Providing Legal & Technical Assistance to the Grassroots Movement for Environmental Justice

 Ralph San tiago Abasc al (1934-1997) D ire ctor 1990-1997 Lu ke W. Co le (1962-2009) Exe cu tive Dire ctor 1997-2009

Center on Race, Poverty & the Environment

47 Kearny Street, Suite 804, San Francisco, CA 94108 tel 415-346-4179 fax 415-346-8723 w w w .crpe-ej.org

October 14, 2011

Andrew Steckel

Office of Air Planning (AIR-4)

U.S. Environmental Protection Agency

75 Hawthorne Street

San Francisco, CA 94105

steckel.andrew@epa.gov

Re: Comments on Proposed Action on Rule 4570; Docket No.

EPA–R09–OAR–2011–0735.

Dear Mr. Steckel:

The Center on Race, Poverty & the Environment submits these comments on behalf of

the Association of Irritated Residents, Comité Residentes Organizados al Servicio del Ambiente

Sano, and Committee for a Better Arvin (collectively “AIR”). 

I. INTRODUCTION.

AIR objects to EPA’s proposed approval of Rule 4570 because the Rule fails to

demonstrate Reasonably Available Control Technology (RACT), evidence does not support the

baseline emission inventory and claimed reductions from the Rule, and because the Rule is not

enforceable. EPA’s proposed approval violates the Clean Air Act and is arbitrary and capricious.

A. Factual Background. 

The San Joaquin Valley has the worst fine particulate matter (PM2.5) pollution in the

United States, with the highest recorded annual average and 24-hour PM2.5 levels. 76 Fed. Reg.

41338, 41339 (July 13, 2011). The Valley also has some of the worst ozone pollution in the

U.S., logging 345 days when air quality violated the 1997 8-hour ozone standard between 2006
Mr. Andrew Steckel

Comments on Proposed Approval of Rule 4570

October 14, 2011

 See Select 8 Summary, attached as Exhibit 1. 1

 

2

http://valleyair.org/aqinfo/d-O38.htm, attached as Exhibit 2.

 EPA has found that VOC is a fine particulate matter precursor, but has declined to require 3

VOC controls as a PM2.5 precursor given the immense political pressure from California not to

do so. See 76 Fed. Reg. 41338 (July 13, 2011).

 Renee Sharp and Bill Walker, PARTICLE CIVICS: HOW CLEANER AIR IN CALIFORNIA WILL 4

SAVE LIVES AND SAVE MONEY, Environmental Working Group at 19, attached as Exh. 3.

 American Lung Association, STATE OF THE AIR: 2011, attached as Exh. 4. 5

Page 2 of 9

and 2010, or an average of 69 days per year. In 2011, the Valley recorded 67 unofficial days 1

when air quality exceeded the 8-hour ozone standard. 

2

In 2005, EPA designated the Valley as nonattainment for the 24-hour and annual average

1997 PM2.5 National Ambient Air Quality Standards. See 70 Fed. Reg. 944 (Jan. 5, 2005). That

designation triggered the ARB’s and the District’s obligation to adopt and submit a plan that

demonstrates attainment of the standards, among many other requirements of the Act.

In 2004, EPA designated the Valley as serious nonattainment for the 1997 8-hour ozone

National Ambient Air Quality Standard. See 69 Fed. Reg. 23858, 23888-89 (April 30, 2004). 

On May 5, 2010, EPA granted California’s request to reclassify the Valley as an extreme

nonattainment area. 75 Fed. Reg. 24409. That designation triggered the ARB’s and the

District’s obligation to adopt and submit a plan that demonstrates attainment of the standard,

among many other requirements of the Act.

NOx and VOC are ozone (commonly known as “smog”) precursors and fine particle

(PM2.5) precursors. PM2.5 levels in the San Joaquin Valley constitute a public health crisis. 3

The Environmental Working Group published the Air Resources Board’s estimates that show

1,292 San Joaquin Valley residents die each year from long-term exposure to PM2.5. Ozone 4

and PM pollution exacerbate respiratory conditions, including asthma, increase hospitalizations

and emergency room visits, contribute to cardiac illnesses, and increase school and work

absenteeism. For short term exposure, the American Lung Association ranks the San Joaquin 5

Valley counties of Kern, Fresno, and Tulare as the first, second, and ninth most PM2.5-polluted
Mr. Andrew Steckel

Comments on Proposed Approval of Rule 4570

October 14, 2011

 Id. at 14. 6

 Id. at 15. 7

 Id. at 14. 8

 See Jane Hall and Victor Brajer, THE HEALTH AND RELATED ECONOMIC BENEFITS 9

OF ATTAINING HEALTHFUL AIR IN THE SAN JOAQUIN VALLEY, March 2006, attached as Exh. 5. 

 Howard, et al. REACTIVE ORGANIC GAS EMISSIONS FROM LIVESTOCK FEED CONTRIBUTE

10

SIGNIFICANTLY TO OZONE PRODUCTION IN CENTRAL CALIFORNIA. Environmental Science &

Technology, 2010; 44 (7) at 2309, attached as Exhibit 6.

 Id. at 2123. 11

Page 3 of 9

counties in the United States , respectively. For long term exposure to PM2.5, the American

6

Lung Association ranks the San Joaquin Valley counties of Kern, Tulare (three way tie for 2nd

place along with Pinal and Riverside counties), Kings, and Fresno, as the first, second (three way

tie for 2nd place), fifth and sixth, most polluted counties, respectively. The American Lung 7

Association ranks the San Joaquin Valley counties of Kern, Fresno, Tulare, and Kings as the

first, second, ninth and eleventh most ozone polluted counties in the United States, respectively.8

Bakersfield, located in Kern County, records the highest concentrations of PM2.5 in the

United States. 76 Fed. Reg. at 41339. 

In late 2006, Jane V. Hall, Ph.D., and Victor Brajer, Ph.D., published a comprehensive

analysis of the effects from not meeting the 1997 8-hour ozone standard and the 1997 PM 2.5

standards. The health effects of not meeting these standards, and their concomitant economic

values, inflict a conservative measurable cost of $3 billion each year –$1,000 per person – in the

San Joaquin Valley. Most of the health cost impacts are associated with PM2.5-caused 9

premature death, while many effects cannot be measured by dollars. 

Emerging science has pointed to huge sources of under-regulated VOC pollution from

Valley dairies that may explain why past efforts to improve air quality have fallen short. Corn 10

silage alone emits approximately 84 tons per day of VOC, which forms approximately twice as

much ozone as the VOC emitted by all of the passenger vehicles in the Valley.11
Mr. Andrew Steckel

Comments on Proposed Approval of Rule 4570

October 14, 2011

Page 4 of 9

A. Statutory Background.

“The Clean Air Act sets forth a cooperative state-federal scheme for improving the

nation’s air quality.” Vigil v. Leavitt, 366 F.3d 1025, 1029 (9th Cir. 2004). Congress enacted the

1970 Clean Air Act (“the Act”), as amended in 1977 and 1990, “to protect and enhance the

quality of the Nation’s air resources so as to promote the public health and welfare and the

productive capacity of its population.” 42 U.S.C. § 7401(b)(1). The Act relies on a scheme of

cooperative federalism, whereby the states develop and submit plans and regulations to attain the

health-based standards. EPA’s role is to ensure that such plans and regulations conform to the

minimum requirements of the Act. 

Because the San Joaquin Valley is an ozone nonattainment area, the Plan must comply

with the requirements of sections 110 and 172 of the Clean Air Act, among other requirements of

the Act, or EPA has a mandatory duty to disapprove the state’s submissions, in whole or in part. 

See 42 U.S.C. §§ 7410(a), 7410(k), 7502; 40 C.F.R. part 51, subpart Z (PM2.5 Implementation

Rule). 

One of the fundamental principles of the Clean Air Act is that State Implementation Plans

must contain enforceable emission limitations and control measures to provide for attainment of

the health-based standards by the applicable deadline, provide reasonable further progress, and

comply with any other applicable requirement of the Act. 42 U.S.C. §§ 7410(a)(2)(A),

7502(c)(6). 

The General Preamble sets forth what it calls four “fundamental principles for SIPs”: SIP

measures must be quantifiable, enforceable, replicable, and accountable. Id. at 13567-13568. 

These principles apply to all SIPs and control measures. Id. at 13568. The second principle

(enforceable measures) means that the measures are “duly adopted, and specify clear,

unambiguous, and measurable requirements.” Id. “A legal means for ensuring compliance must

also exist for a measure to be enforceable.” Id. The practicality of determining compliance is a

factor. “A regulatory limit is not enforceable if, for example, it is impractical to determine

compliance with the published limit.” Id. EPA further explains the concept of enforceability in

the General Preamble:

In general, for a SIP regulation to be enforceable, it must clearly spell out which

sources or source types are subject to its requirements and what its requirements

(work practices, emission limits, etc.) are. The regulation also needs to specify the

time frames within which these requirements must be met, and must definitively state

recordkeeping and monitoring requirements appropriate to the type of sources being

regulated. The recordkeeping and monitoring requirements must be sufficient to

allow determinations on a continuing basis whether sources are complying. An
Mr. Andrew Steckel

Comments on Proposed Approval of Rule 4570

October 14, 2011

Page 5 of 9

enforceable regulation must also contain test procedures in order to determine

whether sources are in compliance. 

Id. at 13502.

II. RULE 4570 DOES NOT DEMONSTRATE RACT.

The Clean Air Act requires that Rule 4570 implement “all reasonably available control

measures as expeditiously as practicable (including such reductions in emissions from existing

sources in the area as may be obtained through the adoption, at the minimum, of reasonably

available control technology).” 42 U.S.C. § 7502(c)(1). RACT, in turn, is defined as “devices,

systems, process modifications, or other apparatus or techniques that are reasonably available

taking into account the necessity of imposing such controls in order to attain and maintain a

national ambient air quality standard, the social environmental, and economic impact of such

controls, and alternative means of providing for attainment and maintenance of such standard.”

40 C.F.R. § 51.100(o). Rule 4570’s menu approach violates RACT because it permits operators

to bypass emission reduction measures that are economically and technologically feasible.

Similarly, the menu approach allows operators to pick and choose from a group of

measures that must be implemented together to realize a comprehensive emission reduction

strategy. Proposed Menu Tables3.1(B) and 4.1(B) provide a straightforward example. Those

sections require that operators choose among several options, none of which are mutually

exclusive. A rule that fails to require all feasible reductions thus violates RACT.

Finally, the District low-balled emissions estimates from Total Mixed Rations (“TMR”)

to claim that an enclosed barn with a biofilter is not cost-effective. See Section III.A., infra. 

EPA should disapprove the RACT demonstration in this regard because an the District’s costeffectiveness calculation overstates per-ton reduction costs and EPA should ensure that the

District’s data manipulation does not undermine RACT. 

III. EPA APPROVAL OF EMISSIONS BASELINE AND CLAIMED REDUCTIONS

IS ARBITRARY AND CAPRICIOUS. 

A. TMR Emissions Estimates are Based on Industry Data without

Corroboration by Air District or EPA.

The source of data for determination of the emission rates for TMR and silage are

extremely problematic. The Staff Report notes that calculations of exposed surface area at
Mr. Andrew Steckel

Comments on Proposed Approval of Rule 4570

October 14, 2011

 Staff Report, Appendix at B-8. 12

 Howard, et al. REACTIVE ORGANIC GAS EMISSIONS FROM LIVESTOCK FEED CONTRIBUTE

13

SIGNIFICANTLY TO OZONE PRODUCTION IN CENTRAL CALIFORNIA. Environmental Science &

Technology, 2010; 44 (7) at 2313, attached as Exhibit 6.

 Staff Report, Appendix B-8. 14

 Staff Report, Appendix E-18. 15

Page 6 of 9

dairies are based on reports from dairy industry representatives. Such an important data point 12

should be collected based on measurements taken by District or EPA staff, not regulated entities

who have an incentive to underestimate emissions to skew cost effectiveness calculations.

Furthermore, there is no data in the record demonstrating the methodology of estimating,

or confirming the accuracy of, the total area of TMR exposure in feed lanes. The exposed TMR

area is large and is estimated by Howard to equal 1,650 square meters for a 1,200 cow dairy.13

The District staff report only estimates emissions based on an feed area of 225 square meters for

a dairy greater than 1,000 cows. Elsewhere, the District low-balled emissions estimates for 14

TMR by assuming only 0.658 square meters of feed area per cow. On a per cow basis, Howard

15

estimated emissions at 1.375 square meters per cow, or more than double that which the District

used when dismissing the feasibility of enclosed barns. 

B. The Expected Emission Reductions Rely on Unsubstantiated Assumptions.

The claimed emission reductions from Rule 4570 are unsubstantiated and should not be

claimed until solid science establishes their validity. As the Staff Report notes, most of the

emission reductions achieved from implementation of the mitigation measures are based on a

blanket 10% assumed control efficiency number that has no scientific support in the record. EPA

should not accept the massive assumption of emission reductions, without a scientific basis, that

the various measures each achieve a 10% reduction. EPA approval of this rule, and EPA’s use of

this rule’s emission reductions in its proposed approval of the 8-hour ozone plan’s attainment

demonstration, 76 Fed. Reg. at 57852, 57859, is arbitrary and capricious because reductions from

default assumptions lack supporting evidence. 

C. Rule 4570's Emission Control Measures Merely Codify Standard Operating

Procedure.

Many of the emission control measures listed in Rule 4570's menu are standard operating

procedure for dairies. In many cases, dairies will be able to comply without making any changes
Mr. Andrew Steckel

Comments on Proposed Approval of Rule 4570

October 14, 2011

Page 7 of 9

whatsoever. While the District contends that not all dairies are currently complying, there is no

basis for differentiating where reductions are real and where they merely appear on paper. For

instance, reductions will often be counted for a newly regulated medium size dairy that complies

with Menu 4.1(A)(1) by feeding its cows according to NRC guidelines. However, there is no

way to tell if the dairy was already feeding its cows according to the guidelines, not to mention

the fact that there is no evidence that establishes that such a practice actually results in reduced

VOC.

Another example is Menu 4.1(A)(2) that requires the TMR to be within 3 feet of a

feedlane fence. This measure supposedly reduces the surface area from which VOC would be

emitted from the highest VOC source in the Valley. There is no evidence to demonstrate that

standard industry practice is to allow the feed to go beyond three feet or that dairy operators don’t

already “push up” the feed to ensure that the cows can actually reach and eat the feed; a cow’s

head can only protrude a given distance from the feed stanchion so why would a profit-conscious

dairy business allow expensive feed to lay beyond the reach of the cows that the operator wants

to feed? Moreover, the measure assumes that cows aren’t continually consuming the feed,

thereby exposing previously covered feed containing VOC to air flow and evaporation. Finally,

the baseline emissions inventory measures emissions from feed in the feedlane at 31⁄2 feet. Staff

contends that this six-inch reduction would reduce the surface area and the flux rate of the feed

significantly. However, the District’s method does not yield a decrease in flux rate, only exposed

surface area. 

IV. RULE 4570 IS NOT ENFORCEABLE.

EPA has made no effort to analyze or consider whether Rule 4570 is enforceable. The

Proposed Rule offers a conclusory statement without facts or analysis. 

We believe these rules are consistent with the relevant policy and guidance

regarding enforceability, RACT, and SIP relaxations. The revisions to Rule 4570

address the deficiencies we noted in our January 14, 2010 limited disapproval

action, and include lowering the rule applicability threshold for poultry facilities

to include all major sources and an adequate RACT analysis for swine and poultry

facilities. The TSDs have more information on our evaluation.

76 Fed. Reg. at 56707.

The TSD also lacks information, facts, or analysis on EPA’s conclusion that Rule 4570 is

enforceable. The TSD’s only discussion of enforceability is a single, conclusory sentence. 

“Enforceability - In general, Rule 4570 requirements are sufficiently clear, and contain

adequate monitoring, recordkeeping and other provisions to determine compliance with the
Mr. Andrew Steckel

Comments on Proposed Approval of Rule 4570

October 14, 2011

Page 8 of 9

rule.” TSD at 3. Accordingly, approval of Rule 4570 is arbitrary and capricious because EPA

has failed to conduct any analysis and failed to consider enforceability.

Even if EPA did an analysis and evaluate Rule 4570 for enforceability, there are several

fundamental deficiencies which render the rule unenforceable as a practical matter, or make

certain key components of the rule unenforceable. 

The rule requires owners and operators to maintain “records sufficient to demonstrate

compliance with all applicable mitigation measures.” Section 7.2.3. The rule does not mandate

that records to be made available to the public, and only specifies that the records “shall be made

available to the APCO and EPA upon request.” Section 7.9. An LCAF operator, EPA, and/or

the District could refuse to provide the public access to the records, claiming that they are

proprietary, confidential business information, or otherwise not disclosable under the various

exemptions in open record laws. Moreover, the operator, District and/or EPA could also argue

that the records are not required to be disclosed upon a California Public Records Act request or

a Freedom of Information Act request because the EPA-approved rule in the State

Implementation Plan, which becomes federal law upon approval, trumps inconsistent state law

and would conflict with FOIA because it does not guarantee public access to all records

demonstrating compliance.

Significantly, there is no required monitoring for pushing up TMR in the feed lanes, the

most significant source of VOC emissions at dairy LCAFs and a required Rule 4570 measure. 

See sections 6 and 7. This is a fundamental failure because no monitoring is required to

demonstrate compliance, and only the general mandate for an operator to maintain records

applies. With respect to lagoon emissions, the rule leaves required monitoring at the discretion

of the “the APCO and EPA.” Section 6.1.

The rule also fails to require that the operator affirm the truth of the records, under

penalty of perjury, and does not require an operator to report a violation to the District or EPA. 

The absence of reporting violations significantly undermines the rules enforceability, especially

by the public. 

These faults, taken alone or together, demonstrate that the rule is unenforceable as a legal

and practical matter and thus violates the Act.

V. CONCLUSION.

For the reasons set forth above, the Rule 4570 violates the Clean Air Act. EPA should

disapprove the Rule as set forth above. 
Mr. Andrew Steckel

Comments on Proposed Approval of Rule 4570

October 14, 2011

Page 9 of 9

Sincerely, 

Brent Newell Tom Frantz, President

General Counsel Association of Irritated Residents

Maria Covarruvias, President Salvador Partida, Co-Chair 

Comité Residentes Organizados al Servicio Committee for a Better Arvin

Ambiente Sano