[Federal Register Volume 60, Number 45 (Wednesday, March 8, 1995)]
[Rules and Regulations]
[Pages 12685-12688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5447]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[WA-18-1-5933a; FRL-5151-9]


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

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves the State 
of Washington Implementation Plan (SIP) revision submitted by the State 
of Washington 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 of the Clean Air Act (CAA or Act), 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 is effective on May 8, 1995, unless notice is 
received by April 7, 1995 that someone wishes to submit adverse or 
critical comments. 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 materials submitted to EPA may be examined during normal 
business hours at the following locations: EPA Region 10, 1200 Sixth 
Avenue, Seattle, WA 98101, and Washington State Department of Ecology, 
P.O.Box 47600, PV-11, Olympia, WA 98504-7600.

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 the EPA to oversee 
[[Page 12686]] 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 Washington 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 of Washington has met this requirement through 
participation in a Pacific Northwest regional effort designed to ensure 
collection and development of compliance methods and technologies for 
small businesses. In addition, Washington's SBAP is comprised of both 
proactive and reactive components. The proactive component includes 
agressive outreach to the business community with information which 
details their rights and obligations under the Act. The reactive 
component establishes an information network to respond to questions 
from small businesses concerning regulatory requirements, appropriate 
control technologies, and other specific inquiries such as pollution 
prevention opportunities.

    \1\A seventh requirement of section 507(a), establishment of an 
Ombudsman office, is discussed in the next section.
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    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 by planning to provide direct support 
for these areas to small businesses. The SBAP can also draw upon the 
expertise of the Department of Ecology's pollution prevention program-
the Washington Department of Ecology's Waste Reduction, Recycling, and 
Litter Control program (WRRLC). In conjunction with the WRRLC program, 
the SBAP has the ability to utilize consultation, information 
distribution, and general engineering assistance to support the 
pollution prevention needs of small businesses. The SBAP can also draw 
upon State expertise with Superfund Amendments and Reauthorization Act 
(SARA) Title III to address small business needs in the area 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 planning to have trained SBAP and/or 
local air pollution control agency staff available to help interpret 
Federal, State, and local air quality requirements, as well as provide 
permit assistance.
    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 planning to assure that 
small businesses receive information regarding their rights through 
various outreach mechanisms such as mass mailings and workshops. In 
addition, the SBAP commits to coordinating with regulatory development 
organizations, including local air pollution control agencies, so that 
small businesses have sufficient lead time to evaluate compliance 
methods and applicable requirements.
    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 planning to utilize activities such 
as on-site consultation/site assessments provided by the SBAP or local 
air control authority, or provide lists of qualified auditors on 
request.
    The sixth requirement is to develop procedures for consideration of 
requests from small business stationary sources 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 through State law 
(RCW 70.94.181) which establishes these provisions.

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 creating a Small Business Ombudsman 
position within the Washington Department of Ecology.

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 
Compliance Advisory Panel comprised of these representatives.
    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 
[[Page 12687]] 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 by directing its Compliance 
Advisory Panel to address these areas of responsibility as their 
primary function.

    \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.
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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 Washington 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 Washington 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 Washington 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.

5. Technical Assistance Visits

    Washington submitted RCW 70.94.035, the statute authorizing 
Washington's PROGRAM as part of its SBAP submittal. Washington has 
another statute, RCW 43.21A.087, which also authorizes technical 
assistance visits which was not submitted as part of Washington's SBAP 
submittal. Importantly, each of these statutes places certain limits on 
the State's authority to bring enforcement actions for violations 
observed during technical assistance visits. RCW 70.94.035, which was 
enacted in 1991 and specifically applies to the air program, prohibits 
enforcement action ``unless and until the facility owner or operator 
has been provided a reasonable time to correct the violation.'' 
According to an opinion of the Washington Attorney General, this 
provision does not prevent a permitting authority from commencing an 
enforcement action for a violation observed during a technical 
assistance visit, but merely requires the permitting authority to give 
the source a reasonable opportunity to comply before deciding whether 
enforcement action is appropriate. The Attorney General similarly 
interprets RCW 43.21A.087, enacted in 1992, which allows the permitting 
authority to reinspect the facility and take enforcement action ``[i]f 
the owner or operator of the facility does not correct the 
violation.''3 The Attorney General also states that because RCW 
70.94.035 applies specifically to the air program and specifically 
requires that the technical assistance program be consistent with the 
Federal Clean Air Act, this provision would prevail in the event of any 
conflict with RCW 43.21A.087, which applies to technical assistance 
visits under all of Ecology's environmental programs. EPA agrees that 
RCW 70.94.035 would allow enforcement action in such a case provided 
the enforcement action was commenced after the source had an 
opportunity to comply. EPA also believes that RCW 70.94.035, and not 
RCW 43.21A.087, applies in the case of technical assistance visits 
under the air program. EPA therefore believes that Washington's 
technical assistance statutes, as interpreted by the Attorney General, 
do not bar approval of Washington's SBAP PROGRAM.

    \3\Both statutes allow Ecology to commence immediate enforcement 
action for any violation that places anyone in imminent danger of 
death or substantial bodily harm or causes substantial property 
damage.
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III. This Action

    In this action, EPA approves the SIP revision submitted by the 
State of Washington. Based on the Attorney General's opinion discussed 
above that RCW 70.94.035 is the statute that applies in the case of 
technical assistance visits under the Washington's SBAP PROGRAM, EPA is 
approving RCW 70.94.035 as part of Washington's SBAP SIP revision. The 
State of Washington has submitted a SIP revision implementing each of 
the PROGRAM elements required by section 507 of the CAA. At this time, 
the Small Business Assistance Program, the Ombudsman, and the 
Compliance Advisory Panel 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.
    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 business entities affected.
    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 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 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. [[Page 12688]] 
    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 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), 42 U.S.C. 
7607(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 Implementation Plan for 
the State of Washington was approved by the Director of the Office 
of Federal Register on July 1, 1982.

    Dated: February 1, 1995.
Chuck Clarke,
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 WW--Washington

    2. Section 52.2470 is amended by adding paragraph (c)(45) to read 
as follows:


Sec. 52.2470  Identification of plan.

* * * * *
    (c) * * *
    (45) On November 16, 1992 the Director of the Washington State 
Department of Ecology submitted ``State Implementation Plan for the 
Washington State Business Assistance Program,'' adopted November 13, 
1992, as a revision to the Washington SIP.
    (i) Incorporation by reference.
    (A) November 13, 1992 letter from the Director of the Washington 
State Department of Ecology submitting ``State Implementation Plan for 
the Washington State Business Assistance Program'' to EPA.
    (B) State Implementation Plan for the Washington State Business 
Assistance Program, including Appendix B, Revised Code of Washington 
(RCW) 70.94.035; Appendix D, Washington Administrative Code 173-400-
180; Appendix E, RCW 70.94.181; and Appendix F, Business Assistance 
Program Guidelines (and exluding Appendices A, C, and G), dated 
November 1992, and adopted November 13, 1992.
* * * * *
[FR Doc. 95-5447 Filed 3-7-95; 8:45 am]
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