[Federal Register Volume 60, Number 157 (Tuesday, August 15, 1995)]
[Rules and Regulations]
[Pages 42042-42045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20019]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH40-1-5784a; AD-FRL-5276-7]
Approval and Promulgation of Small Business Assistance Program;
Ohio
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: USEPA is approving the State Implementation Plan (SIP)
revision submitted by the State of Ohio for the purpose of establishing
a Small Business Assistance Program (SBAP). 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.
DATES: This action will be effective October 16, 1995 unless notice is
received by September 14, 1995, that someone wishes to submit adverse
or critical comments. If the effective date is delayed, timely notice
will be published in the Federal Register.
ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Regulation Development Branch (AR-18J),
United States Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
Copies of the State's submittal and USEPA's technical support
document are available for inspection during normal business hours at
the following location: Regulation Development Section, United States
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: John Summerhays, Regulation
Development Branch, Regulation Development Section (AR-18J), United
States Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, telephone (312) 886-6067.
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, both
to provide for attainment of the national ambient air quality standards
(NAAQS) in the areas in which they are located and to 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
Assistance Program (SBAP) and submit this SBAP as a revision to the
Federally approved SIP. In addition, the CAA directs the USEPA to
oversee these small business assistance programs and report to Congress
on their implementation.
The requirements for establishing a SBAP are set out in section 507
of the CAA. In January 1992, USEPA 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 to provide further guidance to the States on
submitting acceptable SIP revisions. This guidance specifies that the
State submittal must provide for each of the
[[Page 42043]]
following SBAP elements: (1) the establishment of a 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.
Ohio's initial submittal addressing SBAP requirements was a
commitment and schedule submitted to USEPA on January 8, 1993. More
complete descriptions of the planned program were submitted on November
10, 1993, and May 17, 1994. USEPA expressed concern that Ohio was
including unacceptable provisions for confidentiality of emissions
data. After considerable discussion of this issue, USEPA issued revised
guidance on August 12, 1994, providing two new alternatives by which
sources would not be ``penalized'' (via added enforcement action or
adverse publicity) for seeking SBAP assistance and yet by which
appropriate enforcement under Sections 113 and 114 may properly
proceed. Ohio submitted a further refinement of its SBAP in accordance
with this policy on May 4, 1995. The following section evaluates
whether these submittals satisfy the requirements for SBAP programs.
II. Evaluation of State Submittals
A. Assistance to be Provided to Small Businesses
Six of the seven requirements set forth in section 507(a) specify
types of assistance that the State must provide to have an approvable
SBAP. (The seventh requirement of section 507(a), establishment of an
Ombudsman office, is discussed in the next section.) (1) The State must
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; (2) The State must 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; (3)
The State must 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; (4) The State must 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
regulation or standards issued under the Act; (5) The State must
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; and (6) The State must 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.
Ohio's submittals specify suitable mechanisms its SBAP will use to
be able to satisfy these requirements. Ohio is operating its SBAP as
part of the Division of Air Pollution Control of the Ohio Environmental
Protection Agency (OEPA). As a result, SBAP staff will have direct
access to the expertise of OEPA staff in order to provide small
businesses the information on compliance techniques, applicable
requirements, technical information on efficient and effective means of
achieving compliance, pollution prevention opportunities, and other
information small businesses need to achieve and maintain compliance.
The SBAP will also provide audits where appropriate.
B. Ombudsman.
Section 507(a)(3) requires the designation of a State office to
serve as the Ombudsman for small business stationary sources. Ohio has
established an Ombudsman's office at the Ohio Air Quality Development
Authority (OAQDA). The OAQDA is a financing agency for industries that
are trying to meet pollution control requirements. It was established
by the Ohio General Assembly in 1970 as an independent organization.
OAQDA's current work has given it expertise in complicated technical
issues. The OAQDA has hired personnel to develop and execute the
program and will implement the functions set forth in USEPA's guidance.
C. 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 committed to establish a CAP according to
the methods set forth in section 507(e) of the CAA.
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 USEPA concerning the SBAP's
adherence to the principles of the Paperwork Reduction Act, the Equal
Access to Justice Act, and the Regulatory Flexibility Act 1; (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
committed to meet these requirements by establishing the Panel and
assigning the Panel functions as set forth in section 507(e) of the
CAA.
\1\ 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 SBAP must merely require the CAP to report
on whether the SBAP is adhering to the general principles of these
Federal statutes.
D. Eligibility
Section 507(c)(1) of the CAA defines the term ``small business
stationary source'' as a stationary source that:
1. Is owned or operated by a person who employs 100 or fewer
individuals;
2. Is a small business concern as defined in the Small Business
Act;
3. Is not a major stationary source;
4. Does not emit 50 tons per year (tpy) or more of any regulated
pollutant; and
5. Emits less than 75 tpy of all regulated pollutants.
Ohio defines the number of employees on a full-time equivalent
basis, which results in availability of small business assistance to
slightly more companies than would be the case with a definition on a
number of people employed basis.
[[Page 42044]]
USEPA permits States to grant SBAP eligibility to sources that do
not meet the criteria of sections 507(c)(1) (C), (D), and (E) of the
CAA but do not emit more than 100 tpy of all regulated pollutants. Ohio
has chosen to grant such eligibility if its resources are
underutilized.
USEPA also permits States to exclude from the small business
stationary source definition, after consultation with the USEPA and the
Small Business Administration Administrator and after providing notice
and opportunity for public comment, any category or subcategory of
sources that the State determines to have sufficient technical and
financial capabilities to meet the requirements of the CAA. Ohio's plan
contains provisions to exclude such sources.
E. Schedule
The State submitted a detailed schedule for implementation of its
SBAP, including milestones for adoption of legislation, adoption of SIP
elements, hiring of staff, and other actions necessary to initiate SBAP
operations. These dates have now passed, and Ohio has completed its
commitments sufficiently to begin providing assistance to small
businesses.
F. Confidentiality
An important issue for SBAPs in general, and Ohio's SBAP in
particular, is the extent to which the State may promise sources
seeking SBAP assistance that the information the State obtains will be
kept confidential. On the one hand, sources may choose not to seek the
benefits of SBAP assistance without being assured that they will not be
penalized for seeking that assistance, whether by becoming subject to
enforcement action that they would not otherwise have encountered or by
receiving adverse publicity for noncompliance. On the other hand,
Section 114 of the CAA specifically provides that emissions data shall
not be kept confidential, and a source must not be shielded from
enforcement action simply by having requested SBAP assistance.
A review by USEPA of earlier Ohio's SBAP submittals, documented in
a technical support document dated April 21, 1994, concluded that
Ohio's legislation and program description granted excessive
confidentiality, including confidentiality of emissions data, and
thereby contravened Section 114 of the CAA and USEPA's guidance on the
proper balance between confidentiality and enforcement. After further
consideration of the confidentiality issue, USEPA established a revised
policy on this issue by a memorandum dated August 12, 1994. The revised
policy provides two new options designed to balance the needs of
sources (which need to believe they will not be penalized for seeking
SBAP assistance) with the needs of USEPA's enforcement and compliance
assurance program. The first option under the revised policy, labeled
the ``correction period option,'' allows States in specified
circumstances to give small businesses up to 90 days to correct
violations discovered during SBAP assistance. The second option,
labeled the ``confidentiality option,'' allows States with separation
between their SBAP and their enforcement program to have the SBAP keep
the identity of noncomplying sources confidential, though the SBAP is
to provide statistical and other summary information to the enforcement
program, and the State is to retain the option of taking enforcement
action considering whether SBAP participation reflects good faith
effort to achieve compliance.
Ohio has adopted the ``confidentiality option.'' In its description
of its SBAP, by memorandum dated April 27, 1995, Ohio uses language
very similar to that given in USEPA's policy to describe how it will
handle information obtained as a result of SBAP assistance. Ohio's SBAP
``will keep confidential information regarding violations detected in
the program, including names and locations of businesses, [but] will
provide emissions data and general statistical information such as the
types of noncompliance being encountered.'' In addition, the State
reserves the right to conduct follow-up audits to assess program
effectiveness. At the same time, Ohio's SBAP description states that
``[Ohio's] enforcement program is not prohibited from taking action
against small businesses who are receiving SBAP assistance. However,
considering that [enforcement staff] are granted enforcement
discretion, the enforcement program may consider a company's good faith
efforts to achieve compliance by participating in the SBAP as a
mitigating factor in determining the appropriate enforcement response
or civil penalty.'' The description concludes that ``The SBAP will act
independently of [Ohio's] enforcement program'' but will work with the
enforcement program to seek consistency in the compliance advice given.
Thus, Ohio's provisions on confidentiality are fully consistent with
USEPA's revised policy.
III. Final Action
USEPA concludes that Ohio's SBAP submittals fully satisfy the
requirements of Section 507 of the CAA. Because USEPA considers the
action noncontroversial and routine, USEPA is taking final action to
approve these submittals without prior proposal. This action will
become effective on October 16, 1995, unless notice is received by
September 14, 1995 that someone wishes to submit adverse or critical
comments. If the effective date is delayed, timely notice will be
published in the Federal Register.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. USEPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget exempted this
regulatory action from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., USEPA
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, USEPA 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.
USEPA 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 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 USEPA'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. In addition, the statutory and regulatory
requirements at issue in this action were in effect prior to January 1,
1996, and are thus not
[[Page 42045]]
subject to the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates
Act), signed into law on March 22, 1995.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 16, 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, Small business
assistance program.
Dated: July 28, 1995.
William E. Muno,
Acting Regional Administrator.
Title 40 of the Code of Federal Regulations, chapter I, part 52, is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart KK--[Amended]
2. Section 52.1889 is added to read as follows:
Sec. 52.1889 Small business stationary source technical and
environmental compliance assistance program.
The Ohio program, submitted as a requested revision to the Ohio
State Implementation Plan on May 17, 1994, and May 4, 1995, satisfies
the requirements of section 507 of the Clean Air Act.
[FR Doc. 95-20019 Filed 8-14-95; 8:45 am]
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