[Federal Register Volume 74, Number 133 (Tuesday, July 14, 2009)]
[Proposed Rules]
[Pages 33948-33950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16644]



[[Page 33948]]

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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.

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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 on-
line instructions.
    2. E-mail: <a href="/cdn-cgi/l/email-protection#592a2d3c3a323c357738373d2b3c2e193c2938773e362f"><span class="__cf_email__" data-cfemail="2c5f58494f474940024d42485e495b6c495c4d024b435a">[email protected]</span></a>.
    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, <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="ffac8b9a9c949a93d1be919b8d9a88bf9a8f9ed1989089">[email protected]</a>.

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                 06/18/09        06/26/09
                                                         Facilities.
----------------------------------------------------------------------------------------------------------------

    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.
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    \1\ See Association of Irritated Residents v. San Joaquin Valley 
Unified Air Polution Control Dist., 168 Cal. Ap. 4th 535 (Cal. App. 
5 Dist. 2008).
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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.

[[Page 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 cost-effective 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

[[Page 33950]]

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]
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