[Federal Register Volume 59, Number 8 (Wednesday, January 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-759]


[[Page Unknown]]

[Federal Register: January 12, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE15-1-6000; A-1-FRL-4825-6]

 

Approval and Promulgation of Air Quality Implementation Plans; 
Delaware-Small Business Stationary Source Technical and Environmental 
Compliance Assistance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of Delaware for the purpose of 
establishing a Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program (SBTCP). This SIP revision 
was submitted by Delaware 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. The rational for approving is set forth in this notice; 
additional information is available at the address indicated below. 
This action is being taken in accordance with the provisions of the 
Clean Air Act.
DATES: Comments must be received on or before February 11, 1994.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air, 
Radiation, and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, PA 19107. Copies of 
the documents relevant to this action are available for public 
inspection during normal business hours at the Air, Radiation, and 
Toxics Division, U.S. Environmental Protection Agency, Region III, 841 
Chestnut Building, Philadelphia, PA 19107; Jerry Kurtzweg (ANR-443), 
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460; and Delaware Department of Natural Resources and Environmental 
Control, P.O. Box 1401, Dover Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Lisa M. Donahue, (215) 597-9781.

SUPPLEMENTARY INFORMATION:

I. Background

    Implementation of the provisions the CAA 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, and submit this Program as 
a revision to the federally approved SIP. In addition, the CAA directs 
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.
    On January 11, 1993, the State of Delaware submitted a formal 
revision to its SIP. The SIP revision consists of a plan for 
establishing an SBTCP. 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. The plan must also determine 
the eligibility of small business stationary sources for assistance in 
the program. The plan includes the duties, funding, and schedule of 
implementation for the three program components.
    Delaware Department of Natural Resources and Environmental Control 
(DE DNREC) is authorized to create and administer the SBTCP. Delaware 
DNREC can create and administer the SBAP, and create the Office of the 
Ombudsman. Through an executive order, the Governor of the State of 
Delaware will establish the Compliance Advisory Panel.

II. Summary and Analysis of SIP Revision

    Section 507(a) of the CAA sets forth seven requirements that 
Delaware must meet to have an approvable SBAP. Three requirements will 
be discussed in the first section, and the remaining four requirements, 
including the establishment of an Ombudsman, in the second section.

1. Small Business Assistance Program

    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. Delaware 
has met this requirement by establishing a SBAP, with the 
responsibility of serving as a clearinghouse for information related to 
compliance methods and control technologies.
    Small businesses will be referred to state technical experts 
specifically trained to handle questions relevant to achieving 
compliance with the CAA. The SBAP will be coordinated through the Air 
Quality Management Section and will respond to inquiries from small 
businesses received through the ombudsman's toll-free hotline. 
Information workshops, industry-specific compliance publications, and 
roundtable groups are examples of planned outreach activities. A list 
of potentially affected parties will be developed in conjunction with 
the State of Delaware Department of Labor.
    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. 
Delaware DNREC established a Pollution Prevention Program in 1990 which 
provides education, technical assistance, and financial incentives to 
improve environmental quality. Small businesses have access to 
Delaware's Waste Minimization/Pollution Prevention Information 
Clearinghouse. In addition to distributing pollution prevention guides, 
DE DNREC has established a Pollution Prevention Industry Roundtable to 
facilitate technology transfer between large and small businesses.
    To address accidental release detection and prevention, the Air 
Quality Management Section has been administering Delaware's 
``Regulation for the Management of Extremely Hazardous Substances'' 
through the Industrial Disaster Prevention Group (IDPG). Facility 
visits and compliance discussions are a part of this program, as is the 
distribution of generic procedures to assist with compliance with the 
regulation.
    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. 
Delaware has met this requirement through the Engineering and 
Compliance Branch (ECB) of the Air Quality Management Section. The ECB 
will identify applicable rules, determine whether a permit is needed, 
identify compliance alternatives, and explain the fees, application 
process, violations, and appeals, as needed.

2. Ombudsman Office

    The fourth requirement of section 507(a)(3) is the designation of a 
state office to serve as the Ombudsman for small business stationary 
sources. Delaware's Secretary of DE DNREC is authorized to create the 
ombudsman's office within DNREC. The ombudsman will be appointed by the 
Secretary of DE DNREC and will report directly to him or her. The 
Delaware Office of the Ombudsman (Delaware Ombudsman) will be 
independent of the Division of Air and Waste Management and the Air 
Quality Management Section.
    The fifth 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 CAA. The Delaware Ombudsman will ensure that small businesses 
receive notice of their rights in sufficient time to evaluate 
compliance. Information delineating legal rights will be disseminated 
with the technical and compliance information by the SBAP. In addition, 
field inspectors will be trained to properly inform small businesses of 
their rights during site visits.
    The sixth requirement of CAA section 507(a) 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 Delaware Ombudsman will develop procedures 
for referring sources to qualified auditors. A list of qualified 
environmental consulting firms who could conduct audits will be 
provided by the Delaware Ombudsman to small businesses. The Delaware 
Ombudsman, ECB, IDPG and Pollution Prevention Program may elect to 
provide qualified auditors, if available.
    The seventh requirement of CAA section 507(a) 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 practices or compliance methods. Delaware's 
Office of the Ombudsman will receive written requests from a small 
businesses for modification of work practices.

3. Compliance Advisory Panel

    Section 507(e) of the CAA requires Delaware 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. Members of the Delaware CAP will be selected in the 
following manner for the first term, after which all will serve four 
year terms: (1) The majority leader of the Senate shall appoint one 
member for 4 years; (2) the minority leader of the Senate shall appoint 
one member for 2 years; (3) the majority leader of the House of 
Representatives will appoint one member for three years; (4) the 
minority leader of the House of Representatives shall appoint one 
member for one year; (5) the Governor will select two members for four 
years; and (6) the Air Quality Management Program Administrator will 
select one member for four years. The makeup of Delaware's CAP is 
prescribed as is required by section 507(e).
    The Delaware CAP will meet at least once per quarter. Any member 
absent from three consecutive meetings will be replaced. Administrative 
and logistical support for the Delaware CAP will be funded through the 
Delaware Ombudsman's office. The Delaware Ombudsman will also serve a 
Secretariat for the development and dissemination of CAP reports.
    In addition to establishing the minimum membership of the CAP the 
CAA delineates four responsibilities of the Panel: (A) to render 
advisory opinions concerning the effectiveness of the SBAP, 
difficulties encountered and the degree and severity of enforcement 
actions; (B) to review and assure that information for small business 
stationary sources is easily understandable; (C) to develop and 
disseminate the reports and advisory opinions made through the SBAP; 
and (D) 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. (Section 507(e)(1)(B) 
requires the CAP to report on the compliance of the SBAP with these 
three 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.) The duties and 
responsibilities described in Delaware's submittal indicate that the 
Delaware CAP will be responsible for all four of the activities listed 
above, except that the Delaware Ombudsman will disseminate reports.

4. Source 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.
Delaware's submittal duplicates the language of CAA section 507(c)(1) 
in defining eligible stationary sources. It also provides for the 
state, after consultation with the Administrator and the Administrator 
of the Small Business Administration and notice and opportunity for 
public comment, to include or exclude a category or subcategory of 
sources.

III. Summary of SIP Revision

    Delaware has submitted a SIP revision requiring implementation of 
each of the program elements required by CAA section 507. As previously 
stated, the authority to implement the SBAP has been delegated to the 
Department of Natural Resources and Environmental Control, Air Quality 
Management Section. Program implementation will begin no later than 
January 1, 1994. The Secretary of DE DNREC will appoint the Ombudsman 
by July 1, 1993 and hire the staff dedicated to implementing the 
program. An Executive Order establishing the Compliance Advisory Panel 
will be executed by the Governor of the State of Delaware by March 1, 
1993. In this action, EPA is approving the SIP revision submittal by 
the State of Delaware. Accordingly, Sec. 52.460 is added to 40 CFR part 
52, subpart I-Delaware to reflect EPA's approval action and the fact 
that it is considered part of the Delaware's SIP.
    EPA is proposing to approve the Delaware SIP revision for 
establishing a Small Business Stationary Source Technical and 
Environemental Compliance Assistance Program, which was submitted on 
January 11, 1993. EPA is soliciting public comments on the issues 
discussed in this notice or on other relevant matters. These comments 
will be considered before taking 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 document.

Proposed Action

     EPA is proposing to approve Delaware's plan for the establishment 
of a Small Business Stationary Source Technical and Environmental 
Compliance Assistance Program.
    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., 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.
    In this action, 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 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 asignificant economic 
impact on any small entities affected.
    This action has been classified as a Table 2 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 
an October 4, 1993 memorandum from Michael H. Shapiro, Acting 
Assistance Administrator for Air and Radiation. On January 6, 1989, the 
Office of Management and Budget (OMB) waived Table 2 and Table 3 SIP 
revisions from the requirements 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 3 SIP revisions. OMB has agreed to continue the 
waiver until such time as it rules on EPA's request. This request is 
still applicable under Executive Order 12866, which superseded 
Executive Order 12291 on September 30, 1993.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Small business 
assistance program.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: October 22, 1993.
W.T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 94-759 Filed 1-11-94; 8:45 am]
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