[Federal Register Volume 60, Number 171 (Tuesday, September 5, 1995)]
[Rules and Regulations]
[Pages 46025-46029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21884]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OR-31-1-5932a; FRL-5283-4]
Approval and Promulgation of Implementation Plans: Oregon
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) approves the State
of Oregon Implementation Plan (SIP) revision submitted by the State of
Oregon for the purpose of establishing a Small Business Stationary
Source Technical and Environmental Compliance Assistance Program. The
implementation plan was submitted by the State to satisfy the Federal
mandate, found in Section 507 of the Clean Air Act (CAA or the Act), to
ensure that small businesses have access to the
[[Page 46026]]
technical assistance and regulatory information necessary to comply
with the CAA. The rationale for the approval is set forth in this
notice; additional information is available at the address indicated
below.
DATES: This final rule is effective November 6, 1995 unless notice is
received by unless adverse or critical comments are received by October
5, 1995. If the effective date is delayed, timely notice will be
published in the Federal Register.
ADDRESSES: Written comments should be addressed to: Montel Livingston,
SIP Manager, Air & Radiation Branch (AT-082), EPA, OR-31-1-5932, 1200
Sixth Avenue, Seattle, Washington 98101.
Documents which are incorporated by reference are available for
public inspection at the Air and Radiation Docket and Information
Center, Environmental Protection Agency, 401 M Street, SW., Washington,
DC 20460. Copies of material submitted to EPA may be examined during
normal business hours at the following locations: EPA, Region 10, Air &
Radiation Branch, 1200 Sixth Avenue (AT-082), Seattle, Washington
98101, and the Oregon Department of Environmental Quality, 811 SW.
Sixth Avenue, Portland, OR 97204.
FOR FURTHER INFORMATION CONTACT: David J. Dellarco, Air and Radiation
Branch (AT-082), EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101,
(206) 553-4978.
SUPPLEMENTARY INFORMATION:
I. Background
Implementation of the provisions of the Clean Air Act (CAA or Act),
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 January 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 Oregon has submitted a SIP revision to EPA in order to
satisfy the requirements of Section 507. Section 468.330 of the Oregon
Revised Statutes establishes a Small Business Stationary Source
Technical and Environmental Compliance Assistance Program and requires
the Program to include each element specified in section 507(a) of the
Act. 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 to determine and report on the overall
effectiveness of the SBAP.
II. Analysis
1. Small Business Assistance Program
Section 507(a) sets forth six requirements1 that the State
must meet to have an approvable SBAP. The first requirement is to
establish adequate mechanisms for developing, collecting and
coordinating information concerning compliance methods and technologies
for small business stationary sources, and programs to encourage lawful
cooperation among such sources and other persons to further compliance
with the Act. The State has met this requirement through participation
in a Pacific Northwest regional effort designed to ensure collection
and development of compliance methods and technologies for small
businesses. In addition, Oregon's SBAP has an information component and
a technical assistance component. The information component advises
small business about air quality regulations that may affect them,
through education, outreach, and toll-free telephone access. The
technical assistance component helps small businesses through direct
consultation and site visits.
\1\A seventh requirement of Section 507(a), establishment of an
Ombudsman office, is discussed in the next section.
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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 coordinating and integrating SBAP
activities with its pollution prevention activities, in particular the
toxics use and waste reduction program. In addition, Oregon's SBAP will
coordinate with the State Fire Marshal, Oregon-OSHA, and local
emergency response programs in order to ensure small businesses receive
assistance and information on accidental release detection and
prevention.
The third requirement is to develop a compliance and technical
assistance program for small business stationary sources which assists
small businesses in determining applicable requirements and in
receiving permits under the Act in a timely and efficient manner. The
State has met this requirement by training staff in regulatory and
permitting requirements, informing small businesses of their
responsibilities through outreach, and providing compliance assistance
through the SBAP.
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 regulation or standards issued under
the Act. The State has met this requirement by ensuring that small
business rights are included in education and outreach materials and
activities, as well as during the delivery of technical assistance.
Oregon follows a policy of providing the regulated community with at
least 30 calendar days advance notice before applicable requirements
take effect.
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
State has met this requirement through a policy of providing the
regulated community with at least 30 calendar days advanced notice of
their obligations under state law, developing a program for qualified
outside auditors
[[Page 46027]]
to provide compliance assessments upon request, and providing
compliance assistance through the Compliance Assessment Program.
The sixth requirement is to develop procedures for consideration of
requests from a small business stationary source for modification of
(A) any work practice or technological method of compliance, or (B) the
schedule of milestones for implementing such work practice or method of
compliance preceding any applicable compliance date, based on the
technological and financial capability of any such small business
stationary source. The State has met this requirement by developing
standardized criteria and administrative procedures for considering
such requests.
2. Ombudsman
Section 507(a)(3) requires the designation of a State office to
serve as the Ombudsman for small business stationary sources. The State
has met this requirement by establishing and filling a new technical
assistance coordinator position located in the administration section
of the Department's Regional Operations Division. The technical
assistance coordinator is assigned the responsibilities of the Small
Business Ombudsman.
3. Compliance Advisory Panel
Section 507(e) requires the State to establish a Compliance
Advisory Panel (CAP) that must include two members selected by the
Governor who are not owners or representatives of owners of small
businesses; four members selected by the State legislature who are
owners, or represent owners, of small businesses; and one member
selected by the head of the agency in charge of the Air Pollution
Permit Program. The State has met this requirement by establishing a
Compliance Advisory Panel comprised of these individuals. See ORS
468A.330(3).
In addition to establishing the minimum membership of the CAP, the
CAA delineates four responsibilities of the Panel: (1) to render
advisory opinions concerning the effectiveness of the SBAP,
difficulties encountered and the degree and severity of enforcement
actions; (2) to periodically report to EPA concerning the SBAP's
adherence to the principles of the Paperwork Reduction Act, the Equal
Access to Justice Act, and the Regulatory Flexibility Act;\2\ (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 by authorizing its CAP to address these
responsibilities. See ORS 468A.330(2).
\2\Section 507(e)(1)(B) requires the CAP to report on the
compliance of the SBAP with these three Federal statutes. However,
since State agencies are not required to comply with them, EPA
believes that the State PROGRAM must merely require the CAP to
report on whether the SBAP is adhering to the general principles of
these Federal statutes.
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4. Eligibility
Section 507(c)(1) of the CAA defines the term ``small business
stationary source'' as a stationary source that:
(A) Is owned or operated by a person who employs 100 or fewer
individuals;
(B) Is a small business concern as defined in the Small Business
Act;
(C) Is not a major stationary source;
(D) Does not emit 50 tons per year (tpy) or more of any regulated
pollutant; and
(E) Emits less than 75 tpy of all regulated pollutants.
The State of Oregon 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.
The State of Oregon 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 of Oregon has provided for exclusion from the small
business stationary source definition, after consultation with the EPA
and the Small Business Administration Administrator and after providing
notice and opportunity for public comment, of any category or
subcategory of sources that the State determines to have sufficient
technical and financial capabilities to meet the requirements of the
CAA.
5. Onsite Technical Assistance
The statute establishing the Oregon Small Business Program, ORS
468A.330, provides that onsite technical assistance for the development
and implementation of the Small Business Stationary Source Technical
and Environmental Compliance Assistance Program shall not result in
inspections or enforcement actions except where there is reasonable
cause to believe that a clear and immediate danger to the public health
and safety or to the environment exists. See ORS 468A.330(4)(a). On
August 12, 1994, EPA issued a guidance memorandum entitled
``Enforcement Response Policy for Treatment of Information Obtained
Through Clean Air Act Section 507 Small Business Assistance Programs''
signed by Steven A. Herman (herein referred to as the ``SBA Enforcement
Guidance''), which sets forth EPA's enforcement response policy on the
treatment of violations detected during compliance assistance visits
under State Small Business Assistance Programs. The SBA Enforcement
Guidance endorses State PROGRAMS that either (1) voluntarily seek
compliance assistance a limited period to correct violations observed
or revealed as a result of compliance assistance or (2) if the PROGRAM
is independent of the delegated State air enforcement program, keep
confidential information that identifies the names and locations of
specific small businesses with violations revealed through compliance
assistance.
The Oregon statute does not satisfy the requirements of the first
option of the SBA Enforcement Guidance in that ORS 468A.330(4)(a) does
not simply give sources that receive onsite technical assistance a
limited opportunity to correct a violation, but instead prohibits
further enforcement inspections and enforcement actions that result
from onsite technical assistance. On May 16, 1995, the State or Oregon
submitted to EPA a guidance document entitled ``Air Quality Guidance:
Restriction of Information Obtained by the AQ Small Business Assistance
Program'' (hereinafter, ``Oregon's SBAP Confidentiality Guidance'').
This document requires the PROGRAM to be operated independently of
Oregon's air program enforcement efforts and requires the PROGRAM to
restrict access by Oregon air enforcement staff to information
regarding violations detected through onsite technical assistance
visits to small businesses.
EPA has reviewed Oregon's SBAP Confidentiality Guidance and
believes that it meets the conditions that apply to State's choosing
the confidentiality option. Specifically, Oregon's SBAP Confidentiality
Guidance is an official policy that establishes independence between
the PROGRAM and the Oregon air enforcement program; it restricts access
by Oregon air enforcement staff to information regarding violations
detected through onsite technical assistance visits to small
businesses; it requires the PROGRAM to report general statistical and
other information about small business compliance to the Department of
Environmental Quality and requires the PROGRAM to track
[[Page 46028]]
compliance progress where it identifies violations during onsite
technical assistance; the Department retains full discretion to take
enforcement action against violations documented independently of
onsite technical assistance visits; and Oregon's PROGRAM is subject to
the eligibility requirements of Section 507(c) of the Clean Air Act. In
summary, EPA believes that ORS 468A.330(4)(a), when implemented in
accordance with Oregon's SBA Confidentiality Guidance, is consistent
with EPA's SBA Enforcement Guidance.
III. This Action
In this action, EPA approves the SIP revision submitted by the
State of Oregon. The State of Oregon has submitted a SIP revision
implementing each of the required PROGRAM elements required by Section
507 of the CAA. The Program is currently being implemented. EPA is
therefore approving this submittal.
IV. Administrative Review
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 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 business entities affected.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
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.
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 (OMB) has
exempted this regulatory action from E.O. 12866 review.
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. This action will be
effective November 6, 1995 unless, within 30 days of its publication,
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 notice that will
withdraw the final action. All public comments received will 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 November 6, 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 November 6, 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), 42 U.S.C.
7607(b)(2).
List of Subjects in 40 CFR Part 52
Air pollution control, Incorporation by reference, Small Business
Assistance Program.
Dated: August 8, 1995.
Charles Findley,
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.
[[Page 46029]]
Subpart MM--Oregon
2. Section 52.1970 is amended by adding paragraph (c) (112) to read
as follows:
Sec. 52.1970 Identification of plan.
* * * * *
(c) * * *
(112) On November 16, 1992, the Director for the Oregon Department
of Environmental Quality (ODEQ) submitted the Oregon State Small
Business Stationary Source Technical and Environmental Compliance
Assistance Program and on May 16, 1995, the Administrator for ODEQ
submitted the Small Business Assistance Program Confidentiality Option
as revisions to the Oregon State Implementation Plan.
(i) Incorporation by reference.
(A) The November 16, 1992 letter from the Director of the Oregon
Department of Environmental Quality submitting the Small Business
Stationary Source Technical and Environmental Compliance Assistance
Program to EPA; The Oregon Air Quality Small Business Assistance
Program State Implementation Plan Revision adopted on October 16, 1992,
and evidence that the State has the necessary legal authority, Oregon
Revised Statutes 468A.330 (Small Business Stationary Source Technical
and Environmental Compliance Assistance Program).
(B) The May 16, 1995 letter from the Administrator of the Oregon
Department of Environmental Quality, Air Quality Division, submitting
the Small Business Assistance Program confidentiality option to EPA;
The Air Quality Guidance, Restriction of Information Obtained by the AQ
Small Business Assistance Program adopted on May 16, 1995.
[FR Doc. 95-21884 Filed 9-1-95; 8:45 am]
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