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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 or ROP. See 74

FR at 39936, ftn. 7.

Comment: CRPE comments that EPA

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 of Rule 4570, Confined

Animal Facilities. First we 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 the rule meets the RACT provisions

of CAA section 182(b)(2). See 74 FR

33948. The limited approval means that

the rule is an enforceable part of the SIP.

The limited disapproval requires the

District to provide additional

documentation and/or rule revisions to

assure that the rule is RACT in order to

avoid the imposition of sanctions under

CAA section 179 and the promulgation

of a 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 it can 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 (feed according to National

Research Council (NRC) Guidelines) for

dairy, beef feedlot, and other cattle

facilities is arbitrary and capricious and

an abuse of discretion 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 that if the 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

of documents in support of its

comments on the emissions reductions.

Response: In the 2004 SIP, reductions

from the Rule 4570 are estimated to be

17.7 tpd or 28 percent of the baseline

inventory for confined animal facilities.

See 2008 Clarifications at 7 and 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 the baseline.

The District initially adopted Rule

4570 in June 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. See Final Draft Staff Report

for Rule 4570, p. 50.19 During this

public process, the Center submitted

comments similar to the ones it makes

here. In response to these comments, the

District noted that its emissions

reductions estimate was based on a

number of research 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 of the 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 on whether 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 Staff Report for Rule 4570,

Appendix A, p. 12.

The District based its estimated

emissions reductions for Rule 4570 on

a careful consideration of the

information then available and used

conservative (i.e., low) estimates of the

potential emissions reductions. We have

reviewed the District's analysis and find

it reasonable. Final Draft Staff Report for

Rule 4570, p. 24. More specifically, we

do not believe that it overestimates the

reductions from menu option A.1. as

alleged by the commenter.

We note that the Center raised this

specific issue in State court litigation on

Rule 4570. The courts found for the

District on this issue. See Association of

Irritated Residents v. SJVAPCD (2008),

168 Cal. App. 4th 535, 553-554.

Comment: CRPE argues that Rule

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 that many of the control

measures are currently being

implemented and that the District

defends its rule as an anti-backsliding

measure that will ensure that current

voluntary practices are not abandoned.

CRPE then asserts that the approach that

the District has taken violates the

statutory requirement that rules must

reduce emissions.

19 SJVAPCD, "Final Draft Staff Report Proposed

Rule 4570 (Confined Animal Facilities)," June 15,

2006.

Response: The District believes and

we concur that Rule 4570 will generate

significant emission reductions. Simply

because a practice is an existing

industry practice does not mean that

every facility uses it or uses it

consistently.

The commenter does not cite the

provision in the CAA that it believes

requires, as condition of approval, that

SIP rules must reduce emissions. EPA

finds nothing in the CAA that requires

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 of PM10. The commenter in that instance

claimed that the emission reductions

estimated to be achieved by the rule

were inaccurate and inflated because

the estimate double-counted emission

reductions already being achieved from

practices already in common use by

growers. In our response to this

argument we stated that "it was

understood that some agricultural sites

may have been employing practices not

required by regulation at that time, and

that these existing practices may not

have been accounted for in the emission

inventory. Rule 4550 makes these

practices mandatory and federally

enforceable, allowing the District to take

credit for the emission reductions

* * ." 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 of VOC

emissions from dairy operations for

Rule 4570. It then asserts that approval

of the rule with "fictitious" reductions

based on commonly-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 time it

adopted Rule 4570 and applied that

information reasonably to determine the

emissions reductions estimates for the

rule. See Rule 4570 Staff Report, p. 22.

As noted above, simply because a

practice is commonly used in an

industry does not mean that it is used

by every facility or used consistently by

every facility in that industry. We note

that the Center also raised this specific

issue in State court litigation on Rule

4570. The courts found for the District

10435
Federal Register/Vol. 75, No. 44/Monday, March 8, 2010/Rules and Regulations

on this issue. See Association of

Irritated Residents v. SJVAPCD (2008),

168 Cal. App. 4th 535, 553-554.

III. Approval Status of Rules

The demonstration of attainment in

the 2004 SIP and 2008 Clarifications

relied on emission reductions from a

number of District and State rules. EPA

has now taken final action to approve

each of these rules into the California

1-hour ozone SIP as shown in Table 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 ID from 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 M M BTU) (E) ............................................................................................... 5.1 72 FR 29887 (5/30/07).

4702 Stat. IC engines (H) .................................................................................................................. 16.8 73 FR 1819 (1/10/08).

4309 Com mercial Dryers (I) ............................................................................................................... 0.7 72 FR 29887 (5/30/07).

4308 W ater 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 O x T o ta ls .................................................................................................................................... 2 7 .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 O rg. Solvent Degreasing (M) ............................................................................................................................. 74 FR 37948 (7/30/09).

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

4663 O rg. 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 W ood 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 Decontam ination (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).

V O C T o ta ls ............................................................................................................................. 3 3 .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 given in our proposed

approvals at 74 FR 33933 and 74 FR

50936, EPA is taking the following

actions.

1. EPA is approving pursuant to CAA

section 110(k)(3), the following

elements of the 2004 SIP and the 2008

Clarifications:

a. The rate of progress demonstration

as meeting the requirements of CAA

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 as meeting 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) that the 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 or the

number of vehicle trips.

3. EPA is approving pursuant to CAA

section 110(k)(3) section 4.7 in the 2004

SIP and the provisions of the 2003 State

10436
Federal Register/Vol. 75, No. 44/Monday, March 8, 2010/Rules and Regulations

Strategy and ARB Board Resolution 04-

29 that relate 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 of RACT) 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 (adopted September

21, 2006) into the San Joaquin Valley

portion of the California SIP.

V. Statutory and Executive Order

Reviews

Under the Clean Air Act, the

Administrator is required to approve a

SIP submission that complies with the

provisions of the Act and applicable

Federal regulations. 42 U.S.C. 7410(k);

40 CFR 52.02(a). Thus, in reviewing SIP

submissions, EPA's role is to approve

State choices, provided that they meet

the criteria of the Clean Air Act.

Accordingly, this action merely

approves State law 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 "significant regulatory

action" subject to review by the Office

of Management and Budget under

Executive Order 12866 (58 FR 51735,

October 4, 1993);

* Does not impose an information

collection burden under the provisions

of the Paperwork Reduction Act (44

U.S.C. 3501 et seq.);

* Is certified as not having a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.);

* Does not contain any unfunded

mandate or significantly or uniquely

affect small governments, as described

in the Unfunded Mandates Reform Act

of 1995 (Pub. L. 104-4);

* Does not have Federalism

implications as specified in Executive

Order 13132 (64 FR 43255, August 10,

1999);

* Is not an economically significant

regulatory action based on health or

safety risks subject to Executive Order

13045 (62 FR 19885, April 23, 1997);

* Is not a significant regulatory action

subject to Executive Order 13211 (66 FR

28355, May 22, 2001);

* Is not subject to requirements of

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (15 U.S.C. 272 note) because

application of those requirements would

be inconsistent with the Clean Air Act;

and

e Does not provide EPA with the

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, and EPA notes that

it will not impose substantial direct

costs on tribal governments or preempt

tribal law.

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this action and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by May 7, 2010.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this action for

the purposes of judicial review nor does

it extend the time within which a

petition for judicial review may be filed,

and shall not postpone the effectiveness

of such rule or action. This action may

not be challenged later in proceedings to

enforce its requirements (see section

30 7(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Nitrogen dioxide, 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]

m 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 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 read as follows:

§ 52.220 Identification of plan. * * * * *

(c) * * *

(317) * * *

(i) * * *

(B) State of California Air Resources

Board.

(1) Executive Order G-125-304

"Adoption and Submittal of New State

Commitments for the San Joaquin

Valley" with Appendix 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 of direct

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 of California Air

Resources Board, Resolution No. 03-14,

June 26, 2003") to E.O. G-125-304. * * * * *

(339) * * *

(i) * * *

(B) State of California 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

San Joaquin 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, 2003 by ARB Resolution No.

03-22.

(ii) * * *

(C) State of California 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

(October 23, 2003). * * * * *

10437
Federal 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 on November 15, 2004 by the

Governor's designee.

(i) Incorporation by reference.

(A) State of California Air Resources

Board.

(1) ARB Resolution No. 04-29.

Commitment to achieve additional

emission reductions in the San Joaquin

Valley Air Basin of 10 tons per day (tpd)

of nitrogen oxides and 15 tpd of volatile

organic compounds by 2010 as

described on page 5 of Resolution No.

04-29 October 28, 2004 and page 29 of

"Staff Report, Proposed 2004 State

Implementation Plan for Ozone in the

San Joaquin Valley, release date

September 28, 2004."

(ii) Additional Material.

(A) San Joaquin Valley Air Pollution

Control District.

(1) Extreme Ozone Attainment

Demonstration Plan, as adopted by the

SJVAPCD on October 8, 2004 and by the

California Air Resource Board on

October 28, 2005.

(370) An amended plan was

submitted on March 6, 2006 by the

Governor's designee.

(i) [Reserved]

(ii) Additional Material.

(A) San Joaquin Valley Air Pollution

Control District.

(1) Amendments to the 2004 Extreme

Ozone Attainment Demonstration Plan

adopted by the SJVAPCD on October 20,

2005 and by CARB on March 3, 2006.

(B) State of California 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 by the

Governor's designee.

(i) [Reserved]

(ii) Additional Material.

(A) San Joaquin Valley Air 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

and by CARB on September 5, 2008.

(B) State of California Air Resources

Board.

(1) Executive Order S-08-012,

"Approval and Submittal of

Amendments to the 2004 San Joaquin

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 Limitations Guidelines and

Standards for the Construction and

Development Point Source 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 in the Federal

Register on December 1, 2009, 74 FR

62995, due to a date calculation error.

The final rule 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 of Final Rule

The Environmental Protection Agency

is correcting a final rule that appeared

in the Federal Register on Tuesday,

December 1, 2009. 74 FR 62995. The

final rule established Clean Water 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.gov set

an applicable date for the numeric

effluent limitation and associated

monitoring requirements for sites that

disturb 20 or more acres of land at one

time for 20 months from the publication

of the rule in the Federal Register. That

date was expressed as a calculation: "20

months after the date of publication of

the final rule" or (in other places) "18

months after the effective date of the

rule." The date would be the same under

either calculation, because the effective

date of the rule was two months after

publication. That date is indicated in

several locations throughout the

preamble of the final rule. See e.g., 74

FR 63050. A member of the public

reading the preamble and regulatory text

of the 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, is the date by

which discharges from construction

sites that disturb 20 or more acres of

land at one time must comply with the

numeric effluent limitation and

monitoring requirements.

Section 553 of the Administrative

Procedure Act, 5 U.S.C. 553(b)(B),

provides that, when an agency for good

cause finds that notice and public

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 that there 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 of Congress, Executive

Orders and Agency 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 review by the

Office of Management and Budget.

Because the agency has made a "good

cause" finding that this action is not

subject to notice-and-comment

requirements under the Administrative

Procedure Act or any other statute, it is

not subject to the regulatory flexibility

provisions of the Regulatory Flexibility

Act, 5 U.S.C. 601 et seq., or to sections

202 and 205 of the Unfunded Mandates

Reform Act of 1995 (UMRA) Public Law

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 affect the

communities of tribal 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 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. 64 FR 43255

(August 10, 1999). This rule also is not

subject to Executive Order 13045, 62 FR

19885 (April 23, 1997), because it is not

economically significant.

10438