[Federal Register Volume 59, Number 191 (Tuesday, October 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24422]


[[Page Unknown]]

[Federal Register: October 4, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[NH-8-1-6599; A-1-FRL-5075-4]

 

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: Final rule.

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SUMMARY: EPA is conditionally approving a 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 (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 rational for this conditional approval is set forth in this 
final rulemaking action; additional information is available at the 
address indicated below.

EFFECTIVE DATE: This final rule is effective on November 3, 1994.

ADDRESSES: Copies of the documents relevant to this action 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; Air and Radiation Docket and Information Center, 
U.S. Environmental Protection Agency, 401 M Street, SW., (LE-131), 
Washington, DC 20460; and the 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 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 PROGRAM, and 
submit this PROGRAM as a revision to the federally approved SIP. In 
addition, the CAA directs the EPA to oversee these 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 June 14, 1994 (59 FR 30564), EPA published a notice of 
proposed rulemaking (NPR) for the State of New Hampshire. The NPR 
proposed conditional approval of the State's PROGRAM. The formal SIP 
revision was submitted by New Hampshire on January 12, 1993 and May 19, 
1994. A more detailed account of EPA's action can be found in the 
proposed rule.
    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. Summary of Submittal

    EPA reviewed New Hampshire's PROGRAM and is conditionally approving 
it pursuant to section 110(k)(4) of the CAA. This approval is on the 
condition that New Hampshire meet its commitment to submit 
documentation to EPA by November 15, 1994 of adequate legal authority 
to establish and implement the PROGRAM and also submits the 
documentation designating a state agency to house the small business 
ombudsman. Additionally, the PROGRAM must be fully operational by 
November 15, 1994.
    Other specific requirements of this SIP revision and the rationale 
for EPA's action are explained in the NPR and will not be restated 
here. No public comments were received on the NPR.

Final Action

    EPA is conditionally approving the SIP revision submitted by the 
State of New Hampshire on January 12, 1993 and May 19, 1994 as a 
revision to the New Hampshire SIP. The State must submit to EPA by 
November 15, 1994 documentation of a designated state agency to house 
the small business ombudsman and adequate legal authority which allows 
a compliance advisory panel and a small business ombudsman to be 
established and implemented, incorporating all the elements listed in 
section 507(e) of the CAA; the PROGRAM must also be fully operational 
by that date. 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 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.
    Conditional approvals of SIP submittals 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.S. E.P.A., 427 
U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410 (a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k), based on the State's failure to meet the commitment, it 
will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new Federal requirement. Therefore, EPA certifies 
that this disapproval action does not have a significant impact on a 
substantial number of small entities because it does not remove 
existing state requirements nor does it substitute a new Federal 
requirement.
    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.
    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 document will inform the general public of 
these tables. The Office of Management and Budget (OMB) has exempted 
this action under Executive Order 12866.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
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 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 December 5, 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).)

List of Subjects in 40 CFR Part 52

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

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

    Dated: August 26, 1994.
John P. DeVillars,
Regional Administrator, Region I.

    Part 52 of 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 EE--New Hampshire

    2. Section 52.1519 is added to subpart EE to read as follows:


Sec. 52.1519  Identification of plan--Conditional approval.

    (a) The following plan revisions were submitted on the dates 
specified.
    (1) On January 12, 1993, the New Hampshire Department of 
Environmental Services submitted a small business stationary source 
technical and environmental compliance assistance program (PROGRAM). On 
May 19, 1994, New Hampshire submitted a letter deleting portions of the 
January 12, 1993 submittal. In these submissions, the State commits to 
designate a state agency to house the small business ombudsman and to 
submit adequate legal authority to establish and implement a compliance 
advisory panel and a small business ombudsman. Additionally, the State 
commits to have a fully operational PROGRAM by November 15, 1994.
    (i) Incorporation by reference.
    (A) Letter from the New Hampshire Department of Environmental 
Services dated January 12, 1993 submitting a revision to the New 
Hampshire State Implementation Plan.
    (B) State Implementation Plan Revision for a Small Business 
Technical and Environmental compliance Assistance Program dated January 
12, 1993.
    (C) Letter from the New Hampshire Department of Environmental 
Services dated May 19, 1994 revising the January 12, 1993 submittal.
    (ii) Additional materials.
    (A) Non-regulatory portions of the State submittal.
[FR Doc. 94-24422 Filed 10-3-94; 8:45 am]
BILLING CODE 6560-50-F