[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: [email protected].
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, [email protected].
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
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Agency Rule Rule title Adopted Submitted
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SJVAPCD............................... 4570 Confined Animal 06/18/09 06/26/09
Facilities.
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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.
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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
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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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