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

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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