[Federal Register Volume 59, Number 8 (Wednesday, January 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-760]


[[Page Unknown]]

[Federal Register: January 12, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MA-20-01-5783; A-1-FRL-4825-5]

 

Approval and Promulgation of Title V, Section 507, Small Business 
Stationary Source Technical and Environmental Compliance Assistance 
Program for Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes to conditionally approve the State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Massachusetts 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 to ensure that small businesses have access to the 
technical assistance and regulatory information necessary to comply 
with the Clean Air Act (CAA). The rationale for the conditional 
approval is set forth in this proposal; additional information is 
available at the address indicated below.
DATES: Comments must be received on or before February 11, 1994.

ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region I, JFK Federal Bldg., Boston, MA 02203. 
Copies of the State submittal and EPA's technical support document 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 and Department of Environmental Protection, One 
Winter Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Emanuel Souza, Jr., (617) 565-3248.

SUPPLEMENTARY INFORMATION:

I. Background

    Implementation of the provisions of the Clean Air Act Amendments of 
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 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.
    The Commonwealth of Massachusetts 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 (CAP) to determine 
and report on the overall effectiveness of the SBAP.

II. Analysis

1. Small Business Assistance Program

    Massachusetts' SIP revision delegates the responsibility for 
implementation of the SBAP to various functional units within the 
Executive Office of Environmental Affairs (EOEA) and the Department of 
Environmental Protection (DEP). SBAP staff will be located in the 
Office of Technical Assistance. Primary responsibility for program 
oversight, development, and coordination will lie with the small 
business ombudsman and the SBAP staff.
    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 by offering a 
proactive and reactive approach to gathering and disseminating 
information on compliance issues and control technologies. This 
approach includes: an information clearinghouse, workshops, and an 
audit program.
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    \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 stating that the Massachusetts Office 
of Technical Assistance (OTA) will provide help in identifying 
pollution prevention opportunities. These services are provided at no 
charge. Additionally, the SBAP staff will provide small business 
stationary sources with information and referral to appropriate sources 
regarding requirements related to 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. As stated earlier, responsibility for 
the implementation of the small business assistance program will 
involve various units within the EOEA and the DEP, with primary 
responsibility for program oversight, development, and coordination 
lying with the small business ombudsman and SBAP staff in EOEA, Office 
of Technical Assistance. The air quality staff at each DEP Regional 
Office will provide assistance to small business stationary sources in 
the following: identifying applicable rules, determining their need for 
permits, explanation of the permitting procedures, providing the 
necessary forms and applications, and assisting them in preparing the 
required documents.
    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 regulations or standards issued under 
the Act. The State has met this requirement by providing that the DEP's 
Division of Air Quality Control (DAQC) will be responsible for the 
development of policies and regulations for implementing the provisions 
of the CAA. The staff in that office will provide assistance in 
identifying applicable rules. Additionally, that office will provide 
the necessary information regarding rules and procedures for complying 
with Federal and state laws and regulations. Furthermore, it will be 
the DAQC's responsibility to inform businesses of their rights through 
brochures and workshops.
    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 
SIP revision provides that the DAQC is responsible for the development 
of policies and regulations for implementing the provisions of the CAA. 
The SBAP staff will also be responsible for providing audits. These 
include on-site assessments by the OTA and through audit referrals. On-
site assessments will be arranged in conjunction with technical staff 
from the OTA. Audit referrals will be arranged by having the staff 
provide a list of qualified private sector auditors or consultants to 
small business stationary sources.
    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 SIP revision provides that specific regulations 
for modifications of work practices or technological methods of 
compliance will be submitted in November 1993. These regulations will 
include: (1) Procedures for receiving requests from small businesses to 
modify the provisions of State-adopted regulations; (2) format for such 
requests; (3) procedures for how requests will be reviewed and acted 
upon; and (4) requirements to ensure that no such modification may be 
granted unless it is in compliance with the applicable requirements of 
the CAA, the SIP and the applicable Federal regulations.

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 designating the small business ombudsman 
within the EOEA. The EOEA is a secretariat answering directly to the 
Governor. The designation of a small business ombudsman within the 
Commonwealth's environmental secretariat but outside of the 
secretariat's regulatory agency will:

    (1) Enhance impartiality in resolving disputes involving compliance 
and enforcement;
    (2) Reduce potential for conflicts of interest;
    (3) Improve utilization by the business community;
    (4) Allow for a high level of independence, authority, and 
communication;
    (5) Allow the small business ombudsman to build upon established 
contacts with the business community and other government offices and 
agencies; and
    (6) Strengthen the ombudsman's ability to provide program oversight 
and evaluation.

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 not fully met this requirement due to the 
lack of adequate statutory authority to establish the CAP. However, EPA 
expects Massachusetts to submit a legislative resolve to EPA when it is 
finally approved. The SIP revision provides that legislative approval 
and selection of CAP members will be completed by January 30, 1994.
    In addition to establishing the minimum membership of the CAP the 
CAA delineates four responsibilities for it: (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 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 in the SIP revision by authorizing the panel to: render 
advisory opinions on the effectiveness of the small business assistance 
program; prepare periodic reports to EPA on the status of the SBAP with 
regard to the Paper Work Reduction Act, the Regulatory Flexibility Act, 
and the Equal Access to Justice Act; and review information for small 
business stationary sources to assure such information is 
understandable by the layperson. Additionally, the SIP revisions 
provide the small business ombudsman with the authority to oversee all 
aspects of the SBAP and allows for the ombudsman to act as secretariat 
to the panel.
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    \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 SIP revision states that it is the general policy of the EOEA 
and the DEP to assist all businesses in identifying applicable 
regulations and in meeting their obligations under the requirements of 
the CAA. However, recognizing the special needs of the small business 
stationary sources, EOEA and DEP shall, wherever resources become a 
limiting factor in providing such assistance, give priority to 
businesses which meet the definition of small business stationary 
source under title V, section 507(c)(1) of the Clean Air Act. 
Additionally, the Commonwealth of Massachusetts allows businesses that 
do not meet the provisions of sections 507(c)(1)(C)-(E) to petition the 
SBAP for assistance in accordance with the procedures established in 
section 507(c)(2) of the CAA.
    The SBAP staff, with the advice of the ombudsman and the CAP, may 
consider the development of provisions for excluding any category or 
subcategory of sources with sufficient financial and technical 
resources, from receiving assistance under the SBAP in accordance with 
the provisions of the Act.

III. Proposed Action

    The Commonwealth of Massachusetts has submitted a SIP revision 
implementing each of the required PROGRAM elements required by section 
507 of the CAA. The State expects all the elements of the PROGRAM to be 
fully operational by November 14, 1994.
    The State needs full adequate legal authority to implement the 
PROGRAM before EPA can fully approve this SIP revision. Therefore, EPA 
is proposing to conditionally approve the Massachusetts SIP revision 
for the small business stationary source technical and environmental 
compliance assistance program, which was submitted on November 13, 1993 
upon the condition that Massachusetts submits the additional legal 
authority necessary to fully implement the PROGRAM.
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the Addresses section of 
this action.

Proposed Action

    EPA is proposing to conditionally approve the small business 
stationary source technical and environmental compliance assistance 
program submitted on November 13, 1992 and July 22, 1993. The one 
outstanding issue with this SIP revision concerns Massachusetts' lack 
of adequate legal authority to establish and implement a compliance 
advisory panel. The State plans to address this issue in a legislative 
resolve which it will forward to EPA by November 14, 1994. For this 
reason EPA is proposing to conditionally approve this SIP revision on 
the condition that the State meet its commitment to submit a 
legislative resolve allowing a compliance panel to be established and 
implemented, incorporating all the elements listed in section 507(e) of 
the Clean Air Act and have the program fully operational by November 
14, 1994. Under section 110(k)(4) of the Act, EPA may conditionally 
approve a plan based on a commitment from the State to adopt specific 
enforceable measures by a date certain, but not later than 1 year from 
the date of approval. If EPA takes final conditional approval on the 
commitment, the State must meet its commitment to have the program 
fully operational by November 14, 1994. 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 Massachusetts SIP. 
EPA subsequently will publish a notice in the notice section of 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 EPA determines that it cannot issue a final conditional approval 
or 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.
    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 Administer for Air 
and Radiation. On January 6, 1989 the Office of Management and Budget 
(OMB) waived Table 2 and 3 SIP revisions (54 FR 2222) from the 
requirement of section 3 of Executive Order 12291 for a period of two 
years. EPA has submitted a request for a permanent waiver for Table 2 
and Table 3 SIP revisions. The OMB has agreed to continue the waiver 
until such time as it rules on EPA's request. This request continues in 
effect under Executive Order 12866 which superseded Executive Order 
12291 on September 30, 1993.
    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 today's action, EPA is conditionally approving a State program 
created for the purpose of assisting small businesses in complying with 
existing statutory and regulatory requirements. The program being 
proposed for conditional approval today 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 conditional 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.
    The Regional Administrator's decision to approve or disapprove the 
SIP revision will be based on whether it meets the requirements of 
sections 110(a)(2)(A)-(K) and 110(a)(3) of the Clean Air Act, as 
amended, and EPA regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

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

    Authority: 42 U.S.C. 7401-7671q.

    Dated: December 21, 1993.
Paul G. Keough,
Acting Regional Administrator, Region I.
[FR Doc. 94-760 Filed 1-11-94; 8:45 am]
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