33948 Federal Register / Vol. 74, No. 133 / Tuesday, July 14, 2009 / Proposed Rules 

1See Association of Irritated Residents v. San 

Joaquin Valley Unified Air Polution Control Dist., 

168 Cal. Ap. 4th 535 (Cal. App. 5 Dist. 2008). 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2009–0492; FRL–8930–5] 

Revisions to the California State 

Implementation Plan, San Joaquin 

Valley Air Pollution Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing 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). These 

revisions concern volatile organic 

compound (VOC) emissions from 

confined animal facilities (CAFs) such 

as dairies, cattle feedlots, poultry and 

swine farms. We are proposing action 

on a local rule that regulates these 

emission sources under the Clean Air 

Act as amended in 1990 (CAA or the 

Act). We are taking comments on this 

proposal and plan to follow with a final 

action. 

DATES: Any comments must arrive by 

August 13, 2009. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2009–0492, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the online instructions. 

2. E-mail: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or e-mail. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send e-mail 

directly to EPA, your e-mail address 

will be automatically captured and 

included as part of the public comment. 

If EPA cannot read your comment due 

to technical difficulties and cannot 

contact you for clarification, EPA may 

not be able to consider your comment. 

Docket: The index to the docket for 

this action is available electronically at 

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, (415) 

947–4115, Steckel.Andrew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rule did the State submit? 

B. Are there other versions of this rule? 

C. What is the purpose of the submitted 

rule? 

II. EPA’s Evaluation and Action 

A. How is EPA evaluating the rule? 

B. Does the rule meet the evaluation 

criteria? 

C. What are the rule deficiencies? 

D. EPA Recommendations to Further 

Improve the Rule 

E. Proposed Action and Public Comment 

III. Statutory and Executive Order Reviews 

I. The State’s Submittal 

A. What rule did the State submit? 

Table 1 lists the rule addressed by this 

proposal with the date that it was 

adopted by the local air agency and 

submitted by the California Air 

Resources Board (CARB). 

TABLE 1—SUBMITTED RULE

Agency Rule Rule title Adopted Submitted 

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

This rule submittal meets the 

completeness criteria in 40 CFR Part 51 

Appendix V. 

B. Are there other versions of this rule? 

There are no previous versions of 

Rule 4570 in the SIP. The rule was 

submitted to EPA on October 5, 2006, 

but we have not acted on this submittal. 

Subsequent decisions in California state 

court (1) concerning the rule resulted in 

readoption and resubmittal of the rule 

as shown above. 

C. What is the purpose of the submitted 

rule? 

VOCs help produce ground-level 

ozone and smog, which harm human 

health and the environment. Section 

110(a) of the CAA requires States to 

submit regulations that control VOC 

emissions. Rule 4570 is designed to 

decrease VOC emissions from dairies, 

beef feedlots, poultry and swine houses, 

and other CAFs. The rule’s requirements 

apply to large facilities defined in Table 

1 of the rule; for example, dairies with 

more than 1000 milk cows, beef feedlots 

with more than 3000 cattle, and poultry 

facilities with more than 650,000 

chickens. These CAFs must obtain a 

permit from the SJVAPCD codifying the 

VOC mitigation measures the owner/ 

operator chooses to implement from the 

relevant menus in Tables 2–6 of the 

rule. Sections 6–8 of the rule describe 

additional facility requirements 

concerning permitting, recordkeeping, 

compliance testing and monitoring. 

EPA’s technical support document 

(TSD) has more information about this 

rule. 

II. EPA’s Evaluation and Action 

A. How Is EPA evaluating the rule? 

Generally, SIP rules must be 

enforceable (see section 110(a) of the 

Act), must require Reasonably Available 

Control Technology (RACT) for each 

category of sources covered by a Control 

Techniques Guidelines (CTG) document 

as well as each major source in 

nonattainment areas (see sections 

182(a)(2) and (b)(2)), and must not relax 

existing requirements (see sections 

110(l) and 193). The SJVAPCD regulates 

an ozone nonattainment area (see 40 

CFR part 81) and has CAFs large enough 

to be major sources of VOC emissions, 

so Rule 4570 must fulfill RACT. 


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Federal Register / Vol. 74, No. 133 / Tuesday, July 14, 2009 / Proposed Rules 33949 

Guidance and policy documents that 

we use to help evaluate specific 

enforceability and RACT requirements 

consistently include the following: 

1. Portions of the proposed post-1987 

ozone and carbon monoxide policy that 

concern RACT, 52 FR 45044, November 

24, 1987. 

2. ‘‘Issues Relating to VOC Regulation 

Cutpoints, Deficiencies, and 

Deviations,’’ EPA, May 25, 1988 (the 

Bluebook). 

3. ‘‘Guidance Document for Correcting 

Common VOC & Other Rule 

Deficiencies,’’ EPA Region 9, August 21, 

2001 (the Little Bluebook). 

Our TSD lists additional references 

used in our review. 

B. Does the rule meet the evaluation 

criteria? 

Rule 4570 improves the SIP by 

establishing requirements that reduce 

VOC emissions from CAFs. Since no 

other version of these requirements is in 

the SIP, the rule fulfills our criteria 

regarding SIP relaxations. In addition, 

Rule 4570 requirements are sufficiently 

clear, and contain adequate monitoring, 

recordkeeping and other provisions to 

determine compliance; so, the rule 

fulfills our criteria regarding 

enforceability. 

We are postponing a decision on 

whether the SIP submittal demonstrates 

that Rule 4570 implements RACT for 

dairies, beef feedlots and other cattle 

facilities. The $14.8 million National 

Air Emission Monitoring Study will be 

completed by May 2010 and VOC 

emission estimating methods for CAFs 

will be completed by November 2011. 

Because we expect this information is 

likely to help clarify RACT, we believe 

that a delay in evaluating SJVAPCD’s 

RACT demonstration for various cattle 

operations is appropriate. However, we 

also believe that we have sufficient 

information to conclude that SJVAPCD 

has not demonstrated that Rule 4570 

fulfills RACT for poultry and swine 

operations. The specific deficiencies are 

identified below. Our TSD provides 

additional information on our 

conclusions regarding RACT for both 

dairies and feedlots, and poultry and 

swine. 

C. What are the rule’s deficiencies? 

These elements of the rule submittal 

conflict with section 182 of the Act and 

prevent full approval of the SIP 

revision. 

1. Rule 4570 exempts poultry 

operations between 400,000 and 

650,000 chickens (see section 4.1 of the 

rule); 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 RACT for poultry and swine 

facilities. Such analysis should review 

the availability and effectiveness of 

controls, and 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. Please 

see our TSD for a few examples of the 

type of concerns that should be 

addressed by this analysis. 

D. EPA Recommendations to Further 

Improve the Rule 

The TSD describes additional rule 

revisions that do not affect EPA’s 

current action but are recommended for 

the next time the SJVAPCD modifies the 

rule. 

E. Proposed Action and Public 

Comment 

As authorized in sections 110(k)(3) 

and 301(a) of the Act, EPA is proposing 

a limited approval of Rule 4570 to 

improve the SIP. If finalized, this action 

would incorporate the submitted rule 

into the SIP, including those provisions 

identified as deficient. This approval is 

limited because EPA is simultaneously 

proposing a limited disapproval of Rule 

4570 under section 110(k)(3). If this 

disapproval is finalized, sanctions will 

be imposed under section 179 of the Act 

unless EPA approves subsequent SIP 

revisions that correct the rule 

deficiencies within 18 months. These 

sanctions would be imposed according 

to 40 CFR 52.31. A final disapproval 

would also trigger the federal 

implementation plan (FIP) requirement 

under section 110(c). Note that the 

submitted rule has been adopted by the 

SJVAPCD, and EPA’s final limited 

disapproval would not prevent the 

district from enforcing the rule. 

We will accept comments from the 

public on the proposed limited approval 

and limited disapproval for the next 30 

days. 

III. 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 

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 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 the 

Federal SIP approval 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 section 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 approval 

action proposed 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 

proposes to approve pre-existing 


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33950 Federal Register / Vol. 74, No. 133 / Tuesday, July 14, 2009 / Proposed Rules 

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 proposed 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. 

EPA specifically solicits additional 

comment on this proposed rule from 

tribal officials. 

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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: June 30, 2009. 

Jane Diamond, 

Acting Regional Administrator, Region IX. 

[FR Doc. E9–16644 Filed 7–13–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2009–0024; FRL–8930–4] 

Revisions to the California State 

Implementation Plan, San Joaquin 

Valley Unified Air Pollution Control 

District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing a limited 

approval and limited disapproval of 

revisions to the San Joaquin Valley 

Unified Air Pollution Control District 

portion of the California State 

Implementation Plan. These revisions 

concern a local fee rule that applies to 

major sources of volatile organic 

compound and nitrogen oxide 

emissions within the San Joaquin Valley 

ozone nonattainment area. We are 

approving a local rule that regulates 

these emission sources under the Clean 

Air Act as amended in 1990. We are 

taking comments on this proposal and 

plan to follow with a final action. 

DATES: Any comments must arrive by 

August 13, 2009. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2009–0024, by one of the 

following methods: 

1. Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions. 

2. E-mail: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through http:// 

www.regulations.gov or e-mail. http:// 


sroberts on DSKD5P82C1PROD with PROPOSALS