[Federal Register Volume 59, Number 113 (Tuesday, June 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14418]
[[Page Unknown]]
[Federal Register: June 14, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
40 CFR Part 52
[NH-8-1-5894; A-1-FRL-4998-3]
Approval and Promulgation of Title V, Section 507, Small Business
Stationary Source Technical and Environmental Compliance Assistance
Program for New Hampshire
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes to conditionally approve the State
Implementation Plan (SIP) revision submitted by the State of New
Hampshire 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
in the ADDRESSES section.
DATES: Comments must be received on or before July 14, 1994.
ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air,
Pesticides and Toxics Management Division, U.S. Environ- mental
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 Air Resources Division, Department of
Environmental Services, 64 North Main Street, Caller Box 2033, Concord,
NH 03302-2033.
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 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 New Hampshire 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
New Hampshire's Small Business Technical Assistance Program (SBTAP)
will be located in the Department of Environmental Services (DES). The
Program will require coordination with other DES programs to utilize
their experience and to assess the potential cross-media impact of
compliance alternatives.
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 comply 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. The State expects to use
potential resources such as a technical library and an information
clearinghouse. Program staff will proactively conduct workshops and
presentations for potentially affected small businesses.
---------------------------------------------------------------------------
\1\A seventh requirement of section 507(a), establishment of an
Ombudsman office, is discussed in the next section.
---------------------------------------------------------------------------
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 SBTAP will work with
small businesses to provide general engineering assistance. Pollution
prevention efforts will be coordinated with the DES toxic use and waste
reduction programs. SBTAP will work proactively to promote awareness of
pollution prevention techniques and related issues.
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. The SBTAP will develop materials
explaining regulatory and permit requirements for small business
stationary sources. Program staff will identify alternative methods and
technologies for compliance with specific regulations. This will
involve coordination with other DES programs; other state and Federal
agencies; and trade associations and professional/technical societies.
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 ensuring that small
business sources are aware of their rights through outreach materials
and ensuring that small businesses understand their rights when
individual technical assistance is provided. Additionally, Program
staff will ensure that small business stationary sources receive
sufficient advance notice of their rights before applicable regulations
take effect. The SBTAP will follow applicable Department rules. Program
policy will be to provide as much notice as is reasonable and
practicable, but never less than 30 calendar days.
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 states that the Program staff will ensure that small
business stationary sources receive sufficient advance notice of their
obligations under the Act within 30 days or more. Additionally, the
staff will develop a program of qualified auditors to provide
compliance assessments for small business stationary sources. This
Compliance Assessment Program will provide a source with an on-site
determination of whether the facility complies with the applicable air
quality regulations. Portions of section (5) of NH's January 12, 1993,
SIP revision appeared to provide the State with enforcement discretion
to allow small businesses an exemption from enforcement. Pursuant to
EPA's request, the State submitted a letter to EPA on May 19, 1994
clarifying and revising this portion of the SIP revision. The letter
deletes two portions of section (5) and explains that the portions were
originally put into the January 12, 1993 SIP as examples of the type of
issues that needed to be addressed, but which would not necessarily
become final policies.
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 states that the SBTAP, in
coordination with other Division staff will develop standardized
criteria and administrative procedures for considering requests for
modifications, including provisions to ensure that granting such
requests will not affect the status of the federally approved SIP and
is consistent with applicable requirements of the CAA. The SIP revision
lists the information that will be used in developing the criteria and
procedures for consideration of requests for modifications of
procedures.
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 partially met this requirement by outlining the responsibilities
and duties of the small business ombudsman. The small business
ombudsman responsibilities will be assigned to a proposed technical
assistance coordinator position. It will be the state's central
position for organizing technical assistance for environmental matters.
The ombudsman will serve as an advocate for small business stationary
sources in investigating and resolving complaints and disputes
involving air quality regulations. Other activities of the ombudsman
may include reviewing SBTAP services with trade associations and small
business representatives. The ombudsman will help disseminate
information to small businesses and encourage small businesses to
participate in the development of regulations. The ombudsman will be
the key contact person for the Governor's office for referrals of
complaints and problems.
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 New Hampshire to submit the legislative authority to EPA when
it is passed by the New Hampshire legislature.
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: evaluate
the effectiveness of the SBTAP and the Small Business Ombudsman, and
issue advisory opinions to the Air Resources Division and EPA; prepare
periodic reports to EPA on the status of the SBTAP 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 revision states that the SBTAP staff
will serve as the administrative staff for the panel.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
New Hampshire's SIP revision states that assistance through the
SBTAP will be available to all small business stationary sources, as
defined in section 507 of the CAA. No source defined as eligible under
the CAA will be excluded from the program without prior consultation
with EPA. The SBTAP will also be available to small businesses which
need help to comply with state air quality regulations other than
Federal CAA requirements.
As allowed under section 507(c)(2) of the CAA, the State program
may, under specific conditions listed in the SIP revision, include as a
small business stationary source for purposes of receiving assistance a
source that does not meet the criteria of subparagraphs (C), (D) or (E)
above, provided that the source cannot emit more than 100 tons per year
of all regulated pollutants.
Additionally, the State may exclude from assistance any category or
subcategory of small business stationary sources, as allowed under
section 507(c)(3)(B) of the CAA, which have been determined to have
sufficient financial and technical resources to meet their regulatory
obligations under the CAA.
III. Proposed Action
The State of New Hampshire 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 15, 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 New Hampshire SIP revision
for the small business stationary source technical and environmental
compliance assistance program, submitted on January 12, 1993 and May
19, 1994, provided that New Hampshire submits in a timely manner the
additional legal authority necessary to fully implement the PROGRAM and
also submits the documentation designating a state agency to house the
small business ombudsman.
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.
EPA is proposing to conditionally approve the small business
stationary source technical and environmental compliance assistance
program submitted on January 12, 1993 with revisions on May 19, 1994.
The two outstanding issues with this SIP revision concern New
Hampshire's lack of a designated state agency to house the small
business ombudsman and the lack of adequate legal authority to
establish and implement the compliance advisory panel and small
business ombudsman. For this reason, EPA is proposing to conditionally
approve this SIP revision provided that the State meets its commitment
to submit the legislative authority allowing a compliance advisory
panel and small business ombudsman to be established and implemented.
Additionally, the state must demonstrate through documentation which
state agency will house the state small business ombudsman. 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 conditionally approves the commitment in a final
rulemaking action, the State must meet its commitment to have the
program fully operational by November 15, 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 New Hampshire
SIP. EPA subsequently will publish a document in 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. 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 (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
section 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: June 6, 1994.
John P. DeVillars,
Regional Administrator, Region III.
[FR Doc. 94-14418 Filed 6-13-94; 8:45 am]
BILLING CODE 6560-50-F
