Comment Info: =================

General Comment:Supplemental Material Document Title:  CG-05 Ltr. To Facey on Diving Report - 03/10/09 1 Page


[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Rules and Regulations]
[Page 72592]
[FR Doc No: 2015-29677]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2015-1023]

Drawbridge Operation Regulation; Atlantic Intracoastal Waterway,
Albemarle and Chesapeake Canal, Chesapeake (Great Bridge), VA

AGENCY: Coast Guard, DHS.

ACTION: Notice of deviation from drawbridge regulations.

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SUMMARY: The Coast Guard has issued a temporary deviation from the
operating schedule that governs the S168 Bridge (Battlefield Boulevard)
across the Atlantic Intracoastal Waterway, Albemarle and Chesapeake
Canal, mile 12.0, at Chesapeake (Great Bridge), VA. This deviation
allows the bridge to remain in the closed-to-navigation position to
facilitate the annual Chesapeake Christmas Parade.

DATES: This deviation is effective from 4 p.m. on December 5, 2015
until 10 p.m. on December 5, 2015.

ADDRESSES: The docket for this deviation, [USCG-2015-1023], is
available at http://www.regulations.gov. Type the docket number in the
``SEARCH'' box and click ``SEARCH''. Click on Open Docket Folder on the
line associated with this deviation.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary deviation, call or email Mr. Hal R. Pitts, Bridge
Administration Branch Fifth District, Coast Guard; telephone (757) 398-
6222, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The City of Chesapeake, VA, who owns and
operates the S168 Bridge, has requested a temporary deviation from the
current operating regulations to facilitate the annual Chesapeake
Christmas Parade. The bridge is a double bascule draw bridge and has a
vertical clearance in the closed position of 8 feet above mean high
water.
    The current operating schedule is set out in 33 CFR 117.997(g).
Under this temporary deviation, the bridge will remain in the closed-
to-navigation position from 4 p.m. to 6 p.m. and from 8 p.m. to 10 p.m.
on December 5, 2015. The Atlantic Intracoastal Waterway, Albemarle and
Chesapeake Canal is used by a variety of vessels including U.S.
government vessels, small commercial vessels, recreational vessels and
tug and barge traffic. The Coast Guard has carefully coordinated the
restrictions with commercial and recreational waterway users.
    Vessels able to pass through the bridge in the closed position may
do so at anytime. The bridge will be able to open for emergencies and
the Atlantic Ocean is the alternate route for vessels unable to pass
through the bridge in the closed position. The Coast Guard will also
inform the users of the waterways through our Local and Broadcast
Notice to Mariners of the change in operating schedule for the bridge
so that vessels can arrange their transits to minimize any impacts
caused by this temporary deviation.
    In accordance with 33 CFR 117.35(e), the drawbridge must return to
its regular operating schedule immediately at the end of the effective
period of this temporary deviation. This deviation from the operating
regulations is authorized under 33 CFR 117.35.

    Dated: November 16, 2015.
Hal R. Pitts,
Bridge Program Manager, Fifth Coast Guard District.
[FR Doc. 2015-29677 Filed 11-19-15; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 77, Number 10 (Tuesday, January 17, 2012)]
[Rules and Regulations]
[Pages 2228-2233]
[FR Doc No: 2012-582]

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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.

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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<EMAIL_ADDRESS>
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.
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    \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).
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    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\
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    \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

measures that can be feasibly implemented in the area * * * ''. As the
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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\
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    \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.
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    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.
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    \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.
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    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.
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    \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).
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    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.
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    \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 37411.
    \9\ See November 23, 2011 email communication from Sheraz Gill,
SJVUAPCD, to Sona Chilingaryan and Nancy Levin, EPA.
    \10\ Howard, pg 2313.
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    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\
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    \11\ SJVUAPCD Staff Report for Rule 4570, Oct. 21, 2010, App. B,
at B-11.
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    CRPE made a similar comment regarding EPA's proposed action on the

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

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

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:
     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

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