[Federal Register Volume 77, Number 10 (Tuesday, January 17, 2012)]
[Rules and Regulations]
[Pages 2228-2233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-582]


=======================================================================
-----------------------------------------------------------------------

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, <a href="/cdn-cgi/l/email-protection#7c10190a151252121d121f053c190c1d521b130a"><span class="__cf_email__" data-cfemail="a3cfc6d5cacd8dcdc2cdc0dae3c6d3c28dc4ccd5">[email protected]</span></a>.

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         3/15/07         8/24/07
                                                    Poultry Litter Operations.
----------------------------------------------------------------------------------------------------------------

    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 menu-based 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.
---------------------------------------------------------------------------

    \1\ See 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).
---------------------------------------------------------------------------

    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. Sec.  7479(3) (similarly defining the term ``best 
available control technology'' for purposes of the Prevention of 
Significant Deterioration program).\2\
---------------------------------------------------------------------------

    \2\ Vigil, 381 F.3d at 836.

    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

[[Page 2229]]

measures that can be feasibly implemented in the area * * * ''. As the 
---------------------------------------------------------------------------
court noted:

    Petitioners argue that, under Sec.  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 Sec.  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 Sec.  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 menu-based 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\
---------------------------------------------------------------------------

    \3\ See, 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.
    \4\ SJVUAPCD 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \5\ For 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \6\ Howard, 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \7\ See 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 <greek-i>37411.
    \9\ See November 23, 2011 email communication from Sheraz Gill, 
SJVUAPCD, to Sona Chilingaryan and Nancy Levin, EPA.
    \10\ Howard, pg 2313.
---------------------------------------------------------------------------

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

    \11\ SJVUAPCD Staff Report for Rule 4570, Oct. 21, 2010, App. B, 
at B-11.
---------------------------------------------------------------------------

    CRPE made a similar comment regarding EPA's proposed action on the

[[Page 2230]]

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.
---------------------------------------------------------------------------

    \12\ August 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.
    \14\ Association of Irritated Residents v. SJVAPCD (2008) 168 
Cal. App. 4th 535, 553-554.
---------------------------------------------------------------------------

    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 3[frac12] 
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 
<greek-i>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\
---------------------------------------------------------------------------

    \15\ August 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.
---------------------------------------------------------------------------

    Regarding the first example, as we note above in our response to 
comment <greek-i>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.
---------------------------------------------------------------------------

    \17\ See December 5, 2011 email communication from Sheraz Gill, 
SJVUAPCD, to Sona Chilingaryan and Nancy Levin, EPA.
    \18\ F. 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.
    \19\ SJVUAPCD Staff Report for Rule 4570, Oct. 21, 2010, App. B, 
at 11.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \20\ EPA Region 9 Technical Support Document (``TSD'') for Rule 
4570, Aug. 2011 at 3.
---------------------------------------------------------------------------

    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

[[Page 2231]]

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

    \21\ Memorandum from Potter, Adams & Blake, EPA, September 23, 
1987, p. 3.
    \22\ Id. at 4.
---------------------------------------------------------------------------

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

    \23\ Letter from Andrew Steckel, Chief, Rules Office EPA Region 
9 to George Heinen, SJVUAPCD, July 20, 2010.
    \24\ EPA Region 9 TSD for Rule 4570, Aug. 2011 at 6.
    \25\ Id. at 4.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \26\ For 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.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 2232]]

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.
---------------------------------------------------------------------------

    \27\ California has an analogous statute, the Public Records 
Act, Cal. Govt. Code Sec. Sec.  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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \31\ See SJVUAPCD Dairy Compliance Checklist.
---------------------------------------------------------------------------

    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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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

[[Page 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]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220, is amended by adding paragraphs (c)(351)(i)(C)(7) 
and (388)(i)(B)(5) to read as follows:


Sec.  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]
BILLING CODE P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>