[Federal Register Volume 60, Number 30 (Tuesday, February 14, 1995)]
[Rules and Regulations]
[Pages 8306-8308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3577]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FL-53-1-6740; FRL-5114-8]


Approval and Promulgation of Implementation Plans Florida: Title 
V, Section 507, Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to the State Implementation Plan 
(SIP) submitted by the State of Florida through the Florida Department 
of Environmental Protection (FDEP) for the purpose of establishing a 
Small Business Stationary Source Technical and Environmental Compliance 
Assistance Program (PROGRAM), which will be fully implemented by 
November 1994. This implementation plan was submitted by FDEP on 
February 24, 1993, 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, as amended 
(CAA).

EFFECTIVE DATE: This approval is effective March 16, 1995.

ADDRESSES: Copies of the documents relative to this action are 
available for public inspection during normal business hours at the 
following locations. The interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street SW., Washington, DC 20460
Environmental Protection Agency, Region 4 Air Programs Branch, 345 
Courtland Street NE., Atlanta, Georgia 30365
Air Resources Management Division, Florida Department of Environmental 
Protection, Twin Towers Office Building, 2600 Blair Stone Road, 
Tallahassee, Florida 32399-2400.

FOR FURTHER INFORMATION CONTACT: Mr. Joey LeVasseur, Regulatory 
Planning and Development Section, Air Programs Branch, Air, Pesticides 
& Toxics Management Division, Region 4 Environmental Protection Agency, 
345 Courtland Street, NE., Atlanta, Georgia 30365. The telephone number 
is 404/347-3555 x4215. Reference file FL053-01-5923.

SUPPLEMENTARY INFORMATION: Implementation of the CAA requires small 
businesses to comply with specific regulations in order for areas to 
attain and maintain the national ambient air quality standards (NAAQS) 
and reduce the emission of air toxics. 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. On February 24, 1993, the Florida Department of 
Environmental Protection submitted to EPA for approval, the requisite 
revisions to the SIP establishing the PROGRAM. These revisions were 
adopted by the Florida Legislature by amending chapter 403 of the 
Florida Statute, approved on April 8, 1992. The EPA reviewed this 
request for revision of the federally approved SIP and found it to be 
in conformance with the requirements of the 1990 CAA. EPA therefore 
published a notice to approve the revisions without prior proposal (59 
FR 8542, February 23, 1994).
    In the final rulemaking, EPA advised the public the effective date 
of the action was deferred for 60 days (until April 25, 1994) to 
provide an opportunity to submit comments. EPA announced if notice was 
received within 30 days of the publication of the final rule that 
someone wanted to submit adverse or critical comments, the final action 
would be withdrawn and a new rulemaking would begin by proposing a 30 
day comment period. EPA had earlier published a general notice 
explaining this special procedure (56 FR 44477, September 4, 1991). 
Adverse comments were received on the 59 FR 8542 notice (February 23, 
1994). Accordingly, EPA withdrew the direct final rule (59 FR 21664, 
April 26, 1994) and simultaneously proposed approval (59 FR 21738, 
April 26, 1994) of the aforementioned Florida revisions to the SIP. The 
proposed rule formally solicited comments and one adverse comment was 
subsequently received.
    Comments. The commenter, representing a trade association, 
indicated the proposed structure of the Florida Small Business 
Assistance Program (SBAP) was ``fraught with risk'' and ``created a 
potential conflict of interest.'' The Florida Program combines the 
roles of the ombudsman, technical assistance and staffing for the 
Compliance Advisory Panel in a single office. The commenter was thus 
concerned that the inherent checks and balances intended by section 507 
of the CAA would be compromised.
    Response. The Agency recognizes the legitimacy of the commenter's 
concerns. Prior to the publication of the February 23, 1994, Federal 
Register notice, the Agency considered this particular issue in depth. 
The governing document is the Guidelines for Implementation of Section 
507 of the 1990 Clean Air Act Amendments; and, in particular, two 
specific portions therein:

    The State must comply with all statutory requirements of the 
Act, however, to the extent that the EPA is interpreting the Act 
requirements, these interpretations are not binding on the States * 
* * (Preface of Guidelines); and [[Page 8307]] 
    The EPA does not prescribe the placement of the Ombudsman Office 
or the office to be charged with the implementation of an SBAP. * * 
* The critical test for EPA approval, with respect to this element 
of the PROGRAM [the ombudsman], will be whether (1) the designated 
office is encumbered with activities that prevent it from performing 
effectively; (2) sufficient expertise exists to represent small 
businesses; and (3) no conflicts of interest exist within the office 
that would prevent the Ombudsman from serving effectively * * * 
(Section 2.0 of the Guidelines, pp. 14 and 15).

    In the spirit of the guidelines, the Agency examined Florida's 
submission from several perspectives. The State of Florida held public 
hearings regarding the proposed statutory changes and SIP currently at 
issue. No one, including trade associations, made an adverse comment 
either at the hearings or in writing at a later time. The Agency 
concluded, therefore, every effort had been made to provide the 
regulated community and other potentially affected parties with an 
opportunity to craft the PROGRAM in an acceptable form.
    The selection of the Ombudsman and the Small Business Section 
Program Administrator, who has the responsibility of directing the 
SBAP, is the responsibility of the Chief of the Bureau of Air 
Regulation. The decision was made to have the current ombudsman also 
serve as the Program Administrator. Florida has taken the position that 
the combined functions permit the ombudsman to effect immediate 
improvements and correct deficiencies in the SBAP through the advocacy 
responsibilities inherent in the office. The Agency accepts this as the 
prerogative of the State provided it works as the CAA intended. The CAA 
does not require that these offices be separate. Should personnel, 
resources and/or the needs of either the Ombudsman's or the 
Administrator's office warrant a different approach, the Agency 
acknowledges that the Bureau Chief can divide the responsibilities 
accordingly. From its inception, the high quality of Florida's PROGRAM 
has been recognized by the Agency. Indeed, even the commenter stated: 
``Our comments are not meant to convey an impression that we feel the 
Florida program is not working. In fact it seems to be working better 
than in many other states.'' The acknowledged fact that Florida's 
PROGRAM is working well goes to the heart of the issue. The Agency 
believes the structure of a PROGRAM is secondary to its effectiveness. 
The Agency has determined the Florida Ombudsman's office has sufficient 
expertise to represent small businesses and the Florida SBAP is 
performing efficiently. Florida's proposed SIP revision, therefore, 
clearly meets the first two of the required tests identified in the 
Guidance.
    After a thorough review of the PROGRAM in light of the comment, EPA 
believes the PROGRAM meets the requirements of the CAA. The PROGRAM as 
conceived by the CAA has an inherent system of checks and balances to 
guard against this potential likelihood. The Florida PROGRAM does not 
circumvent or obviate any of them. The Florida Ombudsman has direct 
access to the Governor of the State should the necessary support of the 
Department to implement the PROGRAM be deemed wanting. The CAP is 
responsible for assuring adherence to the SIP and providing a source 
for small businesses to voice concerns regarding either the ombudsman 
or the SBAP. The utilization of the SBAP staff to serve and assist the 
CAP is, in fact, mandated by the CAA. In addition, both Region 4 and 
the EPA Ombudsman are responsible for monitoring and overseeing the 
implementation of the SIP in Florida. Should any conflict of interest 
or any other concern be realized, corrective or remedial action can be 
taken immediately. The Agency concludes, therefore, the Florida PROGRAM 
as proposed meets the requisite criteria for approval.

Final Action

    EPA is approving the PROGRAM SIP revision submitted by the State of 
Florida through the FDEP for the establishment of a Small Business 
Stationary Source Technical and Environmental Compliance Assistance 
Program. The Agency has reviewed this request for revision of the 
federally approved SIP for conformance with the CAA, including sections 
507 and 110(a)(2).
    The Office of Management and Budget has exempted these actions from 
review under Executive Order 12866.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a 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.
    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 this action, EPA is approving a PROGRAM created for the purpose 
of assisting small businesses in complying with existing statutory and 
regulatory requirements. The program 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 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Small business stationary 
source technical and environmental assistance program.

    Dated: November 8, 1994.
Patrick M. Tobin,
Acting Regional Administrator.

    Part 52 of chapter I, title 40, 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 K--Florida

    2. Section 52.520, is amended by adding paragraph (c)(80) to read 
as follows:


Sec. 52.520  Identification of plan.

 * * * * *
    (c) * * *
    (80) The Florida Department of Environmental Regulation has 
submitted revisions to chapter 403.0852 of the Florida Statutes on 
February 24, 1993. These revisions address the requirements of section 
507 of title V of the CAA and establish the Small Business Stationary 
Source Technical and Environmental Assistance Program (PROGRAM).
    (i) Incorporation by reference. Florida Statutes 403.031(20), 
403.0852 (1), (2), (3), (4), 403.0872(10)(b), 403.0873, 403.8051, 
effective on April 28, 1992. [[Page 8308]] 
    (ii) Other material. None.
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[FR Doc. 95-3577 Filed 2-13-95; 8:45 am]
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