[Federal Register Volume 60, Number 45 (Wednesday, March 8, 1995)]
[Rules and Regulations]
[Pages 12691-12695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5442]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AR-3-1-5727a; FRL-5155-8]
Clean Air Act Approval and Promulgation of Title V, Section 507,
Small Business Stationary Source Technical and Environmental Compliance
Assistance Program for Arkansas
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 Arkansas 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, found in 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
document; additional information is available at the address indicated
in the ADDRESSES section.
DATES: This final rule will become effective on May 8, 1995, unless
adverse or critical comments are received by April 7, 1995. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Written comments on this action should be addressed to Mr.
Thomas Diggs, Chief (6T-AP), Planning Section, at the EPA Regional
Office listed below. Copies of the documents relevant to this action
are available for public inspection during normal business hours at the
following locations. The interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the visiting day.
U.S. Environmental Protection Agency, Region 6, Air Programs Branch
(6T-AP), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733.
Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, 401 M Street, SW., Washington, DC 20460.
Arkansas Department of Pollution Control and Ecology, Division of Air
Pollution Control, 8001 National Drive, Little Rock, Arkansas 72209.
FOR FURTHER INFORMATION CONTACT: Dr. John Crocker, Planning Section
(6T-AP), Air Programs Branch, U.S. Environmental Protection Agency,
Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214)
665-7596.
SUPPLEMENTARY INFORMATION:
I. Background
Implementation of the provisions of the 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 emissions of air toxics. Small businesses frequently
lack the technical expertise and financial resources
[[Page 12692]] 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 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, the 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 Arkansas submitted a SIP revision to the 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
three 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. All areas in the State are classified attainment for each of the
NAAQS pollutants.
The Region used section 507 of the CAA and considered the ``SIP
Revision Approval Checklist for Section 507 Small Business Assistance
Program'' when reviewing the State submittal for approvability. The SIP
revision, discussed in detail in the Technical Support Document, is
briefly outlined below.
II. Analysis
A. Procedural Background
The State of Arkansas has met all of the requirements of section
507 by submitting a SIP revision that implements all required PROGRAM
elements. Arkansas Act 251 (Senate Bill 347) enacted by the 79th
General Assembly Regular Session in 1993 and approved by the Governor
on February 26, 1993, provides authority for the State to establish a
CAP for the PROGRAM as required by Section 507 of the CAA. The PROGRAM
is to be administered by the Arkansas Department of Pollution Control
and Ecology (ADPC&E), and is intended to help eligible small businesses
understand and comply with the CAA. Included in the Act are provisions
creating a CAP, establishing membership and terms of the CAP, and
establishing CAP duties.
The State held a public hearing on October 19, 1992, to consider
public comments on the proposed PROGRAM, which will amend the Arkansas
SIP to add a revision entitled, ``Arkansas Small Business Stationary
Source Technical and Environmental Compliance Assistance Program SIP
Revision''. No public comments were received on the PROGRAM. The
proposed SIP revision was adopted November 5, 1992, by the Arkansas
Commission on Pollution Control and Ecology. The Arkansas PROGRAM was
submitted to the EPA by the Governor of Arkansas on November 6, 1992,
as a revision to the Arkansas SIP. Additional information (draft
Arkansas CAP legislation) was submitted on January 6, 1993. The
submittal was initially reviewed for completeness and was determined
complete on January 15, 1993. Supplemental information (Arkansas Act
251) was submitted on April 23, 1993. The submittal was then reviewed
for approvability by EPA Region 6 and EPA headquarters.
B. Plan Requirements
1. Small Business Assistance Program
The first PROGRAM element is the establishment of a SBAP to provide
technical and compliance assistance to small businesses.
The State has met the first PROGRAM element by committing in its
SIP revision, sections (c) ``Small Business Assistance Program
(SBAP)'', and (g) ``Schedule of Program Implementation'', to establish
an SBAP in the Air Division of the ADPC&E, which meets the six
requirements set forth in section 507(a). (Details are presented in the
EPA's Technical Support Document and the State's submittal.) It will be
administered by an SBAP coordinator in the Air Division.
a. 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 CAA.
\1\A seventh requirement of section 507(a), establishment of an
Ombudsman office, is discussed in the next section.
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The State has met this requirement. The SBAP coordinator will be
charged with the duties of collecting, developing, and coordinating
information on compliance methods and technologies for small business
stationary sources. The SBAP will include a proactive component and a
reactive component.
(i) Proactive Component. The SBAP coordinator will be responsible
for operating the SBAP and will work in the Air Division of the ADPC&E.
Small businesses that are, or will be, affected by CAA requirements
will be placed in a computer database. The database will contain
information such as the facility address, environmental contact, and
Standard Industrial Classification code. Possible sources of data for
this database are the existing ADPC&E data files and the Arkansas
Industrial Development Commission database. This system will enable the
SBAP to notify small businesses of the existence of the SBAP (through
newsletters) and any new or upcoming applicable air pollution
requirements of the CAA. Additionally, the SBAP coordinator will be
available, upon reasonable request, to trade associations or industry
groups representing small businesses for seminars and workshops.
(ii) Reactive Component. The SBAP coordinator will be responsible
for handling questions from small businesses. The coordinator will act
as an information clearinghouse, and will be responsible for making
sure that small businesses receive the requested information either by
phone or by mail. A small library of applicable literature will be
maintained by the coordinator. If the coordinator cannot supply the
requested information directly, he shall be responsible for seeking out
the information from other available channels, such as the Air Division
staff, EPA technical support services (including the Technology
Transfer Network bulletin board), industry contacts, etc. The names and
the direct telephone numbers of the SBAP coordinator and Ombudsman will
be published in a newsletter to allow for quick access.
b. 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.
[[Page 12693]]
The State has met this requirement. The SBAP will address pollution
prevention and accidental release detection and prevention.
(i) Pollution Prevention. The SBAP coordinator will conduct an
information clearinghouse on small business pollution prevention
topics. Available literature from the EPA Pollution Prevention Office
and other sources will be kept in the SBAP library. The availability of
such information will be announced in newsletters.
(ii) Accidental Release. The SBAP coordinator will conduct an
information clearinghouse for prevention, detection, and monitoring of
accidental chemical releases. Basic information will cover four areas:
(1) Requirements under the accidental release provisions of the CAA;
(2) related requirements under Superfund Amendments and Reauthorization
Act title III; (3) the Occupational Safety and Health Administration
process safety standard as required by the CAA; and (4) general
information on prevention practices and technologies. EPA publications
on this subject matter shall be kept in the SBAP library. The
availability of such information will be announced in newsletters.
c. 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 CAA in a timely and efficient manner.
The State has met this requirement. The SBAP coordinator shall be
responsible for providing small businesses with information regarding
applicability to CAA requirements and the ADPC&E permitting process
(applications, fees, enforcement, etc.)
d. The fourth requirement is to develop adequate mechanisms to
assure that small business stationary sources receive notice of their
rights under the CAA 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 CAA.
The State has met this requirement. The SBAP coordinator will be
responsible for notifying small businesses of their rights under the
CAA. The SBAP computer database discussed above in II.B.1.a. will be
used to notify small businesses in a timely manner of any upcoming
regulations that could potentially affect them. This should give small
businesses plenty of time to evaluate compliance methods far in advance
of compliance dates. In addition, the SBAP coordinator shall operate an
information clearinghouse on small business ``legal rights'' under the
CAA.
e. The fifth requirement is to develop adequate mechanisms for
informing small business stationary sources of their obligations under
the CAA, 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 CAA.
The State has met this requirement. The SBAP will address
obligations and audits.
(i) Obligations. The SBAP coordinator will be responsible for
notifying small businesses of their obligations under the CAA. The SBAP
database and newsletters will be used to inform small businesses of
their obligations.
(ii) Audits. The SBAP coordinator shall be responsible for keeping
a list of qualified compliance auditors for small businesses to
contact. This list shall contain qualified ADPC&E personnel and other
qualified environmental consultants. Environmental consultants may be
placed on the qualified auditors list by sending a written request and
resume to the SBAP coordinator. Simple complimentary audits performed
by ADPC&E personnel shall be done at the convenience of ADPC&E
personnel commensurate with available resources, and there shall be no
charge for the service. Any violations uncovered during an audit
performed by ADPC&E personnel shall be dealt with immediately. Audits
performed by qualified environmental consultants may entail a fee (to
be paid by the audited business) at the discretion of the consultant.
f. 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. Procedures for the permitting
of stationary source modifications are contained in Section 19.4 of the
State Implementation Plan. No such request for permit modification
shall be granted unless it meets all applicable State and Federal
requirements. Application processing priority, to the extent
practicable, will be given to applications requesting modifications
necessary to achieve compliance with applicable regulations.
2. Ombudsman
The second PROGRAM element is the establishment of a State Small
Business Ombudsman to represent the interests of small businesses in
the regulatory process. 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 committing to establish
(prior to November 1994) a dedicated Small Business Ombudsman Office
within the ADPC&E, as stated in section (d) ``Ombudsman'' of its SIP
revision. The Ombudsman Office will not be within the Air Division, but
will be within the agency. Thus, the Ombudsman's Office is going to be
separate from the air quality regulatory branch of the State agency,
and therefore can be an independent advocate for small businesses. The
Ombudsman position will be filled prior to November 15, 1994. The
Ombudsman Office will have sufficient resources to discharge its duties
effectively.
The Ombudsman will have access to the Governor's office, the
Director of the ADPC&E, and to other State agencies. He will have the
ability to informally request information from other State agencies,
and to formally obtain information from other agencies through the
Governor's office. The Ombudsman, through the Director, will have a
channel for proposing legislation or administrative action necessary to
assist eligible small businesses.
3. Compliance Advisory Panel (CAP)
The third PROGRAM element is the creation of a CAP to determine and
report on the overall effectiveness of the SBAP. Section 507(e)
requires the State to establish a 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.
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 the EPA concerning the SBAP's
adherence to the principles of the Paperwork Reduction Act, the Equal
Access to Justice Act, and the Regulatory [[Page 12694]] 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.
\2\Section 507(e)(1)(B) of the CAA 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,
the 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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The State has met these requirements: (A) By enacting the State law
creating the CAP and providing it with the enumerated responsibilities;
and (B) by committing to appoint members to the Panel by November 1994.
Sections 1.-2. of Arkansas Act 251 of 1993 creates the State Compliance
Advisory Panel with responsibilities consistent with the requirements
in title V of the Federal CAA and specifies the panel's make-up,
qualifications, terms, and duties. Adequate support sources and
sufficient resources to conduct business will be provided to the Panel
by the ADPC&E through the SBAP administered by the Air Division, which
shall serve as secretariat to the Panel. Section 2. of Act 251 (i.e.,
Arkansas Code 8-4-314(1)(A)(4)) authorizes the SBAP to serve as the
secretariat to the Panel. Details of these commitments to appoint the
members of the CAP as stated above, and to designate to the CAP the
four responsibilities listed in the CAA, are discussed in section (e)
``Compliance Advisory Panel'' of its SIP revision.
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 Arkansas 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 narrative SIP revision, section (b) entitled ``Eligibility and
Program Scope''.
The State of Arkansas 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.
The State has also 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 hearing, 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.
III. Final Action
In this action, the EPA is approving the SIP revision submitted by
the State of Arkansas for establishing a Small Business Stationary
Source Technical and Environmental Compliance Assistance Program.
The State of Arkansas has submitted a SIP revision for establishing
each of the required PROGRAM elements required by section 507 of the
CAA. The EPA has reviewed this revision to the Arkansas SIP and is
approving it as submitted because the State's PROGRAM meets the
requirements of section 507 of the CAA. The SIP includes a schedule of
implementation which commits the State to have all three principal
PROGRAM elements fully implemented by November 15, 1994. SIP schedule
implementation milestones are being tracked and monitored by the Region
as part of the State's normal Program review. Currently, the State has
selected and staffed the SBAP coordinator and initiated the SBAP (i.e.,
in the Air Division of the ADPC&E), designated the State Office to
serve as Small Business Ombudsman, hired the Ombudsman in November
1993, and created a CAP (and begun appointing its members).
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. Thus, today's direct
final action will be effective May 8, 1995 unless, by April 7, 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 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 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 May 8, 1995.
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.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the 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, the 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 entities affected.
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. The Office of Management and Budget has exempted
this regulatory action from Executive Order 12866 review.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United
[[Page 12695]] States Court of Appeals for the appropriate circuit by
May 8, 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).)
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 SIP for the State of
Arkansas was approved by the Director of the Federal Register on
July 1, 1982.
Dated: January 24, 1995.
William B. Hathaway,
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 as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart E--Arkansas
2. Section 52.170 is amended by adding paragraph (c)(31) to read as
follows:
Sec. 52.170 Identification of plan.
* * * * *
(c) * * *
(31) The State is required to implement a Small Business Stationary
Source Technical and Environmental Compliance Assistance Program
(PROGRAM) as specified in the plan revision submitted by the Governor
on November 6, 1992. This plan submittal, as adopted by the Arkansas
Commission on Pollution Control and Ecology on November 5, 1992, was
developed in accordance with section 507 of the Clean Air Act. On April
23, 1993, the Governor submitted Act 251 of 1993 which establishes the
Compliance Advisory Panel (CAP) for the PROGRAM.
(i) Incorporation by reference.
(A) Act 251 of 1993 approved by the Governor on February 26, 1993.
Included in this Act are provisions creating a CAP, establishing
membership of the CAP, and addressing the responsibilities and duties
of the CAP.
(B) Arkansas Department of Pollution Control and Ecology, Minute
Order No. 92-81, adopted November 5, 1992.
(ii) Additional material.
(A) Revision entitled, ``Arkansas Small Business Stationary Source
Technical and Environmental Compliance Assistance Program SIP
Revision'', adopted November 5, 1992.
(B) Legal opinion letter dated November 5, 1992, from Steve Weaver,
Chief Counsel, Arkansas Department of Pollution Control and Ecology,
regarding legality of Commission teleconference meeting.
3. Section 52.183 is added to subpart E to read as follows:
Sec. 52.183 Small business assistance program.
The Governor of Arkansas submitted on November 6, 1992, a plan
revision to develop and implement a Small Business Stationary Source
Technical and Environmental Compliance Assistance Program (PROGRAM) to
meet the requirements of section 507 of the Clean Air Act by November
15, 1994. The plan commits to provide technical and compliance
assistance to small businesses, hire an Ombudsman to serve as an
independent advocate for small businesses, and establish a Compliance
Advisory Panel to advise the program and report to the EPA on the
program's effectiveness. On April 23, 1993, the Governor submitted Act
251 of 1993 which establishes the Compliance Advisory Panel for the
PROGRAM.
[FR Doc. 95-5442 Filed 3-7-95; 8:45 am]
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