[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: [email protected].

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]
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