[Federal Register Volume 59, Number 180 (Monday, September 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23105]


[[Page Unknown]]

[Federal Register: September 19, 1994]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ID 6-1-6300a; FRL-5056-5]

 

Approval and Promulgation of Small Business Assistance Program: 
State of Idaho

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) approves the State 
Implementation Plan (SIP) revision submitted by the State of Idaho 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), to ensure 
that small businesses have access to the technical assistance and 
regulatory information necessary to comply with the CAA. The rationale 
for the approval is set forth in this document; additional information 
is available at the address indicated below.

DATES: This final rule will be effective on November 18, 1994 unless 
adverse or critical comments are received by October 19, 1994. 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 and Radiation Branch (AT-082), EPA, 1200 Sixth Avenue, 
Seattle, WA, 98101.Documents which are incorporated by reference are 
available for public inspection at the Air and Radiation Docket and 
Information Center, 401 M Street, SW., Washington, DC 20460. Copies of 
the State's submittal and EPA's technical support document are 
available for inspection during normal business hours at the following 
locations: EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101, and 
Idaho Division of Environmental Quality, 1410 North Hilton, Boise, ID, 
83706.

FOR FURTHER INFORMATION CONTACT: David J. Dellarco, Air and Radiation 
Branch (AT-082), EPA, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-
4978.

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 (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 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 Idaho 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 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 by first conducting 
pilot programs to evaluate the best methods for organizing and 
providing technical assistance to small businesses. In addition, the 
State of Idaho plans to use both proactive and reactive elements to 
provide information to small businesses. Proactive elements include 
publications, news releases, public presentations, and outreach 
performed by the Idaho Small Business Development Center, Idaho Small 
Business Institute, and the States' five Regional Economic Development 
and Planning Agencies. Reactive elements include a hotline to respond 
to small business inquiries.
---------------------------------------------------------------------------

    \1\A seventh requirement of section 507(a), establishment of an 
Ombudsman office, is discussed in the next section.
---------------------------------------------------------------------------

    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 through its plans to integrate the 
States' pollution prevention and waste reduction programs' technical 
assistance capabilities into its small business program. In addition, 
Idaho will utilize the services of program staff to directly assist 
small businesses in the areas of 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 providing assistance to small 
businesses through the use of trained staff. The availability of 
compliance assistance will be publicized and small business stationary 
sources will be encouraged to seek assistance. Program staff will 
identify alternative methods and technologies for compliance with each 
specific regulation.
    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 establishing a policy to 
provide as much notice of small business rights under the CAA as is 
reasonable and practicable. Information on small business rights will 
be included in information materials and other outreach activities. 
Program staff will ensure that both small business rights and 
obligations are provided to small business stationary sources in 
advance of applicable regulations taking 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 by developing a program for qualified 
auditors to provide small business stationary sources, upon request, 
with an on-site determination of compliance with applicable air quality 
regulations.
    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 
requests of the nature identified above, including provisions to ensure 
that granting such requests will not effect the status of the 
federally-approved SIP and is consistent with the applicable 
requirements of the CAA.

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 appointing an Ombudsman, which Idaho calls 
its Small Business Advocate.

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 
CAP, which Idaho calls its Small Business Assistance Advisory Board.
    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 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 through its authorization of the Small Business 
Assistance Advisory Board.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 Idaho 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 Idaho 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 Idaho 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.

III. This Action

    In today's action, EPA approves the SIP revision submitted by the 
State of Idaho. The State of Idaho has submitted a SIP revision 
implementing each of the PROGRAM elements required by section 507 of 
the CAA. At this time, the SBAP, the Ombudsman (Small Business 
Advocate), and the CAP (Small Business Advisory Board) are all in place 
and functioning. 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.
    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.SE.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).
    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 18, 1994 unless, by October 19, 1994, 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 document 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 on November 18, 1994.
    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 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 
Air and Radiation. The OMB has exempted this regulatory action from 
Executive Order 12866 review.
    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 18, 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), 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.

    Note: Incorporation by reference of the Implementation Plan for 
the State of Idaho was approved by the Director of the Office of 
Federal Register on July 1, 1982.

    Dated: August 15, 1994.
Jane S. Moore,
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 N--Idaho

    2. Section 52.670 is amended by adding paragraph (c) (30) to read 
as follows:


Sec. 52.670  Identification of plan.

* * * * *
    (c) * * *
    (30) On January 7, 1994, the Administrator for the Idaho Department 
of Health and Welfare, Division of Environmental Quality, submitted the 
State PROGRAM as a revision to the Idaho SIP.
    (i) Incorporation by reference.
    (A) The January 3, 1994 letter from the Administrator of the Idaho 
Department of Health and Welfare, Division of Environmental Quality, 
submitting the PROGRAM to EPA.
    (B) The State Implementation Plan Revision to Establish a State 
Small Business Stationary Source Technical and Environmental Compliance 
Assistance Program (which includes the text of Idaho Code 39-118E, 
Small Business Assistance, signed into law Senate bill 1236 by Idaho 
Governor, Cecil D. Andrus, on March 29, 1993), dated December 29, 1993, 
and adopted on January 3, 1994.
[FR Doc. 94-23105 Filed 9-16-94; 8:45 am]
BILLING CODE 6560-50-F