[Federal Register Volume 59, Number 205 (Tuesday, October 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26355]
[[Page Unknown]]
[Federal Register: October 25, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[SD4-1-5671a; FRL-5077-6]
Clean Air Act Approval and Promulgation of Title V, Section 507,
Small Business Stationary Source Technical and Environmental Compliance
Assistance Program for the State of South Dakota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving the State Implementation Plan (SIP)
revision submitted by the State of South Dakota for the purpose of
establishing a Small Business Stationary Source Technical and
Environmental Compliance Assistance Program (PROGRAM). The
implementation plan was submitted by the State to satisfy the Federal
mandate, found in section 507 of the Clean Air Act (CAA), 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 notice; additional information is
available at the address indicated below.
DATES: This final rule will become effective on December 27, 1994
unless adverse or critical comments are received by November 25, 1994.
If the effective date is delayed, timely notice will be published in
the Federal Register.
ADDRESSES: Comments should be addressed to Laura Farris, 8ART-AP, at
the EPA Regional Office listed.
Copies of the State's submittal and other supporting information
used in developing this final rule are available for public inspection
during normal business hours at the following location: U.S.
Environmental Protection Agency, Region 8, 999 18th Street, suite 500,
Denver, Colorado 80202.
FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP,Environmental
Protection Agency, Region VIII, 999 18th Street, suite 500, Denver,
Colorado 80202-2405, (303) 294-7539.
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 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 State of South Dakota 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.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing approval of the South Dakota
PROGRAM should adverse or critical comments be filed. Under the
procedures established in the May 10, 1994 Federal Register, this
action will be effective on December 27, 1994, unless by November 25,
1994, 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 then 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. 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 on December 27, 1994.
II. Analysis
The State of South Dakota has met all of the requirements of
section 507 by submitting a SIP revision that implements all required
PROGRAM elements. The South Dakota Codified Laws (SDCL) was amended
effective July 1, 1992 to include provisions (34A-1-57 through 34A-1-
60, inclusive) which provide the authority to establish and fund the
PROGRAM. The authority to establish and fund the Compliance Advisory
Panel is found in SDCL 1-32-4.1 through 1-32-4.4, inclusive. The South
Dakota Department of Environment and Natural Resources held a public
hearing on November 6, 1992 to consider amending the South Dakota SIP
to include a plan which commits to the development and implementation
of the South Dakota PROGRAM. On November 10, 1992, the Governor of
South Dakota's designee, Robert E. Roberts, Secretary of the Department
of Natural Resources, submitted the South Dakota PROGRAM to the EPA.
Additional information was sent by request on January 20 and March 23,
1993. The PROGRAM was initially reviewed for administrative and
technical completeness and was deemed complete on April 5, 1993. The
submittal was then reviewed for approveability by EPA Region VIII and
EPA headquarters. One of the EPA headquarters reviewers, the Office of
the Small Business and Asbestos Ombudsman, did not concur on the South
Dakota PROGRAM for the following reasons: (1) The State failed to
correct deficiencies noted by EPA in their review of the proposed South
Dakota PROGRAM; (2) Further clarification and assurances are necessary
to insure that the State will implement all the statutory requirements
under section 507. The State subsequently made the necessary changes to
their PROGRAM, went back through public hearing on January 12, 1994,
and resubmitted the PROGRAM on April 11, 1994. The South Dakota PROGRAM
then received a concurrence from all reviewers.
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 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 these requirements by committing in its
SIP to ``Develop, collect, and coordinate information concerning
compliance methods and technologies for small businesses ...'' and to
``Assist small businesses with pollution prevention and accidental
release detection and prevention.'' The mechanisms the State has
committed to use to accomplish these commitments include: ``...
workshops, electronic bulletin boards, interaction with other states,
... public service announcements, mailings, workshops in the field and
through the Rural Development Telecommunications Network (RDTN), one-
on-one with the small businesses, and any other methods that are
determined during the development and implementation of the 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 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 committing in its SIP to ``Provide
compliance assistance to small businesses to help them determine
applicable requirements and in receiving permits in a timely and
efficient manner.''
The fourth and fifth requirements are to develop adequate
mechanisms to assure that small business stationary sources receive
notice of their rights and 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. This must be done 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 regulation or standards issued under the Act. The State has
met these requirements by committing in its SIP to ``Notify small
businesses of their rights under the Federal Clean Air Act and assure
reasonably adequate time for such sources to evaluate compliance
methods and any relevant or applicable proposed or final regulation or
standard issued under the Federal Clean Air Act;'' and ``Inform small
businesses of their obligations under the Federal Clean Air Act. If the
state does not provide audits of the operations of such sources to
determine compliance with state and Federal air pollution regulations,
then the state will refer such sources to qualified auditors.'' The
mechanisms the State has committed to use to accomplish these
commitments include: ``... workshops, electronic bulletin boards,
interaction with other states, ... public service announcements,
mailings, workshops in the field and through the Rural Development
Telecommunications Network (RDTN), one-on-one with the small
businesses, and any other methods that are determined during the
development and implementation of the Program.''
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 State has met this requirement by committing in
its SIP to ``Provide procedures for considering requests from small
businesses for modifications of any work practice or technological
methods of compliance or the schedule of milestones for implementing
these modifications. No such modification may be granted unless it is
in compliance with the applicable state and Federal requirements.''
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 stating in its SIP that the Office of the
Small Business Ombudsman will be located in the Department of
Environment and Natural Resources.
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 committing in its
SIP to appoint the members of the CAP as stated above.
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
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 this requirements by listing the duties of the CAP in its SIP,
which are consistent with those stated above.
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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 State of South Dakota has established a mechanism for
ascertaining the eligibility of a source to receive assistance under
the PROGRAM, including an evaluation of a source's eligibility using
the criteria in section 507(c)(1) of the CAA. This mechanism is
contained in the State's SIP.
The State of South Dakota has provided for public notice and
comment on grants of eligibility to sources that do not meet the
provisions of sections 507(c)(1)(C), (D), and (E) of the CAA but do not
emit more than 100 tpy of all regulated pollutants. This provision is
contained in the State's SIP.
The State of South Dakota has provided 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. This provision in contained in the State's SIP.
III. This Action
In today's action, EPA is approving the SIP revision submitted by
the State of South Dakota.
The State of South Dakota has submitted a SIP revision implementing
each of the required PROGRAM elements required by section 507 of the
CAA. The members of the South Dakota CAP have been appointed, and the
Ombudsman for the South Dakota PROGRAM has been hired. EPA is therefore
approving this submittal.
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 Administrator for
Air and Radiation. A future document will inform the general public of
these tables. On January 6, 1989, the Office of Management and Budget
(OMB) waived Table 2 and 3 SIP revisions from the requirements of
section 3 of Executive Order 12291 for 2 years. The EPA has submitted a
request for a permanent waiver for Table 2 and Table 3 SIP revisions.
The OMB has agreed to continue the temporary 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 approving a State program created for the
purpose of assisting small businesses in complying with existing
statutory and regulatory requirements. The program being approved 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 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.
List of Subjects in 40 CFR Part 52
Air pollution control, Incorporation by reference, Small business
assistance program.
Dated: September 14, 1994.
Jack W. McGraw,
Acting Regional Administrator.
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 asfollows:
Authority: 42 U.S.C. 7401-7671q.
Subpart QQ--South Dakota
2. Section 52.2170 is amended by adding paragraph (c)(15) to read
as follows:
Sec. 52.2170 Identification of plan.
* * * * *
(c) * * *
(15) On November 10, 1992, the Governor of South Dakota's designee
submitted a plan for the establishment and implementation of a Small
Business Assistance Program to be incorporated into the South Dakota
State Implementation Plan as required by section 507 of the Clean Air
Act. An amendment to the plan was submitted by the Governor's designee
on April 1, 1994.
(i) Incorporation by reference.
(A) November 10, 1992 letter from the Governor of South Dakota's
designee submitting a Small Business Assistance Program plan to EPA.
(B) April 1, 1994 letter from the Governor of South Dakota's
designee submitting an amendment to the South Dakota Small Business
Assistance Program plan to EPA.
(C) The State of South Dakota amended plan for the establishment
and implementation of a Small Business Assistance Program, adopted
January 12, 1994 by the South Dakota Department of Environment and
Natural Resources.
(D) South Dakota Codified Laws 34A-1-57, effective July 1, 1992 and
34A-1-58 through 60, effective July 1, 1993, which gives the State of
South Dakota the authority to establish and fund the South Dakota Small
Business Assistance Program.
[FR Doc. 94-26355 Filed 10-24-94; 8:45 am]
BILLING CODE 6560-50-F
