2228 Federal Register / Vol. 77, No. 10 / Tuesday, January 17, 2012 / Rules and Regulations 

1See Vigil v. Leavitt, 381 F.3d 826 (9th Cir. 2004) 

(upholding EPA’s approval of the Arizona Ag BMP 

rule, Arizona Administrative Code (A.A.C.) R18–2– 

610 and R18–2–611); Latino Issues Forum v. EPA, 

558 F.3d 936 (9th Cir. 2009) (upholding EPA’s 

approval of SJVUAPCD Rule 4550). 2 Vigil, 381 F.3d at 836. 

(i) Expiration date. The applicability 

of paragraphs (d)(1) and (6) expires on 

January 13, 2015. 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: December 6, 2011. 

Emily S. McMahon, 

Acting Assistant Secretary of the Treasury 

(Tax Policy). 

[FR Doc. 2012–597 Filed 1–13–12; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0789; FRL–9615–5] 

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 

(SJVUAPCD) portion of the California 

State Implementation Plan (SIP). These 

revisions were proposed in the Federal 

Register on September 14, 2011 and 

concern volatile organic compound 

(VOC) emissions from confined animal 

facilities (CAFs) and biosolids, animal 

manure, and poultry litter operations. 

We are approving local rules that 

regulate these emission sources under 

the Clean Air Act as amended in 1990 

(CAA or the Act). 

DATES: Effective Date: This rule is 

effective on February 16, 2012. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2011–0789 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at http:// 

www.regulations.gov or in hard copy at 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Nancy Levin, EPA Region IX, (415) 972– 

3848, levin.nancy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and EPA Responses 

III. EPA Action 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

On September 14, 2011 (76 FR 56706), 

EPA proposed to approve the following 

rules into the California SIP. 

Local agency Rule No. Rule title Adopted Submitted 

SJVUAPCD ........................ 4570 Confined Animal Facilities .................................................................. 10/21/10 4/05/11 

SJVUAPCD ........................ 4565 Biosolids, Animal Manure, and Poultry Litter Operations ................... 3/15/07 8/24/07 

We proposed to approve these rules 

because we determined that they 

complied with the relevant CAA 

requirements. Our proposed action 

contains more information on the rules 

and our evaluation, including 

recommendations for future rule 

improvements. 

II. Public Comments and EPA 

Responses 

EPA’s proposed action provided a 30- 

day public comment period. During this 

period, we did not receive comments on 

Rule 4565, and received comments on 

Rule 4570 from one party: Brent Newell, 

Center on Race, Poverty & the 

Environment (CRPE); letter dated and 

received October 14, 2011. The 

comments and our responses are 

summarized below. 

Comment #1: CRPE argues that Rule 

4570’s menu approach does not comply 

with RACT because the rule allows 

operators to choose among options that 

are not mutually exclusive and thus 

fails to require all economically and 

technologically feasible reductions. 

Response to Comment #1: A menu 

approach can be consistent with RACT 

and may be a reasonable regulatory 

approach for agricultural sources where 

there is variability among operations. 

The Ninth Circuit Court of Appeals has 

twice upheld EPA’s approval of menubased rules regulating emissions of 

particulate matter from agricultural 

sources.1 Although Rule 4570 regulates 

VOCs, not particulate matter, these 

cases are instructive on the question of 

whether a menu approach can comply 

with RACT. 

In upholding EPA’s approval of 

Arizona’s AgBMP Rule as meeting the 

standard for Best Available Control 

Measures (BACM), as required by CAA 

section 189(b)(1)(B), the Ninth Circuit 

stated: 

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. 

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 Fed.Reg. at 42,010. 

Petitioners do not challenge this 

longstanding interpretation of the Act, and 

we cannot say that the interpretation is 

impermissible. See Alaska Dep’t of Envtl. 

Conservation, 540 U.S. 461, 124 S.Ct. at 1001; 

cf. 42 U.S.C. § 7479(3) (similarly defining the 

term ‘‘best available control technology’’ for 

purposes of the Prevention of Significant 

Deterioration program).2

Regarding SJVUAPCD Rule 4550, the 

court ruled that a menu-based approach 

can meet the requirements of CAA 

179(d)(2), which requires ‘‘additional 

measures as the Administrator may 

reasonably prescribe, including all 

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Federal Register / Vol. 77, No. 10 / Tuesday, January 17, 2012 / Rules and Regulations 2229 

3See, 74 FR 53761 (Sept. 17, 1979) (‘‘EPA has 

defined RACT as: The lowest emission limitation 

that a particular source is capable of meeting by the 

application of control technology that is reasonably 

available considering technological and economic 

feasibility.’’); see also, Memorandum from Roger 

Strelow, Assistant Administrator for Air and Waste 

Management to Regional Administrators, Regions I– 

X, on ‘‘Guidance for Determining Acceptability of 

SIP Regulations in Non-Attainment Areas,’’ section 

1.a (December 9, 1975), reprinted in (1976) 7 

Environmental Reporter, Current Developments 

(BNA) 1210. 

4SJVUAPCD Final Staff Report for Revised 

Proposed Amendments to Rule 4570 (Confined 

Animal Facilities), Oct. 21, 2010, (‘‘SJVUAPCD Staff 

Report for Rule 4570, Oct. 21, 2010’’), at 15. 

5For instance, the Phase I Dairy Feed menu, 

Table 3.1.A., which duplicates requirements in the 

previous version of the rule, allows CAF owners 

and operators to select 4 measures from 8 options; 

under the revised requirements, the Phase II Dairy 

feed menu, Table 4.1.A, mandates 4 specific 

measures and then requires owners and operators 

to select one additional measure from 4 options. 

Similarly, the Phase I Dairy Corral menu, Table 

3.1.E., allows CAF owners and operators to select 

6 measures from 13 options, whereas the Phase II 

menu, Table 4.1.E., mandates 6 specific measures 

and then requires owners and operators to select 

one additional measure from 4 options. 

6Howard, et. al., Reactive Organic Gas Emissions 

From Livestock Feed Contribute Significantly To 

Ozone Production In Central California, 

Environmental Science & Technology, 2010; 44 (7) 

at 2313). 

7See November 10, 2011 email communication 

from Ramon Norman, SJVUAPCD, to Sona 

Chilingaryan and Nancy Levin, EPA. 8 Krauter, Dairy Operations: An Evaluation and 

Comparison of Baseline and Potential Mitigation 

Practices for Emissions Reductions in the San 

Joaquin Valley, Final Report, May 1, 2009, 

California Air Resources Board Contract No. 04–343 

Project administered as CSU Fresno Foundation 

Project #37411. 

9See November 23, 2011 email communication 

from Sheraz Gill, SJVUAPCD, to Sona Chilingaryan 

and Nancy Levin, EPA. 10Howard, pg 2313. 11SJVUAPCD Staff Report for Rule 4570, Oct. 21, 

2010, App. B, at B–11. 

measures that can be feasibly 

implemented in the area * * * ’’. As the 

court noted: 

Petitioners argue that, under § 7509(d)(2), 

the District was required to implement all 

feasible measures to control PM–10 

emissions without delay, because the San 

Joaquin Valley had failed to meet its 

attainment deadlines. Petitioners contend 

that allowing agricultural operators to choose 

one control option (among many) from each 

of a few categories fails to meet the ‘‘all 

feasible measures’’ standard * * * 

The EPA offers an alternative reading of 

§ 7509(d)(2). The EPA argues that the section 

provides that submitted revisions must 

contain additional measures, but that the 

only additional measures required are those 

the Administrator reasonably may choose to 

prescribe. The measures that the 

Administrator may reasonably prescribe, the 

EPA asserts, include all measures that can be 

feasibly implemented in the area in light of 

technological achievability, costs, and 

economic, health, and environmental effects 

* * * 

Because § 7509(d)(2) is ambiguous and the 

EPA’s statutory interpretation is reasonable, 

we hold that the EPA acted lawfully by not 

requiring implementation of ‘‘all feasible 

measures’’ into Rule 4550. 

Similar to the Ninth Circuit’s 

decisions regarding CAA sections 

189(b)(1)(B) and 179(d)(2), a menubased approach can be consistent with 

CAA section 182(b)(2)’s RACT 

requirements. EPA has long interpreted 

RACT to encompass considerations of 

cost and feasibility.3 A menu approach 

that allows regulated entities to select 

among various control measures may be 

compatible with RACT and warranted 

in response to significant variability 

within the regulated source category. 

While CAFs may have less variability 

than crop-land activities subject to the 

rules discussed above, SJVUAPCD’s 

Staff Report for Rule 4570 described the 

District’s findings of variability in this 

industry.4

Also, SJVUAPCD’s revisions to Rule 

4570 included changes that now make 

many mitigation measures mandatory, 

rather than optional as under the 

previous version of Rule 4570, in effect 

narrowing the range of options in the 

menus.5 In general, we believe Rule 

4570 requires mandatory measures 

wherever possible, and the amount of 

flexibility provided by the menu 

approach is appropriate to the degree of 

variability among CAF operations. 

Comment #2: CRPE claims that the 

District underestimated emissions from 

Total Mixed Rations (TMR) to support 

its claim that requiring an enclosed barn 

with a biofilter is not a cost-effective 

measure. CRPE claims that the Staff 

Report’s calculations of exposed surface 

area at dairies are based on reports from 

dairy industry representatives. CRPE 

asserts that this data should be collected 

based on measurements taken by 

District or EPA staff, not regulated 

entities. CRPE claims that there are no 

data in the record demonstrating the 

methodology of estimating, or 

confirming the accuracy of, the total 

area of TMR exposure in feedlanes. It 

states that Howard 6 estimates the 

exposed TMR area for a 1,200 cow dairy 

to be 1,650 square meters, whereas the 

District’s staff report emission estimates 

are based on a feed area of 225 square 

meters for a dairy greater than 1,000 

cows. CRPE claims that the District 

underestimated emissions for TMR by 

assuming 0.658 square meters of feed 

area per cow, whereas Howard estimates 

emissions at 1.375 square meters per 

cow. CRPE argues that EPA should 

disapprove the RACT demonstration 

because the District’s cost-effectiveness 

calculation overstates per-ton reduction 

costs. 

Response #2: The District and EPA do 

not have the resources to directly take 

field measurements of all parameters 

relevant to all regulatory matters, and 

must often consider information 

compiled by industry and other 

organizations. Although Howard 

estimates TMR emissions based upon 

1.375 square meters of exposed surface 

per cow, the District’s assumption of 

0.658 square meters of exposed TMR per 

cow is corroborated by observations in 

several research studies.7 Measurements 

taken by Dr. Charles Schmidt in 2004, 

2005, and 2008 include a range of 

0.472–0.608 square meters of exposed 

TMR per total cows, and a range of 

0.641–0.893 square meters of exposed 

TMR per milk cows. Studies by Dr. 

Charles Krauter also assume an exposed 

surface area that is less than 1.375 

square meters per cow.8 Given this 

range, it is reasonable for the District to 

assume 0.658 square meters of exposed 

TMR per cow. Moreover, the District has 

clarified that its reference to 225 square 

meters of exposed surface area in Table 

10 in Appendix B of the Staff Report for 

Rule 4570 refers to the estimated 

exposed surface area of the face of the 

silage pile, not to TMR.9 Howard 

assumes only 90 square meters for the 

open face of the silage pile,10 so in this 

case, SJVUAPCD was actually 

considerably more conservative. 

Comment #3: CRPE asserts that 

SJVUAPCD’s estimated emission 

reductions from Rule 4570 are 

unsubstantiated and should not be 

claimed until solid science establishes 

their validity. CRPE objects to emission 

reduction estimates based on an 

assumed control efficiency of 10%. 

CRPE also asserts that EPA approval of 

Rule 4570 is arbitrary and capricious 

because reductions from default 

assumptions lack supporting evidence. 

Response to Comment #3: EPA’s 

proposed approval of Rule 4570 does 

not depend on the amount or accuracy 

of the emission reductions expected 

from the rule’s implementation. As 

explained in our proposal, the basis for 

our action is whether the rule meets the 

statutory and regulatory requirements 

for RACT. Nonetheless, EPA believes 

that the District used the best 

information available at the time it 

adopted Rule 4570 and applied that 

information reasonably to estimate 

emission reductions. The District 

explained, for example, its conservative 

approach in estimating emission 

reductions for many of the mitigation 

measures at 10%.11

CRPE made a similar comment 

regarding EPA’s proposed action on the 

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2230 Federal Register / Vol. 77, No. 10 / Tuesday, January 17, 2012 / Rules and Regulations 

12August 31, 2009 Letter from Brent Newell, 

Center on Race, Poverty and the Environment, to 

Frances Wicher and Andrew Steckel, EPA. 

13 75 FR 10435, March 8, 2010. 

14Association of Irritated Residents v. SJVAPCD 

(2008) 168 Cal. App. 4th 535, 553–554. 

15August 31, 2009 Letter from Brent Newell, 

Center on Race, Poverty and the Environment, to 

Frances Wicher and Andrew Steckel, EPA. 

16 71 FR 7683, February 14, 2006. 

17See December 5, 2011 email communication 

from Sheraz Gill, SJVUAPCD, to Sona Chilingaryan 

and Nancy Levin, EPA. 

18F. Montes et al., Temperature and Air Velocity 

Effects on Ethanol Emission from Corn Silage with 

the Characteristics of an Exposed Silo Face, 

Atmospheric Environment 44 (2010) 1987–1995. 

19SJVUAPCD Staff Report for Rule 4570, Oct. 21, 

2010, App. B, at 11. 

20EPA Region 9 Technical Support Document 

(‘‘TSD’’) for Rule 4570, Aug. 2011 at 3. 

2009 version of Rule 4570, and 

specifically in regards to reductions 

attributed to Menu option A.1, feeding 

animals according to National Research 

Council (NRC) Guidelines.12 In 

response, we noted that the District’s 

emission reduction estimate was based 

on several research studies showing that 

changes in animals’ diets reduce VOC 

emissions and that the 10% reduction 

was at the low end of the range of 

effectiveness seen in this research.13 We 

also noted that CRPE raised this issue in 

State court litigation on Rule 4570, and 

the court ruled in favor of the District.14

The District’s emission reductions 

analysis for the 2010 version of the Rule 

relies on the same research as the 2009 

version of the rule. While the District 

has made reasonable assumptions using 

the currently available science, we 

expect the District to continue revising 

emission estimates and control 

strategies as more research becomes 

available. In fact, we note that this rule 

revision is, in large part, a response to 

new research showing silage to be a 

greater source of VOCs than previously 

thought when requirements for previous 

versions of the rule were written. 

Comment #4: CRPE claims that many 

of the emission control measures listed 

in Rule 4570’s menus are standard 

operating procedure for dairies and that, 

in many cases, dairies will be able to 

comply with Rule 4570 without making 

any changes. CRPE gives two examples. 

In its first example, CRPE argues that 

reductions will often be counted for a 

dairy that complies with measure 

4.1(A)(1) by feeding its cows according 

to NRC guidelines even though it is not 

possible to determine if the dairy was 

already following the guidelines. CRPE 

also claims there is no evidence that 

feeding cows according to NRC 

guidelines reduces VOCs. In its second 

example, CRPE states that measure 

4.1(A)(2) requires TMR to be within 

three feet of a feedlane fence and argues 

that there is no evidence that standard 

industry practice allows feed to go 

beyond three feet or that dairy operators 

do not already ‘‘push up’’ the feed to 

ensure that the cows can actually reach 

it. CRPE further argues that dairies 

already have an incentive to not allow 

expensive feed to lie beyond the reach 

of the cows. CRPE also claims that the 

measure assumes that cows are not 

continually consuming the feed, thereby 

exposing previously covered feed 

containing VOC to air flow and 

evaporation. CRPE further notes that the 

baseline emissions inventory measures 

emissions from feed in the feedlane at 

3c feet, and that District staff contend 

that this six inch reduction would 

reduce the surface area and the flux rate 

of the feed significantly; however, CRPE 

argues that the District’s method does 

not yield a decrease in flux rate, only 

exposed surface area. 

Response to Comment #4: As 

explained in response to Comment #3, 

EPA’s proposed approval of Rule 4570 

does not depend on the amount of 

emission reductions. Nonetheless, 

SJVUAPCD believes and we concur that 

Rule 4570 will significantly reduce 

emissions. Simply because a menu 

option is commonly used does not mean 

that every facility uses it or uses it 

consistently. 

CRPE raised a similar argument in 

response to our action on the 2009 

version of Rule 4570.15 We also received 

a similar comment from another 

commenter in response to our 2005 

proposal to approve SJVAPCD Rule 

4550, Conservation Management 

Practices (CMP) for agricultural sources 

of PM–10. The commenter claimed that 

the emission reductions estimated to be 

achieved by Rule 4550 were inaccurate 

and inflated because the estimate 

double-counted emission reductions 

already being achieved from practices 

already in common use by growers. In 

response, we explained, ‘‘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 

* * *.’’16

Regarding the first example, as we 

note above in our response to comment 

#3, the District’s emission reduction 

estimate for feeding based on NRC 

guidelines was based on several 

research studies showing that changes 

in animals’ diets reduce VOC emissions 

and that the 10% reduction was at the 

low end of the range of effectiveness 

seen in this research. 

Regarding the second example, during 

past site visits, SJVUAPCD staff has 

observed feed lying more than three feet 

away from cows at dairies.17 EPA staff 

has also seen feed lying more than three 

feet away from the feedlane fence 

during site visits. Although there is 

financial incentive for dairies to contain 

expensive feed close to the cows, dairies 

respond to this incentive in varied 

degrees. It is reasonable to assume that 

including this measure in Rule 4570 

will increase implementation of this 

activity. As for CRPE’s statement that 

cows continuously expose the feed 

containing VOCs to air flow and 

evaporation, we note that recent 

research indicates that TMR will emit 

VOCs only in the first few hours after 

exposure to oxygen.18 The District’s 

staff report only claims that reductions 

in the surface area of the feed will 

reduce emissions, not that reductions in 

the surface area of the feed will reduce 

the flux rate.19 Based on the research 

available to date, it is reasonable to 

conclude that reductions in the surface 

area of the feed exposed to air flow will 

reduce emissions. 

Comment #5: CRPE comments that 

approval of Rule 4570 is arbitrary and 

capricious because Rule 4570 is 

unenforceable. CRPE comments that 

EPA has not presented facts or analysis 

to support its conclusion that Rule 4570 

is enforceable. 

Response #5: As stated in its TSD, 

EPA found that Rule 4570 was 

sufficiently clear and contained 

adequate monitoring, recordkeeping and 

other provisions to determine 

compliance with the rule.20 We provide 

further elaboration on that finding here. 

Consistent with CAA section 110(a) 

and relevant guidance, we reviewed 

Rule 4570 as we review other SIP 

submitted rules, to ensure that the rule 

language makes clear who must do what 

by when. EPA notes that it did evaluate 

the enforceability of Rule 4570 

according to the criteria in the policy 

documents identified in our proposal, in 

particular, ‘‘Issues Relating to VOC 

Regulation Cutpoints, Deficiencies, and 

Deviations,’’ EPA, May 24, 1988 (the 

Bluebook), ‘‘Guidance Document for 

Correcting Common VOC and Other 

Rule Deficiencies,’’ EPA Region 9, 

August 21, 2001 (the Little Bluebook), 

and ‘‘Review of State Implementation 

Plans and Revisions for Enforceability 

and Legal Sufficiency.’’ EPA found that 

Rule 4570 sets forth clear standards as 

well as adequate recordkeeping and 

monitoring and therefore meets the 

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21Memorandum from Potter, Adams & Blake, 

EPA, September 23, 1987, p. 3. 22 Id. at 4. 23Letter from Andrew Steckel, Chief, Rules Office 

EPA Region 9 to George Heinen, SJVUAPCD, July 

20, 2010. 

24EPA Region 9 TSD for Rule 4570, Aug. 2011 at 

6. 

25 Id. at 4. 

26For example, section 7.3, ‘‘Records for Feed 

and Silage Mitigation Measures,’’ and section 7.5, 

‘‘Records for Freestall/Corral/Animal Housing’’ set 

forth detailed recordkeeping requirements for those 

specific work practice requirements. 

27California has an analogous statute, the Public 

Records Act, Cal. Govt. Code §§ 6250–6276.48. 

28 40 CFR part 2, and regulations specific to the 

CAA at 40 CFR 2.301 et seq. 

29 40 CFR part 2, Subpart B (40 CFR 2.201–2.215). 

30 40 CFR 2.301(e). 

general criteria for enforceability 

imposed by the CAA and relevant 

guidance and regulations. 

National policy and precedent for 

implementing CAA section 110(a)’s 

enforceability requirement emphasizes 

that SIP requirements must be clear. 

See, for example, ‘‘Review of State 

Implementation Plans and Revisions for 

Enforceability and Legal Sufficiency,’’ 

summary of enforceability criteria 

(‘‘Your review should ensure that the 

rules in question are clearly worded and 

explicit in their applicability to the 

regulated sources,’’) 21 and conclusion 

(‘‘SIP revisions should be written 

clearly, with explicit language to 

implement their intent.’’) 22

EPA notes that the commenter did not 

identify any particular requirement that 

it believes to be lacking in clarity or 

specificity. In fact, Rule 4570 contains 

specific standards throughout its 

provisions. For example, the rule’s 

applicability provision, Section 2.0, is 

unambiguously presented as, ‘‘The 

provisions of this rule shall apply to any 

Confined Animal Facility.’’ The rule’s 

compliance time frame is also clearly set 

out in Section 8.0. Rule 4570’s 

provisions imposing more particular 

requirements are also clearly set forth. 

For example, the Phase II Dairy silage 

menu, Table 4.1 B., requires owners and 

operators to select among mitigation 

measures that contain specific standards 

for the thickness of the tarps that cover 

the silage piles; the density of the silage 

piles themselves; and for managing the 

exposure of the silage piles. Similarly, 

the Phase II Dairy free stall barn menu, 

Table 4.1 D., requires owners and 

operators to select among mitigation 

measures that specify the width of 

paving for feedlanes, the frequency for 

clearing the feedlanes, and the type of 

allowable bedding materials. These are 

but a few examples of the specific 

standards set forth throughout Rule 

4570. 

Moreover, the record associated with 

the development of Rule 4570 shows 

efforts made by EPA and the District to 

ensure clarity in Rule 4570. For 

example, in a comment letter provided 

by EPA to the District regarding EPA’s 

review of a draft version of Rule 4570, 

EPA recommended to the District that it 

revise three Phase II menus for dairies 

by adding definitions for at least six 

terms and including a specific 

frequency for vacuuming manure from 

freestall barns.23 In addition, EPA’s TSD 

contains detailed references to various 

standards embedded in the rule, further 

evidence that we carefully considered 

the clarity and specificity of Rule 4570’s 

standards and requirements. For 

example, EPA’s TSD notes that the 2009 

version of Rule 4570 has one menu 

generally for poultry facilities, while the 

current rule has two menus more 

specifically tailored to layer facilities 

(Table 4.5) and broiler, duck or turkey 

facilities (Table 4.6).24 EPA’s TSD also 

describes the removal of an option from 

dairy and feedlot menus regarding the 

installation of floats in water troughs 

because the District determined that the 

measure was already standard industry 

practice.25

In addition to the rule’s clarity and 

specificity, EPA considered the rule’s 

other enforcement-related provisions. 

For example, sections 5.1.3 and 8.1 

require each CAF owner/operator to 

submit, by April 21, 2011, an 

application for a construction or 

operating permit that includes a facility 

emission mitigation plan identifying the 

mitigation measures selected for the 

facility. Section 5.1.6 requires the 

District to act on complete applications 

within 6 months of receipt and to list 

the approved mitigation measures as 

permit conditions. Section 5.1.2 also 

specifies that initial permits to construct 

and operate for large CAFs will be 

subject to a 30-day public comment 

period. 

In addition, sections 7.0–7.9 contain 

various recordkeeping requirements, 

including: Section 7.2.1, which requires 

owners and operators to maintain copies 

of all facility permits; section 7.2.2, 

which requires owners and operators to 

maintain quarterly records of the 

number of animals of each species and 

production group; and, section 7.2.3, 

which contains a broad requirement for 

owners and operators to ‘‘maintain 

records sufficient to demonstrate 

compliance with all applicable 

mitigation measures.’’ In addition, 

sections 7.3–7.8 contain specific 

recordkeeping requirements for various 

mitigation measures 26 and section 7.9 

requires CAF owners and operators to 

maintain records for a minimum of 5 

years. In addition, sections 7.10 and 

7.11 impose source testing requirements 

and relevant test methods. 

Comment #6: CRPE alleges that Rule 

4570’s recordkeeping provisions are 

inadequate to assure sufficient public 

access to documents that demonstrate 

compliance with applicable mitigation 

measures. Specifically, the commenter 

states that the rule’s requirement that 

owners and operators provide records to 

the APCO and EPA upon request is not 

sufficient because it does not ‘‘mandate 

that records * * * be made available to 

the public.’’ The commenter claims that, 

as a result, the public could be denied 

access to records by entities ‘‘claiming 

that they are proprietary, confidential 

business information, or otherwise not 

disclosable under the various 

exemptions in open records laws.’’ 

CRPE expresses the concern that Rule 

4570’s lack of a ‘‘guarantee’’ of public 

access to all records demonstrating 

compliance means that the District and/ 

or EPA could withhold documents from 

the public on the ground that Rule 4570 

‘‘trumps’’ inconsistent state law or 

conflicts with FOIA. 

Response #6: The Freedom of 

Information Act (‘‘FOIA’’), 5 U.S.C. 552, 

requires the federal government, 

including agencies such as EPA, to 

provide records to the public upon 

request.27 In addition, EPA has its own 

regulations that apply to its 

implementation of FOIA.28 As noted by 

the commenter, FOIA does include 

various exemptions, including an 

exemption for ‘‘trade secrets and 

commercial or financial information 

obtained from a person and privileged 

or confidential. Id. at § 552(b)(7). The 

FOIA regulations specify the procedures 

by which regulated entities may claim 

information to be confidential or trade 

secret and the process for the review of 

such claims.29 EPA’s regulations also 

specify that ‘‘emissions data’’ does not 

qualify as confidential information.30

These statutory and regulatory 

provisions and exemptions would apply 

to records in EPA’s possession 

regardless of whether Rule 4570 

explicitly required records to be made 

available to the public. The fact that 

local Rule 4570 does not expressly 

provide the public with access to CAF 

records cannot ‘‘trump’’ federal law in 

FOIA. Moreover, it would be 

inconsistent with these established 

statutory and regulatory provisions to 

withhold our approval of Rule 4570 for 

the reason suggested by the commenter. 

Few if any State requirements approved 

by EPA mandate that records be made 

available to the public as requested by 

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2232 Federal Register / Vol. 77, No. 10 / Tuesday, January 17, 2012 / Rules and Regulations 

31See SJVUAPCD Dairy Compliance Checklist. 

the commenter. Rule 4570, by requiring 

records be made available to regulatory 

agencies, is consistent with the vast 

majority of the thousands of SIP 

requirements approved by EPA over the 

last 40 years, and we are aware of 

nothing in the CAA that conflicts with 

this practice. 

Comment #7: CRPE alleges two 

specific deficiencies in Rule 4570’s 

monitoring provisions: (1) Even though 

Rule 4570 has a general provision for 

maintaining records sufficient to 

demonstrate compliance, there is no 

specific monitoring associated with the 

requirement to push TMR within three 

feet of a feedlane fence; and (2) 

monitoring of lagoons is left to the 

discretion of the APCO and EPA. 

Response #7: Although there is not a 

specific provision requiring 

recordkeeping for pushing TMR within 

three feet of a feedlane fence, as the 

commenter notes, section 7.2.3 of Rule 

4570 requires that CAF owners and 

operators ‘‘maintain records sufficient to 

demonstrate compliance with all 

applicable mitigation measures.’’ In 

addition, the District has developed an 

example Dairy Compliance Checklist 

that provides compliance guidance.31

The Checklist asks dairies to have a 

check mark for every day that feed is 

pushed within three feet of the feedlane 

fence within two hours of placing the 

feed in the feedlane. 

With respect to the commenter’s 

concern regarding discretion in the 

monitoring of lagoons (section 6.1), EPA 

notes that the ‘‘discretion’’ is reasonably 

limited in scope. Rule 4570 section 6.1 

specifies that lagoons must be 

monitored ‘‘at least once every calendar 

quarter, with at least 30 days between 

monitoring tests.’’ Although section 6.1 

does not specify the parameters that 

must be monitored, this issue is 

addressed by other provisions within 

the rule. For example, sections 5.1.3 and 

5.1.5 require implementation of 

emission mitigation plans, which must 

be included as permit conditions in the 

CAF’s operating and construction 

permits. For owners and operators 

implementing lagoons as a mitigation 

measure, section 6.1 contemplates that 

these plans and permits will identify the 

parameters approved by the District and 

EPA. Furthermore, owners and 

operators using lagoons as mitigation 

measures must also comply with source 

testing requirements set forth in sections 

7.10.2—7.10.6. 

Comment #8: CRPE alleges that Rule 

4570 is deficient because it does not 

require operators to affirm the truth of 

records under penalty of perjury, nor 

does it require operators to report 

violations to the District or EPA. 

Response #8: The commenter has not 

provided and EPA is not aware of any 

federal rule, regulation or policy that 

would impose such requirements as a 

condition of SIP approval. As explained 

above, EPA evaluated the enforceability 

of Rule 4570 according to the authorities 

and guidelines identified in our 

proposal and found that Rule 4570 

meets the general criteria for 

enforceability imposed by the CAA and 

relevant guidance and regulations. EPA 

also notes that CAA section 113(c)(2) 

provides that any person who 

knowingly makes a ‘‘false material 

statement’’ or ‘‘omits material 

information from * * * any * * * 

application, record, report, plan or other 

document’’ required by the Act may be 

subject to criminal fines or by 

imprisonment or both. This provision 

will apply to records required by Rule 

4570 upon the effective date of our 

approval of the rule into the California 

SIP. 

III. EPA Action 

No comments were submitted that 

change our assessment that the 

submitted rules comply with the 

relevant CAA requirements. Therefore, 

as authorized in section 110(k)(3) of the 

Act, EPA is fully approving these rules 

into the California SIP. This action 

permanently terminates all CAA 

sanction and FIP implications of our 

January 14, 2010 (75 FR 2079) limited 

disapproval of Rule 4570. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

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 action 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 Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by March 19, 2012. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

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Federal Register / Vol. 77, No. 10 / Tuesday, January 17, 2012 / Rules and Regulations 2233 

not affect the finality of this action 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, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: December 13, 2011. 

Jared Blumenfeld, 

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 paragraphs (c)(351)(i)(C)(7) and 

(388)(i)(B)(5) to read as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(351) * * * 

(i) * * * 

(C) * * * 

(7) Rule 4565, ‘‘Biosolids, Animal 

Manure, and Poultry Litter Operations’’, 

adopted on March 15, 2007. 

* * * * * 

(388) * * * 

(i) * * * 

(B) * * * 

(5) Rule 4570, ‘‘Confined Animal 

Facilities’’, amended on October 21, 

2010. 

* * * * * 

[FR Doc. 2012–582 Filed 1–13–12; 8:45 am] 

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