[Federal Register Volume 60, Number 45 (Wednesday, March 8, 1995)]
[Rules and Regulations]
[Pages 12691-12695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5442]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[AR-3-1-5727a; FRL-5155-8]


Clean Air Act Approval and Promulgation of Title V, Section 507, 
Small Business Stationary Source Technical and Environmental Compliance 
Assistance Program for Arkansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving the State Implementation Plan (SIP) 
revision submitted by the State of Arkansas 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, found in 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 
in the ADDRESSES section.

DATES: This final rule will become effective on May 8, 1995, unless 
adverse or critical comments are received by April 7, 1995. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas Diggs, Chief (6T-AP), Planning Section, at the EPA Regional 
Office listed below. Copies of the documents relevant 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.

U.S. Environmental Protection Agency, Region 6, Air Programs Branch 
(6T-AP), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733.
Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, 401 M Street, SW., Washington, DC 20460.
Arkansas Department of Pollution Control and Ecology, Division of Air 
Pollution Control, 8001 National Drive, Little Rock, Arkansas 72209.

FOR FURTHER INFORMATION CONTACT: Dr. John Crocker, Planning Section 
(6T-AP), Air Programs Branch, U.S. Environmental Protection Agency, 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 
665-7596.

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 emissions of air toxics. Small businesses frequently 
lack the technical expertise and financial resources 
[[Page 12692]] 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 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, the 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 Arkansas submitted a SIP revision to the 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 
three 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. All areas in the State are classified attainment for each of the 
NAAQS pollutants.
    The Region used section 507 of the CAA and considered the ``SIP 
Revision Approval Checklist for Section 507 Small Business Assistance 
Program'' when reviewing the State submittal for approvability. The SIP 
revision, discussed in detail in the Technical Support Document, is 
briefly outlined below.

II. Analysis

A. Procedural Background

    The State of Arkansas has met all of the requirements of section 
507 by submitting a SIP revision that implements all required PROGRAM 
elements. Arkansas Act 251 (Senate Bill 347) enacted by the 79th 
General Assembly Regular Session in 1993 and approved by the Governor 
on February 26, 1993, provides authority for the State to establish a 
CAP for the PROGRAM as required by Section 507 of the CAA. The PROGRAM 
is to be administered by the Arkansas Department of Pollution Control 
and Ecology (ADPC&E), and is intended to help eligible small businesses 
understand and comply with the CAA. Included in the Act are provisions 
creating a CAP, establishing membership and terms of the CAP, and 
establishing CAP duties.
    The State held a public hearing on October 19, 1992, to consider 
public comments on the proposed PROGRAM, which will amend the Arkansas 
SIP to add a revision entitled, ``Arkansas Small Business Stationary 
Source Technical and Environmental Compliance Assistance Program SIP 
Revision''. No public comments were received on the PROGRAM. The 
proposed SIP revision was adopted November 5, 1992, by the Arkansas 
Commission on Pollution Control and Ecology. The Arkansas PROGRAM was 
submitted to the EPA by the Governor of Arkansas on November 6, 1992, 
as a revision to the Arkansas SIP. Additional information (draft 
Arkansas CAP legislation) was submitted on January 6, 1993. The 
submittal was initially reviewed for completeness and was determined 
complete on January 15, 1993. Supplemental information (Arkansas Act 
251) was submitted on April 23, 1993. The submittal was then reviewed 
for approvability by EPA Region 6 and EPA headquarters.

B. Plan Requirements

1. Small Business Assistance Program
    The first PROGRAM element is the establishment of a SBAP to provide 
technical and compliance assistance to small businesses.
    The State has met the first PROGRAM element by committing in its 
SIP revision, sections (c) ``Small Business Assistance Program 
(SBAP)'', and (g) ``Schedule of Program Implementation'', to establish 
an SBAP in the Air Division of the ADPC&E, which meets the six 
requirements set forth in section 507(a). (Details are presented in the 
EPA's Technical Support Document and the State's submittal.) It will be 
administered by an SBAP coordinator in the Air Division.
    a. 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 CAA.

    \1\A seventh requirement of section 507(a), establishment of an 
Ombudsman office, is discussed in the next section.
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    The State has met this requirement. The SBAP coordinator will be 
charged with the duties of collecting, developing, and coordinating 
information on compliance methods and technologies for small business 
stationary sources. The SBAP will include a proactive component and a 
reactive component.
    (i) Proactive Component. The SBAP coordinator will be responsible 
for operating the SBAP and will work in the Air Division of the ADPC&E. 
Small businesses that are, or will be, affected by CAA requirements 
will be placed in a computer database. The database will contain 
information such as the facility address, environmental contact, and 
Standard Industrial Classification code. Possible sources of data for 
this database are the existing ADPC&E data files and the Arkansas 
Industrial Development Commission database. This system will enable the 
SBAP to notify small businesses of the existence of the SBAP (through 
newsletters) and any new or upcoming applicable air pollution 
requirements of the CAA. Additionally, the SBAP coordinator will be 
available, upon reasonable request, to trade associations or industry 
groups representing small businesses for seminars and workshops.
    (ii) Reactive Component. The SBAP coordinator will be responsible 
for handling questions from small businesses. The coordinator will act 
as an information clearinghouse, and will be responsible for making 
sure that small businesses receive the requested information either by 
phone or by mail. A small library of applicable literature will be 
maintained by the coordinator. If the coordinator cannot supply the 
requested information directly, he shall be responsible for seeking out 
the information from other available channels, such as the Air Division 
staff, EPA technical support services (including the Technology 
Transfer Network bulletin board), industry contacts, etc. The names and 
the direct telephone numbers of the SBAP coordinator and Ombudsman will 
be published in a newsletter to allow for quick access.
    b. 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. 
[[Page 12693]] 
    The State has met this requirement. The SBAP will address pollution 
prevention and accidental release detection and prevention.
    (i) Pollution Prevention. The SBAP coordinator will conduct an 
information clearinghouse on small business pollution prevention 
topics. Available literature from the EPA Pollution Prevention Office 
and other sources will be kept in the SBAP library. The availability of 
such information will be announced in newsletters.
    (ii) Accidental Release. The SBAP coordinator will conduct an 
information clearinghouse for prevention, detection, and monitoring of 
accidental chemical releases. Basic information will cover four areas: 
(1) Requirements under the accidental release provisions of the CAA; 
(2) related requirements under Superfund Amendments and Reauthorization 
Act title III; (3) the Occupational Safety and Health Administration 
process safety standard as required by the CAA; and (4) general 
information on prevention practices and technologies. EPA publications 
on this subject matter shall be kept in the SBAP library. The 
availability of such information will be announced in newsletters.
    c. 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 CAA in a timely and efficient manner.
    The State has met this requirement. The SBAP coordinator shall be 
responsible for providing small businesses with information regarding 
applicability to CAA requirements and the ADPC&E permitting process 
(applications, fees, enforcement, etc.)
    d. The fourth requirement is to develop adequate mechanisms to 
assure that small business stationary sources receive notice of their 
rights under the CAA 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 CAA.
    The State has met this requirement. The SBAP coordinator will be 
responsible for notifying small businesses of their rights under the 
CAA. The SBAP computer database discussed above in II.B.1.a. will be 
used to notify small businesses in a timely manner of any upcoming 
regulations that could potentially affect them. This should give small 
businesses plenty of time to evaluate compliance methods far in advance 
of compliance dates. In addition, the SBAP coordinator shall operate an 
information clearinghouse on small business ``legal rights'' under the 
CAA.
    e. The fifth requirement is to develop adequate mechanisms for 
informing small business stationary sources of their obligations under 
the CAA, 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 CAA.
    The State has met this requirement. The SBAP will address 
obligations and audits.
    (i) Obligations. The SBAP coordinator will be responsible for 
notifying small businesses of their obligations under the CAA. The SBAP 
database and newsletters will be used to inform small businesses of 
their obligations.
    (ii) Audits. The SBAP coordinator shall be responsible for keeping 
a list of qualified compliance auditors for small businesses to 
contact. This list shall contain qualified ADPC&E personnel and other 
qualified environmental consultants. Environmental consultants may be 
placed on the qualified auditors list by sending a written request and 
resume to the SBAP coordinator. Simple complimentary audits performed 
by ADPC&E personnel shall be done at the convenience of ADPC&E 
personnel commensurate with available resources, and there shall be no 
charge for the service. Any violations uncovered during an audit 
performed by ADPC&E personnel shall be dealt with immediately. Audits 
performed by qualified environmental consultants may entail a fee (to 
be paid by the audited business) at the discretion of the consultant.
    f. 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. Procedures for the permitting 
of stationary source modifications are contained in Section 19.4 of the 
State Implementation Plan. No such request for permit modification 
shall be granted unless it meets all applicable State and Federal 
requirements. Application processing priority, to the extent 
practicable, will be given to applications requesting modifications 
necessary to achieve compliance with applicable regulations.
2. Ombudsman
    The second PROGRAM element is the establishment of a State Small 
Business Ombudsman to represent the interests of small businesses in 
the regulatory process. 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 committing to establish 
(prior to November 1994) a dedicated Small Business Ombudsman Office 
within the ADPC&E, as stated in section (d) ``Ombudsman'' of its SIP 
revision. The Ombudsman Office will not be within the Air Division, but 
will be within the agency. Thus, the Ombudsman's Office is going to be 
separate from the air quality regulatory branch of the State agency, 
and therefore can be an independent advocate for small businesses. The 
Ombudsman position will be filled prior to November 15, 1994. The 
Ombudsman Office will have sufficient resources to discharge its duties 
effectively.
    The Ombudsman will have access to the Governor's office, the 
Director of the ADPC&E, and to other State agencies. He will have the 
ability to informally request information from other State agencies, 
and to formally obtain information from other agencies through the 
Governor's office. The Ombudsman, through the Director, will have a 
channel for proposing legislation or administrative action necessary to 
assist eligible small businesses.
3. Compliance Advisory Panel (CAP)
    The third PROGRAM element is the creation of a CAP to determine and 
report on the overall effectiveness of the SBAP. Section 507(e) 
requires the State to establish a 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.
    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 the EPA concerning the SBAP's 
adherence to the principles of the Paperwork Reduction Act, the Equal 
Access to Justice Act, and the Regulatory [[Page 12694]] 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.

    \2\Section 507(e)(1)(B) of the CAA 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, 
the 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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    The State has met these requirements: (A) By enacting the State law 
creating the CAP and providing it with the enumerated responsibilities; 
and (B) by committing to appoint members to the Panel by November 1994. 
Sections 1.-2. of Arkansas Act 251 of 1993 creates the State Compliance 
Advisory Panel with responsibilities consistent with the requirements 
in title V of the Federal CAA and specifies the panel's make-up, 
qualifications, terms, and duties. Adequate support sources and 
sufficient resources to conduct business will be provided to the Panel 
by the ADPC&E through the SBAP administered by the Air Division, which 
shall serve as secretariat to the Panel. Section 2. of Act 251 (i.e., 
Arkansas Code 8-4-314(1)(A)(4)) authorizes the SBAP to serve as the 
secretariat to the Panel. Details of these commitments to appoint the 
members of the CAP as stated above, and to designate to the CAP the 
four responsibilities listed in the CAA, are discussed in section (e) 
``Compliance Advisory Panel'' of its SIP revision.
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 Arkansas 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. This mechanism is contained in the 
State's narrative SIP revision, section (b) entitled ``Eligibility and 
Program Scope''.
    The State of Arkansas 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 has also 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 hearing, 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. Final Action

    In this action, the EPA is approving the SIP revision submitted by 
the State of Arkansas for establishing a Small Business Stationary 
Source Technical and Environmental Compliance Assistance Program.
    The State of Arkansas has submitted a SIP revision for establishing 
each of the required PROGRAM elements required by section 507 of the 
CAA. The EPA has reviewed this revision to the Arkansas SIP and is 
approving it as submitted because the State's PROGRAM meets the 
requirements of section 507 of the CAA. The SIP includes a schedule of 
implementation which commits the State to have all three principal 
PROGRAM elements fully implemented by November 15, 1994. SIP schedule 
implementation milestones are being tracked and monitored by the Region 
as part of the State's normal Program review. Currently, the State has 
selected and staffed the SBAP coordinator and initiated the SBAP (i.e., 
in the Air Division of the ADPC&E), designated the State Office to 
serve as Small Business Ombudsman, hired the Ombudsman in November 
1993, and created a CAP (and begun appointing its members).
    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. Thus, today's direct 
final action will be effective May 8, 1995 unless, by April 7, 1995, 
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 then 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 May 8, 1995.
    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.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the 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, the 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, the EPA is approving a State program created for 
the purpose of assisting small businesses in complying with existing 
statutory and regulatory requirements. The program being approved in 
this action 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.
    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 Office of Management and Budget 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 
[[Page 12695]] States Court of Appeals for the appropriate circuit by 
May 8, 1995. 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, Small business assistance program.

    Note: Incorporation by reference of the SIP for the State of 
Arkansas was approved by the Director of the Federal Register on 
July 1, 1982.

    Dated: January 24, 1995.
William B. Hathaway,
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 E--Arkansas

    2. Section 52.170 is amended by adding paragraph (c)(31) to read as 
follows:


Sec. 52.170  Identification of plan.

* * * * *
    (c) * * *
    (31) The State is required to implement a Small Business Stationary 
Source Technical and Environmental Compliance Assistance Program 
(PROGRAM) as specified in the plan revision submitted by the Governor 
on November 6, 1992. This plan submittal, as adopted by the Arkansas 
Commission on Pollution Control and Ecology on November 5, 1992, was 
developed in accordance with section 507 of the Clean Air Act. On April 
23, 1993, the Governor submitted Act 251 of 1993 which establishes the 
Compliance Advisory Panel (CAP) for the PROGRAM.
    (i) Incorporation by reference.
    (A) Act 251 of 1993 approved by the Governor on February 26, 1993. 
Included in this Act are provisions creating a CAP, establishing 
membership of the CAP, and addressing the responsibilities and duties 
of the CAP.
    (B) Arkansas Department of Pollution Control and Ecology, Minute 
Order No. 92-81, adopted November 5, 1992.
    (ii) Additional material.
    (A) Revision entitled, ``Arkansas Small Business Stationary Source 
Technical and Environmental Compliance Assistance Program SIP 
Revision'', adopted November 5, 1992.
    (B) Legal opinion letter dated November 5, 1992, from Steve Weaver, 
Chief Counsel, Arkansas Department of Pollution Control and Ecology, 
regarding legality of Commission teleconference meeting.
    3. Section 52.183 is added to subpart E to read as follows:


Sec. 52.183  Small business assistance program.

    The Governor of Arkansas submitted on November 6, 1992, a plan 
revision to develop and implement a Small Business Stationary Source 
Technical and Environmental Compliance Assistance Program (PROGRAM) to 
meet the requirements of section 507 of the Clean Air Act by November 
15, 1994. The plan commits to provide technical and compliance 
assistance to small businesses, hire an Ombudsman to serve as an 
independent advocate for small businesses, and establish a Compliance 
Advisory Panel to advise the program and report to the EPA on the 
program's effectiveness. On April 23, 1993, the Governor submitted Act 
251 of 1993 which establishes the Compliance Advisory Panel for the 
PROGRAM.

[FR Doc. 95-5442 Filed 3-7-95; 8:45 am]
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