[Federal Register Volume 60, Number 171 (Tuesday, September 5, 1995)]
[Rules and Regulations]
[Pages 46021-46024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21875]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AK-8-1-6733a; FRL-5286-8]
Approval and Promulgation of Implementation Plans: Alaska
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) approves the State
of Alaska Implementation Plan (SIP) revision submitted by the State of
Alaska for the purpose of establishing a Small Business Stationary
Source Technical and Environmental Compliance Assistance Program. The
implementation plan was submitted by the State to satisfy the Federal
mandate of the Clean Air Act (CAA or Act), to ensure that small
businesses have access to the technical assistance and regulatory
information necessary to comply with the CAA. The rationale for the
approval is set forth in this document; additional information is
available at the address indicated below.
DATES: This final rule is effective on November 6, 1995 unless notice
is received by October 5, 1995, that someone wishes to submit adverse
or critical comments. If the effective date is delayed, timely notice
will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to: Montel Livingston,
SIP Manager, Air and Radiation Branch (AT-082), EPA, 1200 Sixth Avenue,
Seattle, WA 98101.
Documents which are incorporated by reference are available for
public inspection at the Air and Radiation Docket and Information
Center, Environmental Protection Agency, 401 M Street, SW, Washington,
D.C. 20460. Copies of material submitted to EPA may be examined during
normal business hours at the following locations: EPA, Region 10, Air &
Radiation Branch, 1200 Sixth Avenue (AT-082), Seattle, WA 98101, and
Alaska Department of Conservation, 410 Willoughby Avenue, Suite 105,
Juneau, AK 99801-1795.
FOR FURTHER INFORMATION CONTACT: David J. Dellarco, Air and Radiation
Branch (AT-082), EPA, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-
4978.
SUPPLEMENTARY INFORMATION:
I. Background
Implementation of the provisions of the Clean Air Act (CAA), as
amended in 1990, will require regulation of many small businesses so
that areas may attain and maintain the national ambient air quality
standards (NAAQS) and reduce the emission of air toxics. Small
businesses frequently lack the technical expertise and financial
resources necessary to evaluate such regulations and to determine the
appropriate mechanisms for compliance. In anticipation of the impact of
these requirements on small businesses, the CAA requires that States
adopt a Small Business Stationary Source Technical and Environmental
Compliance Assistance Program (PROGRAM), and submit this PROGRAM as a
revision to the Federally approved SIP. In addition, the CAA directs
the Environmental Protection Agency (EPA) to oversee these small
business assistance programs and report to Congress on their
implementation. The requirements for establishing a PROGRAM are set out
in Section 507 of Title V of the CAA. In January 1992, EPA issued
Guidelines for the Implementation of Section 507 of the 1990 Clean Air
Act Amendments, in order to delineate the Federal and State roles in
meeting the new statutory provisions and as a tool to provide further
guidance to the States on submitting acceptable SIP revisions.
The State of Alaska has submitted a SIP revision to EPA in order to
satisfy the requirements of Section 507. In order to gain full
approval, the State
[[Page 46022]]
submittal must provide for each of the following PROGRAM elements: (1)
the establishment of a Small Business Assistance Program (SBAP) to
provide technical and compliance assistance to small businesses; (2)
the establishment of a State Small Business Ombudsman to represent the
interests of small businesses in the regulatory process; and (3) the
creation of a Compliance Advisory Panel to determine and report on the
overall effectiveness of the SBAP.
II. Analysis
1. Small Business Assistance Program
Section 507(a) sets forth six requirements1 that the State
must meet to have an approvable SBAP. The first requirement is to
establish adequate mechanisms for developing, collecting and
coordinating information concerning compliance methods and technologies
for small business stationary sources, and programs to encourage lawful
cooperation among such sources and other persons to further compliance
with the Act. The State of Alaska has met this requirement by
developing its SBAP with both proactive and reactive components. The
proactive element will use outreach techniques to develop and
distribute compliance and technical information to small businesses,
including details on their rights and obligations, alternative control
technologies, and compliance methods. These techniques will include
direct mail, public service announcements, and meetings with small
businesses. The reactive element will use a telephone hot line to
receive questions from small businesses. In addition, the SBAP will
maintain a clearinghouse of information, in the form of a library of
documents and computer files, relevant to the compliance alternatives
available to small businesses.
\1\A seventh requirement of Section 507(a), establishment of an
Ombudsman office, is discussed in the next section.
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The second requirement is to establish adequate mechanisms for
assisting small business stationary sources with pollution prevention
and accidental release detection and prevention, including providing
information concerning alternative technologies, process changes,
products and methods of operation that help reduce air pollution. The
State has met this requirement by planning to provide small businesses
with information and assistance on accidental release prevention and
detection. This information may include requirements under the
accidental release provisions of the CAA, requirements of the Superfund
Amendments and Reauthorization Act title III, Occupational Safety and
Health administration process safety standards, as well as general
information on prevention practices and technologies. The State of
Alaska's non-regulatory pollution prevention program will provide the
SBAP with direct pollution prevention support and expertise. The
pollution prevention office will utilize both State and regional
pollution prevention resources to provide direct pollution prevention
technical assistance to small businesses.
The third requirement is to develop a compliance and technical
assistance program for small business stationary sources which assists
small businesses in determining applicable requirements and in
receiving permits under the Act in a timely and efficient manner. The
State has met this requirement by planning to develop its SBAP with a
main emphasis on assisting small businesses in obtaining any necessary
air quality operating permits. The SBAP plans to use workshops to guide
small businesses through the air quality operating permit application
process. In addition, the SBAP will develop source specific outreach
materials on the responsibilities of small businesses established
through existing and future CAA requirements.
The fourth requirement is to develop adequate mechanisms to assure
that small business stationary sources receive notice of their rights
under the Act in such manner and form as to assure reasonably adequate
time for such sources to evaluate compliance methods and any relevant
or applicable proposed or final regulations or standards issued under
the Act. The State has met this requirement by planning to use direct
mailing, public service announcements, and meetings with small
businesses to notify them of their rights and obligations under air
quality requirements in a timely manner.
The fifth requirement is to develop adequate mechanisms for
informing small business stationary sources of their obligations under
the Act, including mechanisms for referring such sources to qualified
auditors or, at the option of the State, for providing audits of the
operations of such sources to determine compliance with the Act. The
State has met this requirement by planning to establish a voluntary on-
site evaluation program to help small businesses determine if their
operations comply with the Act.
The sixth requirement is to develop procedures for consideration of
requests from small business stationary sources for modification of (A)
any work practice or technological method of compliance, or (B) the
schedule of milestones for implementing such work practice or method of
compliance preceding any applicable compliance date, based on the
technological and financial capability of any such small business
stationary source. The State has met this requirement by planning to
develop procedures, by regulation, to respond to requests from small
businesses for work practice modifications. The State of Alaska will
develop these procedures concurrently with its revisions to Alaska's
air quality regulations, and follow the requirements of Alaska's
Administrative Procedure Act. The regulations that address requirements
for work practice modification requests will be submitted by Alaska
with its Title V Operating Permits Program, and become effective upon
EPA approval of Alaska's Title V Operating Permits Program.
2. Ombudsman
Section 507(a)(3) requires the designation of a State office to
serve as the Ombudsman for small business stationary sources. The State
has met this requirement by establishing the position of Small Business
Advocate, which will promote the rights and concerns of small
businesses. The Small Business Advocate is separate from the SBAP and
independent from Alaska's Air Quality Management Program.
3. Compliance Advisory Panel
Section 507(e) requires the State to establish a Compliance
Advisory Panel (CAP) that must include two members selected by the
Governor who are not owners or representatives of owners of small
businesses; four members selected by the State legislature who are
owners, or represent owners, of small businesses; and one member
selected by the head of the agency in charge of the Air Pollution
Permit Program. The State has met this requirement by appointing its
CAP in accordance with the above requirements.
In addition to establishing the minimum membership of the CAP the
CAA delineates four responsibilities of the Panel: (1) to render
advisory opinions concerning the effectiveness of the SBAP,
difficulties encountered and the degree and severity of enforcement
actions; (2) to periodically report to EPA concerning the SBAP's
adherence to the principles of the Paperwork Reduction Act, the Equal
Access to Justice Act, and the Regulatory Flexibility Act2; (3) to
[[Page 46023]]
review and assure that information for small business stationary
sources is easily understandable; and (4) to develop and disseminate
the reports and advisory opinions made through the SBAP. The State has
met these requirements by directing its CAP to meet the above areas of
responsibility.
\2\Section 507(e)(1)(B) requires the CAP to report on the
compliance of the SBAP with these three Federal statutes. However,
since State agencies are not required to comply with them, EPA
believes that the State PROGRAM must merely require the CAP to
report on whether the SBAP is adhering to the general principles of
these Federal statutes.
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4. Eligibility
Section 507(c)(1) of the CAA defines the term ``small business
stationary source'' as a stationary source that:
(A) Is owned or operated by a person who employs 100 or fewer
individuals;
(B) Is a small business concern as defined in the Small Business
Act;
(C) Is not a major stationary source;
(D) Does not emit 50 tons per year (tpy) or more of any regulated
pollutant; and
(E) Emits less than 75 tpy of all regulated pollutants.
In addition, under Section 507(c)(2) of the CAA a State may, upon
petition by a source and after notice and opportunity for comment,
include as a ``small business stationary source'' any source that does
not meet the provisions of Sections 507(c)(1) (C), (D), and (E) of the
CAA but does not emit more than 100 tpy of all regulated pollutants.
Under Alaska's PROGRAM, a facility is a ``small business facility''
and thus eligible for assistance under the PROGRAM if the facility:
(A) Is owned or operated by a person who employs 100 or fewer
individuals;
(B) Is a small business concern as defined in 15 U.S.C. 631 (Small
Business Act); and
(C) Emits less than 100 tpy of regulated air contaminants. Alaska
Statutes 46.14.990(22). Alaska has therefore expanded PROGRAM
eligibility by statute to include all sources that could apply for
eligibility on a case-by-case basis under Section 507(c)(2) of the CAA
after notice and opportunity for comment. Based on assurances from the
State, EPA believes that Alaska's definition of eligible sources will
not interfere with the State's obligation to provide assistance to
``small business stationary sources'' as defined under Section
507(c)(1) of the CAA and that it is therefore consistent with Section
507(c) of the Clean Air Act.
In addition, the State of Alaska has provided, as required by
Section 507(3) of the CAA, for exclusion from the small business
stationary source definition, after consultation with the EPA and the
Small Business Administration Administrator and after providing notice
and opportunity for public comment, of any category or subcategory of
sources that the State determines to have sufficient technical and
financial capabilities to meet the requirements of the CAA. The State
of Alaska has also established a mechanism based on direct assistance
from the Small Business Advocate for ascertaining the eligibility of a
source to receive assistance under the PROGRAM, including an evaluation
of a source's eligibility under Section 507(c) of the CAA.
III. This Action
In this action, EPA approves the SIP revision submitted by the
State of Alaska.
The State of Alaska has submitted a SIP revision implementing each
of the PROGRAM elements required by Section 507 of the CAA. At this
time, the SBAP, Small Business Advocate, and CAP are in place.
IV. Administrative Review
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
By this action, the EPA is approving a State program created for
the purpose of assisting small businesses in complying with existing
statutory and regulatory requirements. The program being approved in
this action does not impose any new regulatory burden on small
businesses; it is a program under which small businesses may elect to
take advantage of assistance provided by the state. Therefore, because
the EPA's approval of this program does not impose any new regulatory
requirements on small businesses, I certify that it does not have a
significant economic impact on any small business entities affected.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
The EPA has reviewed this request for revision of the Federally-
approved SIP for conformance with the provisions of the 1990 Clean Air
Act Amendments enacted on November 15, 1990. The EPA has determined
that this action conforms with those requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic and
environmental factors and in relation to relevant statutory and
regulatory requirements.
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995
memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation. The Office of Management and Budget (OMB) has exempted this
regulatory
[[Page 46024]]
action from Executive Order 12866 review.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective November 6, 1995 unless, by October 5, 1995, adverse or
critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective November 6, 1995.
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 November 6, 1995. 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), 42 U.S.C. 7607(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Small Business Assistance Program.
Note: Incorporation by reference of the Implementation Plan for
the State of Alaska was approved by the Director of the Office of
Federal Register on July 1, 1982.
Dated: August 15, 1995.
Jane S. Moore,
Acting Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart C--Alaska
2. Section 52.70 is amended by adding paragraph (c) (20) to read as
follows:
Sec. 52.70 Identification of plan.
* * * * *
(c) * * *
(20) On April 18, 1994, the Commissioner of the Alaska Department
of Environmental Conservation (ADEC) submitted ``The Alaska Air Quality
Small Business Assistance Program State Air Quality Control Plan
Amendment,'' adopted April 8, 1994, as a revision to the Alaska SIP.
(i) Incorporation by reference.
(A) Letter dated April 8, 1994, from the Commissioner of ADEC to
the Regional Administrator of EPA, submitting ``The Alaska Air Quality
Small Business Assistance Program State Air Quality Control Plan
Amendment'' to EPA; the Alaska Air Quality Small Business Assistance
Program State Air Quality Control Plan Amendment (which includes
Appendix A the Alaska Statutes Title 46, Chapter 14, Article 3), dated
April 1994, and adopted April 8, 1994.
(ii) Additional information.
(A) Letter dated July 24, 1995, from Alaska Department of
Environmental Conservation, submitting information necessary for
approval of the SBAP revision to EPA; the July 1995 SBAP Update,
Responses to EPA Comments, and the Air Quality/Small Business
Assistance Compliance Advisory Panel Board Information.
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[FR Doc. 95-21875 Filed 9-1-95; 8:45 am]
BILLING CODE 6560-50-P
