# + 2

(,1 1/,1(

Citation: 75 Fed. Reg. 10435 2010

Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Jan 11 21:34:01 2012

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

### Federal Register/Vol. 75, No. 44/Monday, March 8, 2010/Rules and Regulations

and acknowledged by the commenter, the plan does not rely on emissions reductions from the pesticide element to demonstrate attainment orROP. See 74 FR at 39936,ftn. 7. Comment:CRPE comments thatEPA should not allow emissions reduction credit for SJVAPCD Rule 4570 because

we have proposed to disapprove the rule for not meeting the CAA's requirement for RACT.

Response:On July 14, 2009, EPA proposed a limited approval/limited disapproval ofRule 4570, Confined Animal Facilities. Firstwe proposed to approve the rule into the California SIP under CAA section 110(k) as a SIP strengthening. Second, we proposed to disapprove the District's demonstration that therule meets the RACT provisions ofCAA section 182(b)(2). See 74FR 33948. The limited approval means that the rule is an enforceable part ofthe SIP. The limited disapproval requires the District to provide additional documentation and/or rule revisions to

assure thatthe ruleis RACT in order to avoid the imposition ofsanctions under CAA section 179 and the promulgation ofa FIP under CAA section 110(c). We

are finalizing our action on Rule 4570
concurrent with this action on the SJV 1-hour ozone plan. Because Rule 4570 is

now approved into the SIP, emissions reductions from itcan be credited in the plan's attainment and ROP demonstrations and for other CAA requirements. Comment:CRPE comments that allowing emissions reduction credit for compliance with menu option A.1 in Rule 4570 (feedaccording to National Research Council (NRC) Guidelines) for dairy, beeffeedlot, and other cattle facilities is arbitrary and capricious and

an abuse ofdiscretion because these reductions are already reflected in the baseline emissions factor used to calculate total emissions from dairies and other cattle related operations. It then claims thatifthe 10 percent emissions reduction credit for option A.1. was eliminated, then emissions reductions from Rule 4570 would drop from 7,563 tons per year (21 tons per day) to 5,632 tons per year (15.5 tons per day). The Center included a number ofdocuments in support ofits
comments on the emissions reductions.

Response:In the 2004 SIP, reductions from the Rule 4570 are estimated to be 17.7tpd or 28 percent ofthe baseline inventory for confined animal facilities. See 2008 Clarifications at 7and 74 FR at 33937 (Table 2). In determining the emissions reductions from the rule, SJVAPCD conservatively estimated that compliance with menu option A.1. would reduce emissions by 10 percent

over thebaseline.

The District initially adopted Rule 4570 inJune 2006 after conducting public workshops and providing a public review and comment period on both the draft rule and its estimate of the Rule's potential emissions reductions. SeeFinal Draft StaffReport for Rule 4570, p. 50.19 During this public process, the Center submitted
comments similar tothe ones itmakes here. In response to these comments, the District noted that its emissions reductions estimate was based on a number ofresearch studies showing that changes in animals' diets would result in VOC emissions reductions and that the 10 percent reduction it was using

was at the low end ofthe range of effectiveness seen in this research. It also noted that the information available in the studies used to establish the baseline emission factor were not conclusive onwhether the animals in those studies were fed according to the NRC guidelines and thus the baseline did not necessarily include reductions associated with a NRC diet. See Final Draft StaffReport for Rule 4570, Appendix A, p. 12.

The Districtbased its estimated emissions reductions for Rule 4570 on

a careful consideration of the information then available and used conservative (i.e., low) estimates ofthe potential emissions reductions. We have reviewed the District's analysis and find it reasonable. Final Draft StaffReport for Rule 4570, p. 24. More specifically, we do not believe that itoverestimates the reductions from menu option A.1. as alleged by the commenter.

We note thatthe Center raised this specific issue in State court litigation on Rule 4570. The courts found for the District on this issue. SeeAssociationof Irritated Residentsv. SJVAPCD (2008), 168 Cal. App. 4th 535, 553-554.

Comment:CRPE argues thatRule 4570 codifies existing practices and, therefore, will not generate emissions reductions. Citing the District's Staff Report for Rule 4570,it claims that the District admits thatmany ofthe control

measures are currently being implemented and thatthe District defends its rule as an anti-backsliding

measure that will ensure that current voluntary practices are not abandoned. CRPE then asserts thatthe approach that the District has taken violates the statutory requirement that rulesmust reduce emissions.

19SJVAPCD, "Final Draft StaffReport Proposed Rule 4570 (ConfinedAnimal Facilities)," June 15,
2006. Response:The Districtbelieves and

we concur thatRule 4570 will generate significant emission reductions. Simply because a practice is an existing industry practice does not meanthat every facility uses it or uses it consistently.

The commenter does not cite the provision in the CAA that itbelieves requires, as condition ofapproval, that SIP rules must reduce emissions. EPA finds nothing in the CAA thatrequires that rules approved into the SIP by EPA result in direct and quantifiable emission reductions. We frequently approve rules and rule revisions that merely clarify existing requirements and

are not expected to reduce emissions demonstratively.

A similar argument was raised in response to our 2005 proposal to approve SJVAPCD Rule 4550, Conservation Management Practices (CMP) for agricultural sources ofPM10. The commenter inthat instance claimed thatthe emission reductions estimated tobe achieved by the rule

were inaccurate and inflated because the estimate double-counted emission reductions alreadybeing achieved from practices already in common useby growers. In ourresponse to this argument we stated that "itwas understood that some agricultural sites may have been employing practices not required byregulation at thattime, 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 * * ."71 FR 7683 (February 14, 2006)

Comment:CRPE claims that the District guessed or applied a default emissions reduction estimate to come up with a 36 percent reduction ofVOC emissions from dairy operations for Rule 4570. Itthen asserts that approval ofthe rule with "fictitious"reductions based oncommonly-used industry practices would be arbitrary and capricious because the majority of controls have no factual support whatsoever.

Response:The District used the best information available at the timeit adopted Rule 4570 and applied that information reasonably to determine the emissions reductions estimates for the rule. See Rule 4570 StaffReport, p. 22. As noted above, simplybecause a practice iscommonly used in an industry does not mean thatit isused by every facility or used consistently by every facility in thatindustry. We note that the Center also raised this specific issue in State courtlitigation on Rule 4570. The courts found forthe District 10435Federal Register/Vol. 75, No. 44/Monday, March 8, 2010/Rules and Regulations

onthis issue. See Associationof Irritated Residentsv. SJVAPCD (2008), 168 Cal. App. 4th 535, 553-554. III. Approval Status ofRules
The demonstration of attainment in the 2004 SIP and 2008 Clarifications relied on emission reductions from a number ofDistrict and State rules. EPA has nowtaken final action to approve each ofthese rules into the California 1-hour ozone SIP as shown inTable 1 below for the District rules and discussed below for the State rules.

TABLE 1-APPROVAL STATUS OF SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DISTRICT RULES RELIED ON IN THE 

### 1-
HOUR OZONE STANDARD ATTAINMENT DEMONSTRATION

NOx controls

Achieved
Rule #, description and commitment IDfrom 2004 SIP emission reductions Approval cite/date (2010-tpd)

9310 Fleet School buses (C)

............................................................................................................. 0.6 NFR signed 12/11/2009. 4307 Small Boilers (2-5 MMBTU) (E)

............................................................................................... 5.1 72 FR 29887 (5/30/07). 4702 Stat. IC engines (H)

.................................................................................................................. 16.8 73 FR 1819 (1/10/08). 4309 Commercial Dryers (I)

............................................................................................................... 0.7 72 FR 29887 (5/30/07). 4308 Water Heaters 0.075 (N)

.......................................................................................................... 0.8 72 FR 29887 (5/30/07). 4103 Open Burning (Q)

..................................................................................................................... 1.7 74 FR 57907(11/10/09). 4703 Sta. Gas Turbines (S)

............................................................................................................... 1.9 74 FR 53888 (10/21/09).

N

Ox Totals

.................................................................................................................................... 27.6

VOC controls

Achieved emission Rule # and description reductions Approval cite/date (2010-tpd)

4409 Oil &Gas Fug. (A)

.................................................................................................................... 5.1 71 FR 14653 (3/23/06). 4455 Ref. &Chem

. Fug. (B)

.............................................................................................................. 0.3 71 FR 14653 (3/23/06). 4612 Automotive Coating (incorporates Rule 4602)(K)

..................................................................... 1.0 Final signed 12/3/09. 4570 CAFO Rule (L)

.......................................................................................................................... 17.7 NFR signed 12/11/09. 4662 Org. Solvent Degreasing (M)

............................................................................................................................. 74 FR 37948 (7/30/09).

........................ 74 FR 37948 (7/30/09). 4663 Org. Sol. Cleaning (M)

....................................................................................................................................... Final signed 12/3/09. 4603 Metal Parts/Products (M)

................................................................................................................................... Final signed 12/3/09. 4604 Can and Coil Coating (M)

.................................................................................................................................. Final signed 12/11/09. 4605 Aerospace Coating (M)

...................................................................................................................................... 74 FR 52894 (10/15/09). 4606 Wood Products Coating (M)

.............................................................................................................................. 74 FR 52894 (10/15/09). 4607 Graphic Arts (M)

................................................................................................................................................ Final signed 12/3/09. 4612 Automotive Coating (M)

............................................................................................................ 3.1 74 FR 52894 (10/15/09). 4653 Adhesives (M)

.................................................................................................................................................... Final signed 12/11/09. 4684 Polyester Resin Operations (M). 4401 Steam-Enhanced Oil-well (0)

................................................................................................... 0.3 Final signed 12/11/09. 4651 Soil Decontamination (P)

.......................................................................................................... 0.0 74 FR 33397 (7/13/09). 4103 Open Burning (Q)

..................................................................................................................... 3.9 74 FR 57907 (11/10/09). 4621 & 4624 Gasoline storage & trans. (T & U)

............................................................................... 1.9 74 FR 33397 (7/13/09).

VOC Totals

............................................................................................................................. 33.3

The ROP and attainment demonstrations in the 2004 SIP and 2008 Clarifications also relied in part on ARB's consumer product regulations (final approval published at 74 FR 57074 (November 4, 2009)), ARB's reformulated gasoline and diesel fuel regulations (final approval signed December 11, 2009), and State's SmogCheck vehicle inspection and maintenance program (final approval signed December 11, 2009).

IV. Final Actions

For the reasons givenin ourproposed approvals at 74 FR 33933 and 74FR 50936, EPA istaking the following actions. 1.EPA is approving pursuant to CAA section 110(k)(3), the following elements ofthe 2004 SIP andthe 2008 Clarifications:

a. The rate ofprogress demonstration

as meeting therequirements ofCAA sections 172(c)(2) and 182(c)(2) and 40 CFR 51.905(a)(1)(i) and 51.900(f)(4);

b. the rate-of-progress contingency

measures asmeeting the requirements of CAA section 172(c)(9) and 182(c)(9);

c. the attainment demonstration as meeting the requirements of 182(c)(2)(A) and 181(a) and 40 CFR 51.905(a)(1)(ii); and d. the attainment contingency

measures as meeting the requirements of CAA section 172(c)(9); 2.EPA is finding pursuant to CAA section 110(k)(3) thatthe 2004 SIP and the 2008 Clarifications meet the requirements of:

a. CAA section 182(e)(3) and 40 CFR 51.905(a)(1)(i) and 51.900(f)(7) for clean fuel/clean technology for boilers; and

b. CAA section 182(d)(1)(A) and 40 CFR 51.905(a)(1)(i) and 51.900(f)(11) for TCMs sufficient to offset any growth in emissions from growth in VMT orthe number ofvehicle trips. 3.EPA is approving pursuant to CAA section 110(k)(3) section 4.7 inthe 2004 SIP and the provisions ofthe 2003 State 10436

### Federal Register/Vol. 75, No. 44/Monday, March 8, 2010/Rules and Regulations

Strategy and ARB Board Resolution 04- 29 thatrelate to aggregate emission reductions in the San Joaquin Valley Air Basin as meeting the requirements of CAA sections 110(a)(2)(A) and 172(c)(6).

4. EPA is approving pursuant to CAA section 110(k)(3), the 2004 SIP, the 2003 State Strategy and the 2008 Clarifications as meeting the RACM (exclusive ofRACT) requirements of CAA section 172(c) and 40 CFR 51.905(a)(1)(ii).

5.EPA is approving pursuant to CAA section 110(k)(3), SJVAPCD Rule 9310 School Bus Fleets (adoptedSeptember 21, 2006) into the San Joaquin Valley portion ofthe California SIP.

V. Statutoryand Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions ofthe 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 thatthey meet the criteria ofthe CleanAir Act. Accordingly, this action merely approves State law and plans as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that
reason, this action:

* Is not a "significantregulatory action" subject to review by the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

* Does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 etseq.);

* 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 etseq.);

* 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 actionbased onhealth 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 (66FR 28355, May 22, 2001);

* Is not subject to requirements of Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the Clean Air Act; and

e Does not provide EPA withthe discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable 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, andEPA notes that it will not impose substantial direct
costs ontribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 etseq., as added bythe Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rulemay take effect, the
agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the FederalRegister. A major rule
cannot take effect until 60 days afterit is published in the FederalRegister. This action is not a "majorrule" as defined by 5U.S.C. 804(2).

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicialreview of this action must be filed in the United States Court ofAppeals for the appropriate circuit by May 7, 2010. Filing a petition for reconsideration by the Administrator ofthis final rule does
not affect the finality ofthis actionfor the purposes ofjudicial review nordoes it extend the time within which a petition forjudicial review maybe filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged laterin proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFRPart52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: December 11, 2009. LauraYoshii,
ActingRegional Administrator, RegionIX. * Part52, Chapter I,Title 40 oftheCode ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

m 1. The authority citationfor part52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq. Subpart F-California

* 2.Section 52.220 is amended by adding paragraphs (c)(317)(i)(B), (c)(339)(i)(B),(c)(339)(ii)(C), (c)(348)(i)(A)(2), (c)(369), (c)(370), and (c)(371)to readas follows: §52.220 Identificationofplan.

* * * * *

(c) * * * (317) * * * (i) * * * (B) State ofCalifornia Air Resources Board. (1)Executive Order G-125-304 "Adoption and Submittal ofNew State Commitments for the San Joaquin Valley" withAppendix A. Commitment
to achieve additional emissions reductions in the San Joaquin Valley Air Basin of 10 tons per day (tpd) of nitrogen oxides and 0.5 tpd ofdirect PM10 by 2010 as given on page 4 of Executive Order G-125-304, executed August 19, 2003, and on page 5 of Appendix A ("State ofCalifornia Air Resources Board, Resolution No. 03-14,
June 26, 2003") to E.O.G-125-304.

* * * * *

(339) * * * (i) * * * (B) State ofCalifornia Air Resources Board. (1) "Revised Proposed 2003 State and Federal Strategy for the California State Implementation Plan," (release date August 25, 2003), section I.D.2. "2003 SanJoaquin Valley Particulate Matter State Implementation Plan" (pp.1-23 through 1-25)which was adopted without revision to section I.D.2. on October 23,2003by ARB ResolutionNo. 03-22.

(ii) * * * (C) State ofCalifornia Air Resources Board. (1) "Revised Proposed 2003 State and Federal Strategy for the California State Implementation Plan," (release date August 25,2003) as revised by ARB Resolution No. 03-22 (October 23, 2003) excluding for section I.D.2.

(2)ARB Resolution No. 03-22 (October23,2003).

* * * * * 

### 10437Federal Register/Vol. 75, No. 44/Monday, March 8, 2010/Rules and Regulations

(348) * * * 

### (i) * * * (A)*** (2) Rule 9310, "School Bus Fleets," adopted on September 21, 2006.

• * * * *

(369) New and amended plans were submitted onNovember 15, 2004 by the Governor's designee. (i) Incorporation by reference. (A) State ofCalifornia AirResources Board. (1)ARB Resolution No. 04-29. Commitment to achieve additional emission reductions in the SanJoaquin Valley Air Basin of10 tons per day (tpd) ofnitrogen oxides and 15 tpd ofvolatile organic compounds by 2010 as described on page 5ofResolution No. 04-29 October 28, 2004 and page 29 of "StaffReport, Proposed 2004 State Implementation Plan for Ozone inthe SanJoaquin Valley, release date September 28, 2004."

(ii)Additional Material. (A) SanJoaquin ValleyAir Pollution Control District. (1)Extreme Ozone Attainment Demonstration Plan, as adopted by the SJVAPCD on October 8, 2004 and bythe California Air Resource Board on October 28, 2005.

(370) An amended plan was submitted onMarch 6, 2006by the Governor's designee. (i) [Reserved] (ii)Additional Material. (A) SanJoaquin ValleyAir Pollution Control District. (1)Amendments to the 2004 Extreme Ozone Attainment Demonstration Plan adopted by the SJVAPCD on October 20, 2005 andby CARB onMarch 3, 2006.

(B) State ofCalifornia Air Resources Board. (1)Executive Order G-126-336, dated March 3, 2005 (year is correctly 2006). (371) An amended plan was submitted on September 8, 2008 bythe Governor's designee. (i) [Reserved] (ii)Additional Material. (A) SanJoaquin ValleyAir Pollution Control District. (1) "Clarifications Regarding the 2004 Extreme Ozone Attainment Demonstration Plan for the Revoked Federal 1-hr Ozone Standard" adopted by the SJVAPCD on August 31, 2008 andby CARB on September 5, 2008.

(B) State ofCalifornia Air Resources Board. (1)Executive Order S-08-012, "Approval and Submittal of Amendments to the 2004 SanJoaquin Valley 1-hour Ozone Attainment Plan," dated September 5, 2008.

[FR Doe. 2010-4752 Filed 3-5-10; 8:45 am]

BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 450 [EPA-HQ-OW-2008-0465; FRL-9118-7]
RIN 2040-AE91

Effluent LimitationsGuidelines and Standards forthe Construction and Development PointSource Category; Correction

AGENCY: Environmental Protection Agency.
ACTION: Correcting amendments.

SUMMARY: The Environmental Protection Agency (EPA)is correcting a date in a final rule that appeared inthe Federal Register on December 1,2009, 74FR 62995, due to a date calculation error. The finalrule established Clean Water Act technology-based Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development point

source category. DATES: Effective on March 8, 2010.

FOR FURTHER INFORMATION CONTACT: Mr. Jesse W. Pritts at 202-566-1038 (pritts.jesse@epa.gov).

SUPPLEMENTARY INFORMATION:
Correction ofFinalRule

The Environmental Protection Agency is correcting a final rule that appeared in the Federal Register onTuesday, December 1, 2009. 74 FR 62995. The final rule established CleanWater Act technology-based Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development (C&D) point source category. The final C&D rule as signed by the Administrator on November 29, 2009 and posted,prepublication, on http://www.epa.govset

an applicable date for the numeric effluent limitation and associated monitoring requirements for sites that disturb 20 or more acres ofland at one time for 20 months from the publication ofthe rule in the Federal Register. That date was expressed as a calculation: "20 months after the date ofpublication of the finalrule" or (inother places) "18 months after the effective date ofthe rule." The date wouldbe the same under either calculation, because the effective date ofthe rule was two months after publication. That date isindicated in several locations throughout the preamble ofthe final rule. See e.g., 74 FR 63050. A member ofthe public reading thepreamble and regulatory text ofthe final rule as sent to the Office of the Federal Register (OFR) for publication and published on EPA's Web site would easily be able to calculate the date intended by this rule and would certainly understand that compliance with the numeric effluent limitation and associated monitoring requirements would be required later than 2010.

The rule was effective on February 1, 2010. Calculated correctly, this means that August 1, 2011, isthe dateby which discharges from construction sitesthat disturb 20 or more acres of land at one timemust comply withthe numeric effluent limitation and monitoring requirements.

Section 553 ofthe Administrative Procedure Act, 5U.S.C. 553(b)(B), provides that, when an agency forgood

cause finds that notice andpublic procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined thatthere is good cause for making today's rule final without prior proposal and opportunity for comment because such notice and opportunity for comment is unnecessary and contrary to public interest.

Related Acts ofCongress, Executive OrdersandAgency Initiatives

Under Executive Order 12866, 58 FR 51735 (October 4, 1993), this action is not a "significant regulatory action" and is therefore not subject to reviewby the Office ofManagement andBudget. Because the agency has made a "good cause"finding thatthis action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, itis not subject tothe regulatory flexibility provisions ofthe Regulatory Flexibility Act, 5U.S.C. 601 et seq., or to sections 202 and 205 ofthe Unfunded Mandates Reform Act of 1995 (UMRA) PublicLaw 104-4. In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely affectthe communities oftribal governments, as specified by Executive Order 13084. 63 FR 27655 (May 10, 1998). This rule will
not have substantial direct effects on the States, on therelationship between the national government and the States, or
onthe distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132. 64 FR 43255 (August 10, 1999). This rule also is not subject to Executive Order 13045, 62 FR 19885 (April 23, 1997), because itis not economically significant. 10438