[Federal Register Volume 60, Number 171 (Tuesday, September 5, 1995)]
[Rules and Regulations]
[Pages 46025-46029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21884]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[OR-31-1-5932a; FRL-5283-4]


Approval and Promulgation of Implementation Plans: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves the State 
of Oregon Implementation Plan (SIP) revision submitted by the State of 
Oregon 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 or the Act), to 
ensure that small businesses have access to the 

[[Page 46026]]
technical assistance and regulatory information necessary to comply 
with the CAA. The rationale for the approval is set forth in this 
notice; additional information is available at the address indicated 
below.

DATES: This final rule is effective November 6, 1995 unless notice is 
received by unless adverse or critical comments are received by October 
5, 1995. 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 & Radiation Branch (AT-082), EPA, OR-31-1-5932, 1200 
Sixth Avenue, Seattle, Washington 98101.
    Documents which are incorporated by reference are available for 
public inspection at the Air and Radiation Docket and Information 
Center, Environmental Protection Agency, 401 M Street, SW., Washington, 
DC 20460. Copies of material submitted to EPA may be examined during 
normal business hours at the following locations: EPA, Region 10, Air & 
Radiation Branch, 1200 Sixth Avenue (AT-082), Seattle, Washington 
98101, and the Oregon Department of Environmental Quality, 811 SW. 
Sixth Avenue, Portland, OR 97204.

FOR FURTHER INFORMATION CONTACT: David J. Dellarco, Air and Radiation 
Branch (AT-082), EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101, 
(206) 553-4978.

SUPPLEMENTARY INFORMATION:

I. Background

    Implementation of the provisions of the Clean Air Act (CAA or Act), 
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 Environmental Protection Agency (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 Oregon has submitted a SIP revision to EPA in order to 
satisfy the requirements of Section 507. Section 468.330 of the Oregon 
Revised Statutes establishes a Small Business Stationary Source 
Technical and Environmental Compliance Assistance Program and requires 
the Program to include each element specified in section 507(a) of the 
Act. 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 through participation 
in a Pacific Northwest regional effort designed to ensure collection 
and development of compliance methods and technologies for small 
businesses. In addition, Oregon's SBAP has an information component and 
a technical assistance component. The information component advises 
small business about air quality regulations that may affect them, 
through education, outreach, and toll-free telephone access. The 
technical assistance component helps small businesses through direct 
consultation and site visits.

    \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 coordinating and integrating SBAP 
activities with its pollution prevention activities, in particular the 
toxics use and waste reduction program. In addition, Oregon's SBAP will 
coordinate with the State Fire Marshal, Oregon-OSHA, and local 
emergency response programs in order to ensure small businesses receive 
assistance and information on 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 training staff in regulatory and 
permitting requirements, informing small businesses of their 
responsibilities through outreach, and providing compliance assistance 
through the SBAP.
    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 ensuring that small 
business rights are included in education and outreach materials and 
activities, as well as during the delivery of technical assistance. 
Oregon follows a policy of providing the regulated community with at 
least 30 calendar days advance notice before applicable requirements 
take 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 through a policy of providing the 
regulated community with at least 30 calendar days advanced notice of 
their obligations under state law, developing a program for qualified 
outside auditors 

[[Page 46027]]
to provide compliance assessments upon request, and providing 
compliance assistance through the Compliance Assessment Program.
    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 
such requests.

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 establishing and filling a new technical 
assistance coordinator position located in the administration section 
of the Department's Regional Operations Division. The technical 
assistance coordinator is assigned the responsibilities of the Small 
Business Ombudsman.

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 individuals. See ORS 
468A.330(3).
    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 Act;\2\ (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 by authorizing its CAP to address these 
responsibilities. See ORS 468A.330(2).

    \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 Oregon 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 Oregon 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 Oregon 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. Onsite Technical Assistance
    The statute establishing the Oregon Small Business Program, ORS 
468A.330, provides that onsite technical assistance for the development 
and implementation of the Small Business Stationary Source Technical 
and Environmental Compliance Assistance Program shall not result in 
inspections or enforcement actions except where there is reasonable 
cause to believe that a clear and immediate danger to the public health 
and safety or to the environment exists. See ORS 468A.330(4)(a). On 
August 12, 1994, EPA issued a guidance memorandum entitled 
``Enforcement Response Policy for Treatment of Information Obtained 
Through Clean Air Act Section 507 Small Business Assistance Programs'' 
signed by Steven A. Herman (herein referred to as the ``SBA Enforcement 
Guidance''), which sets forth EPA's enforcement response policy on the 
treatment of violations detected during compliance assistance visits 
under State Small Business Assistance Programs. The SBA Enforcement 
Guidance endorses State PROGRAMS that either (1) voluntarily seek 
compliance assistance a limited period to correct violations observed 
or revealed as a result of compliance assistance or (2) if the PROGRAM 
is independent of the delegated State air enforcement program, keep 
confidential information that identifies the names and locations of 
specific small businesses with violations revealed through compliance 
assistance.
    The Oregon statute does not satisfy the requirements of the first 
option of the SBA Enforcement Guidance in that ORS 468A.330(4)(a) does 
not simply give sources that receive onsite technical assistance a 
limited opportunity to correct a violation, but instead prohibits 
further enforcement inspections and enforcement actions that result 
from onsite technical assistance. On May 16, 1995, the State or Oregon 
submitted to EPA a guidance document entitled ``Air Quality Guidance: 
Restriction of Information Obtained by the AQ Small Business Assistance 
Program'' (hereinafter, ``Oregon's SBAP Confidentiality Guidance''). 
This document requires the PROGRAM to be operated independently of 
Oregon's air program enforcement efforts and requires the PROGRAM to 
restrict access by Oregon air enforcement staff to information 
regarding violations detected through onsite technical assistance 
visits to small businesses.
    EPA has reviewed Oregon's SBAP Confidentiality Guidance and 
believes that it meets the conditions that apply to State's choosing 
the confidentiality option. Specifically, Oregon's SBAP Confidentiality 
Guidance is an official policy that establishes independence between 
the PROGRAM and the Oregon air enforcement program; it restricts access 
by Oregon air enforcement staff to information regarding violations 
detected through onsite technical assistance visits to small 
businesses; it requires the PROGRAM to report general statistical and 
other information about small business compliance to the Department of 
Environmental Quality and requires the PROGRAM to track 

[[Page 46028]]
compliance progress where it identifies violations during onsite 
technical assistance; the Department retains full discretion to take 
enforcement action against violations documented independently of 
onsite technical assistance visits; and Oregon's PROGRAM is subject to 
the eligibility requirements of Section 507(c) of the Clean Air Act. In 
summary, EPA believes that ORS 468A.330(4)(a), when implemented in 
accordance with Oregon's SBA Confidentiality Guidance, is consistent 
with EPA's SBA Enforcement Guidance.

III. This Action

    In this action, EPA approves the SIP revision submitted by the 
State of Oregon. The State of Oregon has submitted a SIP revision 
implementing each of the required PROGRAM elements required by Section 
507 of the CAA. The Program is currently being implemented. 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.
    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.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).
    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.
    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 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
    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 6, 1995 unless, within 30 days of its publication, 
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 notice 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 November 6, 1995.
    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 6, 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

    Air pollution control, Incorporation by reference, Small Business 
Assistance Program.

    Dated: August 8, 1995.
Charles Findley,
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. 

[[Page 46029]]


Subpart MM--Oregon

    2. Section 52.1970 is amended by adding paragraph (c) (112) to read 
as follows:


Sec. 52.1970  Identification of plan.

* * * * *
    (c) * * *
    (112) On November 16, 1992, the Director for the Oregon Department 
of Environmental Quality (ODEQ) submitted the Oregon State Small 
Business Stationary Source Technical and Environmental Compliance 
Assistance Program and on May 16, 1995, the Administrator for ODEQ 
submitted the Small Business Assistance Program Confidentiality Option 
as revisions to the Oregon State Implementation Plan.
    (i) Incorporation by reference.
    (A) The November 16, 1992 letter from the Director of the Oregon 
Department of Environmental Quality submitting the Small Business 
Stationary Source Technical and Environmental Compliance Assistance 
Program to EPA; The Oregon Air Quality Small Business Assistance 
Program State Implementation Plan Revision adopted on October 16, 1992, 
and evidence that the State has the necessary legal authority, Oregon 
Revised Statutes 468A.330 (Small Business Stationary Source Technical 
and Environmental Compliance Assistance Program).
    (B) The May 16, 1995 letter from the Administrator of the Oregon 
Department of Environmental Quality, Air Quality Division, submitting 
the Small Business Assistance Program confidentiality option to EPA; 
The Air Quality Guidance, Restriction of Information Obtained by the AQ 
Small Business Assistance Program adopted on May 16, 1995.

[FR Doc. 95-21884 Filed 9-1-95; 8:45 am]
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