[Federal Register Volume 59, Number 127 (Tuesday, July 5, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16128]


[[Page Unknown]]

[Federal Register: July 5, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NJ12-2-6314; NY9-2-6315; PR2-2-6316; VI2-2-6317; FRL-5004-6]

 

Clean Air Act Approval and Promulgation of Title V, Section 507, 
Small Business Stationary Source Technical and Environmental Compliance 
Assistance Program for Region 2 States: New Jersey, New York, Puerto 
Rico, and the U.S. Virgin Islands

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing the conditional approvals to each state 
implementation plan (SIP) revision submitted by the States of New 
Jersey and the U.S. Virgin Islands, and the full approvals to each 
state SIP revision submitted by New York and the Commonwealth of Puerto 
Rico as proposed in the Federal Register on December 21, 1993 for the 
purpose of establishing State Small Business Stationary Source 
Technical and Environmental Compliance Assistance Programs (PROGRAMs). 
The implementation plans were submitted by the states 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.

EFFECTIVE DATE: This action is effective on August 4, 1994.

ADDRESSES: Copies of all of the States' submittals and EPA's technical 
support documents are available for inspection during normal business 
hours at the EPA Region II Office, 26 Federal Plaza, room 505, New 
York, New York 10278. In addition, copies of a specific state submittal 
and EPA's technical support document can be found at the appropriate 
state office below:

New Jersey--Office of Permit Information and Assistance, New Jersey 
Department of Environmental Protection and Energy, 401 East State 
Street, Trenton, NJ 08625-0423, Attention: Chuck McCarty.
New York--Bureau of Technical Services, Air Resources Division, New 
York State Department of Environmental Conservation, 50 Wolf Road, 
Albany, NY 12233, Attention: Virginia Rest.
Puerto Rico--Air Programs Area, Puerto Rico Environmental Quality 
Board, Eurobank Building, 431 Ponce de Leon Avenue, Hato Rey, PR 00910, 
Attention: Francisco Claudio.
The U.S. Virgin Islands--Virgin Islands Department of Planning and 
Natural Resources, Division of Environmental Protection, Building 111, 
Apartment 114, Water Gut Homes, Christiansted, St. Croix, VI 00820, 
Attention: Benjamin Nazario.

FOR FURTHER INFORMATION CONTACT: Steven C. Riva, Chief, Permitting and 
Toxics Support Section, at the above EPA address or at telephone number 
(212) 264-9356.

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 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 February 1992, EPA issued 
Guidelines for the Implementation of Section 507 of the 1990 Clean Air 
Act Amendments (Final Guidelines) 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 States of New Jersey, New York, Puerto Rico, and the U.S. 
Virgin Islands have submitted SIP revisions 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 
components: (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.
    EPA proposed to conditionally approve New Jersey's and the U.S. 
Virgin Islands' SIPs and fully approve New York's and Puerto Rico's 
SIPs for the establishment of State PROGRAMs on December 21, 1993 (58 
FR 67383). A detailed discussion of each state's PROGRAM and EPA's 
evaluations of the PROGRAMs is contained in the above cited Federal 
Register.
    In addition, a thirty day public comment period was provided in the 
December 21, 1993 Federal Register. Comments were received only on New 
York's PROGRAM. For New Jersey, Puerto Rico, and the U.S. Virgin 
Islands, no comments were received.

II. Summary of Submittals

A. New Jersey

    New Jersey has met all of the requirements of section 507 of the 
CAA by submitting a SIP revision on January 11, 1993 that implements 
all required PROGRAM elements or delineates milestone dates for when 
any remaining PROGRAM elements will be enacted by November 15, 1994. 
The final plan was adopted by the New Jersey Department of 
Environmental Protection and Energy (DEPE) on January 11, 1993.
    New Jersey has met the first PROGRAM component by locating the SBAP 
within DEPE's Office of Permit Information and Assistance and by 
committing in its SIP to meet the six requirements set forth in section 
507(a) of the CAA. New Jersey has met the second PROGRAM component and 
the seventh requirement of section 507(a) of the CAA by designating the 
New Jersey Department of Commerce and Economic Development, Office of 
Business Advocacy, to be the Small Business Ombudsman's Office. To meet 
the third PROGRAM component and section 507(e) of the CAA, New Jersey 
will enact legislation in order to authorize the establishment of a 
CAP, and members to the CAP will be appointed no later than November 
15, 1994.
    EPA finds that New Jersey presently lacks the requisite authority 
to establish a CAP. Therefore, EPA is conditionally approving New 
Jersey's section 507 program. Full approval will be granted once 
authority to establish a CAP has been enacted and submitted as a SIP 
revision.

B. New York

    New York has met all of the requirements of section 507 of the CAA 
by submitting a SIP revision on January 11, 1993 that implements all 
required PROGRAM elements or delineates milestone dates for when any 
remaining PROGRAM elements will be enacted by November 15, 1994. A copy 
of New York's adopted legislation authorizing the PROGRAM was sent as a 
supplement to the SIP on August 26, 1993. The final plan was adopted by 
the New York State Department of Environmental Conservation (DEC) on 
January 11, 1993.
    New York has met the first PROGRAM component by locating the SBAP 
within the New York State Environmental Facilities Corporation (EFC) 
with oversight provided by DEC's Small Business Section. New York has 
also committed in its SIP to meet the six requirements set forth in 
section 507(a) of the CAA for the Small Business Assistance Program. 
New York has met the second PROGRAM component and the seventh 
requirement of section 507(a) of the CAA by designating the New York 
State Department of Economic Development, Division of Small Business, 
to be the Small Business Ombudsman's Office. To meet the third PROGRAM 
component and section 507(e) of the CAA, New York has enacted 
legislation which authorizes the duties of the CAP and the appointment 
of members. Because New York has met all requisite requirements and has 
the authority to implement all PROGRAM elements, EPA is approving New 
York's section 507 program. However, New York still needs to appoint 
members to the CAP, which must occur no later than November 15, 1994.
    EPA received two comments on New York's revised SIP during the 30 
day public comment period. The comments have been evaluated by EPA, and 
a summary of the comments and EPA's responses are set forth below.
    Comment #1: The Environmental Facilities Corporation (EFC), New 
York's SBAP Office, commented that New York's PROGRAM could be 
strengthened if the following changes were made to the SIP: (1) The 
SBAP is evaluated by the CAP only and not by the state Ombudsman; and 
(2) the SBAP is able to address the CAP directly as its own 
representative instead of the Ombudsman acting as the representative of 
the SBAP before the CAP. EFC believes that in order for the PROGRAM to 
function most effectively, the Ombudsman and SBAP must be partners with 
a mutually beneficial relationship. However, this equal partnership is 
disturbed under New York's PROGRAM because: the Ombudsman has 
evaluative power over the SBAP; and the SBAP does not have the power to 
represent itself, its program and its efforts directly to the CAP, but 
is indirectly represented by a third voice, the Ombudsman.
    Response: The two suggestions raised by EFC have been carefully 
considered by EPA and DEC, and EPA is providing the following specific 
responses.
    With regards to the first suggestion, EPA disagrees with the 
concept of a state Ombudsman not evaluating the SBAP. In EPA's Final 
Guidelines, EPA delineates several suggested duties of an Ombudsman's 
office. Two of the duties include: conducting independent evaluations 
of all aspects of the SBAP; and periodically reviewing the work and 
services provided by the SBAP with trade associations and small 
business representatives. One of EPA's criteria in determining whether 
the state office chosen as Ombudsman can adequately serve in its duties 
is whether the Ombudsman's office has been granted sufficient 
independent authority to identify problems and make recommendations as 
they relate to the implementation of the SBAP. New York has met EPA's 
criteria by granting the Ombudsman the above evaluative roles. 
Furthermore, the Ombudsman's office, in its role as the representative 
of small businesses, is the place where small businesses go if they 
have grievances regarding the SBAP or are not getting the necessary 
technical assistance. The Ombudsman must, therefore, have the authority 
to make recommendations on how the SBAP can be more effective. Thus, 
EPA believes New York's SIP should not be revised to remove the 
Ombudsman's ability to evaluate the SBAP as such an evaluative role is 
imperative for the Ombudsman's Office to be a true representative of 
the small business community.
    With regards to the second suggestion, New York had always intended 
that the SBAP could present itself, its program and its efforts 
directly to the CAP. The SIP also allows for each small business office 
(including the SBAP, Ombudsman, and DEC) to provide input to the CAP in 
the form of progress reports, pending issues and proposed actions for 
the CAP to use during its quarterly or semiannual meetings. 
Nevertheless, in order to alleviate any confusion, New York submitted a 
supplement to its SIP which clarifies what New York meant when stating 
that the ``Ombudsman will serve as the representative of the SBAP to 
the Compliance Advisory Panel.'' The word ``representative'' in this 
phrase means ``overall evaluator''. In other words, the Ombudsman will 
provide the CAP with an overall evaluation of the SBAP. The word 
``representative'' is not meant to infer that the Ombudsman will act as 
the agent of the SBAP before the CAP. The supplement further clarifies 
that the SBAP can present itself before the CAP to explain its 
accomplishments, make recommendations, and express any program needs.
    EPA finds that the structure as provided in New York's SIP is 
acceptable based on section 507 of the CAA and EPA's Final Guidelines. 
Therefore, EPA is finalizing its approval of New York's PROGRAM.
    Comment #2:  The Erie County Environmental Compliance Services 
Program commented that New York's SBAP should be encouraged to utilize 
the services of local agencies that already provide assistance to small 
businesses in the State. The Erie County program, as well as several 
other local programs throughout New York State, already successfully 
provide many of the services/functions in rendering technical 
assistance to small businesses as proposed for the SBAP. The Erie 
County program endorses that local programs continue to receive state 
and federal funds, including funds to be supported by Title V fees, so 
that the local programs can work with the SBAP on technical assistance 
to the small business community.
    Response: EPA supports Erie County's endorsement that New York use 
existing local infrastructures as a means to reach out to the small 
business community. New York also endorses the concept. One reason DEC 
chose EFC as the SBAP is that EFC has the ability to subcontract with 
local agencies. EFC fully intends to limit the size of its in-house 
staff working on the SBAP and will use existing local programs to 
perform audits and conduct other field activities where the scope and 
volume of those activities exceed EFC's in-house staff capacity.

C. Puerto Rico

    Puerto Rico has met all of the requirements of section 507 of the 
CAA by submitting a SIP revision on November 16, 1992 that implements 
all required PROGRAM elements or delineates milestone dates for when 
any remaining PROGRAM elements will be enacted by November 15, 1994. 
Supplemental information was sent on January 14, 1993 and October 25, 
1993, which included Puerto Rico's adopted legislation authorizing the 
PROGRAM. The final plan was adopted by the Puerto Rico Environmental 
Quality Board (EQB) on November 4, 1992.
    Puerto Rico has met the first PROGRAM component by locating the 
SBAP within EQB's Planning Division and committing in its SIP to meet 
the six requirements set forth in section 507(a) of the CAA. Puerto 
Rico has met the second PROGRAM component and the seventh requirement 
of section 507(a) of the CAA by recommending that the Governor choose 
the existing Citizen's Ombudsman's, the Puerto Rico Citizen's 
Investigating Official as Puerto Rico's Ombudsman's Office. Legislation 
has been enacted which provides authority for the Ombudsman's duties. 
To meet the third PROGRAM component and section 507(e) of the CAA, 
Puerto Rico has enacted legislation which authorizes the duties of the 
CAP and the appointment of members. Because Puerto Rico has met all the 
requisite requirements and has the authority to implement all PROGRAM 
elements, EPA is approving Puerto Rico's section 507 program. However, 
Puerto Rico still needs to have an Ombudsman's Office in place and 
appoint members to the CAP, which must occur no later than November 15, 
1994.

D. The U.S. Virgin Islands

    The U.S. Virgin Islands has met all of the requirements of section 
507 of the CAA by submitting a SIP revision on January 15, 1993 that 
implements all required PROGRAM elements or delineates milestone dates 
for when any remaining PROGRAM elements will be enacted by November 15, 
1994. The final plan was adopted by the Virgin Islands Department of 
Planning and Natural Resources (DPNR) on January 14, 1993.
    The U.S. Virgin Islands has met the first PROGRAM component by 
locating the SBAP within DPNR's Division of Environmental Protection 
and by committing in its SIP to meet the six requirements set forth in 
section 507(a) of the CAA. The U.S. Virgin Islands has met the second 
PROGRAM component and the seventh requirement of section 507(a) of the 
CAA by designating the Virgin Islands Small Business Development Agency 
to be the Small Business Ombudsman's Office. The Ombudsman's Office 
will be assisted by the Small Business Development Center of the 
University of the Virgin Islands. To meet the third PROGRAM component 
and section 507(e) of the CAA, the U.S. Virgin Islands will enact 
legislation to authorize the establishment of a CAP, and members to the 
CAP will be appointed no later than November 15, 1994.
    EPA finds that the U.S. Virgin Islands presently lacks the 
requisite authority to establish a CAP. Therefore, EPA is conditionally 
approving the U.S. Virgin Islands' section 507 program. Full approval 
will be granted once authority to establish a CAP has been enacted and 
submitted as a SIP revision.

III. Final Action

    EPA is conditionally approving the SIP revisions submitted by the 
States of New Jersey and the U.S. Virgin Islands, and fully approving 
the SIP revisions submitted by New York and Puerto Rico. The revisions 
were made to satisfy the requirements of section 507 of the CAA.
    Because New Jersey and the U.S. Virgin Islands have made 
commitments that EPA believes meet the requirements necessary for EPA 
to grant conditional approval, EPA is granting a conditional approval 
under section 110(k)(4) of the Act. New Jersey and the U.S. Virgin 
Islands must meet their commitment to have their programs fully 
operational by November 15, 1994 and submit these requirements to EPA 
by that date. If New Jersey or the U.S. Virgin Islands fails to adopt 
or submit any of these requirements to EPA within this time frame, 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 Jersey or U.S. 
Virgin Islands SIP. EPA subsequently will publish a notice in the 
notice section of the Federal Register. If the state adopts and submits 
these requirements to EPA 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 submittal. If 
EPA disapproves the new submittal, the conditionally approved Small 
Business Plan will also be removed from the SIP. If EPA approves the 
submittal, those newly approved rules will become a part of the SIP and 
will modify or replace the commitment and the Small Business Plan on 
which the conditional approval is based.
    If the conditional approval is converted to a disapproval, the 
sanctions clock under section 179(a) will begin. This clock will begin 
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 the sanctions clock has begun. If the State does 
not submit and EPA does not approve the rule on which the disapproval 
was based within 18 months of the disapproval, EPA must impose one of 
the sanctions under section 179(b)--highway funding restrictions or the 
offset sanction. In addition, the final disapproval triggers the 
federal implementation plan (FIP) requirement under section 110(c).
    This action has been classified as a Table 3 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 
Air and Radiation. A future notice 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 
requirements of Section 3 of Executive Order 12291 for a period of two 
years. The EPA has submitted a request for a permanent waiver for Table 
2 and Table 3 SIP revisions. The OMB has agreed to continue the 
temporary 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.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the state 
implementation plan 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.
    By today's action, EPA is conditionally or fully approving four (4) 
State programs created for the purpose of assisting small businesses in 
complying with existing statutory and regulatory requirements. The 
programs being conditionally or fully approved today do not impose any 
new regulatory burden on small businesses; these are programs under 
which small businesses may elect to take advantage of assistance 
provided by the state. Therefore, because the EPA's conditional or full 
approvals of these four programs do not impose any new regulatory 
requirements on small businesses, EPA certifies that this action does 
not have a significant economic impact on any small entities affected.
    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 within 60 days from date of publication. 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: June 10, 1994.
William J. Muszynski,
Acting Regional Administrator.

    40 CFR Part 52 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 FF--New Jersey

    2. Section 52.1607 is added to read as follows:


Sec. 52.1607  Small business technical and environmental compliance 
assistance program.

    On January 11, 1993, the New Jersey Department of Environmental 
Protection and Energy submitted a plan for the establishment and 
implementation of a Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program for incorporation in the 
New Jersey state implementation plan. This plan satisfies the 
requirements of section 507 of the Clean Air Act, and New Jersey must 
implement the program as approved by EPA.

Subpart HH--New York

    3. Section 52.1690 is added to read as follows:


Sec. 52.1690  Small business technical and environmental compliance 
assistance program.

    On January 11, 1993, the New York State Department of Environmental 
Conservation submitted a plan for the establishment and implementation 
of a Small Business Stationary Source Technical and Environmental 
Compliance Assistance Program for incorporation in the New York state 
implementation plan. This plan meets the requirements of section 507 of 
the Clean Air Act, and New York must implement the program as approved 
by EPA.

Subpart BBB--Puerto Rico

    4. Section 52.2732 is added to read as follows:


Sec. 52.2732  Small business technical and environmental compliance 
assistance program.

    On November 16, 1992, the Puerto Rico Environmental Quality Board 
submitted a plan for the establishment and implementation of a Small 
Business Stationary Source Technical and Environmental Compliance 
Assistance Program for incorporation in the Puerto Rico state 
implementation plan. This plan meets the requirements of section 507 of 
the Clean Air Act, and Puerto Rico must implement the plan as approved 
by EPA.

Subpart CCC--Virgin Islands

    5. Section 52.2782 is added to read as follows:


Sec. 52.2782  Small business technical and environmental compliance 
assistance program.

    On January 15, 1993, the Virgin Islands Department of Planning and 
Natural Resources submitted a plan to establish and implement a Small 
Business Stationary Source Technical and Environmental Compliance 
Assistance Program for incorporation in the Virgin Islands state 
implementation plan. This plan meets the requirements of section 507 of 
the Clean Air Act, and the U.S. Virgin Islands must implement the 
program as approved by EPA.

[FR Doc. 94-16128 Filed 7-1-94; 8:45 am]
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