[Federal Register Volume 75, Number 9 (Thursday, January 14, 2010)]
[Rules and Regulations]
[Pages 2079-2085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-489]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0492; FRL-9096-9]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of revisions to the San Joaquin Valley Air Pollution Control District 
(SJVAPCD) portion of the California State Implementation Plan (SIP). 
This action was proposed in the Federal Register on July 14, 2009 and 
concerns volatile organic compounds (VOCs) from confined animal 
facilities, such as dairies, cattle feedlots, and poultry and swine 
houses. Under the authority of the Clean Air Act as amended in 1990 
(CAA or the Act), this action simultaneously approves a local rule that 
regulates these emission sources and directs California to correct rule 
deficiencies.

DATES: Effective Date: This rule is effective on February 16, 2010.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2009-0492 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at EPA Region IX, 75 
Hawthorne Street, San Francisco, California. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the

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hard copy materials, please schedule an appointment during normal 
business hours with the contact listed in the FOR FURTHER INFORMATION 
CONTACT section.

FOR FURTHER INFORMATION CONTACT: Andrew Steckel, EPA Region IX, (415) 
947-4115, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On July 14, 2009 (74 FR 33948), EPA proposed a limited approval and 
limited disapproval of the following rule that the California Air 
Resources Board (CARB) submitted for incorporation into the SIP.

----------------------------------------------------------------------------------------------------------------
           Local agency              Rule           Rule title             Adopted         Submitted
----------------------------------------------------------------------------------------------------------------
SJVAPCD...........................            4570   Confined Animal                  06/18/09         06/26/09
                                                      Facilities.
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that Rule 4570 
improves the SIP and is largely consistent with the relevant CAA 
requirements. At the same time, we proposed a limited disapproval 
because some rule provisions conflict with section 110 and part D of 
the Act. These provisions are discussed briefly below.
    1. Rule 4570 exempts poultry operations between 400,000 and 650,000 
chickens; these operations should be subject to the rule as major 
sources of VOC emissions.
    2. The rule submittal did not provide adequate analysis to 
demonstrate that the rule's control measure menus implement reasonably 
available control technologies (RACT) for poultry and swine facilities. 
Such an analysis should review the availability and effectiveness of 
control measures for poultry and swine facilities, and may require rule 
revisions to ensure that the rule does not allow implementation of 
relatively ineffective control measures when more effective measures 
are reasonably available to a class of operations.
    Our proposed action and Technical Support Document (TSD) contain 
more information on the basis for this rulemaking and on our evaluation 
of the submittal. The TSD provides examples of the types of concerns 
that should be addressed by the analysis discussed in deficiency 
2.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received comments from the parties listed below.
    1. Bill Mattos, President, California Poultry Federation (CPF), 
letter dated August 5, 2009.
    2. Seyed Sadredin, Executive Director, SJVAPCD, letter dated August 
27, 2009.
    3. Paul Cort, EarthJustice (EJ), letter dated August 31, 2009.
    4. Brent Newell, Legal Director, Center on Race, Poverty & the 
Environment (CRPE), letter dated August 31, 2009, on behalf of the 
following organizations: Association of Irritated Residents, Clean 
Water and Air Matter, Comit[eacute] West Goshen, Comit[eacute] Unido de 
Plainview, Comit[eacute] Residentes Organizados al Servicio del 
Ambiente Sano, Committee for a Better Arvin, Fresno Metro Ministries, 
Natural Resources Defense Council, La Nueva Esperanza de Alpaugh, El 
Quinto Sol de America, South Shafter Project Committee, Shafter Chapter 
League of United Latin American Citizens, United for a Change in 
Tooleville, and La Voz de Tonyville.

A. California Poultry Federation (CPF) Comments

    CPF Comment #1: EPA proposed to postpone deciding whether Rule 4570 
implements RACT for dairies and cattle feedlots pending completion of 
the National Air Emissions Monitoring Study (NAEMS) research. EPA 
should similarly postpone a RACT decision for the poultry industry, 
which is also funding and actively participating in the NAEMS.
    Response to CPF #1: The TSD for our proposed action explains that 
RACT is not clearly defined for confined animal facilities (CAFs) 
because there is limited information and regulation of CAF VOC 
emissions. Reflecting this uncertainty, SJVAPCD's RACT demonstration 
presented various reasons for why Rule 4570 implements RACT. Our TSD 
explains why some of these claims are not relevant and none 
definitively demonstrates RACT. We then made decisions based on our 
judgment of how the numerous factors, taken together, compare to RACT 
policy and precedent.
    For dairies and cattle feedlots, we proposed to defer temporarily a 
RACT decision because the NAEMS and related research should help 
clarify RACT in the near future. We recognize that ongoing research 
should also help clarify RACT for poultry, which is participating in 
the NAEMS, too. However, our TSD explains that there are significantly 
more shortcomings with SJVAPCD's RACT demonstration for poultry than 
for dairy and cattle feedlots. For example, certain major poultry 
sources are not covered by the rule. Also, poultry sources have less 
variability, have lower control costs, and have other differences as 
identified on pages eight and nine of our TSD. While it is unclear at 
this time how the NAEMS will impact our understanding of RACT for 
dairies and cattle feedlots, it is unlikely that the NAEMS will lead to 
a finding that SJVAPCD's existing rule and RACT analysis for poultry is 
sufficient. Also, please see our response to EJ comment 7.
    CPF Comment #2: EPA claimed that poultry operations may be less 
variable than other CAFs because poultry are generally housed in 
buildings. As a result, a few mitigation measures could generally be 
applied to the entire class of poultry operations. CPF, however, 
comments that poultry operations vary significantly, including among 
type of housing, poultry and manure management. Instead of menus, Rule 
4570 could require one set of measures for all facilities, or could 
list different sets for each type of facility. Neither option would 
resolve equity issues of what constitutes RACT for different types of 
operations, since controls which are technically and economically 
available for one type of operation may not be feasible for others.
    Response to CPF #2: We agree that variability in housing design, 
manure management and other factors can affect cost effectiveness of 
some VOC controls available to poultry facilities. We do not believe, 
however, that either SJVAPCD, or this comment has demonstrated that 
industry variability supports the specific Rule 4570 menus. For 
example, our TSD notes that table 6B of Rule 4570 provides four options 
to perform maintenance every 14 days--remove caked waste, clean under 
cages, adjust drinkers and repair pipe leaks. It is not obvious why 
industry variability in housing, poultry, manure management or other 
factors preclude SJVACPD from evaluating the cost-effectiveness of 
these measures and determining whether they

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are appropriate to require generally for major types of poultry 
operations.
    CPF Comment #3: EPA's TSD raises the issue of controlling VOCs with 
biofilters. CPF commented that biofilters are not cost-effective for 
existing poultry houses because they would require, among other things, 
large biofilters with significant installation, operation and 
maintenance costs; as well as, increased ducting, fans, and associated 
power needs. Other traditional end-of-stack control measures are 
similarly infeasible because of the high exhaust flow rates and low VOC 
concentrations.
    Response to CPF #3: Our general objection remains regarding Rule 
4570's menus for poultry control measures. As described in paragraph 
II.C.2 of our proposed action, the rule submittal did not provide 
adequate analysis to demonstrate that the control measure menus 
implement RACT for poultry facilities. Such analysis should review the 
availability and effectiveness of all control measures (work practices, 
add-on controls, etc.) Such analysis may necessitate rule revisions to 
ensure that the rule does not allow implementation of relatively 
ineffective control measures when more effective measures are 
reasonably available to a class of operations. While this comment 
provides relevant information on one component of the menus (add-on 
controls), SJVAPCD should analyze the menus thoroughly and present that 
analysis via their normal public review process.
    CPF Comment #4: The primary source of VOC emissions from poultry is 
the microbial decomposition of organic matter in manure, which 
increases with moisture. As a result, CPF supports Rule 4570's emphasis 
on controlling moisture and microbial decomposition, rather than trying 
to remove dilute concentrations of VOC from large volumes of air.
    Response to CPF #4: Our proposed action neither precludes focus on 
moisture and microbial decomposition, nor does it require add-on 
controls. Rather, it would largely direct SJVAPCD to better analyze the 
availability and effectiveness of controls and make appropriate rule 
revisions. Additional analysis could show, for example, that one set of 
measures for controlling moisture is far more cost-effective than 
another set and should be required of all facilities. Also, please see 
our response to CPF comment 3.

B. San Joaquin Valley Air Pollution Control District Comments

    SJVAPCD Comment #1: EPA claimed that Rule 4570 does not address all 
10 tpy VOC poultry sources as required. SJVAPCD comments that Rule 
4570's threshold is 650,000 chickens. CARB used 0.025 pounds VOC per 
head per year (lb VOC/hd/yr) as an emission factor for both broilers 
and layers, which translates Rule 4570's applicability to 8 tons per 
year (tpy), which is safely below 10 tpy.
    Response to SJVAPCD #1: Table 6 of SJVAPCD's April 16, 2009 RACT 
Demonstration and Table 10 of the rule's Staff Report assume 0.05 lb 
VOC/hd/year for layers, which translates Rule 4570's applicability to 
16.25 tpy, significantly above the 10 tpy threshold. The comment does 
not state why or even if SJVAPCD believes this emission factor is no 
longer appropriate to use.
    SJVAPCD Comment #2: Rule 4570's menu-approach should be approved as 
RACT because the least effective menu options have been incorporated in 
facility permits as best available control technology (BACT).
    Response to SJVAPCD #2: Section C.3.g of EPA's TSD explains that 
SJVAPCD's BACT determinations help support the argument that Rule 4570 
implements RACT, but are not sufficient in and of themselves to 
demonstrate RACT generically for three reasons. This comment relates to 
the second of these three reasons, item ``b'' as presented in the TSD. 
The comment does not, however, address the remaining two points we 
presented: (1) BACT determinations consider site-specific factors which 
may indicate that specific controls are feasible in one situation, but 
not in another; therefore, controls that are BACT for one source may 
not be BACT or even RACT for others; and, (2) EPA's lack of comment 
regarding BACT in individual permits should not be construed as EPA 
concurrence that the rule or the permits implement BACT; we may, for 
example, simply have been unable to review the permits because of 
competing resource demands.
    SJVAPCD Comment #3: Rule 4570's menu approach should be approved 
because, while not compromising control of VOC emissions, it allows CAF 
operators to adjust to market driven changes and innovation in 
operations to further reduce emissions.
    Response to SJVAPCD #3: EPA agrees that a menu approach can 
incorporate elements to address market and innovation needs; however, a 
menu-based rule intended to fulfill Federal RACT requirements must be 
supported by adequate analysis demonstrating that the menus implement 
RACT. Consistent with this position, EPA proposed to postpone a 
decision on whether Rule 4570 demonstrates RACT for dairies, beef 
feedlots and other cattle facilities. We also concluded that SJVAPCD 
had not demonstrated that Rule 4570's menus fulfill RACT for poultry 
and swine operations, and therefore proposed to disapprove the rule.
    SJVAPCD Comment #4: Due to variability in poultry operations, 
SJVACPD cannot specify only one set of emission control requirements. 
Operations vary by capacity, poultry breeds and species, nutrient needs 
dictated by market plans, diets that vary by commodity costs, housing 
ventilation systems, housing coolant systems, housing construction and 
litter management practices.
    Response to SJVAPCD #4: We appreciate that variability in 
operations may require different controls or control options for 
different types of operations. However, SJVAPCD has not demonstrated 
that variability in operations supports the specific Rule 4570 menu 
options. Also, please see our response to CPF comment 2.
    SJVAPCD Comment #5: Over time, there could be additional 
innovations in how poultry or swine are raised or the market demand for 
poultry or swine could change. Rule 4570's menu format allows facility 
modifications to take advantage of new opportunities and technological 
advances which could result in additional reductions.
    Response to SJVAPCD #5: Please see our response to SJVAPCD comment 
3.
    SJVACPD Comment #6: SJVAPCD conducted a top-down BACT analysis of 
poultry housing for a permit application and evaluated four traditional 
VOC control technologies: thermal oxidizer, catalytic oxidizer, carbon 
adsorption and biofilter. These controls were not found achieved in 
practice, so SJVAPCD analyzed their cost-effectiveness and found they 
failed SJVAPCD's $5,000 per ton VOC threshold. A similar conclusion can 
be made for swine. Since traditional add-on control is not cost-
effective for BACT, it is also not cost-effective for RACT.
    Response to SJVAPCD #6: Please see our response to CPF comment 
3.
    SJVAPCD Comment #7: SJVAPCD and CARB research adequately justifies 
approving Rule 4570 as RACT for California dairies. SJVAPCD developed a 
draft BACT document for dairy emissions and is at the forefront of 
implementing BACT for new dairies.
    Response to SJVAPCD #7: We appreciate that SJVAPCD and CARB have 
supported extensive CAF research before and after developing Rule 4570. 
We believe results from the NAEMS and other SJVAPCD, CARB and EPA 
research scheduled to conclude soon should help clarify RACT for 
California dairies. We also note that this comment

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does not provide the referenced draft BACT document for dairy 
emissions, nor does it provide further information to address the 
generic issues discussed in Section C.3.g of our TSD and above in our 
response to SJVAPCD comment 2.

C. EarthJustice (EJ) Comments

    EJ Comment #1: EJ supports EPA's proposed limited approval/
disapproval of Rule 4570 and agrees with the following conclusions from 
our proposal: (1) Rule 4570 fails to require controls for all major 
poultry operations; (2) SJVAPCD failed to demonstrate that Rule 4570 
implements RACT for poultry and swine operations; and, (3) SJVAPCD must 
also review the menus for dairy and cattle feedlots.
    Response to EJ #1: We note that our proposed action would 
recommend, not compel, item 3 regarding SJVAPCD review of the 
dairy and cattle feedlot menus.
    EJ Comment #2: SJVAPCD has not supported its reliance on the 
State's large confined animal facility (LCAF) definition in setting 
Rule 4570 applicability thresholds. CAA section 172(c)(1) requires all 
reasonably available control measures (RACM) as expeditiously as 
practicable, so SJVAPCD must analyze and require all reasonable 
controls, including those for small sources. Instead, Rule 4570 uses 
applicability thresholds based on the State's LCAF definition without 
demonstrating that controlling smaller sources is unreasonable. The 
LCAF definition is even more inappropriate because SJVAPCD now 
estimates higher VOC emissions than assumed by the State (e.g., 11.9 
instead of 5.5 lb VOC/hd/yr for cattle).
    Response to EJ #2: We agree that CAA section 182(b)(2) requires 
RACT for all major sources and CAA section 172(c)(1) requires the 
implementation of all RACM as needed for expeditious attainment. A 
discussion of whether additional controls would advance the attainment 
date of the ozone standard belongs in the context of SJVAPCD's ozone 
plan attainment demonstration. Today's action on Rule 4570 considers 
whether the rule as submitted is adequately enforceable, implements 
RACT and improves the SIP. The emission factor assumptions from 
SJVACPD's RACT demonstration suggest that Rule 4570's applicability 
thresholds capture all major sources except for the poultry threshold 
identified as deficient in our proposed action.
    EJ Comment #3: SJVAPCD must, but did not, show that all Rule 4570 
menus represent the lowest emission levels achievable as required by 
RACT.
    Response to EJ #3: We believe this comment is addressed by our 
proposed action to defer a RACT decision for dairies and cattle 
feedlots and to require adequate analysis to demonstrate that Rule 4570 
implements RACT for poultry and swine. We agree that SJVAPCD must 
review the availability and effectiveness of controls to address the 
RACT deficiency we identified concerning poultry and swine sources.
    EJ Comment #4: SJVAPCD uses a ``percent of profits'' test to 
determine whether controls are economically feasible. For example, 
SJVAPCD claims that Rule 4570 will cost large dairies 9.6% of profits, 
so more stringent and expensive controls are not reasonably available. 
EJ comments that some industries can afford controls costing 10% of 
profits or more without impacting economic viability. EJ believes 
SJVAPCD should analyze possible CAF controls in a broader context, such 
as total compliance cost, economic impact on each sector of the 
industry, output demand elasticity, etc.
    Response to EJ #4: Paragraph II.C.2. of our proposed action states 
that SJVAPCD has not adequately demonstrated that Rule 4570 implements 
RACT, and directs SJVAPCD to analyze the availability and effectiveness 
of possible controls for poultry and swine sources. The comment does 
not dispute this or other portions of our proposal, but provides more 
detail on how EJ believes the deficiency should be corrected. As a 
result, no changes to our proposal are needed. Regarding the substance 
of the comment, we believe ``percent of profits'' can provide useful 
information, but we also acknowledge that additional economic 
information could be helpful and appreciate that resource constraints 
limit the amount of analysis that SJVAPCD can perform. Also, we note 
that SJVAPCD has provided cost-effectiveness information in Appendix C 
of their Staff Report. We look forward to working with EJ, SJVAPCD and 
the affected industry to obtain a meaningful RACT analysis without 
overwhelming available SJVAPCD resources.
    EJ Comment #5: EPA must appropriately revise 40 CFR 52.220(b)(12) 
to remove any possible claim that agricultural sources are exempt from 
permitting.
    Response to EJ #5: Section 5.0 of Rule 4570 specifically requires a 
permit application for each CAF, and Section 5.4 requires 
implementation of all VOC emission mitigation measures, as contained in 
the application, on and after 365 days of submittal of the application. 
Therefore, to the extent that any such permitting exemption exists, it 
does not affect implementation of Rule 4570.
    EJ Comment #6: Sections 5.12 and 5.13 of Rule 4570 allow facilities 
to ignore all specific requirements of sections 5.6 through 5.10 by 
preparing an alternative emission mitigation plan (AEMP) demonstrating 
30% facility-wide reductions. EJ believes these plans are unenforceable 
because Rule 4570 provides no detail on how 30% is calculated or the 
plans approved. EJ also comments that SJVAPCD has not demonstrated that 
30% represents RACT, particularly since SJVAPCD projects that the menus 
reduce emissions 36-72%.
    Response to EJ #6: Because there is limited information available 
on CAF control efficiencies, we proposed to recommend, rather than 
compel, rule revisions at this time (see recommendation 6 on 
page 10 of our TSD). Similar directors' discretion provisions have been 
approved in other rules (e.g., SJVAPCD Rule 4550 regarding agricultural 
operations) where agencies have limited experience in quantifying 
emission impacts. Implementation of Rule 4570 and other CAF 
requirements and ongoing research should improve our understanding so 
that details for AEMPs in section 5.13 can be reasonably required in 
the near future. We also proposed to recommend rather than compel 
revising section 5.13's 30% emission reduction target consistent with 
the 36-72% menu-based emission projections (see recommendation 
7 on page 10 of our TSD). We do not believe we have clear 
authority to compel changes to section 5.12 at this time, as it does 
not appear to apply to any major sources.
    EJ Comment #7: EPA's proposal to postpone a decision on whether 
Rule 4570 implements RACT for dairies and beef feedlots is arbitrary 
and illegal under CAA section 110(k)(3). EPA claims the delay is 
appropriate pending results of an ongoing study, but EPA is required to 
act now based on the best available information. Regardless of the 
study results, Rule 4570's dairy and cattle feedlot provisions suffer 
from the same RACT defects as the poultry and swine provisions that EPA 
is disapproving.
    Response to EJ #7: As we discussed in our response to CPF comment 
1, we acknowledged deficiencies in the RACT demonstration for 
dairies and cattle feedlots, but proposed to defer temporarily a RACT 
decision because the NAEMS and related research should help clarify 
RACT in the near future. While we recognized that ongoing

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research should also help clarify RACT for poultry and swine, our TSD 
explained that there are significantly more shortcomings with SJVAPCD's 
RACT demonstration for poultry and swine operations. As a result, while 
it is unclear how the NAEMS results will impact our understanding of 
RACT for dairies and cattle feedlots, it seems very unlikely that the 
NAEMS will lead to a finding that SJVAPCD's existing rule and RACT 
analysis for poultry and swine is sufficient. Also, please see our 
response to CPF comment 1.
    EJ Comment #8: If EPA finalizes no action on dairy and cattle 
feedlot measures, EPA should appropriately discount the emission 
reduction benefits that are claimed for Rule 4570 in various attainment 
plans.
    Response to EJ #8: If finalized as proposed, EPA's action would 
incorporate all provisions of Rule 4570 into the Federally enforceable 
SIP. EPA's action to disapprove and postpone various RACT 
demonstrations does not interfere with Federal or local rule 
implementation. Issues regarding the emission reductions attributed to 
Rule 4570 do not affect the basis for our action on the rule and should 
be addressed in context of our action on SJVAPCD's one-hour ozone plan.

D. Center on Race, Poverty and the Environment (CRPE) Comments

    CRPE Comment #1: EPA should disapprove the RACT determination for 
dairies and cattle feedlots. There is no hard deadline for EPA to 
promulgate emission estimating methodologies referenced in the proposed 
action, so EPA may further delay a RACT determination beyond November 
2011. In any case, available information already shows that dairies and 
cattle feedlots are significant VOC sources that require RACT.
    Response to CRPE #1: We agree that some cattle and dairy operations 
are significant VOC sources that require RACT. We believe, however, 
that delaying a RACT determination for dairies and cattle feedlots is 
justified for reasons we discussed in Section D.3 of our TSD. All data 
collection efforts for the NAEMS are scheduled to conclude by May 2010 
and we plan to promulgate emission estimating tools by November 2011. 
Nonetheless, we could require additional demonstration of RACT 
regarding dairies and cattle feedlots based on preliminary NAEMS data, 
unexpected delays, or other factors before or after November 2011 
pursuant to CAA section 179(a)(1) and elsewhere. During this period of 
NAEMS data collection and analysis, we emphasize that the rule's 
requirements will continue to be implemented and enforced, and, as a 
result, continue to reduce VOC emissions from dairies and cattle 
feedlots. Also, please see our response to EJ comment 7.
    CRPE Comment #2: Rule 4570's menu-based strategy violates CAA RACT 
provisions which require the lowest emission limitation that sources 
can meet considering technological and economic feasibility. Rule 4570 
does not require all RACT, but merely a handful of measures from among 
several dozen. SJVAPCD concedes that operations can and will select the 
least-costly options, which are not necessarily the most effective, as 
RACT requires, at reducing emissions.
    Response to CRPE #2: Menu-based rules can fulfill the RACT 
requirement if the menus effectively require the lowest emission 
limitations that sources can meet considering technological and 
economic feasibility. However, the deficiency identified in paragraph 
II.C.2 of our proposal reflects our agreement with the comment that 
SJVAPCD has not demonstrated that Rule 4570 meets RACT for poultry and 
swine menus. We are deferring our decision as to whether Rule 4570 
meets RACT for dairy and beef cattle operations. Also, please see our 
response to EJ comment 3.
    CRPE Comment #3: SJVAPCD improperly inflates the control 
effectiveness of Rule 4570 by claiming a 10% emission reduction for 
feeding cows by NRC guidelines both in the baseline emission estimates 
and then again in emission reductions associated with Rule 4570.
    Response to CRPE #3: Today's action on Rule 4570 rests primarily on 
whether the rule as submitted is adequately enforceable, implements 
RACT and improves the SIP. Issues regarding the amount of associated 
emission reductions do not affect the basis for our action on Rule 4570 
and are addressed within our action on SJVAPCD's one-hour ozone plan.
    CRPE Comment #4: Rule 4570 merely codifies existing voluntary 
practices and does not generate real and quantifiable emission 
reductions. This violates CAA requirements for SIP rules to reduce 
emissions. EPA approval of this rule would be arbitrary and capricious 
because the emission reduction estimates for the vast majority of 
controls have no factual support.
    Response to CRPE #4: Please see our response to CRPE comment 
3.
    CRPE Comment #5: EPA should disapprove the RACT demonstration for 
dairies and cattle feedlots and not allow SJVAPCD's 2004 SIP to take 
credit for VOC reductions from Rule 4570.
    Response to CRPE #5: Please see our responses to previous CRPE 
comments.
    Additional CRPE Comments: CRPE's August 31, 2009 letter provided 
comments on EPA's proposed actions on Rule 4570 (Docket No. EPA-R09-
OAR-2009-0492) and on the SJVAPCD One-Hour Ozone Plan (Docket No. EPA-
R09-OAR-2008-0693). CRPE comments that were not addressed above are 
primarily relevant to our proposed action on the SJVAPCD One-Hour Ozone 
Plan. We direct interested readers to those comments and our responses 
in our final action on the ozone plan.

III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized in 
sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited 
approval of the submitted rule. This action incorporates the submitted 
rule into the California SIP, including those provisions identified as 
deficient. As authorized under section 110(k)(3), EPA is simultaneously 
finalizing a limited disapproval of the rule. As a result, sanctions 
will be imposed unless EPA approves subsequent SIP revisions that 
correct the rule deficiencies within 18 months of the effective date of 
this action. These sanctions will be imposed under section 179 of the 
Act according to 40 CFR 52.31. In addition, EPA must promulgate a 
Federal implementation plan (FIP) under section 110(c) unless we 
approve subsequent SIP revisions that correct the rule deficiencies 
within 24 months. Note that the submitted rule has been adopted by the 
SJVAPCD, and EPA's final limited disapproval does not prevent the local 
agency from enforcing it.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any

[[Page 2084]]

rule subject to notice and comment rulemaking requirements unless the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. Small entities 
include small businesses, small not-for-profit enterprises, and small 
governmental jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals and limited approvals/
limited disapprovals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because 
this limited approval/limited disapproval action does not create any 
new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or Tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most 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 limited approval/limited disapproval 
action promulgated does not include a Federal mandate that may result 
in estimated costs of $100 million or more to either State, local, or 
Tribal governments in the aggregate, or to the private sector. This 
Federal action approves pre-existing requirements under State or local 
law, and imposes no new requirements. Accordingly, no additional costs 
to State, local, or Tribal governments, or to the private sector, 
result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves a State rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This final rule does not have 
Tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on Tribal governments, on the 
relationship between the Federal government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian Tribes. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it approves a 
State rule implementing a Federal standard.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other

[[Page 2085]]

required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on February 16, 2010.

K. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 15, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: December 11, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(368) to read as 
follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (368) New and amended regulations were submitted on June 26, 2009 
by the Governor's designee.
    (i) Incorporation by Reference.
    (A) San Joaquin Valley Unified Air Pollution Control District.
    (1) Rule 4570, ``Confined Animal Facilities,'' adopted on June 18, 
2009.
* * * * *

[FR Doc. 2010-489 Filed 1-13-10; 8:45 am]
BILLING CODE 6560-50-P