[Federal Register Volume 64, Number 238 (Monday, December 13, 1999)]
[Rules and Regulations]
[Pages 69404-69407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30902]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 236-0197; FRL-6481-8]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, Ventura County Air Pollution
Control District, Project XL Site-specific Rulemaking for Imation Corp.
Camarillo Plant
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing the approval of revisions to the California
State Implementation Plan (SIP) proposed in the Federal Register on
September 8, 1999. The revisions concern Rule 37 ``Project XL'' from
the Ventura County Air Pollution Control District (VCAPCD). This
approval action will incorporate this rule into the Federally approved
SIP. The intended effect of approving this rule is to regulate
emissions of VOCs in accordance with the requirements of the Clean Air
Act, as amended in 1990 (CAA or the Act) and to facilitate
implementation of the XL Project at Imation Corp. in Camarillo, CA.
Such implementation will result in superior environmental performance
and, at the same time, provide Imation with greater operational
flexibility. EPA is finalizing the approval of this revision into the
California SIP under provisions of the CAA regarding EPA action on SIP
submittals, SIPs for national primary and secondary ambient air quality
standards and plan requirements for nonattainment areas.
DATES: This action is effective on January 12, 2000.
ADDRESSES: Copies of the rule and EPA's evaluation report for the rule
are available for public inspection at EPA's Region IX office during
normal business hours. Copies of the submitted rule are available for
inspection at the following locations:
(1) EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105
(2) California Air Resources Board, 2020 L Street, Sacramento, CA 95814
(3) Ventura County Air Pollution Control District, 669 County Square
Drive, Ventura, CA 93003.
FOR FURTHER INFORMATION CONTACT: David Albright, Permits Office, [AIR-
3], Air Division, U.S. Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, CA 94105-3901. Telephone: (415) 744-
1627. E-mail: albright.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Applicability
The rule being approved into the California SIP is VCAPCD Rule 37
(Project XL). This rule was submitted by the California Air Resources
Board to EPA on October 29, 1999.
II. Background
On September 8, 1999 in 64 FR 48739, EPA proposed to approve VCAPCD
Rule 37 into the California SIP. A detailed discussion of the
background of this rule is provided in the proposed rule cited above.
EPA has evaluated VCAPCD Rule 37 for consistency with the
requirements of the CAA and EPA regulations and EPA interpretation of
these requirements. EPA has found that the rule meets the applicable
EPA requirements. A detailed discussion of the rule provisions and
evaluations has been provided in the proposed rule and in the technical
support document (TSD), dated August 23, 1999, which is available at
EPA's Region IX office.
III. Response to Public Comments
A 30-day public comment period was provided in 64 FR 48739. One set
of comments was submitted to EPA during the comment period, which ended
on October 8, 1999. The comments were submitted by the Environmental
Coalition (EC) of Ventura County. A summarization of the EC's comments
on the proposed rule and EPA's responses is provided below.
The Environmental Coalition made three recommendations in their
submitted comments. Their first recommendation involves a concern
raised by the EC that Imation will receive emission reduction credits
(ERCs) for banking based on a reduction in their plantwide
applicability limit (PAL) for reactive organic compounds (ROC). The EC
recommends that any ERCs granted to Imation for an ROC PAL reduction
should be forfeited if Ventura County does not meet its 2005 ozone
attainment date.
EPA agrees that any banking of emission reduction credits must be
done in accordance with the District's Banking Rule (Ventura County
APCD Rule 26.4), which would not allow Imation to bank ERCs by reducing
their ROC PAL to a lower level, unless Imation were emitting at the
level of their PAL at the time of the banking request. Ventura County
APCD Rule 37 (Project XL) specifically states at E.2 that ``Emission
banking shall be conducted pursuant to Rule 26.'' Further, Imation's
draft title V permit contains the following condition: ``If the
permittee proposes to reduce the level of the PAL, any emissions
banking shall be conducted pursuant to Rule 26, New Source Review.
Emission reduction credits shall be determined from emission reduction
calculations using the definition of actual emissions in Rule 26, at
the time of the banking request.'' EPA believes that the Rule 37 and
title V permit language is clear and that it will prevent any
inappropriate banking of ERCs based on a reduction in Imation's ROC
PAL.
The second recommendation of the Environmental Coalition is to add
a fair and affordable appeal hearing process into Rule 37. The EC's
underlying concern is that for certain types of permitting appeals, the
Ventura County APCD rules require an upfront payment of fees by the
appellant. According to the Environmental Coalition, this requirement
precludes public participation due to the high costs involved, without
any assurance of recovering the money even if the appeal is upheld.
[[Page 69405]]
EPA agrees with the principle that if a person appeals a decision
to the Ventura County APCD Hearing Board and the appeal has merit and
is successful, then the successful appellant should receive a refund of
the fees paid for the appeal. Although EPA is aware that in the past
there may have been instances where a successful appellant did not
receive a refund of appeal fees, VCAPCD Rule 41 (Hearing Board Fees)
states that the Hearing Board may waive all or part of the fees
associated with an appeal if the Hearing Board reverses the decision of
the Air Pollution Control Officer in an appeal. Thus, EPA believes that
the current District rule is sufficient to provide for fee refunds to
successful appellants.
As for the fairness of the District's appeal process, EPA believes
that the District's Hearing Board is a neutral body, operating
independently of the District staff, which is charged with adjudicating
all appeals of District permitting decisions and that the Board should
maintain that responsibility for any permit appeal under the Imation XL
project as well. Thus, EPA agrees that the District's existing appeal
procedures, in accordance with Rule 41 and all other relevant District
rules and regulations, should remain applicable to the Imation XL
project. Moreover, EPA believes that for the types of issues that could
potentially be raised in an appeal to the Hearing Board (e.g., a
significant permit modification), there are existing federal appeal
procedures pertaining to title V sources that will also remain in
place. These federal procedures, which do not involve the payment of
appeal fees, are in place to guarantee citizens' rights to appeal
initial title V permits, significant permit modifications, and title V
permit renewals.
The Environmental Coalition's third recommendation is that EPA
should conduct an environmental review of Rule 37 because of its
precedent setting nature and the potential for significant increases in
air pollution resulting from numerous other companies applying for ERCs
from years when their emissions were much higher.
First, as noted above in response to the Environmental Coalition's
first recommendation, Rule 37 requires that any banking of ERCs be done
in accordance with the District's banking regulations, which bases ERC
calculations on actual emissions at the time of the banking request.
Thus, Imation will be treated no differently under Rule 37 (which
requires banking pursuant to Rule 26) than any other company with
respect to the application for, and granting of, ERCs. Second, EPA has
evaluated Rule 37 and has determined that it is consistent with the
Clean Air Act and EPA regulations. A detailed discussion of the rule
provisions and EPA's evaluation of Rule 37 is provided in the proposed
rule (64 FR 48739) and in the technical support document (TSD), dated
August 23, 1999, which is available at EPA's Region IX office. Finally,
as noted in EPA's proposal, approval of this SIP revision should not be
construed as permitting or allowing or establishing a precedent for any
future implementation plan. Each request for revision to the state
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to the
relevant statutory and regulatory requirements.
IV. EPA Action
EPA is finalizing this action to approve the above rule for
inclusion into the California SIP. EPA is approving the submittal under
section 110(k)(3) of the CAA as meeting the requirements of section
110(a) and part D. This approval action will incorporate this rule into
the Federally approved SIP. The intended effect of approving this rule
is to implement the Imation XL Project in accordance with the
requirements of the CAA. This plan revision is not intended to address
any outstanding issues with the Ventura County APCD NSR program that
will be the subject of a future EPA rulemaking on District Rule 26.
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, entitled
``Regulatory Planning and Review.''
B. Executive Order 13132
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 final 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.
Thus, the requirements of section 6 of the Executive Order do not apply
to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This rule is not subject to E.O. 13045 because it does not involve
decisions intended to mitigate environmental health or safety risks.
D. Executive Order 13084
Under E.O. 13084, Consultation and Coordination with Indian Tribal
Governments, EPA may not issue a regulation that is not required by
statute, that significantly affects or uniquely affects the communities
of Indian tribal governments, and that imposes substantial direct
compliance costs on those communities, unless the Federal government
provides the funds necessary to pay the direct compliance costs
incurred by the tribal governments. If the mandate is unfunded, EPA
must provide to the Office of Management and Budget, in a
[[Page 69406]]
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation.
In addition, E.O. 13084 requires EPA to develop an effective
process permitting elected and other representatives of Indian tribal
governments ``to provide meaningful and timely input in the development
of regulatory policies on matters that significantly or uniquely affect
their communities.'' Today's rule does not significantly or uniquely
affect the communities of Indian tribal governments. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. 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 final 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).
F. Unfunded Mandates
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
annual costs to State, local, or tribal governments in the aggregate;
or to 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 promulgated does not
include a Federal mandate that may result in estimated annual 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.
G. Submission to Congress and the Comptroller General
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. Section 804, however, exempts from section 801 the
following types of rules: rules of particular applicability; rules
relating to agency management or personnel; and rules of agency
organization, procedure, or practice that do not substantially affect
the rights or obligations of non-agency parties. 5 U.S.C. section
804(3). EPA is not required to submit a rule report regarding today's
action under section 801 because this is a rule of particular
applicability (i.e., it applies only to a specifically named entity). A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This rule is not a ``major'' rule as defined by 5
U.S.C. 804(2).
H. 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.
I. 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 February 11, 2000. 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, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: November 16, 1999.
Felicia Marcus,
Regional Administrator, Region IX.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
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)(268), (269),
and (270) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(268) [Reserved]
(269) [Reserved]
(270) New and amended regulations for the following APCDs were
submitted on October 29, 1999, by the Governor's designee.
(i) Incorporation by reference.
(A) Ventura County Air Pollution Control District.
[[Page 69407]]
(1) Rule 37 adopted September 14, 1999.
* * * * *
[FR Doc. 99-30902 Filed 12-10-99; 8:45 am]
BILLING CODE 6560-50-P
