2010-28257. Revisions to the California State Implementation Plan, Imperial County Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing approval of revisions to the Imperial County Air Pollution Control District (ICAPCD) portion of the California State Implementation Plan (SIP). These revisions were proposed in the Federal Register on May 19, 2010 and concern particulate matter (PM) emissions from beef feedlots. We are approving a local rule that regulates these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

Effective Date: This rule is effective on December 10, 2010.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2008-0740 for this action. The index to the docket is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). 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:

Andrew Steckel, EPA Region IX, [phone], [e-mail].

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 May 19, 2010 (75 FR 27975), EPA proposed to approve the following rule into the California SIP.

Local agency	Rule No.	Rule title	Adopted	Submitted
ICAPCD	420	Beef Feedlots	10/10/06	08/24/07

We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. During this period, we received one set of comments from Jose Luis Olmedo, Comite Civico Del Valle, and Jane Williams, Desert Citizens Against Pollution (collectively “commentors”); letter dated June 18, 2010 and received June 18, 2010. A copy of the video referenced in the letter was separately provided on the same day.

In addition, several letters were received after the comment period from local business owners in support of approving Rule 420; letters dated July 27, 2010 thru August 2, 2010 and received August 2, 2010. We do not address these letters below because: (1) They were submitted significantly after the comment deadline; (2) they do not request change to our proposal; and (3) they do not provide new information helpful to address the comments listed above.

The comments and our responses are summarized below.

Comment #1: There is a lack of documentation to substantiate the District's claim that beef feedlots are a de minimis source based on a purported 50% emissions reduction that is assumed in 2002. This 50% reduction assumption is not adequately explained, verified or supported with background data.

Response #1: Our proposed action (75 FR 27976) and the associated TSD (pages 2-3) both refer to two ICAPCD analyses as the basis for the District's claim that beef feedlots are a de minimis source of PM-10. The TSD specifically references page 15 of Environ's “Draft Final Technical Memorandum Regulation VIII BACM Analysis” (October 2005); and page III.A-2 ^[1] of Environ's “2009 Imperial County State Implementation Plan for Particulate Matter Less Than 10 Microns in Aerodynamic Diameter” (August 11, 2009). These documents in turn reference CARB's inventory analysis to support the 50% reduction assumption.

In response to this comment, ICAPCD provided additional clarification on the 50% assumption.^[2] Specifically, ICAPCD reiterates that the 50% assumption was developed through CARB's normal review procedure for inventories, and clarifies that it relies on three studies: (1) USEPA, Fugitive Dust Document and Technical Information Document for Best Available Control Measures, EPA-450/2-92-004, September 1992; Sections 3.3.3 and 3.4.2; (2) Western Regional Air Partnership (WRAP), WRAP Fugitive Dust Handbook, September 2006, Table 9-4; and (3) E.H. Pechan & Associates, Inc., Documentation Report, Version 4.1, Pechan Report No. 06.05.003/9011.002, May 2006; Section III, p. 645. We generally defer to District and CARB analysis on most emission inventory details, and we have no obvious basis to question this particular assumption at this time. However, if Imperial continues to exceed the PM-10 standard in the future despite implementation of BACM on all sources identified as significant, it would be appropriate to subject inventory assumptions for de minimis sources such as this to more scrutiny.

Comment #2: How does the tons per day analysis provided by the District relate to the 5 µg/m³ standard set forth in 59 FR 41998 (August 16, 1994).

Response #2: 2-3% of Imperial County's annual PM-10 inventory is calculated to result in a 5 µg/m³ contribution, which equates to about 6-8 ton/day emissions. See 75 FR 39371 (July 8, 2010).

Comment #3: ICAPCD Rule 420 relies on the permitting scheme in ICAPCD Rule 217, but Rule 217 has not been approved by EPA. How do Rule 217, 420 and San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) Rule 4570 interrelate?

Response #3: ICAPCD Rule 420 sections A and B reference requirements in Rule 217, which have not been approved by EPA into the SIP. However, the substantive requirements of Rule 420 do not rely on Rule 217 and are enforceable independent of Rule 217. Specifically, Rule 420 section A requires all Large Confined Animal Facilities (LCAF, defined in ICAPCD Rule 101) to acquire and maintain a LCAF permit. Rule 420 section B further requires all facilities that apply for an LCAF permit to have a dust control plan (DCP) which describes compliance with the substantive requirements of Rule 420 in paragraphs B.1 and B.2.

SJVUAPCD Rule 4570 limits emissions of volatile organic compounds (VOC) from LCAFs in SJVUAPCD, and is analogous to ICAPCD Rule 217. ICAPCD Rule 420 and Rule 217 are related in that they both impose air pollution controls on LCAFs in Imperial County. Many of the controls will differ, however, because Rule 420 is designed to limit PM emissions while Rule 217 targets VOC emissions. SJVUAPCD Rule 4570 and ICAPCD Rule 420 are less directly related as they address both different geographic areas and different pollutants.

Comment #4: There should be an established maximum inch of manure stockpile in feedlot pens and a standardized method of dust control with an enforceable menu or list of applicable options.

Response #4: We agree that the rule could be improved by more specific and standardized requirements. However, we have no basis to require such improvements without determining that additional emission reductions are needed for BACM, attainment or other CAA requirements. However, particularly if Imperial continues to exceed the PM-10 standard despite implementation of BACM on all sources identified as significant, Rule 420 improvements that ICAPCD should consider include:

a. Applying control requirements to smaller sources. South Coast Air Quality Management District (SCAQMD) Rule 1127(j)(1), for example, only exempts farms with fewer than 50 cows from analogous requirements.

b. Restructuring sections A, B and C to more clearly establish control requirements independent of Rule 217 permit requirements. This is consistent with the structure of most or all other ICAPCD prohibitory rules.

c. Establishing more specific control requirements in section B regarding manure moisture and disposal such as, for example, described in SCAQMD Rule 1127.

d. Further restricting the APCO discretion provided in section D.

e. Clarifying sampling procedures in section E.2. to reflect ICAPCD's inspection procedures which we understand to be that ten (10) random samples are taken throughout each selected corral. Those ten random samples are then averaged to determine compliance.

Comment #5: The commentors question whether ICAPCD is adequately enforcing Rule 420, and reference the video identified in the letter. They ask if there are other enforcement mechanisms that EPA can consider as BACM such as random inspections, increased funding or verification of the District's enforcement program.

Response #5: According to ICAPCD, the video shows land that was formerly part of a LCAF subject to ICAPCD Rule 420, but that has not operated at this location since the winter of 2009 due to heavy rains and flooding. ICAPCD also stated that the Imperial County Environmental Health Department and the Regional Water Control Board have investigated this site as a potential health issue.

Regarding enforcement mechanisms, ICAPCD staff explained that ICAPCD permits issued to all cattle feedlots contain conditions to ensure that required Rule 420 mitigation measures are fully enforced. ICAPCD also explained that all permitted sources are routinely inspected (including unannounced inspections at least annually and in response to citizen complaints) to determine compliance with Rule 420 and other regulations.^[3]

Like all air quality agencies, Imperial is required to periodically inspect all major stationary sources within its jurisdiction and reports the results of those inspections to EPA's national data system, AIRS/AFS, which is publically available. We have included a report generated from AIRS/AFS in the docket for this action which shows the inspections and enforcement actions taken by ICAPCD for the past ten years.^[4]

III. EPA Action

No comments were submitted that change our assessment that the submitted rule complies with the relevant CAA requirements. Therefore, as authorized in section 110(k) (3) of the Act, EPA is fully approving this rule into the California SIP.

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
• Will not have disproportionately high and adverse human health or environmental effects on minority, low-income or Tribal populations because it maintains or increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population as described in 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).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

Dated: October 25, 2010.

Jared Blumenfeld,

Regional Administrator, Region IX.

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart F—California

2. Section 52.220 is amended by adding paragraph (c)(351)(i)(A)( 2) to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(351) * * *

(i) * * *

(A) * * *

(2) Rule 420, “Beef Feedlots,” adopted on October 10, 2006.

* * * * *

Footnotes

1.  Printed in error as III-2.

2.  Provided by e-mail from Reyes Romero, ICAPCD, to Christine Vineyard, EPA, October 5, 2010.

3.  Id.

4.  EPA AIRS Facility Subsystem Quick Look Report generated October 4, 2010.