IO Nonattainment Areas Generally;

Addendum to the General Preamble for the

Implementation of Title I of the Clean Air Act

Amendments of 1990r" 59 FR 41998 (August 16,

1994).

3 The Association of Irritated Residents also.

petitioned for review of EPA's final action and the

cases were consolidated.

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

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-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 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-ID 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 CMlPs 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

Teasonable 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 pf the CAA on December

9, 1998 (63 FR 67784).

The regulatory approach selected by

the SJVUAPCD specifically for the

control of PM-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

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

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 3,1, 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 PM10 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-IO 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 Deldney compels 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 Association of Irritatea

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 souroes

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

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.

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 environniental impacts of

control measures and the cost of control

should be considered in determining

7685
Federal Register/Vol. 71, No. 30/Tuesday, February 14, 2006/Rules and Regulations

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 vere 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 categoiy. 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

reductiois. CMPs that are not shown to

5 Moreover, once approved by EPA into the SIP,

Rule 4550 will be federally enforceable and, under

CAA section 110(1), 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.

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.

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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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 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'lo

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

7 Because of the complexity of compiling

emission inventories, it is common to rely on

studies a decade or more old such as done here. For

example, the current inventory estimates for

residential wood burning stoves in most of

California are based on 1990 census data of how

many homes burn wood for heating, and estimates

for non-farm unpaved road dust are based on a 1993

Caltrans study. See http:/www.arb.ca.gov/app/

emsinv/. See also EPA's AP-42 {http://

www.epa.gov/ttn/chief/ap42/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 (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 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 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

5 SJVUAPCD 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).

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) 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 6.7249, 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

.7687
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 sectioth 12(d) of the

National Techmology 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 rel

Particulate matter, Reporting an

recordkeeping requirements.

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

Dated: January 24, 2006.

Wayne Nastri,

Regional Administrator, Region IX.

m Part 52, Chapter I, Title 40 oftl

of Federal Regulations is amend

folrows:

PART 52-[AMENDED]

m 1. The authority citation forpa

continues to read as follows:

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

Subpart F-California

* 2. Section 52.220 is amended I

adding paragraph (c)(334)(i)(B) t

as follows:

§52.220 Identification of plan. * * * * *

(c) * * *

(334) * * *

(i) * * *

(B) San Joaquin Valley Unifie

Pollution Control District.

(1) Rule 4550 and the List of

Conservation Management Prac

adopted on May 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 of Homeland Secur

ACTION: Final rule.

SUMMARY: Modified Base (1% ai

chance) Flood Elevations (BFEs

finalized for the communities li

below. These modified elevatio

be used to calculate flood insur

premium rates for new building

their contents.

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 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

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

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

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 in this notice.

However, this rule includes the address

of the Chief Executive Officer of the

community where the modified BFE

d Air determinations are available for

inspection.

The modifications are made pursuant

tices, to Section 206 of the 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 et seq., and with 44 CFR part 65.

45 am] 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

nt 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

ity. the community must change any

existing ordinances that are more

stringent in their floodplain nual- management requirements. The are community may at any time enact

sted stricter requirements of its own, or

ns will pursuant to policies established by other

ance Federal, State, or regional entities.

;s and These modified BFEs are used to meet

the floodplain management

hese requirements of the NFIP and are also

the used to calculate the appropriate flood

d insurance premium rates for new

ieffect buildings built after these elevations are

r to this made final, and for the contents in these

buildings. "

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