[Federal Register Volume 59, Number 127 (Tuesday, July 5, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16128]
[[Page Unknown]]
[Federal Register: July 5, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NJ12-2-6314; NY9-2-6315; PR2-2-6316; VI2-2-6317; FRL-5004-6]
Clean Air Act Approval and Promulgation of Title V, Section 507,
Small Business Stationary Source Technical and Environmental Compliance
Assistance Program for Region 2 States: New Jersey, New York, Puerto
Rico, and the U.S. Virgin Islands
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing the conditional approvals to each state
implementation plan (SIP) revision submitted by the States of New
Jersey and the U.S. Virgin Islands, and the full approvals to each
state SIP revision submitted by New York and the Commonwealth of Puerto
Rico as proposed in the Federal Register on December 21, 1993 for the
purpose of establishing State Small Business Stationary Source
Technical and Environmental Compliance Assistance Programs (PROGRAMs).
The implementation plans were submitted by the states to satisfy the
Federal mandate 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.
EFFECTIVE DATE: This action is effective on August 4, 1994.
ADDRESSES: Copies of all of the States' submittals and EPA's technical
support documents are available for inspection during normal business
hours at the EPA Region II Office, 26 Federal Plaza, room 505, New
York, New York 10278. In addition, copies of a specific state submittal
and EPA's technical support document can be found at the appropriate
state office below:
New Jersey--Office of Permit Information and Assistance, New Jersey
Department of Environmental Protection and Energy, 401 East State
Street, Trenton, NJ 08625-0423, Attention: Chuck McCarty.
New York--Bureau of Technical Services, Air Resources Division, New
York State Department of Environmental Conservation, 50 Wolf Road,
Albany, NY 12233, Attention: Virginia Rest.
Puerto Rico--Air Programs Area, Puerto Rico Environmental Quality
Board, Eurobank Building, 431 Ponce de Leon Avenue, Hato Rey, PR 00910,
Attention: Francisco Claudio.
The U.S. Virgin Islands--Virgin Islands Department of Planning and
Natural Resources, Division of Environmental Protection, Building 111,
Apartment 114, Water Gut Homes, Christiansted, St. Croix, VI 00820,
Attention: Benjamin Nazario.
FOR FURTHER INFORMATION CONTACT: Steven C. Riva, Chief, Permitting and
Toxics Support Section, at the above EPA address or at telephone number
(212) 264-9356.
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 (Final Guidelines) 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 States of New Jersey, New York, Puerto Rico, and the U.S.
Virgin Islands have submitted SIP revisions 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
components: (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.
EPA proposed to conditionally approve New Jersey's and the U.S.
Virgin Islands' SIPs and fully approve New York's and Puerto Rico's
SIPs for the establishment of State PROGRAMs on December 21, 1993 (58
FR 67383). A detailed discussion of each state's PROGRAM and EPA's
evaluations of the PROGRAMs is contained in the above cited Federal
Register.
In addition, a thirty day public comment period was provided in the
December 21, 1993 Federal Register. Comments were received only on New
York's PROGRAM. For New Jersey, Puerto Rico, and the U.S. Virgin
Islands, no comments were received.
II. Summary of Submittals
A. New Jersey
New Jersey has met all of the requirements of section 507 of the
CAA by submitting a SIP revision on January 11, 1993 that implements
all required PROGRAM elements or delineates milestone dates for when
any remaining PROGRAM elements will be enacted by November 15, 1994.
The final plan was adopted by the New Jersey Department of
Environmental Protection and Energy (DEPE) on January 11, 1993.
New Jersey has met the first PROGRAM component by locating the SBAP
within DEPE's Office of Permit Information and Assistance and by
committing in its SIP to meet the six requirements set forth in section
507(a) of the CAA. New Jersey has met the second PROGRAM component and
the seventh requirement of section 507(a) of the CAA by designating the
New Jersey Department of Commerce and Economic Development, Office of
Business Advocacy, to be the Small Business Ombudsman's Office. To meet
the third PROGRAM component and section 507(e) of the CAA, New Jersey
will enact legislation in order to authorize the establishment of a
CAP, and members to the CAP will be appointed no later than November
15, 1994.
EPA finds that New Jersey presently lacks the requisite authority
to establish a CAP. Therefore, EPA is conditionally approving New
Jersey's section 507 program. Full approval will be granted once
authority to establish a CAP has been enacted and submitted as a SIP
revision.
B. New York
New York has met all of the requirements of section 507 of the CAA
by submitting a SIP revision on January 11, 1993 that implements all
required PROGRAM elements or delineates milestone dates for when any
remaining PROGRAM elements will be enacted by November 15, 1994. A copy
of New York's adopted legislation authorizing the PROGRAM was sent as a
supplement to the SIP on August 26, 1993. The final plan was adopted by
the New York State Department of Environmental Conservation (DEC) on
January 11, 1993.
New York has met the first PROGRAM component by locating the SBAP
within the New York State Environmental Facilities Corporation (EFC)
with oversight provided by DEC's Small Business Section. New York has
also committed in its SIP to meet the six requirements set forth in
section 507(a) of the CAA for the Small Business Assistance Program.
New York has met the second PROGRAM component and the seventh
requirement of section 507(a) of the CAA by designating the New York
State Department of Economic Development, Division of Small Business,
to be the Small Business Ombudsman's Office. To meet the third PROGRAM
component and section 507(e) of the CAA, New York has enacted
legislation which authorizes the duties of the CAP and the appointment
of members. Because New York has met all requisite requirements and has
the authority to implement all PROGRAM elements, EPA is approving New
York's section 507 program. However, New York still needs to appoint
members to the CAP, which must occur no later than November 15, 1994.
EPA received two comments on New York's revised SIP during the 30
day public comment period. The comments have been evaluated by EPA, and
a summary of the comments and EPA's responses are set forth below.
Comment #1: The Environmental Facilities Corporation (EFC), New
York's SBAP Office, commented that New York's PROGRAM could be
strengthened if the following changes were made to the SIP: (1) The
SBAP is evaluated by the CAP only and not by the state Ombudsman; and
(2) the SBAP is able to address the CAP directly as its own
representative instead of the Ombudsman acting as the representative of
the SBAP before the CAP. EFC believes that in order for the PROGRAM to
function most effectively, the Ombudsman and SBAP must be partners with
a mutually beneficial relationship. However, this equal partnership is
disturbed under New York's PROGRAM because: the Ombudsman has
evaluative power over the SBAP; and the SBAP does not have the power to
represent itself, its program and its efforts directly to the CAP, but
is indirectly represented by a third voice, the Ombudsman.
Response: The two suggestions raised by EFC have been carefully
considered by EPA and DEC, and EPA is providing the following specific
responses.
With regards to the first suggestion, EPA disagrees with the
concept of a state Ombudsman not evaluating the SBAP. In EPA's Final
Guidelines, EPA delineates several suggested duties of an Ombudsman's
office. Two of the duties include: conducting independent evaluations
of all aspects of the SBAP; and periodically reviewing the work and
services provided by the SBAP with trade associations and small
business representatives. One of EPA's criteria in determining whether
the state office chosen as Ombudsman can adequately serve in its duties
is whether the Ombudsman's office has been granted sufficient
independent authority to identify problems and make recommendations as
they relate to the implementation of the SBAP. New York has met EPA's
criteria by granting the Ombudsman the above evaluative roles.
Furthermore, the Ombudsman's office, in its role as the representative
of small businesses, is the place where small businesses go if they
have grievances regarding the SBAP or are not getting the necessary
technical assistance. The Ombudsman must, therefore, have the authority
to make recommendations on how the SBAP can be more effective. Thus,
EPA believes New York's SIP should not be revised to remove the
Ombudsman's ability to evaluate the SBAP as such an evaluative role is
imperative for the Ombudsman's Office to be a true representative of
the small business community.
With regards to the second suggestion, New York had always intended
that the SBAP could present itself, its program and its efforts
directly to the CAP. The SIP also allows for each small business office
(including the SBAP, Ombudsman, and DEC) to provide input to the CAP in
the form of progress reports, pending issues and proposed actions for
the CAP to use during its quarterly or semiannual meetings.
Nevertheless, in order to alleviate any confusion, New York submitted a
supplement to its SIP which clarifies what New York meant when stating
that the ``Ombudsman will serve as the representative of the SBAP to
the Compliance Advisory Panel.'' The word ``representative'' in this
phrase means ``overall evaluator''. In other words, the Ombudsman will
provide the CAP with an overall evaluation of the SBAP. The word
``representative'' is not meant to infer that the Ombudsman will act as
the agent of the SBAP before the CAP. The supplement further clarifies
that the SBAP can present itself before the CAP to explain its
accomplishments, make recommendations, and express any program needs.
EPA finds that the structure as provided in New York's SIP is
acceptable based on section 507 of the CAA and EPA's Final Guidelines.
Therefore, EPA is finalizing its approval of New York's PROGRAM.
Comment #2: The Erie County Environmental Compliance Services
Program commented that New York's SBAP should be encouraged to utilize
the services of local agencies that already provide assistance to small
businesses in the State. The Erie County program, as well as several
other local programs throughout New York State, already successfully
provide many of the services/functions in rendering technical
assistance to small businesses as proposed for the SBAP. The Erie
County program endorses that local programs continue to receive state
and federal funds, including funds to be supported by Title V fees, so
that the local programs can work with the SBAP on technical assistance
to the small business community.
Response: EPA supports Erie County's endorsement that New York use
existing local infrastructures as a means to reach out to the small
business community. New York also endorses the concept. One reason DEC
chose EFC as the SBAP is that EFC has the ability to subcontract with
local agencies. EFC fully intends to limit the size of its in-house
staff working on the SBAP and will use existing local programs to
perform audits and conduct other field activities where the scope and
volume of those activities exceed EFC's in-house staff capacity.
C. Puerto Rico
Puerto Rico has met all of the requirements of section 507 of the
CAA by submitting a SIP revision on November 16, 1992 that implements
all required PROGRAM elements or delineates milestone dates for when
any remaining PROGRAM elements will be enacted by November 15, 1994.
Supplemental information was sent on January 14, 1993 and October 25,
1993, which included Puerto Rico's adopted legislation authorizing the
PROGRAM. The final plan was adopted by the Puerto Rico Environmental
Quality Board (EQB) on November 4, 1992.
Puerto Rico has met the first PROGRAM component by locating the
SBAP within EQB's Planning Division and committing in its SIP to meet
the six requirements set forth in section 507(a) of the CAA. Puerto
Rico has met the second PROGRAM component and the seventh requirement
of section 507(a) of the CAA by recommending that the Governor choose
the existing Citizen's Ombudsman's, the Puerto Rico Citizen's
Investigating Official as Puerto Rico's Ombudsman's Office. Legislation
has been enacted which provides authority for the Ombudsman's duties.
To meet the third PROGRAM component and section 507(e) of the CAA,
Puerto Rico has enacted legislation which authorizes the duties of the
CAP and the appointment of members. Because Puerto Rico has met all the
requisite requirements and has the authority to implement all PROGRAM
elements, EPA is approving Puerto Rico's section 507 program. However,
Puerto Rico still needs to have an Ombudsman's Office in place and
appoint members to the CAP, which must occur no later than November 15,
1994.
D. The U.S. Virgin Islands
The U.S. Virgin Islands has met all of the requirements of section
507 of the CAA by submitting a SIP revision on January 15, 1993 that
implements all required PROGRAM elements or delineates milestone dates
for when any remaining PROGRAM elements will be enacted by November 15,
1994. The final plan was adopted by the Virgin Islands Department of
Planning and Natural Resources (DPNR) on January 14, 1993.
The U.S. Virgin Islands has met the first PROGRAM component by
locating the SBAP within DPNR's Division of Environmental Protection
and by committing in its SIP to meet the six requirements set forth in
section 507(a) of the CAA. The U.S. Virgin Islands has met the second
PROGRAM component and the seventh requirement of section 507(a) of the
CAA by designating the Virgin Islands Small Business Development Agency
to be the Small Business Ombudsman's Office. The Ombudsman's Office
will be assisted by the Small Business Development Center of the
University of the Virgin Islands. To meet the third PROGRAM component
and section 507(e) of the CAA, the U.S. Virgin Islands will enact
legislation to authorize the establishment of a CAP, and members to the
CAP will be appointed no later than November 15, 1994.
EPA finds that the U.S. Virgin Islands presently lacks the
requisite authority to establish a CAP. Therefore, EPA is conditionally
approving the U.S. Virgin Islands' section 507 program. Full approval
will be granted once authority to establish a CAP has been enacted and
submitted as a SIP revision.
III. Final Action
EPA is conditionally approving the SIP revisions submitted by the
States of New Jersey and the U.S. Virgin Islands, and fully approving
the SIP revisions submitted by New York and Puerto Rico. The revisions
were made to satisfy the requirements of section 507 of the CAA.
Because New Jersey and the U.S. Virgin Islands have made
commitments that EPA believes meet the requirements necessary for EPA
to grant conditional approval, EPA is granting a conditional approval
under section 110(k)(4) of the Act. New Jersey and the U.S. Virgin
Islands must meet their commitment to have their programs fully
operational by November 15, 1994 and submit these requirements to EPA
by that date. If New Jersey or the U.S. Virgin Islands fails to adopt
or submit any of these requirements to EPA within this time frame, 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 Jersey or U.S.
Virgin Islands SIP. EPA subsequently will publish a notice in the
notice section of the Federal Register. If the state adopts and submits
these requirements to EPA 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 submittal. If
EPA disapproves the new submittal, the conditionally approved Small
Business Plan will also be removed from the SIP. If EPA approves the
submittal, those newly approved rules will become a part of the SIP and
will modify or replace the commitment and the Small Business Plan on
which the conditional approval is based.
If the conditional approval is converted to a disapproval, the
sanctions clock under section 179(a) will begin. This clock will begin
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 the sanctions clock has begun. If the State does
not submit and EPA does not approve the rule on which the disapproval
was based within 18 months of the disapproval, EPA must impose one of
the sanctions under section 179(b)--highway funding restrictions or the
offset sanction. In addition, the final disapproval triggers the
federal implementation plan (FIP) requirement under section 110(c).
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 an October 4, 1993
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. A future notice 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
requirements of Section 3 of Executive Order 12291 for a period of two
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.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the state
implementation plan 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., 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 or fully approving four (4)
State programs created for the purpose of assisting small businesses in
complying with existing statutory and regulatory requirements. The
programs being conditionally or fully approved today do not impose any
new regulatory burden on small businesses; these are programs under
which small businesses may elect to take advantage of assistance
provided by the state. Therefore, because the EPA's conditional or full
approvals of these four programs do not impose any new regulatory
requirements on small businesses, EPA certifies that this action does
not have a significant economic impact on any small entities affected.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit within 60 days from date of publication. 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, Small business
assistance program.
Dated: June 10, 1994.
William J. Muszynski,
Acting Regional Administrator.
40 CFR Part 52 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 FF--New Jersey
2. Section 52.1607 is added to read as follows:
Sec. 52.1607 Small business technical and environmental compliance
assistance program.
On January 11, 1993, the New Jersey Department of Environmental
Protection and Energy submitted a plan for the establishment and
implementation of a Small Business Stationary Source Technical and
Environmental Compliance Assistance Program for incorporation in the
New Jersey state implementation plan. This plan satisfies the
requirements of section 507 of the Clean Air Act, and New Jersey must
implement the program as approved by EPA.
Subpart HH--New York
3. Section 52.1690 is added to read as follows:
Sec. 52.1690 Small business technical and environmental compliance
assistance program.
On January 11, 1993, the New York State Department of Environmental
Conservation submitted a plan for the establishment and implementation
of a Small Business Stationary Source Technical and Environmental
Compliance Assistance Program for incorporation in the New York state
implementation plan. This plan meets the requirements of section 507 of
the Clean Air Act, and New York must implement the program as approved
by EPA.
Subpart BBB--Puerto Rico
4. Section 52.2732 is added to read as follows:
Sec. 52.2732 Small business technical and environmental compliance
assistance program.
On November 16, 1992, the Puerto Rico Environmental Quality Board
submitted a plan for the establishment and implementation of a Small
Business Stationary Source Technical and Environmental Compliance
Assistance Program for incorporation in the Puerto Rico state
implementation plan. This plan meets the requirements of section 507 of
the Clean Air Act, and Puerto Rico must implement the plan as approved
by EPA.
Subpart CCC--Virgin Islands
5. Section 52.2782 is added to read as follows:
Sec. 52.2782 Small business technical and environmental compliance
assistance program.
On January 15, 1993, the Virgin Islands Department of Planning and
Natural Resources submitted a plan to establish and implement a Small
Business Stationary Source Technical and Environmental Compliance
Assistance Program for incorporation in the Virgin Islands state
implementation plan. This plan meets the requirements of section 507 of
the Clean Air Act, and the U.S. Virgin Islands must implement the
program as approved by EPA.
[FR Doc. 94-16128 Filed 7-1-94; 8:45 am]
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