[Federal Register Volume 59, Number 91 (Thursday, May 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11469]


[[Page Unknown]]

[Federal Register: May 12, 1994]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[KS-3-1-6332; FRL-4882-4]
 

Approval and Promulgation of Implementation Plans; State of 
Kansas
AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action approves the State Implementation Plan (SIP) 
revision submitted by the state of Kansas for the purpose of 
establishing a Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program (SBAP). The revision 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 final rule will be effective July 11, 1994 unless notice is 
received by June 13, 1994 that adverse or critical comments will be 
submitted. If the effective date is delayed, timely notice will be 
published in the Federal Register.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the: 
Environmental Protection Agency, Air Branch, 726 Minnesota Avenue, 
Kansas City, Kansas 66101; and the Kansas Department of Health and 
Environment (KDHE), Bureau of Air and Radiation, Forbes Field, Building 
283, Topeka, Kansas 66620-0001.

FOR FURTHER INFORMATION CONTACT: Wayne A. Kaiser at (913) 551-7603.

SUPPLEMENTARY INFORMATION:

I. Background

    Implementation of the provisions of the 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 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 (SBAP), 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 an SBAP 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 Kansas has submitted an 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 an 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

    Section 507(a) sets forth six requirements (a seventh requirement, 
establishment of an Ombudsman office, is discussed in the next section) 
that the state must meet to have an approvable SBAP. Specifically, 
these elements are: (1) Developing, collecting, and coordinating 
information exchange on compliance methods and control technologies; 
(2) providing assistance to small business stationary sources with 
pollution prevention and accidental release prevention and detection; 
(3) providing assistance for determining applicable requirements under 
the Act and permit issuance; (4) determining adequate mechanisms for 
notifying small business stationary sources of their right under the 
Act on a timely basis; (5) determining adequate mechanisms for 
informing small business stationary sources of their obligations under 
the Act, including a program for referring sources to qualified 
auditors, or for the state to provide for such audits to determine 
compliance with this Act; and (6) procedures for considering requests 
from small business stationary sources for modifications of work 
practices, or technological methods of compliance or compliance 
procedures. The SBAP services will be provided by a consortium of three 
state universities: the University of Kansas' Center for Environmental 
Education and Training within the Division of Continuing Education; 
Kansas State University's Industrial Extension Service, a program of 
the College of Engineering and the Cooperative Extension Service; and 
Wichita State University's Center for Technology Application. The SBAP 
will provide information and/or compliance and technical assistance 
relevant to each of the six elements above. Additional information 
concerning individual responsibilities of the consortium members is 
contained in the technical support document, which is part of the 
docket for this rulemaking and which is available from the EPA office 
listed above. The SBAP has been operational since October 1, 1993. The 
SBAP consortium's contract with KDHE will be renewed yearly.

2. Ombudsman

    Section 507(a)(3) requires the designation of a state office to 
serve as the Ombudsman for small business stationary sources. The 
Ombudsman position has been designated in the Office of Science and 
Support of the KDHE. This position was filled on November 18, 1993. The 
Ombudsman will have direct access to the Secretary (program manager) of 
the KDHE, to the director of the Division of the Environment of the 
KDHE, the manager of the air pollution control program, and other state 
agencies as necessary to perform the functions of its office 
independently of the air pollution regulatory and enforcement programs.

3. Compliance Advisory Panel (CAP)

    Section 507(e) requires the state to establish a 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. All members of the CAP have been appointed in accordance 
with the provisions of section 507(e). The CAP held its initial meeting 
on December 9, 1993.
    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; (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 committing the CAP to perform these 
functions.
    Legislative authority for the SBAP, CAP, and ombudsman was obtained 
during the 1993 legislative session and is contained in the Kansas Air 
Quality Act, Section 15. All three programs are funded by air emissions 
fees, authority for which is contained in section 8 of the Kansas Air 
Quality Act.

4. Two Additional Provisions Which the State Submittal Must Address 
Include Source Eligibility and Fee Reduction Authority

    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.

    Section 507(c) allows states, after notice and opportunity for 
public comment, to extend the definition of eligible source to include 
small business stationary sources which do not meet the criteria of 
subparagraphs (3), (4), or (5) of section 507(c), but do not emit more 
than 100 tpy of all regulated pollutants.
    The state submittal specifies that upon petition by a source, the 
Secretary, after notice and opportunity for public comment, may include 
as a small business stationary source, any source which does not meet 
the criteria of subparagraphs (3), (4), or (5) of section 507(c), but 
which does not emit more than 100 tpy of all regulated pollutants. This 
conforms to the requirements of section 507(c) and is acceptable.
    Also, the state submittal provides that the Secretary may exclude 
from the small business stationary source definition any category or 
subcategory of sources that the Administrator of EPA determines to have 
sufficient technical and financial capabilities to meet the 
requirements of the Act without the application of this program, as 
provided by section 507 (c)(3)(A) of the Act.
    The Secretary, in consultation with the Administrator of EPA and 
the Small Business Administration, and after providing notice and 
opportunity for public hearing, may exclude from the small business 
stationary source definition under this section, any category or 
subcategory of sources that the Secretary determines to have sufficient 
technical and financial capabilities to meet the requirements of the 
Act without the application of this subsection.
    Section 507(b) allows states flexibility to reduce permit fees to 
take into account the financial resources of small business.
    Under state statute, the Secretary may reduce any fee required by 
the Act for any classification of small business source to take into 
account the financial resources of such classification.

Summary

    The state has submitted an SIP revision implementing or committing 
to implement each of the required SBAP elements required by section 507 
of the CAA. The KDHE has contracted with a consortium of state 
universities to implement the small business stationary source 
technical and environmental compliance assistance program. The 
Ombudsman position has been established within the KDHE and the 
position has been filled. The CAP has been appointed and has met. The 
state submittal meets in full the requirements of section 507 of the 
Act.

EPA Action

    EPA is approving the SIP revision submitted by the state of Kansas. 
The state has submitted an SIP revision implementing each of the 
required program elements required by section 507 of the Act.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This action will be effective July 11, 1994 unless, 
by June 13, 1994, notice is received that adverse or critical comments 
will be submitted.
    If such notice is received, this action will be withdrawn before 
the effective date by publishing two subsequent documents. One document 
will withdraw the final action and another will begin a new rulemaking 
by announcing a proposal of the action and establishing a comment 
period. If no such comments are received, the public is advised that 
this action will be effective July 11, 1994.
    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 Administrator for 
Office of Air and Radiation. On January 6, 1989, the Office of 
Management and Budget (OMB) waived Table 2 and 3 SIP revisions from the 
requirement of section 3 of Executive Order 12291 for two years. EPA 
has submitted a request for a permanent waiver for Table 2 and Table 3 
SIP revisions. 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.
    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, EPA certifies 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. vs. U.S. E.P.A., 427 U.S. 246, 255-66 (S.Ct. 1976): 
42 U.S.C. 7410(a)(2)).
    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 by July 11, 1994. 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).)
    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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air Pollution Control, Incorporation by 
reference, Small business assistance program.

    Dated: April 28, 1994.
William Rice,
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.

Subpart R--Kansas

    2. Section 52.870 is amended by adding paragraph (c)(28) to read as 
follows:


Sec. 52.870  Identification of plan.

* * * * *
    (c) * * *
    (28) A plan for implementation of the Small Business Stationary 
Source Technical and Environmental Compliance Assistance Program was 
submitted by the Kansas Department of Health and Environment as a 
revision to the Kansas State Implementation Plan (SIP) on January 25, 
1994.
    (i) Incorporation by reference.
    (A) Kansas SIP, Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program, dated November 15, 1993.
[FR Doc. 94-11469 Filed 5-11-94; 8:45 am]
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