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Vandenberg Air Force Base (AFB)
FPA Draft 3
FINAL PROJECT AGREEMENT
PREAMBLE
II. DESCRIPTION OF THE PROJECT
III. IMPLEMENTATION OF THE ENVVEST INITIATIVE
IV. ADMINISTRATION OF THE AGREEMENT
PREAMBLE (Suggested by EPA FFE coordinated with OSD/GC)
This final Project Agreement is part of an initiative by President Clinton, called Project ENVVEST, to test innovative approaches to environmental protection. Under this Agreement, Vandenberg Air Force Base will go beyond regulatory compliance. By November 30, 2002, the base will reduce its emission of ozone precursor chemicals into the air by 10 tons or more. Because of this, Vandenberg will no longer be a potential major source of air pollution under the Clean Air Act.
Vandenberg's proposal follows President Clinton's mandate that project ENVVEST "put the focus back where it should be, on progress not process." Vandenberg proposes a phased emissions reduction program. In the short term the focus will be on emission reductions from boilers, furnaces, and process heaters. In the long term the focus will be on opportunities for emission reductions from internal combustion engines, solvent and surface coating applications, or suitable sources of ozone precursor chemicals.
The Santa Barbara County Air Pollution Control District (SBCAPCD) and the U.S. Environmental Protection Agency, in return for the effort by Vandenberg, will exercise their regulatory discretion. Vandenberg will be relieved of its obligation to submit certain records under the regulations carrying out Title V of the Clean Air Act.
In November 1995, the President directed EPA and the Department of Defense (DoD) to develop new approaches for meeting their respective environmental responsibilities. The President charged both agencies to achieve better overall environmental performance at lower cost than expected under existing regulatory approaches. This is the first ENVVEST Agreement and is signed by the U.S. Environmental Protection Agency, Region IX, (Region IX), the 30th Space Wing at Vandenberg Air Force Base, CA (Vandenberg), and the Santa Barbara County Air Pollution Control District (SBCAPCD).
Vandenberg's commitment to achieve the significant and superior environmental benefits as detailed in this Agreement will be formally submitted by SBCAPCD to EPA Region IX for approval into the Santa Barbara portion of the California State Implementation Plan (SIP). The SBCAPCD will also oversee the execution of the plan and provide technical assistance.
A. PURPOSE OF THE ENVVEST PROGRAM
This Agreement states the intention of the U.S. Environmental Protection Agency, Region IX, (Region IX), the 30th Space Wing at Vandenberg Air Force Base, CA (Vandenberg), and the Santa Barbara County Air Pollution Control District (SBCAPCD or District) to carry out a pilot project pursuant to the ENVVEST Memorandum of Agreement (MOA)(See Atch 1), testing innovative approaches to environmental protection. ENVVEST is an initiative established by EPA and the Department of Defense (DoD) to develop new approaches for meeting their respective responsibilities that achieve better overall environmental performance at lower cost than expected under existing regulatory approaches.
B. PURPOSE OF THIS AGREEMENT
This Agreement is intended to be a joint statement of the signatories (hereafter parties or signatories) with regard to the Vandenberg Air Quality ENVVEST Initiative. This agreement is not intended to create legal rights or to be a regulatory action such as a permit or rule. However, it is intended to clearly state the plans of the parties and to represent the firm commitment of each party to carry out the project.
II. DESCRIPTION OF THE PROJECT
A. GENERAL PROJECT DESCRIPTION
The 30th Space Wing at Vandenberg Air Force Base is located on the Central Coast of California about 150 miles northwest of Los Angeles. Covering more than 98,000 acres, it is the third largest Air Force installation, and is the only point in the United States from which unmanned government and commercial satellites are launched into polar orbit and from which intercontinental ballistic missiles(ICBMs)are launched to verify weapons performance.
The mission of the 30th Space Wing is to (1) conduct and support space and missile launches; (2) operate the Western Range; (3) respond to worldwide contingencies; and (4)host the Vandenberg community. Vandenberg, like other military installations, differs from civilian other stationary sources in that the base hosts and supports a unique and wide variety of functions and activities. These activities include residential housing, schools, recreational parks, wildlife reserves, shopping centers, industrial maintenance, airfield operations, and various other mission related activities. As such, the base creates criteria pollutants normally associated with residential, commercial and light industrial operations. Most of the stationary source ozone precursor emissions are generated by boilers, furnaces, process heaters, and internal combustion engines.
The base views environmental compliance as integral to its mission and therefore directs significant resources to ensure compliance with all environmental laws and regulations. With the advent of regulatory reinvention and the creation of ENVVEST Vandenberg saw the opportunity to test alternative ways of achieving environmental performance. Under the ENVVEST initiative, Vandenberg evaluated its environmental compliance obligations and identified areas where regulatory relief would likely result in greater environmental benefits. As a result of this evaluation, Vandenberg submitted an ENVVEST proposal requesting relief from Santa Barbara County Air Pollution Control District's Regulation XIII, "Part 70 Operating Permit Program," in order to free up allow these resources to be used for pollution prevention activities.
Regulation XIII is an EPA approved and federally enforceable stationary source operating permit program, implementing Title V of the Clean Air Act (Title V) and 40 CFR part 70 (part 70), Title V's supporting regulations. Regulation XIII requires major stationary sources1 to apply for and obtain a part 70 operating permit. The objective of such permits is to create a comprehensive document clearly spelling out all of a source's Clean Air Act obligations. While Regulation XIII does not impose new substantive requirements on sources, it does enhance environmental compliance with existing requirements.
Prior to ENVVEST, Vandenberg was classified by Santa Barbara as a major part 70 source subject to the requirements of Regulation XIII. This major source classification was based on Vandenberg's potential to emit 100 tons per year of oxides of nitrogen (NOx). Actual emissions of NOx at Vandenberg, however, were just over 50 tons per year. Vandenberg, in cooperation with the District and Region IX, realized that if it could reduce its actual emissions used to make a Title V applicability determination could be reduced to below 50 tons per year or if the District could exercise flexibility to assess existing NOx levels at below 50 tons per year, then Vandenberg would be eligible to comply with Santa Barbara Rule 370, "Potential to EmitLimitations for Part 70 Sources," a rule that limits a source's potential to emit to minor source levels.2 A source that can comply with Rule 370 need not obtain a part 70 permit.
Together, EPA, Santa Barbara, and Vandenberg identified areas of regulatory flexibility that would allow Santa Barbara to characterize the base's actual emissions of NOx at less than 50 tons per year so that Vandenberg could be classified as nonmajor or minor source pursuant to Rule 370. Given the closeness of Vandenberg's actual emissions to the 50 ton threshold, Santa Barbara was able to rely on existing flexibility in the Title V arena to classify Vandenberg as a minor source. First, the District is allowing Vandenberg to exclude from its major source determination emissions from tactical support equipment and infrastructure and building maintenance equipment that meet EPA's definition of "nonroad engine." EPA's rationale for allowing nonroad engine emissions to be excluded from major source determinations is set out in a letter dated June 25, 1996 from David P. Howekamp, Director, Air & Toxics Division, EPA, Region IX, to James D. Boyd, Executive Officer, California Air Resources Board. (What is the relevance of the D.C. Circuit Court Opinion (88 F.3d 1075) with respect to this discussion?) Second, the District is allowing Vandenberg to group residential units and personnelrelated amenities as a separate stationary source. This discretion is consistent with EPA's August 2, 1996 policy entitled, "Major Source Determinations for Military Installations under the Air Toxics, New Source Review, and Title V Operating Permit Programs of the Clean Air Act (Act)," which allows personnelrelated amenities and residential housing to be separated from primary activities at military bases because of differing source industrial classification (SIC) codes.
In order for nonroad engine emissions to be excluded from major source determinations, Santa Barbara revised its definition of "stationary source" in Rule 1301, "Part 70 Operating Permits." The rule change made the nonroad engine exclusion contingent upon a facility entering into an ENVVEST Final Project Agreement and obtaining approval of a plan that achieves at least 10 tons per year or more of ozone precursor emission reductions. No rule change was necessary for the District to implement the August 2, 1996 major source military guidance by exercising discretion to designate certain groups of emission units to be separate and distinct stationary sources under Regulation XIII.
The situation that existed at Vandenberg prior to ENVVEST, which made the Base an appropriate participant in the program, was the following: Vandenberg had been designated as a major source of criteria air pollutants based on "potential"3 emissions and was therefore subject to Title V of the Clean Air Act. However, the "actual" air emissions of the base were nearly 50% below the major source thresholds for Title V applicability. If actual emissions could be reduced to below 50% of the major source thresholds, Vandenberg would no longer be a major Title V source.
Through ENVVEST regulatory reinvention, SBCAPCD has exercised regulatory discretion by relieving Vandenberg of its obligation to comply with Title V.(See Attachment re SBCAPCD ltrs 30 April, 18 June, 1 July) The strategy invoked enabled Vandenberg to comply with the SBCAPCD Title V prohibitory rule, Rule 370 "Potential to EmitLimitations for Part 70 Sources." Rule 370 allows sources with actual emissions less than 50% of the Title V major source thresholds to be designated as nonmajor by requiring such sources to keep records confirming nonmajor source status. Using status quo fencelinetofenceline stationary source emission calculations, actual emissions at Vandenberg were determined to fall below 50% of the major source Title V thresholds for all pollutants except oxides of nitrogen (NOx). Because of ENVVEST, and EPA guidance regarding source determinations at military installations (See Atch referring to EPA Guidance), SBCAPCD was willing to recharacterize certain base activities as separate stationary sources. Using the regulatory flexibility described below in section B.1., the resulting NOx emissions were calculated to be less than 50 tons per year (major source threshold of 100 tons per year), thus qualifying Vandenberg for compliance with Rule 370.
During this pilot project period, all funding that was previously planned for Title V compliance will be transferred to implement this Final Project Agreement.
B. CONFORMANCE TO ENVVEST CRITERIA
1. ENVIRONMENTAL RESULTS
In order to designate Vandenberg as a nonmajor source, the SBCAPCD Board adopted an amendment to Rule 1301, "Part 70 Operating Permits," excluding nonroad Tactical Support Equipment and selected Infrastructure and Building Maintenance equipment from the applicability determination for Title V permitting. This was contingent upon the facility entering into an ENVVEST Final Project Agreement (FPA) and submittal of a plan for approval by the Control Officer of the SBCAPCD which achieves at least 10 tons per year or more of ozone precursor emission reductions. Rule 1301 also requires that the plan be made federally enforceable by EPA. (See Attachment __)
In addition, the Air Pollution Control Officer for the SBCAPCD exercised his discretion to designate certain groups of emission units to be separate and distinct stationary sources for the purposes of Title V only. These include residential units and personnel related amenities. This discretion was consistent with EPA's August 2, 1996 policy entitled, "Major Source Determinations for Military Installations under the Air Toxics, New Source Review, and Title V Operating Permit Programs of the Clean Air Act," which allows personnel related amenities and residential housing to be separated from the primary activities at the Base because of differing source industrial classification (SIC) codes. (See Attachment __)
1. REGULATORY FLEXIBILITY
Information pertaining to conformance with this ENVVEST criteria is contained in the preceding section. Additionally it should be noted that the 10 tons per year or more of ozone precursor emission reductions that will result from the implementation of this ENVVEST initiative is achieved by exceeding the requirements of existing rules and regulations. For example, boilers selected to participate will be modified to exceed current operating and regulatory efficiency thresholds. These specific reductions achieved through the utilization of innovative technology will be permanent and will not be used as a bankable emission credit for further growth at Vandenberg AFB. However, tThis does not prohibit a net emission increase at Vandenberg. However; if Vandenberg is required to undergo a mission change or additional missions are added to the facility, and growth offsets are required to accommodate these mission changes, then such offsets must be obtained from through projects which are not part of the ENVVEST air initiative or must be acquired by the Air Force from qualified areas or sources outside Vandenberg.4 (This is an issue for further discussion. What about offsets currently in AF possession?)
2. COST SAVINGS AND PAPERWORK REDUCTION
Vandenberg expects to realize cost savings and paperwork reduction by delaying, and potentially removing itself from the requirements and associated costs of preparing a Title V permit application and complying with a Title V permit.
Administrative and enforcement costs incurred by the SBCAPCD for the development and implementation of this ENVVEST initiative will be documented and made available to the public. Costs that qualify as "reimbursable costs" under District Rule 210.I.C. will be accounted for separately and will be reimbursed by Vandenberg from ENVVEST funds. The SBCAPCD will establish an operating budget to ensure maximum availability of funds for emission reduction projects.
3. DESCRIPTION OF STAKEHOLDER INVOLVEMENT
The base has met with the Vandenberg Restoration Community Advisory Board (CAB), and the SBCAPCD Community Advisory Council (CAC)in formulating this Final Project Agreement. The mission of the CAB is to promote community awareness and to review the remedial cleanup process at Vandenberg. This has now been expanded to address the ENVVEST initiatives. The CAC provides advice regarding air quality issues to the APCD Board of Directors. Pursuant to guidance from the Board a subcommittee was created to participate in the ENVVEST air initiative process. Each body has been met twice to receive briefings and discuss ENVVEST.
The parties have and will continue to issue press releases, run informational notices in the newspaper and sponsor public meetings, beginning with the kickoff initial meeting in October 1996, and every 6 months thereafter to advise interested members of the public on the progress being made toward meeting the ENVVEST goals.5 The meetings shall inform the public of the steps taken to reduce pollution and include information on proposed steps to meet the goals of the FPA and solicit comment from the public on the progress made towards meeting the goals of the agreement or any other matter relevant to the execution of the agreement. These meetings will be held in a locations in Santa Barbara County, not on Vandenberg, that is are accessible to the public and at a time and place agreed to by the parties to this agreement.(See Atch x, ENVVEST Public Participation Process)
4. INNOVATION/MULTIMEDIA POLLUTION PREVENTION
Innovative strategies achieving superior environmental results will be further fully articulated in the plan submitted to the SBCAPCD Control Officer pursuant to Rule 1301.
Background
Through the ENVVEST program, VAFB proposes to implement innovative strategies in the selection and application of advanced emission reduction technologies for external combustion emissions sources (boilers). Additionally, VAFB proposes to categorize the emission reduction potential of the available equipment to apply the most efficient and costeffective technologies appropriate to the pollution generating equipment.
VAFB operates over 200 boilers between 100,000 Btu/hr and 5 MMBtu/hr. These units are operated for space heating applications throughout the base and are typically fired on natural gas. VAFB has recently researched the availability of modifying a subset of these boilers (2MMBru/hr > 5MMBtu/hr) in order to obtain emission reductions for the ENVVEST program.
Investigation and Application of Innovative Control Strategies
In order to apply the most appropriate and cost effective emission control technologies to these boilers, VAFB is in the process of categorizing these emission units by process type and by annual operating capacity. Once segregated, VAFB proposes to apply the most advanced emission control technologies available (< 15 ppmvd Nox @3% O2) to those units capable of providing the greatest emission reduction. Accordingly, VAFB proposes to apply less advanced emission control technologies (< 30 ppmvd Nox @3% O2) to those units which provide fewer potential emission reductions. Finally, the units which operate the least are proposed to be tuned and/or modified to achieve a less restrictive emission reduction standard (> 30 ppmvd Nox @3% O2).
Advanced boiler emission control technologies available for these applications include lean premix combustion techniques, integral flue gas recirculation burners, sparkignited pulse combustion boilers and oscillating gas control valves. Through the implementation of these technologies, VAFB will be demonstrating the most advanced emission reduction methods emerging to the marketplace for these sized units. Through the demonstration of these emerging technologies, VAFB will be advancing the technologies beyond the research and development phases and into the commercialization stages of burner development.
Multimedia Pollution Prevention
Through the investigation and implementation of the advanced emission reduction technologies, VAFB will be demonstrating the effectiveness of pollution prevention methods for control of environmental pollution. Classic emission control strategies focused on the ability to capture and destroy pollution, once generated from industrial processes. These control techniques often relied on the use of scrubbing media or catalytic exhaust treatment (including ammonia injection) to achieve ultralow emissions thresholds (< 20 ppmvd Nox @3% O2).
Through the ENVVEST program, VAFB is proposing to apply innovative pollution prevention techniques in reducing emissions from their facilities. Advanced burner development provides for the reduction of Nox through alterations in the burner configuration, eliminating the need for post exhaust controls. By working directly with technology vendors, VAFB shall have the ability to apply the most advanced pollution preventing technologies which to date are not commercially available.
5. TRANSFERABILITY, FEASIBILITY, MONITORING, REPORTING AND EVALUATION
These criteria will be dealt with specifically in the above mentioned plan. Conceptually, the title of this section embodies the ENVVEST process.
a. Transferability is envisioned in both a technological and procedural context. The funding mechanism utilizing compliance funds that are obviated by the specific initiative and the application of replicable emission reduction technology to boilers are examples associated with this undertaking.
b. Feasibility, which is achievement of objectives within applicable cost constraints, is inherent within this process.
c. Monitoring and Reporting relates to the collection of data necessary to proceed on to the next step which will validate the achievement of defined objectives. In this instance adequate data regarding emissions reductions related to selected technology applications will be collected to allow for a meaningful evaluation of the progress being made to achieve specified milestones.
d. Evaluation will interpret the data gathered in the previous phase and make possible a determination of whether or not the appropriate milestone has been accomplished. This will involve a public participation component and should take place within 30(?) days of completion date of any milestone.
6. WORKER SAFETY AND ENVIRONMENTAL JUSTICE
The base is committed to implementing ENVVEST and, pursuant to EO 12196, complying with OSHA AFOSH standards. The Vandenberg ENVVEST initiative will not create worker safety hazards or any disproportionately high and adverse human health or environmental effects on minority populations and lowincome populations.
III. IMPLEMENTATION OF THE ENVVEST INITIATIVE
A. Vandenberg proposes will implement a phased emissions reduction program to achieve a reduction of 10 tons per year or more of ozone precursor emissions. Phase I The initial effort will accomplish focus on emission reductions from boilers, furnaces, and process heaters. This will Details of the program will be articulated specified and made enforceable in the Rule 1301 Plan,. VAFB will worked in conjunction with the Innovative Technology Group,. This Plan will be submitted to the SBCAPCD Control Officer no later than 31 March 1997 and will include and execute the following agreed upon milestones. Emphasis in this submittal will be on meeting agreed upon milestones within the Phase 1 effort. Future phases, emission reduction efforts, augmenting the attainment of the ten ton reduction goal, will be initiated, contingent upon the availability of appropriate funding, which investigate, inter alia, opportunities for reductions from, internal combustion engines and solvent and surface coating applications. Details of these potential additional emission reduction efforts phases, if any, will be in the Plan, submitted to which will be approved by the control officer by 30 November 1997. If any milestone is not met, this agreement implementing ENVVEST will terminate and Vandenberg will be required to comply with the requirements6 of Title V of the 1990 Clean Air Act Amendments. However, all emission reductions achieved utilizing innovative technology, prior to termination shall be considered permanent and not retroactively bankable. (enforceable?). The agreed upon milestones are as follows:
1. By 30 April 1997, Vandenberg will complete the Phase 1 initial assessment and cost feasibility study.
2. By 30 April 1999, 30 percent of Phase 1 ENVVEST candidate sources identified in milestone #1 are being retrofitted7.
3. By 30 April 2000, 2 tons of emission reductions shall have been accomplished.
4. By 30 April 2001, 70 percent of Phase 1 ENVVEST candidate sources identified milestone #1 are being retrofitted.
5. By 30 November 2002, Vandenberg will have achieved 10 tons or more of ozone precursor reductions.
B. SBCAPCD will submit to Region IX for approval into the Santa Barbara portion of the California State Implementation Plan (SIP) the relevant portions of Rule 1301 designed to implement the ENVVEST Program and the approved Vandenberg emission reductions plan required under Rule 1301. The SBCAPCD will also oversee the execution of the plan and provide technical assistance through the Innovative Technology Group.
The District will be responsible for the following:
1. Rule Submission to EPA. The District will submit to EPA Region IX, for inclusion into the California State Implementation Plan ("SIP"), the relevant portions of District Rule 1301 which allow for the implementation of the ENVVEST Program.
2. Assistance on Plan and Review and Submission to EPA. The District will provide technical assistance to Vandenberg regarding opportunities for emission reductions at the Base. Vandenberg may use such assistance when preparing its emission reduction plan. The District will formally review any plan that Vandenberg submits pursuant to Rule 1301 and approve the Plan if it meets the requirements of District rules. The District will submit to EPA Region IX for inclusion into the SIP any Vandenberg emission reduction plan the Control officer approves pursuant to Rule 1301.
(At this point, VAFB requests discussion of the need for additional rulemaking by the District.)
C. EPA will be responsible for the following:
EPA will review any District Rules and approved emission reduction plan submitted by the District for inclusion in the SIP. The District will submit Rule 370 and portions of Rule 1301 that allow for implementation of the ENVVEST program. EPA will approve the submittals as part of the California SIP if such submittals meet the criteria for SIP approvals.
C.(?) Region IX will propose to approve Rule 370 "Potential to Emit Limitations for Part 70 Sources," which allows sources with actual emissions less than 50% of the Title V major source thresholds to be designated as nonmajor sources; the relevant portions of Rule 1301 designed to implement the ENVVEST Program; and the approved Vandenberg plan required under Rule 1301, as an amendment to the California SIP. A copy of these documents are contained in Attachment __. Region IX will propose to approve the above revisions to the SIP as a direct final action.
IV. ADMINISTRATION OF THE AGREEMENT
A. DURATION AND TERMINATION/RENEWAL OF AGREEMENT
This agreement will expire on November 30, 2002. If, prior to expiration on November 30, 2002, additional emission reduction opportunities are identified, the parties may opt to revise the reduction goals and extend the agreement. If, prior to expiration, the milestones referenced in the previous section are not achieved, this agreement shall terminate and Vandenberg shall proceed to comply with the requirements of Title V of the 1990 Clean Air Act Amendments.
A. TERMINATION.
Vandenberg may terminate this agreement any time prior to the Control Officer's approval of the emission reduction Plan submitted to the District pursuant to District Rule 1301. Such notice shall be in writing and sent to the Control Officer and region IX Administrator of the EPA.
B. WITHDRAWAL OF PLAN.
1. Plan Withdrawal. Vandenberg may withdraw an approved Plan if any of the following occur.
a) The District is redesignated as a "serious" nonattainment area for the federal standard and Vandenberg becomes subject to the permitting requirements of Regulation XIII due to such redesignation.
b) Vandenberg becomes subject to permit under District Regulation XIII or 40 CFR Part 70 due to growth of emissions at the stationary source.
c) Vandenberg determines that it cannot achieve the minimum of 10 ton ozone precursor emissions at the Base required by Rule 1301.
2. Stationary Source Redesignation If Vandenberg withdraws the Plan, the stationary source designation for the Base shall include military tactical support equipment and infrastructure building maintenance equipment. If such inclusion subjects Vandenberg to the permitting requirements of Regulation XIII, Vandenberg shall apply for and obtain a permit in accordance with Regulation XIII and applicable federal regulations.
3. Achieved Emission Reductions. Notwithstanding any provision in this Agreement, Vandenberg shall not withdraw the portion of a Plan approved pursuant to Rule 1301 for any emission reductions which have been implemented or are being retrofitted. Such emission reductions shall remain in effect and shall be enforceable as part of the SIP. [Note: We need to discuss with EPA if this is a permissible provision for a SIP submittal.]
B. SUBSTANTIAL COMPLIANCE
In the event a milestone specified in Section III A. is not complied with, the Agreement shall terminate and the Title V status of the 30th Space Wing shall terminate. If the terms of the Agreement are substantially complied with, then the Air Pollution Control Officer may offer to extend the deadline for compliance and this extension must be approved by all parties to the Agreement. Moreover, the extension of any deadlines must be consistent with any approved rules that have been enacted by the District or Region IX. Any such extension must be agreed to within 60 days of the milestone that has not been met by the 30th Space Wing. For purposes of this Agreement, the term substantial compliance means the following:
1. The provisions of the milestone are under contract and were scheduled for compliance in accordance with the term of the Agreement, but the deadline was missed and it is reasonably foreseeable that the milestone will be met within 90 days of the scheduled milestone date.
2. A milestone requiring modifications to equipment is undergoing tests to determine if all of the scheduled equipment modifications are in fact functioning. All necessary equipment modifications must be completed by the milestone date.
C. FUNDING
Upon redesignation as a nonmajor source, Vandenberg redirected all remaining Fiscal Year 1996 Title V compliance funds to implement ENVVEST Program emission reduction projects. The projected Fiscal Year 1997 commitment is $465,000 for followon projects. At this time Vandenberg has requested, through the normal DoD budgeting process, funds for the following periods for Title V compliance purposes:
FY'97 $465,000
FY'98 $550,000
FY'99 $500,000
FY'00 $450,000
FY'01 $400,000
TOTAL $2,365,000
All funding commitments by Vandenberg shall be in accordance with the Anti Deficiency Act (31 U.S.C. 11341).
Emission reduction projects shall be funded from the funds estimated to be available in the totals identified above. Failure to achieve the above mentioned milestones will result in these funds being withdrawn from ENVVEST and their utilization to comply with the requirements of Title V of the 1990 Clean Air Act Amendments. Costs attributable to complying with SBCAPCD Rule 370 will not be supported from those funds. All parties agree that administrative costs should be minimized to enhance the benefits of pursuing the ENVVEST initiative.
(DISTRICT PROPOSES DISCUSSING NO BACKSLIDING PROVISION BEING ADDED TO THIS SECTION)
D. EVENTS PREVENTING IMPLEMENTATION OF AGREEMENT
If at any time during implementation of a Final Project Agreement Vandenberg reasonably determines and Region IX and SBCAPCD concur that any requirement of such Agreement cannot be met due to an event of Force Majeure or circumstances beyond Vandenberg's control (including, but not limited to, materially changed site conditions that could not reasonably have been anticipated, or the significant failure of an innovative technology) Region IX, SBCAPCD, and Vandenberg will attempt to negotiate mutually acceptable changes to the Final Project Agreement.
DISTRICT STATES AS FOLLOWS:
We can agree to such a provision only if proceeded by a variance. The agreement could still be written as set forth in paragraph C, but without the definition of D "FORCE MAJEURE". The FPA does not necessarily have to refer to a variance which is something EPA would probably insist on but we think we need an understanding you can get any extension you wish from the District regarding the compliance schedule of the plan if you receive a variance. We may need to discuss further before drafting additional language.
E. FORCE MAJEURE
A Force Majeure shall mean any event arising from causes beyond the control of a party that causes a delay in or prevents the performance of any obligation under this agreement, including but not limited to,
1. acts of God;
2. fire;
3. war or national conflict or emergency declared by the President or Congress affecting the Air Force;
4. insurrection;
5. civil disturbance;
6. explosion;
7. unanticipated breakage or accident to machinery, equipment, or lines of pipes despite reasonably diligent maintenance;
8. adverse weather conditions that could not be reasonably anticipated;
9. unusual delay in transportation;
10. restraint by court order or order of public authority;
11. inability to obtain, at a reasonable cost and after exercise of reasonable diligence, any necessary authorizations, approvals, permits, or licenses due to action or inaction of any governmental agency or authority other than the Air Force;
12. delays caused by compliance with applicable statutes or regulations governing contracting, procurement or acquisition procedures, despite the exercise of reasonable diligence;
13. insufficient availability of appropriated funds which have been diligently sought, or personnel reductions therefrom. or;
14. any strike or other labor dispute, whether or not within the control of the parties affected thereby.
In order for Force Majeure based upon insufficient funding to apply to the Air Force, the Air Force shall have made timely request for such funds as part of the budgetary process. Upon request by any signatory, the Air Force shall provide a complete explanation of all efforts undertaken to avoid Force Majeure.
(EPA Proposed Language) FORCE MAJEURE A Force Majeure shall mean an event arising from causes beyond the control of DoD that causes a delay in or prevents the performance of any obligation under this Agreement, such as: Acts of God; fire; war; insurrection; civil disturbance; explosion; unanticipated breakage or accident to machinery, equipment, or lines of pipe despite reasonably diligent maintenance; adverse weather conditions that could not be reasonably anticipated; unusual delay in transportation; restraint by court order or order of public authority; any strike or other labor dispute, wherein compliance with the provision of this Agreement will be affected thereby.
F1. ATTAINMENT REDESIGNATION/TITLE V APPLICATION DURING TERM OF AGREEMENT TO VANDENBERG AFB
In the event EPA redesignates reclassifies the Air Pollution Control District wherein Vandenberg is located as "serious" nonattainment8 for the ozone national ambient air quality standard (NAAQS) during the term of this agreement, Region IX will evaluate the effects of such an event on this agreement. Region IX will, as soon as such a redesignation appears imminent, inform the SBCAPCD and Vandenberg. The parties will have 60 days year from the date of such designation to evaluate the effects. At the conclusion of this 60 day period, the parties will have agreed to a legally supportable plan for the continuation of the ENVVEST program or Vandenberg will comply with the requirements of Title V of the 1990 Clean Air Act Amendments.
F2. If at any time during the term of this agreement, a Title V permitting requirement attaches to Vandenberg AFB, CA, Vandenberg shall comply with the Title V permitting requirement. Any Funds that have been previously dedicated to satisfying an ENVVEST emission reduction project shall be instead dedicated to complying with the Title V permitting requirement.
G. DISPUTE RESOLUTION
Any dispute that arises with respect to the meaning, application, implementation, interpretation, amendment, termination or modification of the FPA, or with respect to Vandenberg's implementation of the FPA, the resolution of which is not expressly provided for in the FPA, will in the first instance, be the subject of informal negotiations, except with respect to Section IV.H.(Enforcement). To initiate informal negotiations, any signatory which believes it has a dispute with any other party will simultaneously notify all of the parties, in writing, setting forth the matter(s) in dispute. If the dispute cannot be resolved by the parties within thirtyfive (35) days of receipt of such notice, then one or both the parties may invoke nonbinding mediation by setting forth the nature of the dispute, with a proposal for its resolution, in a letter and submit it to a three person dispute resolution committee (DRC) consisting of one member designated by each of signatories.
H. PUBLIC RECORDS, INFORMATION, AND THE ADMINISTRATIVE RECORD
Vandenberg will issue, beginning in April 1997, and every 6 months thereafter until completion of the agreement, progress reports which document progress toward goals established by this agreement. The reports will document equipment changes and replacements, process changes and other relevant facts which support any assertions of actual emission reductions or the progress thereof. The reports will be provided to SBCAPCD, Region IX, and any interested party that requests such reports. In addition, Vandenberg shall maintain the reports in local public libraries.
Vandenberg will also develop and maintain an Administrative Record of all formal documents, records, and correspondence necessary as a basis for ENVVEST initiative decision making.
I. ENFORCEMENT
While this agreement is not legally binding, the requirements of SBCAPCD Rule 370 "Potential to EmitLimitations for Part 70 Sources"; SBCAPCD Rule 1301 "Part 70 Operating Permits," definition of "Stationary Source"; and the Vandenberg Emission Reduction Execution Plan approved by SBCAPCD Control Officer(Atchupon approval), are binding and legally enforceable by the District. Upon EPA approval of these requirements into the SIP, they will also be enforceable by EPA and citizens under the Clean Air Act. District and federal enforceability of the above provisions will remain in effect until such provisions are modified or rescinded by SBCAPCD and approved by EPA. (See Attachment relating to 1301 and 370)
As a practical matter, these enforcement measures make Vandenberg accountable for achieving the milestones set out in this FPA and the plan submitted pursuant to Rule 1301. Failure by Vandenberg to accomplish these milestones will result in the termination of this agreement and compliance by Vandenberg with the requirements of Title V of the 1990 Clean Air Act Amendments.
All local, state, and federal regulations and policies governing enforcement of Vandenberg will remain effective and be fully enforceable. (DISCUSS)
J. PERIODIC REVIEW AND EVALUATION ACTIVITIES
Each party to this agreement will review this agreement, pursuant to the above mentioned milestones in Section III.A. The review will be an evaluation of the progress towards achieving the objectives of this agreement.
K. SEVERABILITY
Should any term or provision of the FPA be modified or withdrawn, to any extent, such modification or withdrawal shall not affect any other term or provision of the FPA.
L. MEANS OF GIVING NOTICE
When giving notice with regard to FPA modification or termination, the parties will contact the FPA signatories in writing. Informal communication may be given by phone or in writing to the following contact persons:
Karl Kneeling, (805) 7348232 (x63072)
Vandenberg AFB
Sara Segal, (415) 7441569
EPA Region IX
Terry Dressler, (805) 9618929
Santa Barbara APCD
M. EFFECTIVE DATE
This agreement is effective upon the date of the last signature by the parties.
_____________________________________
Signature Date
FELICIA MARCUS
Regional Administrator
United States Environmental Protection Agency, Region IX
_____________________________________
Signature Date
C. ROBERT KEHLER, Colonel, USAF
Commander, 30th Space Wing
Vandenberg Air Force Base
_____________________________________
Signature Date
DOUGLAS W. ALLARD
Air Pollution Control Officer
Santa Barbara County Air Pollution Control District
1 In order to qualify as a "major stationary source," a source must emit, or have the potential to emit, 100 tons per year (tpy) of any air pollutant or 10 TPY of any toxic air pollutant (as defined in section 112(b) of the Act) or 25 tons per year of a combination of any toxic air pollutants. If a geographic area is designated as serious, severe, or extreme nonattainment for ozone, then the 100 tpy threshold falls to 50 tpy, 25 tpy, and 10 tpy respectively for volatile organic compounds and nitrogen oxides. Ozone nonattainment areas are classified according to the severity of the nonattainment based on the design value of a particular Air Quality Control Region at the time of the passage of the Clean Air Act Amendments of 1990 (P.L. 101549). In the case of the Santa MariaSanta BarbaraLompoc area, that area was classified as a "moderate" nonattainment area for ozone under the provisions of 42 U.S.C.A. 17511(a) [CAA 1181(a)]. All moderate areas were required to meet the ozone NAAQS by 15 November 1996.
2 Rule 370 is based on a model Title V prohibitory rule that was developed cooperatively between EPA Region IX and the California Air Resources Board. Pursuant to the applicability section of Rule 370, only sources with actual emissions less than 50% of the major source threshold are eligible for coverage.
3 40 C.F.R. Section 70.2. By definition potential is, "the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design.
4 The offset requirements that apply for "serious" nonattainment areas are 1.2:1 and for "moderate" nonattainment areas are 1.15:1. In other words, Vandenberg would have to reduce its VOC precursor emissions 120% or 115% of necessary VOC precursor pollutants in order to accommodate facility changes. If these reductions were not available at Vandenberg, then Vandenberg would have to buy these credits from outside the facility at a cost to be determined at the time such credits would be necessary.
5 All such public meetings and stakeholder involvement is being conducted consistent with the Federal Advisory Committee Act (FACA) (5 U.S.C.A. App.2 Sections 114), implementing regulations of the General Accounting Office (41 C.F.R. Sections 6.10011035) and any applicable Executive Orders implementing the FACA.
6 The Control Officer may use failure to meet any of these milestones as grounds for reassessing the use of the previously described discretion that has been implemented to allow pursuance of the emission reductions envisioned in this agreement. If the Control Officer, consistent with applicable requirements, determines that use of this discretion is no longer consistent with the terms of any applicable rules, regulations, or statutes, then the Control Officer shall notify Vandenberg that it is not in compliance with the terms of this agreement. The remedy for failure to comply with any of the milestone goals will be for Vandenberg to be deemed a source required to obtain a Title V permit consistent with applicable rules and statutes. At the time of the execution of the FPA, the governing rule(40 C.F.R. Part 70 70.5(a)(1)(I) require a source to submit a compliant permit application within one year of the time at which the source becomes subject to the permit program.
7 The term "being retrofitted" encompasses design, procurement, construction, testing, and monitoring of emission reductions.
8 42 U.S.C.A. 17511(b) [CAA 1181(b)] requires "moderate" ozone nonattainment areas to meet the Ozone NAAQS by 15 November 1996 or be reclassified. In November 1996, EPA announced that it would propose new NAAQS standards for Particulate Matter and Ozone. (These proposals, while available to the public off of the EPA Bulletin Board System were not officially published in the Federal Register as of 4 December 1996). In addition, EPA proposed an interim implementation policy for existing ozone nonattainment areas which did not meet the attainment deadline established by CAA 1181. The effect of these proposed rule changes and interim policy do not explicitly answer the question as to whether or not the definition of "major source" as set forth in 42 U.S.C.A. 17511a[c] [CAA 1182[c]] would apply for Title V purposes to Vandenberg AFB.
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