[Federal Register Volume 59, Number 113 (Tuesday, June 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14418]


[[Page Unknown]]

[Federal Register: June 14, 1994]


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DEPARTMENT OF LABOR
 

40 CFR Part 52

[NH-8-1-5894; A-1-FRL-4998-3]

Approval and Promulgation of Title V, Section 507, Small Business 
Stationary Source Technical and Environmental Compliance Assistance 
Program for New Hampshire

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes to conditionally approve the State 
Implementation Plan (SIP) revision submitted by the State of New 
Hampshire for the purpose of establishing a small business stationary 
source technical and environmental compliance assistance program. The 
SIP revision was submitted by the State to satisfy the Federal mandate 
to ensure that small businesses have access to the technical assistance 
and regulatory information necessary to comply with the Clean Air Act 
(CAA). The rationale for the conditional approval is set forth in this 
proposal; additional information is available at the address indicated 
in the ADDRESSES section.
DATES: Comments must be received on or before July 14, 1994.

ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air, 
Pesticides and Toxics Management Division, U.S. Environ- mental 
Protection Agency, Region I, JFK Federal Bldg., Boston, MA 02203.
    Copies of the State submittal and EPA's technical support document 
are available for public inspection during normal business hours, by 
appointment at the Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region I, One Congress Street, 10th 
floor, Boston, MA and Air Resources Division, Department of 
Environmental Services, 64 North Main Street, Caller Box 2033, Concord, 
NH 03302-2033.

FOR FURTHER INFORMATION CONTACT: Emanuel Souza, Jr., (617) 565-3248.

SUPPLEMENTARY INFORMATION:

I. Background

    Implementation of the provisions of the Clean Air Act Amendments of 
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 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, 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 New Hampshire has submitted a 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 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.

II. Analysis

1. Small Business Assistance Program

    New Hampshire's Small Business Technical Assistance Program (SBTAP) 
will be located in the Department of Environmental Services (DES). The 
Program will require coordination with other DES programs to utilize 
their experience and to assess the potential cross-media impact of 
compliance alternatives.
    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 comply with 
the Act. The State has met this requirement by offering a proactive and 
reactive approach to gathering and disseminating information on 
compliance issues and control technologies. The State expects to use 
potential resources such as a technical library and an information 
clearinghouse. Program staff will proactively conduct workshops and 
presentations for potentially affected small businesses.
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    \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 stating that the SBTAP will work with 
small businesses to provide general engineering assistance. Pollution 
prevention efforts will be coordinated with the DES toxic use and waste 
reduction programs. SBTAP will work proactively to promote awareness of 
pollution prevention techniques and related issues.
    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. The SBTAP will develop materials 
explaining regulatory and permit requirements for small business 
stationary sources. Program staff will identify alternative methods and 
technologies for compliance with specific regulations. This will 
involve coordination with other DES programs; other state and Federal 
agencies; and trade associations and professional/technical societies.
    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 regulations or standards issued under 
the Act. The State has met this requirement by ensuring that small 
business sources are aware of their rights through outreach materials 
and ensuring that small businesses understand their rights when 
individual technical assistance is provided. Additionally, Program 
staff will ensure that small business stationary sources receive 
sufficient advance notice of their rights before applicable regulations 
take effect. The SBTAP will follow applicable Department rules. Program 
policy will be to provide as much notice as is reasonable and 
practicable, but never less than 30 calendar days.
    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 
SIP revision states that the Program staff will ensure that small 
business stationary sources receive sufficient advance notice of their 
obligations under the Act within 30 days or more. Additionally, the 
staff will develop a program of qualified auditors to provide 
compliance assessments for small business stationary sources. This 
Compliance Assessment Program will provide a source with an on-site 
determination of whether the facility complies with the applicable air 
quality regulations. Portions of section (5) of NH's January 12, 1993, 
SIP revision appeared to provide the State with enforcement discretion 
to allow small businesses an exemption from enforcement. Pursuant to 
EPA's request, the State submitted a letter to EPA on May 19, 1994 
clarifying and revising this portion of the SIP revision. The letter 
deletes two portions of section (5) and explains that the portions were 
originally put into the January 12, 1993 SIP as examples of the type of 
issues that needed to be addressed, but which would not necessarily 
become final policies.
    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 SIP revision states that the SBTAP, in 
coordination with other Division staff will develop standardized 
criteria and administrative procedures for considering requests for 
modifications, including provisions to ensure that granting such 
requests will not affect the status of the federally approved SIP and 
is consistent with applicable requirements of the CAA. The SIP revision 
lists the information that will be used in developing the criteria and 
procedures for consideration of requests for modifications of 
procedures.

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 partially met this requirement by outlining the responsibilities 
and duties of the small business ombudsman. The small business 
ombudsman responsibilities will be assigned to a proposed technical 
assistance coordinator position. It will be the state's central 
position for organizing technical assistance for environmental matters. 
The ombudsman will serve as an advocate for small business stationary 
sources in investigating and resolving complaints and disputes 
involving air quality regulations. Other activities of the ombudsman 
may include reviewing SBTAP services with trade associations and small 
business representatives. The ombudsman will help disseminate 
information to small businesses and encourage small businesses to 
participate in the development of regulations. The ombudsman will be 
the key contact person for the Governor's office for referrals of 
complaints and problems.

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 not fully met this requirement due to the 
lack of adequate statutory authority to establish the CAP. However, EPA 
expects New Hampshire to submit the legislative authority to EPA when 
it is passed by the New Hampshire legislature.
    In addition to establishing the minimum membership of the CAP the 
CAA delineates four responsibilities for it: (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 Act2; (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 in the SIP revision by authorizing the panel to: evaluate 
the effectiveness of the SBTAP and the Small Business Ombudsman, and 
issue advisory opinions to the Air Resources Division and EPA; prepare 
periodic reports to EPA on the status of the SBTAP with regard to the 
Paper Work Reduction Act, the Regulatory Flexibility Act, and the Equal 
Access to Justice Act; and review information for small business 
stationary sources to assure such information is understandable by the 
layperson. Additionally, the SIP revision states that the SBTAP staff 
will serve as the administrative staff for the panel.
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    \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.
    New Hampshire's SIP revision states that assistance through the 
SBTAP will be available to all small business stationary sources, as 
defined in section 507 of the CAA. No source defined as eligible under 
the CAA will be excluded from the program without prior consultation 
with EPA. The SBTAP will also be available to small businesses which 
need help to comply with state air quality regulations other than 
Federal CAA requirements.
    As allowed under section 507(c)(2) of the CAA, the State program 
may, under specific conditions listed in the SIP revision, include as a 
small business stationary source for purposes of receiving assistance a 
source that does not meet the criteria of subparagraphs (C), (D) or (E) 
above, provided that the source cannot emit more than 100 tons per year 
of all regulated pollutants.
    Additionally, the State may exclude from assistance any category or 
subcategory of small business stationary sources, as allowed under 
section 507(c)(3)(B) of the CAA, which have been determined to have 
sufficient financial and technical resources to meet their regulatory 
obligations under the CAA.

III. Proposed Action

    The State of New Hampshire has submitted a SIP revision 
implementing each of the required PROGRAM elements required by section 
507 of the CAA. The State expects all the elements of the PROGRAM to be 
fully operational by November 15, 1994.
    The State needs full adequate legal authority to implement the 
PROGRAM before EPA can fully approve this SIP revision. Therefore, EPA 
is proposing to conditionally approve the New Hampshire SIP revision 
for the small business stationary source technical and environmental 
compliance assistance program, submitted on January 12, 1993 and May 
19, 1994, provided that New Hampshire submits in a timely manner the 
additional legal authority necessary to fully implement the PROGRAM and 
also submits the documentation designating a state agency to house the 
small business ombudsman.
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes 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 action.
    EPA is proposing to conditionally approve the small business 
stationary source technical and environmental compliance assistance 
program submitted on January 12, 1993 with revisions on May 19, 1994. 
The two outstanding issues with this SIP revision concern New 
Hampshire's lack of a designated state agency to house the small 
business ombudsman and the lack of adequate legal authority to 
establish and implement the compliance advisory panel and small 
business ombudsman. For this reason, EPA is proposing to conditionally 
approve this SIP revision provided that the State meets its commitment 
to submit the legislative authority allowing a compliance advisory 
panel and small business ombudsman to be established and implemented. 
Additionally, the state must demonstrate through documentation which 
state agency will house the state small business ombudsman. Under 
section 110(k)(4) of the Act, EPA may conditionally approve a plan 
based on a commitment from the State to adopt specific enforceable 
measures by a date certain, but not later than 1 year from the date of 
approval. If EPA conditionally approves the commitment in a final 
rulemaking action, the State must meet its commitment to have the 
program fully operational by November 15, 1994. If the State fails to 
do so, 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 Hampshire 
SIP. EPA subsequently will publish a document in the Federal Register 
notifying the public that the conditional approval automatically 
converted to a disapproval. If the State meets its commitment, 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 legislative authority. If EPA disapproves the new 
submittal, the conditionally approved small business program will also 
be disapproved at that time. If EPA approves the submittal, the small 
business program will be fully approved in its entirety and replace the 
conditionally approved program in the SIP.
    If EPA determines that it cannot issue a final conditional approval 
or if the conditional approval is converted to a disapproval, such 
action will trigger EPA's authority to impose sanctions under section 
110(m) of the CAA 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 EPA's sanctions authority has 
been triggered. In addition, the final disapproval triggers the Federal 
implementation plan (FIP) requirement under section 110(c). Pursuant to 
section 507(b)(3), EPA will provide for implementation of the program 
provisions required under section 507(a)(4) in any State that fails to 
submit such a program under that subsection. Therefore, EPA would have 
to provide for a compliance assistance program which assists small 
business stationary sources in determining applicable requirements and 
in receiving permits under the CAA.
    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 Administer for Air 
and Radiation. A future document 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 
requirement 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 Table 3 SIP revisions. The 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.
    By today's action, EPA is conditionally approving a State program 
created for the purpose of assisting small businesses in complying with 
existing statutory and regulatory requirements. The program being 
proposed for conditional approval today 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 conditional 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.
    The Regional Administrator's decision to approve or disapprove the 
SIP revision will be based on whether it meets the requirements of 
section 110(a)(2)(A)-(K) and 110(a)(3) of the Clean Air Act, as 
amended, and EPA regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

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

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

    Dated: June 6, 1994.
John P. DeVillars,
Regional Administrator, Region III.
[FR Doc. 94-14418 Filed 6-13-94; 8:45 am]
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