Approval and Promulgation of a Small Business Technical and Environmental Compliance Assistance Program; Michigan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MI17-01-5761; FRL-4886-7]

Approval and Promulgation of a Small Business Technical and

Environmental Compliance Assistance Program; Michigan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA approves the Michigan State Implementation Plan (SIP)

revision submitted by the State of Michigan for the purpose of

establishing a Small Business Stationary Source Technical and

Environmental Compliance Assistance Program (PROGRAM). The

implementation plan was submitted by the State to satisfy the Federal

mandate of the Clean Air Act (Act), to ensure that small businesses

have access to the technical assistance and regulatory information

necessary to comply with the Act. The rationale for the approval is set

forth in this notice; additional information is available at the

addresses indicated below.

EFFECTIVE DATE: This action will be effective August 2, 1994 unless

notice is received by July 5, 1994 that someone wishes to submit

adverse comments. If the effective date is delayed, timely notice will

be published in the Federal Register.

ADDRESSES: Comments can be mailed to Carlton Nash, Chief, Regulation

Development Section, Air Toxics and Radiation Branch, United States

Environmental Protection Agency, 77 West Jackson Boulevard (AT-18J),

Chicago, Illinois 60604. Copies of the State's submittal and the EPA's

technical support document are available for inspection during normal

business hours at the following locations: United States Environmental

Protection Agency, Region 5, Air and Radiation Division, 77 West

Jackson Boulevard (AT-18J), Chicago, Illinois 60604, and Michigan

Department of Natural Resources, Stevens T. Mason Building, P.O. Box

30028, Lansing, Michigan 48909.

A copy of this SIP revision is also available at the Office of Air

and Radiation, Docket and Information Center (Air Docket 6102), room

M1500, United States Environmental Protection Agency, 401 M Street,

SW., Washington, DC 20460, (202) 260-7548.

FOR FURTHER INFORMATION CONTACT: Chris Campbell, USEPA (AT-18J), 77

West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-6324.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the 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 Act 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 Act 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 Act. In February 1992, the EPA

issued ``Guidelines for the Implementation of Section 507 of the 1990

Clean Air Act Amendments'' to delineate the Federal and State roles in

meeting the new statutory provisions and to provide further guidance to

the States on submitting acceptable SIP revisions.

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 PROGRAM.

In order to satisfy the requirements of section 507, on November

11, 1992, January 8, 1993, and November 12, 1993, the State of Michigan

submitted a Small Business Stationary Source Technical and

Environmental Compliance Assistance Program as a revision to its SIP.

The November 12, 1993 submittal included the Michigan Small Business

Clean Air Assistance Act of 1993.

II. Analysis

1. Small Business Assistance Program

Section 507(a) sets forth six requirements\1\ 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.

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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 State has met this requirement by establishing the Air Quality

Small Business Assistance Program (AQSBAP) and requiring it to develop

this aspect of the SBAP. The AQSBAP outreach program will coordinate

activities with existing groups that represent small businesses'

interests and/or come in contact with large numbers of small

businesses. As new standards and requirements are promulgated, the

AQSBAP will translate the requirements into understandable terms and

disseminate the information through these organizations, which include

the Michigan Department of Natural Resources Air Quality Division (MDNR

AQD), the Small Business Clean Air Ombudsman (SBCAO), the Michigan

Department of Public Health, local emergency planning committees, trade

associations, chambers of commerce, newspapers, business and trade

journals, economic development groups, universities, and electronic

databases. The AQSBAP will also seek participation in these

organizations' conferences and meetings. In addition, the AQSBAP will

develop a client tracking system to help assess program needs, and to

develop small business mailing lists. To address reactive information

needs, the AQSBAP will assist in operating an ``800'' telephone

clearinghouse service which will be able to provide technical

assistance. To address the program's technical resource needs, the

AQSBAP will provide its own technical specialists, as well as develop

mechanisms for obtaining additional technical support from appropriate

Federal, State, and other organizations. The AQSBAP will also develop

an air quality resource center, which will be available to the AQSBAP

technical specialists.

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 promoting pollution

prevention and offering technical assistance through the AQSBAP and

several existing programs also within the Environmental Sciences

Division (ESD). The AQSBAP and the Office of Waste Reduction Services

will help businesses locate and take advantage of pollution prevention

opportunities. The AQSBAP and the Education/Outreach program will work

together in the development of fact sheets and case studies which

highlight pollution prevention technologies. In addition, these

programs will jointly participate in seminars and workshops. The AQSBAP

will address accidental release detection and prevention by training

technical specialists in these practices and technologies. General

questions will be addressed by these specialists, and complex questions

will be referred to the EPA's Chemical Emergency Preparedness and

Prevention Office, or the Emergency Planning and Community Right-to-

Know Hotline. State organizations, including the State Emergency

Response Commission, the Michigan Chemical Council, the Emergency

Management Division of the Michigan Department of State Police, and the

Michigan Department of Public Health will also be used as resources.

The outreach program described in the first requirement above will be

used to distribute publications and information about upcoming

workshops on accidental release 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 providing an ``800'' number

and by offering individual meetings to provide one on one compliance

assistance. The AQSBAP technical specialists will be able to identify

applicable air quality regulations, determine whether or not a permit

is needed, identify methods for achieving compliance, and explain the

permitting procedures. The AQSBAP will use the outreach methods

described in the first requirement above to disseminate information

regarding new standards and requirements.

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 establishing information

dissemination mechanisms to ensure that small business stationary

sources receive notice of their rights under the Act. The AQSBAP and

the MDNR AQD will develop a fact sheet that notifies small businesses

of their rights under the Act and Michigan's Air Pollution Act, and

explains the legal recourse should they be notified of a violation.

This information will be provided during site visits and presentations

at trade association meetings, and will be uploaded on the NEWBIZ

computer database. The AQSBAP will also develop and disseminate through

the outreach program timely fact sheets notifying small businesses of

proposed and final regulations issued under the Act that affect their

businesses.

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 establishing information

dissemination mechanisms to ensure that small business stationary

sources receive notice of their obligations under new regulations.

These mechanisms are the same as those listed above for notifying

sources of their rights. In addition, the AQSBAP will develop and

distribute a list of consultants that can provide air quality audits of

small businesses. The AQSBAP will also develop a fact sheet that helps

small businesses select a reputable auditor. In addition, the AQSBAP

will investigate the feasibility of implementing its own voluntary

audit 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 addressing such requests

under Modification to Act 348, Part 6 Rules, which contains the

procedures that businesses must follow in obtaining approval for such a

request. Responses to requests relating to Federal standards will be

coordinated with the EPA. The AQSBAP will assist small businesses in

identifying these procedures.

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 the Small Business Clean Air

Ombudsman (SBCAO) and the Office of the SBCAO within the Michigan

Department of Commerce. The SBCAO is required to represent the

interests of small businesses, and to assure that the goals of the

AQSBAP are met. The SBCAO is required to perform many duties,

including: Conducting evaluations of all aspects of the program;

reviewing and commenting on requirements that impact small businesses;

facilitating and promoting small business participation in rule

development; disseminating information; participating and sponsoring

meetings with regulatory officials, industry groups, and small business

representatives; investigating and resolving complaints and disputes

from small businesses against State or local air pollution control

agencies; referring small businesses to the appropriate technical

specialists; assisting in the preparation of small business guidance

documents; assisting small businesses in locating financial assistance

for compliance requirements; and studying the financial impacts of

requirements on small businesses. It is expected that the Governor will

be making the Ombudsman appointment by June 1994, but no later than

November 1, 1994.

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 CAP which

includes these appointments. The enabling legislation also outlines

general policies and procedures for administering the CAP. As of April

1, 1994, five of the seven CAP appointments had been made. All CAP

appointments will be completed by June 1994, but no later than November

1, 1994.

In addition to establishing the minimum membership of the CAP, the

Act 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 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 requiring the CAP to meet these

responsibilities. In addition, the AQSBAP and the SBCAO staff will

provide support to the CAP in its efforts to carry out these

responsibilities.

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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 Act 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.

Michigan's Small Business Clean Air Assistance Act similarly

defines the term ``small business,'' and expands criterion (C) to

include major stationary sources which are major because of their

location in a nonattainment area. To avoid discouraging businesses from

seeking assistance, Michigan intends to use a flexible definition of

small business when implementing the program. The type of service and

the amount of resources necessary to carry out the service will dictate

whether a broad or narrow eligibility definition is used. This is

consistent with section 507(c)(2) of the Act.

The State of Michigan has provided for public notice and comment on

grants of eligibility to sources that both do not emit more than 100

tpy of all regulated pollutants and do not meet the eligibility

provisions of sections 507(c)(1) (C), (D), and (E) of the Act. In

response to such a petition by a stationary source, the Director of the

MDNR may define a source as a ``small business.'' This is consistent

with section 507(c)(2) of the Act.

The State of Michigan has provided for exclusion from the ``small

business'' definition for any category or subcategory of sources that

the State determines to have sufficient technical and financial

capabilities to meet the requirements of the Act. The Director of the

MDNR may exclude such sources after consultation with the EPA and the

Small Business Administration and after providing notice and

opportunity for public hearing. This provision is consistent with

section 507(c)(3).

III. Final Rulemaking

Michigan has submitted a SIP revision implementing each of the

required PROGRAM elements required by section 507 of the Act. The

PROGRAM will be fully implemented by November 15, 1994.

Because the EPA considers this final rule noncontroversial and

routine, we are approving it today without prior proposal. This rule

will become effective on August 2, 1994. However, if we receive notice

by July 5, 1994 that someone wishes to submit adverse comments, then

the EPA will publish: (1) A notice that withdraws the action, and (2) a

notice that begins a new rulemaking by proposing the action and

establishing a comment period.

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). A revision to the SIP processing

review tables was approved by the Acting Assistant Administrator for

Office of Air and Radiation on October 4, 1993 (Michael Shapiro's

memorandum to Regional Administrators). A future notice will inform the

general public of these tables. Under the revised tables this action

remains classified as a Table 2. 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. The EPA has submitted a request for a permanent

waiver for Table 2 and Table 3 SIP revisions. The OMB has agreed to

continue the temporary waiver until such time as it rules on the EPA's

request. This request continued in effect under Executive Order 12866

which superseded Executive Order 12291 on September 30, 1993.

Nothing in this action should be construed as permitting, allowing,

or establishing a precedent for any future request for revision to any

SIP. USEPA shall consider each request for revision to the SIP in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the

EPA must determine whether the regulatory action is ``significant'' and

therefore subject to OMB review and the requirements of the Executive

Order. The Order defines ``significant regulatory action'' as one that

is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

OMB has exempted this regulatory action from E.O. 12866 review.

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 today's 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 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 approval

of this program does not impose any new regulatory requirements on

small businesses, I certify that it does not have a significant

economic impact on any small entities affected.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Small business

assistance program, Incorporation by reference.

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

Dated: May 3, 1994.

Valdas V. Adamkus,

Regional Administrator.

For the reasons set out in the preamble, part 52, chapter 1, 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 X--Michigan

2. Section 52.1170 is amended by adding paragraph (c)(94) to read

as follows:

Sec. 52.1170 Identification of plan.

* * * * *

(c) * * *

(94) On November 13, 1992, January 8, 1993, and November 12, 1993,

the State of Michigan submitted a Small Business Stationary Source

Technical and Environmental Assistance Program for incorporation in the

Michigan State Implementation Plan as required by section 507 of the

Clean Air Act.

(i) Incorporation by reference.

(a) Small Business Clean Air Assistance Act, Act No. 12, Public

Acts of 1993, approved by the Governor on April 1, 1993, and effective

upon approval.

3. Section 52.1184 is added to read as follows:

Sec. 52.1184 Small business stationary source technical and

environmental compliance assistance program.

The Michigan program submitted on November 13, 1992, January 8,

1993, and November 12, 1993, as a requested revision to the Michigan

State Implementation Plan satisfies the requirements of section 507 of

the Clean Air Act Amendments of 1990.

[FR Doc. 94-13496 Filed 6-2-94; 8:45 am]

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