[Federal Register Volume 70, Number 60 (Wednesday, March 30, 2005)]
[Proposed Rules]
[Pages 16207-16209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6298]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA-311-0481; FRL-7892-8]


Revisions to the California State Implementation Plan; San 
Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve revisions to the San Joaquin 
Valley Unified Air Pollution Control District's portion of the 
California State Implementation Plan (SIP). These revisions concern 
particulate matter emissions from agricultural operations. We are 
proposing to approve a local rule to regulate these emission sources 
under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES: Any comments must arrive by April 29, 2005.

ADDRESSES: Send comments to Andrew Steckel, Rulemaking Office Chief 
(AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901 or e-mail to 
[email protected], or submit comments at http://www.regulations.gov.
    You can inspect copies of the submitted SIP revisions, EPA's 
technical support document (TSD), and public comments at our Region IX 
office during normal business hours by appointment. You may also see 
copies of the submitted SIP revisions by appointment at the following 
locations:

California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
San Joaquin Valley Unified Air Pollution Control District, 1990 E. 
Gettysburg Avenue, Fresno, CA 93726-0244.

    A copy of the rule may also be available via the Internet at http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is not 
an EPA Web site and may not contain the same version of the rule that 
was submitted to EPA.


FOR FURTHER INFORMATION CONTACT: Andrew Steckel, EPA Region IX, 
(415)947-4115, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What Rule Did the State Submit?
    B. Are There Other Versions of This Rule?
    C. What Is the Purpose of the Submitted Rule?
II. EPA's Evaluation and Action
    A. How Is EPA Evaluating the Rule?
    B. Does the Rule Meet the Evaluation Criteria?
    C. EPA Recommendations To Further Improve the Rule.
    D. Public Comment and Final Action.
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rule Did the State Submit?

    Rule 4550, Conservation Management Practices, and the List of 
Conservation Management Practices (CMP List), were adopted by the San 
Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) on May 
20, 2004. Rule 4550 and the CMP List were readopted without change on 
August 19, 2004, and submitted by the California Air Resources Board 
(CARB) to EPA on September 23, 2005. On October 18, 2004, this 
submittal was found to meet the completeness criteria in 40 CFR part 
51, appendix V, which must be met before formal EPA review.

B. Are There Other Versions of This Rule?

    There are no previous versions of Rule 4550 or the CMP List in the 
SIP. Rule 4550 and the CMP List were readopted without change on August 
19, 2004, to ensure a full and complete public notice process.

C. What Is the Purpose of the Submitted Rule?

    Small particulate matter (PM-10) harms human health and the 
environment. CAA section 110(a) requires States to submit regulations 
that control PM-10 emissions. The San Joaquin Valley area (SJV) is a 
serious PM-10 nonattainment area. 40 CFR 81.305. As such, under CAA 
section 189(b)(1)(B), the nonattainment plan for the area must, among 
other things, provide for the expeditious implementation of best 
available control measures (BACM).
    Because the SJV failed to attain the 24-hour and annual National 
Ambient Air Quality Standard (NAAQS) for PM-10 by the December 31, 
2001, statutory deadline, pursuant to CAA section 189(d), California 
was required to submit a plan that provides for expeditious attainment 
and, from the date of the plan submission until attainment, for an 
annual reduction in PM-10 or PM-10 precursor emissions within the area 
of not less than 5% of the amount of such emissions as reported in the 
most recent inventory

[[Page 16208]]

prepared for the area. 67 FR 48039 (July 23, 2002).
    One of the control strategies in the SJVUAPCD's 2003 PM-10 Plan \1\ 
is the Conservation Management Practices (CMP) Program. SJVUAPCD 
adopted Rule 4550, Conservation Management Practices, the CMP List, and 
Rule 3190, Conservation Management Practices Plan Fee,\2\ to implement 
the CMP Program. Rule 4550 contains requirements to control fugitive 
dust emissions from agricultural operations. It establishes the CMP 
Program that requires agricultural operation sites to select and 
implement CMPs, and submit these to the SJVUAPCD Air Pollution Control 
Officer (APCO) for approval. For each agricultural parcel of an 
agricultural operation site, the owner/operator is to select one CMP 
from the CMP List for each applicable category. Rule 4550 contains 
exemptions for several types of sources, including sites with total 
acreage less than 100 acres, parcels used for forestry, and animal 
feeding operations that meet specific size-based limits. The TSD has 
more information about this rule.
---------------------------------------------------------------------------

    \1\ On August 19, 2003, CARB submitted the ``2003 PM10 Plan, San 
Joaquin Valley Plan to Attain Federal Standards for Particulate 
Matter 10 Microns and Smaller.'' On December 30, 2003, CARB 
submitted the Amendment to the 2003 PM-10 Plan. CARB and the 
SJVUAPCD developed and adopted these SIP revisions in order to 
address the CAA requirements in Sec.  189(b)-(d). EPA approved the 
2003 PM-10 Plan and Amendment (collectively, 2003 PM-10 Plan) on May 
26, 2004. 69 FR 30006.
    \2\ SJVUAPCD Rule 3190 was not submitted for inclusion into the 
SIP. Rule 3190 establishes fees and fee schedules to recover the 
costs related to the review, approval, and enforcement of CMP 
applications and plans in accordance with Rule 4550. These fee 
provisions are not SIP-related economic incentives and are not 
designed to replace or relax an emission limit in the SIP. 
Therefore, it is unnecessary to include this rule in the SIP.
---------------------------------------------------------------------------

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rule?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), and must not relax existing requirements (see sections 110(l) and 
193). Pursuant to section 189(b) of the CAA and EPA guidance, serious 
PM-10 areas must submit SIPs that provide for the expeditious 
implementation of BACM for significant sources of PM-10 emissions. The 
activities regulated by SJVUAPCD Rule 4550 are significant sources of 
PM-10 emissions according to the emission inventory estimates for the 
SJV. SJVUAPCD 2003 PM-10 Plan. Therefore, SJVUAPCD Rule 4550 must meet 
the CAA's BACM requirements. Guidance and policy documents that we used 
to help evaluate enforceability and BACM requirements are described in 
the TSD.

B. Does the Rule Meet the Evaluation Criteria?

    We believe Rule 4550 and the CMP List are consistent with the 
relevant policy and guidance regarding enforceability, BACM, and SIP 
criteria. EPA has issued a General Preamble and Addendum to the General 
Preamble describing our preliminary views on how the Agency intends to 
review SIPs submitted to meet the CAA's requirements for PM-10 plans. 
See ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 
(General Preamble) 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 
1992) and ``State Implementation Plans for Serious PM-10 Nonattainment 
Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas 
Generally; Addendum to the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990,'' (Addendum) 59 FR 
41998 (August 16, 1994). The General Preamble defines a significant 
source category as one which contributes significantly to nonattainment 
of the PM-10 NAAQS. 57 FR at 13540. The Addendum provides that BACM is 
considered to be a higher level of control than RACM and is defined as 
being, among other things, the maximum degree of emissions reduction 
achievable from a source or source category which is determined on a 
case-by-case basis, considering energy, economic and environmental 
impacts. Addendum at 42010-42014.\3\
---------------------------------------------------------------------------

    \3\ CAA section 189(a)(1)(C) requires implementation of 
reasonably available control measures (RACM) for moderate PM-10 
nonattainment areas. A serious area PM-10 plan must also provide for 
the implementation of RACM to the extent that the RACM requirement 
has not been satisfied in the area's moderate area plan. There is no 
federally approved moderate area PM-10 plan for the SJV. However, we 
do not normally conduct a separate evaluation to determine if a 
serious area plan's measures meet the RACM as well as BACM 
requirements as interpreted by us in the General Preamble at 13540. 
This is because in our serious area guidance (Addendum at 42010), we 
interpret the BACM requirement as generally subsuming the RACM 
requirement (i.e., if we determine that the measures are indeed the 
``best available,'' we have necessarily concluded that they are 
``reasonably available''). Consequently, our proposed approval of 
Rule 4550 and the CMP List relating to the implementation of BACM 
also constitutes a proposed finding that the rule and list provide 
for the implementation of RACM and references to BACM in the 
discussion below are intended to include RACM.
---------------------------------------------------------------------------

    SJVUAPCD's staff report associated with Rule 4550 (dated August 19, 
2004) provides detailed analyses of various CMPs and an assessments of 
costs, feasibility, and impacts associated with them. SJVUAPCD also 
considered farm census data, economic impacts, and per farm emissions 
in selecting the 100-acre threshold for cropland, and the size-based 
exemptions for animal feeding operations that are contained in Rule 
4550. As discussed in the Addendum, energy and environmental impacts of 
control measures and the cost of control should be considered in 
determining BACM. Economic feasibility considers the cost of reducing 
emissions and costs incurred by similar sources. Addendum at 42012 and 
42013. The SJVUAPCD's analyses have also determined that application of 
BACM at these small operations would produce an insignificant 
regulatory benefit. As a result, the exemption of these smaller 
operations is considered reasonable and consistent with general 
procedures for making BACM determinations. The TSD discusses the 
evaluation of these exemptions in more detail.
    The CMP List is attached as an Appendix to the Rule 4550 staff 
report, and is also included in a CMP Handbook that is available to 
affected sources. The CMP List was submitted for inclusion into the 
SIP. The CMP List contains over 100 practices that are grouped into 18 
CMP categories. The CMP List for the SJV is more comprehensive than any 
similar lists existing in other serious nonattainment areas. When no 
feasible CMP can be used from the CMP List for a certain category, Rule 
4550 allows an owner/operator to select a substitute CMP from another 
category. An owner/operator may also use a CMP not on the CMP List if 
approval from the APCO is obtained. To obtain approval, the owner/
operator must demonstrate that the new CMP achieves PM-10 emission 
reductions that are at least equivalent to other appropriate CMPs on 
the CMP List. The APCO is required to perform an independent analysis 
to evaluate the PM-10 emission reductions. CMPs that are not shown to 
achieve equivalent reductions will be disapproved. SJVUAPCD will 
maintain a list of any new CMPs that are approved. It is expected that 
the CMP List will be periodically updated into the SIP.
    A requirement that an individual source select one control method 
from a list, but allowing the source to select which is most 
appropriate for its situation, is a common and accepted practice for 
the control of dust. See, e.g., 66 FR 50252, 50269 (October 2, 
2001).\4\ Allowing sources the discretion to

[[Page 16209]]

choose from a range of specified options is particularly important for 
the agricultural sector because of the variable nature of farming. 
Moreover, the economic circumstances of farmers vary considerably. As a 
result, it is imperative that flexibility be built into any PM-10 
control measure for the agricultural source category. Id. The TSD has 
more information on our evaluation.
---------------------------------------------------------------------------

    \4\ The U.S. Court of Appeals for the Ninth Circuit recently 
upheld EPA's approval of such a regulatory scheme in Vigil v. 
Leavitt, 366 F.3d 1025 (9th Cir. 2004).
---------------------------------------------------------------------------

C. EPA Recommendations To Further Improve the Rule

    The TSD describes additional rule revisions that do not affect 
EPA's current action but are recommended for the next time the local 
agency modifies the rule.

D. Public Comment and Final Action

    Because EPA believes Rule 4550 and the CMP List fulfill all 
relevant requirements, we are proposing to fully approve them under CAA 
section 110(k)(3) as meeting the requirements of section 189(a)(1)(C) 
and (b)(1)(B) of the Act. We will accept comments from the public on 
this proposal for the next 30 days. Unless we receive convincing new 
information during the comment period, we intend to publish a final 
approval action that will incorporate Rule 4550 and the CMP List into 
the federally enforceable SIP.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to approve State law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by State law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under State law and does not impose any 
additional enforceable duty beyond that required by State law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pub. Law 104-4).
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000). This action also does not 
have federalism implications because it does not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action 
merely proposes to approve a State rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does 
not impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

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

    Dated: March 15, 2005.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 05-6298 Filed 3-29-05; 8:45 am]
BILLING CODE 6560-50-P