Federal Register / Vol. 75, No. 9 / Thursday, January 14, 2010 / Rules and Regulations 2079 

Interference with Constitutionally 

Protected Property Rights. 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does 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. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

involves the establishment of a 

temporary safety zone to allow a vessel 

launch evolution at Todd Pacific 

Shipyards, the duration of which will be 

less than one day. An environmental 

analysis checklist and a categorical 

exclusion determination are available in 

the docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons set out in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1 

■ 2. Add § 165.T13–127 to read as 

follows: 

§ 165.T13–127 Safety Zone; Todd Pacific 

Shipyards Vessel Launch, West Duwamish 

Waterway, Seattle, WA. 

(a) Location. The following area is a 

safety zone: The waters of the 

Duwamish River extending 450 yards 

from the vessel launch site at Todd 

Pacific Shipyard, located at the entrance 

to the West Duwamish Waterway, with 

an area encompassed by the points 

47°35′04′′ N 122°21′30′′ W, thence to 

47°35′04′′ N 122°21′50′′ W, thence to 

47°35′19′′ N 122°21′50′′ W, thence to 

47°35′19′′ N 122°21′30′′ W, thence to 

47°35′04′′ N 122°21′30′′ W. 

(b) Regulations. In accordance with 

the general regulations in 33 CFR Part 

165, Subpart C, no vessel may enter, 

transit, moor, or anchor within this 

safety zone, except for vessels 

authorized by the Captain of the Port or 

her Designated Representative. 

(c) Enforcement Period. From 1 a.m. 

to 10:30 a.m. on January 16, 2010 unless 

cancelled sooner by the Captain of the 

Port. 

Dated: December 11, 2009. 

S.E. Englebert, 

Captain, U.S. Coast Guard, Captain of the 

Port, Puget Sound. 

[FR Doc. 2010–550 Filed 1–13–10; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2009–0492; FRL–9096–9] 

Revisions to the California State 

Implementation Plan, San Joaquin 

Valley Air Pollution Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing a limited 

approval and limited disapproval of 

revisions to the San Joaquin Valley Air 

Pollution Control District (SJVAPCD) 

portion of the California State 

Implementation Plan (SIP). This action 

was proposed in the Federal Register on 

July 14, 2009 and concerns volatile 

organic compounds (VOCs) from 

confined animal facilities, such as 

dairies, cattle feedlots, and poultry and 

swine houses. Under the authority of 

the Clean Air Act as amended in 1990 

(CAA or the Act), this action 

simultaneously approves a local rule 

that regulates these emission sources 

and directs California to correct rule 

deficiencies. 

DATES: Effective Date: This rule is 

effective on February 16, 2010. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2009–0492 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 


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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, (415) 

947–4115, steckel.andrew@epa.gov. 

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 July 14, 2009 (74 FR 33948), EPA 

proposed a limited approval and limited 

disapproval of the following rule that 

the California Air Resources Board 

(CARB) submitted for incorporation into 

the SIP. 

Local agency Rule # Rule title Adopted Submitted 

SJVAPCD ............................... 4570 Confined Animal Facilities ...................................................... 06/18/09 06/26/09 

We proposed a limited approval 

because we determined that Rule 4570 

improves the SIP and is largely 

consistent with the relevant CAA 

requirements. At the same time, we 

proposed a limited disapproval because 

some rule provisions conflict with 

section 110 and part D of the Act. These 

provisions are discussed briefly below. 

1. Rule 4570 exempts poultry 

operations between 400,000 and 

650,000 chickens; these operations 

should be subject to the rule as major 

sources of VOC emissions. 

2. The rule submittal did not provide 

adequate analysis to demonstrate that 

the rule’s control measure menus 

implement reasonably available control 

technologies (RACT) for poultry and 

swine facilities. Such an analysis should 

review the availability and effectiveness 

of control measures for poultry and 

swine facilities, and may require rule 

revisions to ensure that the rule does 

not allow implementation of relatively 

ineffective control measures when more 

effective measures are reasonably 

available to a class of operations. 

Our proposed action and Technical 

Support Document (TSD) contain more 

information on the basis for this 

rulemaking and on our evaluation of the 

submittal. The TSD provides examples 

of the types of concerns that should be 

addressed by the analysis discussed in 

deficiency #2. 

II. Public Comments and EPA 

Responses 

EPA’s proposed action provided a 30- 

day public comment period. During this 

period, we received comments from the 

parties listed below. 

1. Bill Mattos, President, California 

Poultry Federation (CPF), letter dated 

August 5, 2009. 

2. Seyed Sadredin, Executive Director, 

SJVAPCD, letter dated August 27, 2009. 

3. Paul Cort, EarthJustice (EJ), letter 

dated August 31, 2009. 

4. Brent Newell, Legal Director, 

Center on Race, Poverty & the 

Environment (CRPE), letter dated 

August 31, 2009, on behalf of the 

following organizations: Association of 

Irritated Residents, Clean Water and Air 

Matter, Comite ́ West Goshen, Comite ́

Unido de Plainview, Comite ́ Residentes 

Organizados al Servicio del Ambiente 

Sano, Committee for a Better Arvin, 

Fresno Metro Ministries, Natural 

Resources Defense Council, La Nueva 

Esperanza de Alpaugh, El Quinto Sol de 

America, South Shafter Project 

Committee, Shafter Chapter League of 

United Latin American Citizens, United 

for a Change in Tooleville, and La Voz 

de Tonyville. 

A. California Poultry Federation (CPF) 

Comments 

CPF Comment #1: EPA proposed to 

postpone deciding whether Rule 4570 

implements RACT for dairies and cattle 

feedlots pending completion of the 

National Air Emissions Monitoring 

Study (NAEMS) research. EPA should 

similarly postpone a RACT decision for 

the poultry industry, which is also 

funding and actively participating in the 

NAEMS. 

Response to CPF #1: The TSD for our 

proposed action explains that RACT is 

not clearly defined for confined animal 

facilities (CAFs) because there is limited 

information and regulation of CAF VOC 

emissions. Reflecting this uncertainty, 

SJVAPCD’s RACT demonstration 

presented various reasons for why Rule 

4570 implements RACT. Our TSD 

explains why some of these claims are 

not relevant and none definitively 

demonstrates RACT. We then made 

decisions based on our judgment of how 

the numerous factors, taken together, 

compare to RACT policy and precedent. 

For dairies and cattle feedlots, we 

proposed to defer temporarily a RACT 

decision because the NAEMS and 

related research should help clarify 

RACT in the near future. We recognize 

that ongoing research should also help 

clarify RACT for poultry, which is 

participating in the NAEMS, too. 

However, our TSD explains that there 

are significantly more shortcomings 

with SJVAPCD’s RACT demonstration 

for poultry than for dairy and cattle 

feedlots. For example, certain major 

poultry sources are not covered by the 

rule. Also, poultry sources have less 

variability, have lower control costs, 

and have other differences as identified 

on pages eight and nine of our TSD. 

While it is unclear at this time how the 

NAEMS will impact our understanding 

of RACT for dairies and cattle feedlots, 

it is unlikely that the NAEMS will lead 

to a finding that SJVAPCD’s existing 

rule and RACT analysis for poultry is 

sufficient. Also, please see our response 

to EJ comment #7. 

CPF Comment #2: EPA claimed that 

poultry operations may be less variable 

than other CAFs because poultry are 

generally housed in buildings. As a 

result, a few mitigation measures could 

generally be applied to the entire class 

of poultry operations. CPF, however, 

comments that poultry operations vary 

significantly, including among type of 

housing, poultry and manure 

management. Instead of menus, Rule 

4570 could require one set of measures 

for all facilities, or could list different 

sets for each type of facility. Neither 

option would resolve equity issues of 

what constitutes RACT for different 

types of operations, since controls 

which are technically and economically 

available for one type of operation may 

not be feasible for others. 

Response to CPF #2: We agree that 

variability in housing design, manure 

management and other factors can affect 

cost effectiveness of some VOC controls 

available to poultry facilities. We do not 

believe, however, that either SJVAPCD, 

or this comment has demonstrated that 

industry variability supports the 

specific Rule 4570 menus. For example, 

our TSD notes that table 6B of Rule 4570 

provides four options to perform 

maintenance every 14 days—remove 

caked waste, clean under cages, adjust 

drinkers and repair pipe leaks. It is not 

obvious why industry variability in 

housing, poultry, manure management 

or other factors preclude SJVACPD from 

evaluating the cost-effectiveness of these 

measures and determining whether they 


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are appropriate to require generally for 

major types of poultry operations. 

CPF Comment #3: EPA’s TSD raises 

the issue of controlling VOCs with 

biofilters. CPF commented that biofilters 

are not cost-effective for existing poultry 

houses because they would require, 

among other things, large biofilters with 

significant installation, operation and 

maintenance costs; as well as, increased 

ducting, fans, and associated power 

needs. Other traditional end-of-stack 

control measures are similarly infeasible 

because of the high exhaust flow rates 

and low VOC concentrations. 

Response to CPF #3: Our general 

objection remains regarding Rule 4570’s 

menus for poultry control measures. As 

described in paragraph II.C.2 of our 

proposed action, the rule submittal did 

not provide adequate analysis to 

demonstrate that the control measure 

menus implement RACT for poultry 

facilities. Such analysis should review 

the availability and effectiveness of all 

control measures (work practices, addon controls, etc.) Such analysis may 

necessitate rule revisions to ensure that 

the rule does not allow implementation 

of relatively ineffective control 

measures when more effective measures 

are reasonably available to a class of 

operations. While this comment 

provides relevant information on one 

component of the menus (add-on 

controls), SJVAPCD should analyze the 

menus thoroughly and present that 

analysis via their normal public review 

process. 

CPF Comment #4: The primary source 

of VOC emissions from poultry is the 

microbial decomposition of organic 

matter in manure, which increases with 

moisture. As a result, CPF supports Rule 

4570’s emphasis on controlling moisture 

and microbial decomposition, rather 

than trying to remove dilute 

concentrations of VOC from large 

volumes of air. 

Response to CPF #4: Our proposed 

action neither precludes focus on 

moisture and microbial decomposition, 

nor does it require add-on controls. 

Rather, it would largely direct SJVAPCD 

to better analyze the availability and 

effectiveness of controls and make 

appropriate rule revisions. Additional 

analysis could show, for example, that 

one set of measures for controlling 

moisture is far more cost-effective than 

another set and should be required of all 

facilities. Also, please see our response 

to CPF comment #3. 

B. San Joaquin Valley Air Pollution 

Control District Comments 

SJVAPCD Comment #1: EPA claimed 

that Rule 4570 does not address all 10 

tpy VOC poultry sources as required. 

SJVAPCD comments that Rule 4570’s 

threshold is 650,000 chickens. CARB 

used 0.025 pounds VOC per head per 

year (lb VOC/hd/yr) as an emission 

factor for both broilers and layers, 

which translates Rule 4570’s 

applicability to 8 tons per year (tpy), 

which is safely below 10 tpy. 

Response to SJVAPCD #1: Table 6 of 

SJVAPCD’s April 16, 2009 RACT 

Demonstration and Table 10 of the 

rule’s Staff Report assume 0.05 lb VOC/ 

hd/year for layers, which translates Rule 

4570’s applicability to 16.25 tpy, 

significantly above the 10 tpy threshold. 

The comment does not state why or 

even if SJVAPCD believes this emission 

factor is no longer appropriate to use. 

SJVAPCD Comment #2: Rule 4570’s 

menu-approach should be approved as 

RACT because the least effective menu 

options have been incorporated in 

facility permits as best available control 

technology (BACT). 

Response to SJVAPCD #2: Section 

C.3.g of EPA’s TSD explains that 

SJVAPCD’s BACT determinations help 

support the argument that Rule 4570 

implements RACT, but are not sufficient 

in and of themselves to demonstrate 

RACT generically for three reasons. This 

comment relates to the second of these 

three reasons, item ‘‘b’’ as presented in 

the TSD. The comment does not, 

however, address the remaining two 

points we presented: (1) BACT 

determinations consider site-specific 

factors which may indicate that specific 

controls are feasible in one situation, 

but not in another; therefore, controls 

that are BACT for one source may not 

be BACT or even RACT for others; and, 

(2) EPA’s lack of comment regarding 

BACT in individual permits should not 

be construed as EPA concurrence that 

the rule or the permits implement 

BACT; we may, for example, simply 

have been unable to review the permits 

because of competing resource 

demands. 

SJVAPCD Comment #3: Rule 4570’s 

menu approach should be approved 

because, while not compromising 

control of VOC emissions, it allows CAF 

operators to adjust to market driven 

changes and innovation in operations to 

further reduce emissions. 

Response to SJVAPCD #3: EPA agrees 

that a menu approach can incorporate 

elements to address market and 

innovation needs; however, a menubased rule intended to fulfill Federal 

RACT requirements must be supported 

by adequate analysis demonstrating that 

the menus implement RACT. Consistent 

with this position, EPA proposed to 

postpone a decision on whether Rule 

4570 demonstrates RACT for dairies, 

beef feedlots and other cattle facilities. 

We also concluded that SJVAPCD had 

not demonstrated that Rule 4570’s 

menus fulfill RACT for poultry and 

swine operations, and therefore 

proposed to disapprove the rule. 

SJVAPCD Comment #4: Due to 

variability in poultry operations, 

SJVACPD cannot specify only one set of 

emission control requirements. 

Operations vary by capacity, poultry 

breeds and species, nutrient needs 

dictated by market plans, diets that vary 

by commodity costs, housing ventilation 

systems, housing coolant systems, 

housing construction and litter 

management practices. 

Response to SJVAPCD #4: We 

appreciate that variability in operations 

may require different controls or control 

options for different types of operations. 

However, SJVAPCD has not 

demonstrated that variability in 

operations supports the specific Rule 

4570 menu options. Also, please see our 

response to CPF comment #2. 

SJVAPCD Comment #5: Over time, 

there could be additional innovations in 

how poultry or swine are raised or the 

market demand for poultry or swine 

could change. Rule 4570’s menu format 

allows facility modifications to take 

advantage of new opportunities and 

technological advances which could 

result in additional reductions. 

Response to SJVAPCD #5: Please see 

our response to SJVAPCD comment #3. 

SJVACPD Comment #6: SJVAPCD 

conducted a top-down BACT analysis of 

poultry housing for a permit application 

and evaluated four traditional VOC 

control technologies: thermal oxidizer, 

catalytic oxidizer, carbon adsorption 

and biofilter. These controls were not 

found achieved in practice, so SJVAPCD 

analyzed their cost-effectiveness and 

found they failed SJVAPCD’s $5,000 per 

ton VOC threshold. A similar 

conclusion can be made for swine. 

Since traditional add-on control is not 

cost-effective for BACT, it is also not 

cost-effective for RACT. 

Response to SJVAPCD #6: Please see 

our response to CPF comment #3. 

SJVAPCD Comment #7: SJVAPCD and 

CARB research adequately justifies 

approving Rule 4570 as RACT for 

California dairies. SJVAPCD developed 

a draft BACT document for dairy 

emissions and is at the forefront of 

implementing BACT for new dairies. 

Response to SJVAPCD #7: We 

appreciate that SJVAPCD and CARB 

have supported extensive CAF research 

before and after developing Rule 4570. 

We believe results from the NAEMS and 

other SJVAPCD, CARB and EPA 

research scheduled to conclude soon 

should help clarify RACT for California 

dairies. We also note that this comment 


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does not provide the referenced draft 

BACT document for dairy emissions, 

nor does it provide further information 

to address the generic issues discussed 

in Section C.3.g of our TSD and above 

in our response to SJVAPCD comment 

#2. 

C. EarthJustice (EJ) Comments 

EJ Comment #1: EJ supports EPA’s 

proposed limited approval/disapproval 

of Rule 4570 and agrees with the 

following conclusions from our 

proposal: (1) Rule 4570 fails to require 

controls for all major poultry operations; 

(2) SJVAPCD failed to demonstrate that 

Rule 4570 implements RACT for poultry 

and swine operations; and, (3) SJVAPCD 

must also review the menus for dairy 

and cattle feedlots. 

Response to EJ #1: We note that our 

proposed action would recommend, not 

compel, item #3 regarding SJVAPCD 

review of the dairy and cattle feedlot 

menus. 

EJ Comment #2: SJVAPCD has not 

supported its reliance on the State’s 

large confined animal facility (LCAF) 

definition in setting Rule 4570 

applicability thresholds. CAA section 

172(c)(1) requires all reasonably 

available control measures (RACM) as 

expeditiously as practicable, so 

SJVAPCD must analyze and require all 

reasonable controls, including those for 

small sources. Instead, Rule 4570 uses 

applicability thresholds based on the 

State’s LCAF definition without 

demonstrating that controlling smaller 

sources is unreasonable. The LCAF 

definition is even more inappropriate 

because SJVAPCD now estimates higher 

VOC emissions than assumed by the 

State (e.g., 11.9 instead of 5.5 lb VOC/ 

hd/yr for cattle). 

Response to EJ #2: We agree that CAA 

section 182(b)(2) requires RACT for all 

major sources and CAA section 

172(c)(1) requires the implementation of 

all RACM as needed for expeditious 

attainment. A discussion of whether 

additional controls would advance the 

attainment date of the ozone standard 

belongs in the context of SJVAPCD’s 

ozone plan attainment demonstration. 

Today’s action on Rule 4570 considers 

whether the rule as submitted is 

adequately enforceable, implements 

RACT and improves the SIP. The 

emission factor assumptions from 

SJVACPD’s RACT demonstration 

suggest that Rule 4570’s applicability 

thresholds capture all major sources 

except for the poultry threshold 

identified as deficient in our proposed 

action. 

EJ Comment #3: SJVAPCD must, but 

did not, show that all Rule 4570 menus 

represent the lowest emission levels 

achievable as required by RACT. 

Response to EJ #3: We believe this 

comment is addressed by our proposed 

action to defer a RACT decision for 

dairies and cattle feedlots and to require 

adequate analysis to demonstrate that 

Rule 4570 implements RACT for poultry 

and swine. We agree that SJVAPCD 

must review the availability and 

effectiveness of controls to address the 

RACT deficiency we identified 

concerning poultry and swine sources. 

EJ Comment #4: SJVAPCD uses a 

‘‘percent of profits’’ test to determine 

whether controls are economically 

feasible. For example, SJVAPCD claims 

that Rule 4570 will cost large dairies 

9.6% of profits, so more stringent and 

expensive controls are not reasonably 

available. EJ comments that some 

industries can afford controls costing 

10% of profits or more without 

impacting economic viability. EJ 

believes SJVAPCD should analyze 

possible CAF controls in a broader 

context, such as total compliance cost, 

economic impact on each sector of the 

industry, output demand elasticity, etc. 

Response to EJ #4: Paragraph II.C.2. of 

our proposed action states that 

SJVAPCD has not adequately 

demonstrated that Rule 4570 

implements RACT, and directs 

SJVAPCD to analyze the availability and 

effectiveness of possible controls for 

poultry and swine sources. The 

comment does not dispute this or other 

portions of our proposal, but provides 

more detail on how EJ believes the 

deficiency should be corrected. As a 

result, no changes to our proposal are 

needed. Regarding the substance of the 

comment, we believe ‘‘percent of 

profits’’ can provide useful information, 

but we also acknowledge that additional 

economic information could be helpful 

and appreciate that resource constraints 

limit the amount of analysis that 

SJVAPCD can perform. Also, we note 

that SJVAPCD has provided costeffectiveness information in Appendix C 

of their Staff Report. We look forward to 

working with EJ, SJVAPCD and the 

affected industry to obtain a meaningful 

RACT analysis without overwhelming 

available SJVAPCD resources. 

EJ Comment #5: EPA must 

appropriately revise 40 CFR 

52.220(b)(12) to remove any possible 

claim that agricultural sources are 

exempt from permitting. 

Response to EJ #5: Section 5.0 of Rule 

4570 specifically requires a permit 

application for each CAF, and Section 

5.4 requires implementation of all VOC 

emission mitigation measures, as 

contained in the application, on and 

after 365 days of submittal of the 

application. Therefore, to the extent that 

any such permitting exemption exists, it 

does not affect implementation of Rule 

4570. 

EJ Comment #6: Sections 5.12 and 

5.13 of Rule 4570 allow facilities to 

ignore all specific requirements of 

sections 5.6 through 5.10 by preparing 

an alternative emission mitigation plan 

(AEMP) demonstrating 30% facilitywide reductions. EJ believes these plans 

are unenforceable because Rule 4570 

provides no detail on how 30% is 

calculated or the plans approved. EJ also 

comments that SJVAPCD has not 

demonstrated that 30% represents 

RACT, particularly since SJVAPCD 

projects that the menus reduce 

emissions 36–72%. 

Response to EJ #6: Because there is 

limited information available on CAF 

control efficiencies, we proposed to 

recommend, rather than compel, rule 

revisions at this time (see 

recommendation #6 on page 10 of our 

TSD). Similar directors’ discretion 

provisions have been approved in other 

rules (e.g., SJVAPCD Rule 4550 

regarding agricultural operations) where 

agencies have limited experience in 

quantifying emission impacts. 

Implementation of Rule 4570 and other 

CAF requirements and ongoing research 

should improve our understanding so 

that details for AEMPs in section 5.13 

can be reasonably required in the near 

future. We also proposed to recommend 

rather than compel revising section 

5.13’s 30% emission reduction target 

consistent with the 36–72% menu-based 

emission projections (see 

recommendation #7 on page 10 of our 

TSD). We do not believe we have clear 

authority to compel changes to section 

5.12 at this time, as it does not appear 

to apply to any major sources. 

EJ Comment #7: EPA’s proposal to 

postpone a decision on whether Rule 

4570 implements RACT for dairies and 

beef feedlots is arbitrary and illegal 

under CAA section 110(k)(3). EPA 

claims the delay is appropriate pending 

results of an ongoing study, but EPA is 

required to act now based on the best 

available information. Regardless of the 

study results, Rule 4570’s dairy and 

cattle feedlot provisions suffer from the 

same RACT defects as the poultry and 

swine provisions that EPA is 

disapproving. 

Response to EJ #7: As we discussed in 

our response to CPF comment #1, we 

acknowledged deficiencies in the RACT 

demonstration for dairies and cattle 

feedlots, but proposed to defer 

temporarily a RACT decision because 

the NAEMS and related research should 

help clarify RACT in the near future. 

While we recognized that ongoing 


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research should also help clarify RACT 

for poultry and swine, our TSD 

explained that there are significantly 

more shortcomings with SJVAPCD’s 

RACT demonstration for poultry and 

swine operations. As a result, while it 

is unclear how the NAEMS results will 

impact our understanding of RACT for 

dairies and cattle feedlots, it seems very 

unlikely that the NAEMS will lead to a 

finding that SJVAPCD’s existing rule 

and RACT analysis for poultry and 

swine is sufficient. Also, please see our 

response to CPF comment #1. 

EJ Comment #8: If EPA finalizes no 

action on dairy and cattle feedlot 

measures, EPA should appropriately 

discount the emission reduction 

benefits that are claimed for Rule 4570 

in various attainment plans. 

Response to EJ #8: If finalized as 

proposed, EPA’s action would 

incorporate all provisions of Rule 4570 

into the Federally enforceable SIP. 

EPA’s action to disapprove and 

postpone various RACT demonstrations 

does not interfere with Federal or local 

rule implementation. Issues regarding 

the emission reductions attributed to 

Rule 4570 do not affect the basis for our 

action on the rule and should be 

addressed in context of our action on 

SJVAPCD’s one-hour ozone plan. 

D. Center on Race, Poverty and the 

Environment (CRPE) Comments 

CRPE Comment #1: EPA should 

disapprove the RACT determination for 

dairies and cattle feedlots. There is no 

hard deadline for EPA to promulgate 

emission estimating methodologies 

referenced in the proposed action, so 

EPA may further delay a RACT 

determination beyond November 2011. 

In any case, available information 

already shows that dairies and cattle 

feedlots are significant VOC sources that 

require RACT. 

Response to CRPE #1: We agree that 

some cattle and dairy operations are 

significant VOC sources that require 

RACT. We believe, however, that 

delaying a RACT determination for 

dairies and cattle feedlots is justified for 

reasons we discussed in Section D.3 of 

our TSD. All data collection efforts for 

the NAEMS are scheduled to conclude 

by May 2010 and we plan to promulgate 

emission estimating tools by November 

2011. Nonetheless, we could require 

additional demonstration of RACT 

regarding dairies and cattle feedlots 

based on preliminary NAEMS data, 

unexpected delays, or other factors 

before or after November 2011 pursuant 

to CAA section 179(a)(1) and elsewhere. 

During this period of NAEMS data 

collection and analysis, we emphasize 

that the rule’s requirements will 

continue to be implemented and 

enforced, and, as a result, continue to 

reduce VOC emissions from dairies and 

cattle feedlots. Also, please see our 

response to EJ comment #7. 

CRPE Comment #2: Rule 4570’s 

menu-based strategy violates CAA 

RACT provisions which require the 

lowest emission limitation that sources 

can meet considering technological and 

economic feasibility. Rule 4570 does not 

require all RACT, but merely a handful 

of measures from among several dozen. 

SJVAPCD concedes that operations can 

and will select the least-costly options, 

which are not necessarily the most 

effective, as RACT requires, at reducing 

emissions. 

Response to CRPE #2: Menu-based 

rules can fulfill the RACT requirement 

if the menus effectively require the 

lowest emission limitations that sources 

can meet considering technological and 

economic feasibility. However, the 

deficiency identified in paragraph II.C.2 

of our proposal reflects our agreement 

with the comment that SJVAPCD has 

not demonstrated that Rule 4570 meets 

RACT for poultry and swine menus. We 

are deferring our decision as to whether 

Rule 4570 meets RACT for dairy and 

beef cattle operations. Also, please see 

our response to EJ comment #3. 

CRPE Comment #3: SJVAPCD 

improperly inflates the control 

effectiveness of Rule 4570 by claiming 

a 10% emission reduction for feeding 

cows by NRC guidelines both in the 

baseline emission estimates and then 

again in emission reductions associated 

with Rule 4570. 

Response to CRPE #3: Today’s action 

on Rule 4570 rests primarily on whether 

the rule as submitted is adequately 

enforceable, implements RACT and 

improves the SIP. Issues regarding the 

amount of associated emission 

reductions do not affect the basis for our 

action on Rule 4570 and are addressed 

within our action on SJVAPCD’s onehour ozone plan. 

CRPE Comment #4: Rule 4570 merely 

codifies existing voluntary practices and 

does not generate real and quantifiable 

emission reductions. This violates CAA 

requirements for SIP rules to reduce 

emissions. EPA approval of this rule 

would be arbitrary and capricious 

because the emission reduction 

estimates for the vast majority of 

controls have no factual support. 

Response to CRPE #4: Please see our 

response to CRPE comment #3. 

CRPE Comment #5: EPA should 

disapprove the RACT demonstration for 

dairies and cattle feedlots and not allow 

SJVAPCD’s 2004 SIP to take credit for 

VOC reductions from Rule 4570. 

Response to CRPE #5: Please see our 

responses to previous CRPE comments. 

Additional CRPE Comments: CRPE’s 

August 31, 2009 letter provided 

comments on EPA’s proposed actions 

on Rule 4570 (Docket No. EPA–R09– 

OAR–2009–0492) and on the SJVAPCD 

One-Hour Ozone Plan (Docket No. EPA– 

R09–OAR–2008–0693). CRPE comments 

that were not addressed above are 

primarily relevant to our proposed 

action on the SJVAPCD One-Hour 

Ozone Plan. We direct interested 

readers to those comments and our 

responses in our final action on the 

ozone plan. 

III. EPA Action 

No comments were submitted that 

change our assessment of the rule as 

described in our proposed action. 

Therefore, as authorized in sections 

110(k)(3) and 301(a) of the Act, EPA is 

finalizing a limited approval of the 

submitted rule. This action incorporates 

the submitted rule into the California 

SIP, including those provisions 

identified as deficient. As authorized 

under section 110(k)(3), EPA is 

simultaneously finalizing a limited 

disapproval of the rule. As a result, 

sanctions will be imposed unless EPA 

approves subsequent SIP revisions that 

correct the rule deficiencies within 18 

months of the effective date of this 

action. These sanctions will be imposed 

under section 179 of the Act according 

to 40 CFR 52.31. In addition, EPA must 

promulgate a Federal implementation 

plan (FIP) under section 110(c) unless 

we approve subsequent SIP revisions 

that correct the rule deficiencies within 

24 months. Note that the submitted rule 

has been adopted by the SJVAPCD, and 

EPA’s final limited disapproval does not 

prevent the local agency from enforcing 

it. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 


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rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals and 

limited approvals/limited disapprovals 

under section 110 and subchapter I, part 

D of the Clean Air Act do not create any 

new requirements but simply approve 

requirements that the State is already 

imposing. Therefore, because this 

limited approval/limited disapproval 

action does not create any new 

requirements, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

Under sections 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed into 

law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or Tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that the limited 

approval/limited disapproval action 

promulgated does not include a Federal 

mandate that may result in estimated 

costs of $100 million or more to either 

State, local, or Tribal governments in 

the aggregate, or to the private sector. 

This Federal action approves preexisting requirements under State or 

local law, and imposes no new 

requirements. Accordingly, no 

additional costs to State, local, or Tribal 

governments, or to the private sector, 

result from this action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule will 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, because it 

merely approves 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. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

Tribal officials in the development of 

regulatory policies that have Tribal 

implications.’’ This final rule does not 

have Tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on Tribal 

governments, 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. 

Thus, Executive Order 13175 does not 

apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it 

approves a State rule implementing a 

Federal standard. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

The EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Congressional Review Act 

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 rule and other 


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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). This rule 

will be effective on February 16, 2010. 

K. Petitions for Judicial Review 

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 15, 2010. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule 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 11, 2009. 

Laura Yoshii, 

Acting 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)(368) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(368) New and amended regulations 

were submitted on June 26, 2009 by the 

Governor’s designee. 

(i) Incorporation by Reference. 

(A) San Joaquin Valley Unified Air 

Pollution Control District. 

(1) Rule 4570, ‘‘Confined Animal 

Facilities,’’ adopted on June 18, 2009. 

* * * * * 

[FR Doc. 2010–489 Filed 1–13–10; 8:45 am] 

BILLING CODE 6560–50–P 


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