[Federal Register Volume 59, Number 8 (Wednesday, January 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-760]
[[Page Unknown]]
[Federal Register: January 12, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MA-20-01-5783; A-1-FRL-4825-5]
Approval and Promulgation of Title V, Section 507, Small Business
Stationary Source Technical and Environmental Compliance Assistance
Program for Massachusetts
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes to conditionally approve the State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Massachusetts for the purpose of establishing a small business
stationary source technical and environmental compliance assistance
program. The SIP revision was submitted by the State to satisfy the
Federal mandate to ensure that small businesses have access to the
technical assistance and regulatory information necessary to comply
with the Clean Air Act (CAA). The rationale for the conditional
approval is set forth in this proposal; additional information is
available at the address indicated below.
DATES: Comments must be received on or before February 11, 1994.
ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region I, JFK Federal Bldg., Boston, MA 02203.
Copies of the State submittal and EPA's technical support document are
available for public inspection during normal business hours, by
appointment at the Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region I, One Congress Street, 10th
floor, Boston, MA and Department of Environmental Protection, One
Winter Street, 8th Floor, Boston, MA 02108.
FOR FURTHER INFORMATION CONTACT: Emanuel Souza, Jr., (617) 565-3248.
SUPPLEMENTARY INFORMATION:
I. Background
Implementation of the provisions of the Clean Air Act Amendments of
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 February 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 Commonwealth of Massachusetts has submitted a SIP revision to
EPA in order to satisfy the requirements of section 507. In order to
gain full approval, the State 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 (CAP) to determine
and report on the overall effectiveness of the SBAP.
II. Analysis
1. Small Business Assistance Program
Massachusetts' SIP revision delegates the responsibility for
implementation of the SBAP to various functional units within the
Executive Office of Environmental Affairs (EOEA) and the Department of
Environmental Protection (DEP). SBAP staff will be located in the
Office of Technical Assistance. Primary responsibility for program
oversight, development, and coordination will lie with the small
business ombudsman and the SBAP staff.
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 has met this requirement by offering a
proactive and reactive approach to gathering and disseminating
information on compliance issues and control technologies. This
approach includes: an information clearinghouse, workshops, and an
audit program.
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\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 stating that the Massachusetts Office
of Technical Assistance (OTA) will provide help in identifying
pollution prevention opportunities. These services are provided at no
charge. Additionally, the SBAP staff will provide small business
stationary sources with information and referral to appropriate sources
regarding requirements related to accidental release detection and
prevention.
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. As stated earlier, responsibility for
the implementation of the small business assistance program will
involve various units within the EOEA and the DEP, with primary
responsibility for program oversight, development, and coordination
lying with the small business ombudsman and SBAP staff in EOEA, Office
of Technical Assistance. The air quality staff at each DEP Regional
Office will provide assistance to small business stationary sources in
the following: identifying applicable rules, determining their need for
permits, explanation of the permitting procedures, providing the
necessary forms and applications, and assisting them in preparing the
required documents.
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 providing that the DEP's
Division of Air Quality Control (DAQC) will be responsible for the
development of policies and regulations for implementing the provisions
of the CAA. The staff in that office will provide assistance in
identifying applicable rules. Additionally, that office will provide
the necessary information regarding rules and procedures for complying
with Federal and state laws and regulations. Furthermore, it will be
the DAQC's responsibility to inform businesses of their rights through
brochures and workshops.
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
SIP revision provides that the DAQC is responsible for the development
of policies and regulations for implementing the provisions of the CAA.
The SBAP staff will also be responsible for providing audits. These
include on-site assessments by the OTA and through audit referrals. On-
site assessments will be arranged in conjunction with technical staff
from the OTA. Audit referrals will be arranged by having the staff
provide a list of qualified private sector auditors or consultants to
small business stationary sources.
The sixth requirement is to develop procedures for consideration of
requests from a small business stationary source 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 SIP revision provides that specific regulations
for modifications of work practices or technological methods of
compliance will be submitted in November 1993. These regulations will
include: (1) Procedures for receiving requests from small businesses to
modify the provisions of State-adopted regulations; (2) format for such
requests; (3) procedures for how requests will be reviewed and acted
upon; and (4) requirements to ensure that no such modification may be
granted unless it is in compliance with the applicable requirements of
the CAA, the SIP and the applicable Federal regulations.
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 designating the small business ombudsman
within the EOEA. The EOEA is a secretariat answering directly to the
Governor. The designation of a small business ombudsman within the
Commonwealth's environmental secretariat but outside of the
secretariat's regulatory agency will:
(1) Enhance impartiality in resolving disputes involving compliance
and enforcement;
(2) Reduce potential for conflicts of interest;
(3) Improve utilization by the business community;
(4) Allow for a high level of independence, authority, and
communication;
(5) Allow the small business ombudsman to build upon established
contacts with the business community and other government offices and
agencies; and
(6) Strengthen the ombudsman's ability to provide program oversight
and evaluation.
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 not fully met this requirement due to the
lack of adequate statutory authority to establish the CAP. However, EPA
expects Massachusetts to submit a legislative resolve to EPA when it is
finally approved. The SIP revision provides that legislative approval
and selection of CAP members will be completed by January 30, 1994.
In addition to establishing the minimum membership of the CAP the
CAA delineates four responsibilities for it: (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 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 in the SIP revision by authorizing the panel to: render
advisory opinions on the effectiveness of the small business assistance
program; prepare periodic reports to EPA on the status of the SBAP with
regard to the Paper Work Reduction Act, the Regulatory Flexibility Act,
and the Equal Access to Justice Act; and review information for small
business stationary sources to assure such information is
understandable by the layperson. Additionally, the SIP revisions
provide the small business ombudsman with the authority to oversee all
aspects of the SBAP and allows for the ombudsman to act as secretariat
to the panel.
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\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.
The SIP revision states that it is the general policy of the EOEA
and the DEP to assist all businesses in identifying applicable
regulations and in meeting their obligations under the requirements of
the CAA. However, recognizing the special needs of the small business
stationary sources, EOEA and DEP shall, wherever resources become a
limiting factor in providing such assistance, give priority to
businesses which meet the definition of small business stationary
source under title V, section 507(c)(1) of the Clean Air Act.
Additionally, the Commonwealth of Massachusetts allows businesses that
do not meet the provisions of sections 507(c)(1)(C)-(E) to petition the
SBAP for assistance in accordance with the procedures established in
section 507(c)(2) of the CAA.
The SBAP staff, with the advice of the ombudsman and the CAP, may
consider the development of provisions for excluding any category or
subcategory of sources with sufficient financial and technical
resources, from receiving assistance under the SBAP in accordance with
the provisions of the Act.
III. Proposed Action
The Commonwealth of Massachusetts has submitted a SIP revision
implementing each of the required PROGRAM elements required by section
507 of the CAA. The State expects all the elements of the PROGRAM to be
fully operational by November 14, 1994.
The State needs full adequate legal authority to implement the
PROGRAM before EPA can fully approve this SIP revision. Therefore, EPA
is proposing to conditionally approve the Massachusetts SIP revision
for the small business stationary source technical and environmental
compliance assistance program, which was submitted on November 13, 1993
upon the condition that Massachusetts submits the additional legal
authority necessary to fully implement the PROGRAM.
EPA is soliciting public comments on the issues discussed in this
proposal or on other relevant matters. These comments will be
considered before EPA takes final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to the EPA Regional office listed in the Addresses section of
this action.
Proposed Action
EPA is proposing to conditionally approve the small business
stationary source technical and environmental compliance assistance
program submitted on November 13, 1992 and July 22, 1993. The one
outstanding issue with this SIP revision concerns Massachusetts' lack
of adequate legal authority to establish and implement a compliance
advisory panel. The State plans to address this issue in a legislative
resolve which it will forward to EPA by November 14, 1994. For this
reason EPA is proposing to conditionally approve this SIP revision on
the condition that the State meet its commitment to submit a
legislative resolve allowing a compliance panel to be established and
implemented, incorporating all the elements listed in section 507(e) of
the Clean Air Act and have the program fully operational by November
14, 1994. Under section 110(k)(4) of the Act, EPA may conditionally
approve a plan based on a commitment from the State to adopt specific
enforceable measures by a date certain, but not later than 1 year from
the date of approval. If EPA takes final conditional approval on the
commitment, the State must meet its commitment to have the program
fully operational by November 14, 1994. If the State fails to do so,
this approval will become a disapproval on that date. EPA will notify
the State by letter that this action has occurred. At that time, this
commitment will no longer be a part of the approved Massachusetts SIP.
EPA subsequently will publish a notice in the notice section of the
Federal Register notifying the public that the conditional approval
automatically converted to a disapproval. If the State meets its
commitment, within the applicable time frame, the conditionally
approved submission will remain a part of the SIP until EPA takes final
action approving or disapproving the new legislative authority. If EPA
disapproves the new submittal, the conditionally approved small
business program will also be disapproved at that time. If EPA approves
the submittal, the small business program will be fully approved in its
entirety and replace the conditionally approved program in the SIP.
If EPA determines that it cannot issue a final conditional approval
or if the conditional approval is converted to a disapproval, such
action will trigger EPA's authority to impose sanctions under section
110(m) of the CAA at the time EPA issues the final disapproval or on
the date the State fails to meet its commitment. In the latter case,
EPA will notify the State by letter that the conditional approval has
been converted to a disapproval and that EPA's sanctions authority has
been triggered. In addition, the final disapproval triggers the Federal
implementation plan (FIP) requirement under section 110(c). Pursuant to
section 507(b)(3), EPA will provide for implementation of the program
provisions required under section 507(a)(4) in any State that fails to
submit such a program under that subsection. Therefore, EPA would have
to provide for a compliance assistance program which assists small
business stationary sources in determining applicable requirements and
in receiving permits under the CAA.
This action has been classified as a Table 2 Action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225) as revised by an October 4, 1993,
memorandum from Michael H. Shapiro, Acting Assistant Administer for Air
and Radiation. On January 6, 1989 the Office of Management and Budget
(OMB) waived Table 2 and 3 SIP revisions (54 FR 2222) from the
requirement of section 3 of Executive Order 12291 for a period of two
years. EPA has submitted a request for a permanent waiver for Table 2
and Table 3 SIP revisions. The OMB has agreed to continue the waiver
until such time as it rules on EPA's request. This request continues in
effect under Executive Order 12866 which superseded Executive Order
12291 on September 30, 1993.
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 today's action, EPA is conditionally approving a State program
created for the purpose of assisting small businesses in complying with
existing statutory and regulatory requirements. The program being
proposed for conditional approval today 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 conditional 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 entities affected.
The Regional Administrator's decision to approve or disapprove the
SIP revision will be based on whether it meets the requirements of
sections 110(a)(2)(A)-(K) and 110(a)(3) of the Clean Air Act, as
amended, and EPA regulations in 40 CFR part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Small business assistance program.
Authority: 42 U.S.C. 7401-7671q.
Dated: December 21, 1993.
Paul G. Keough,
Acting Regional Administrator, Region I.
[FR Doc. 94-760 Filed 1-11-94; 8:45 am]
BILLING CODE 6560-50-F
