40 CFR Part 52

DEPARTMENT OF LABOR

40 CFR Part 52

[NH-8-1-5894; A-1-FRL-4998-3]

Approval and Promulgation of Title V, Section 507, Small Business

Stationary Source Technical and Environmental Compliance Assistance

Program for New Hampshire

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 State of New

Hampshire 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

in the ADDRESSES section.

DATES: Comments must be received on or before July 14, 1994.

ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air,

Pesticides and Toxics Management Division, U.S. Environ- mental

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 Air Resources Division, Department of

Environmental Services, 64 North Main Street, Caller Box 2033, Concord,

NH 03302-2033.

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 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 State of New Hampshire 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

New Hampshire's Small Business Technical Assistance Program (SBTAP)

will be located in the Department of Environmental Services (DES). The

Program will require coordination with other DES programs to utilize

their experience and to assess the potential cross-media impact of

compliance alternatives.

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 comply 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. The State expects to use

potential resources such as a technical library and an information

clearinghouse. Program staff will proactively conduct workshops and

presentations for potentially affected small businesses.

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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 SBTAP will work with

small businesses to provide general engineering assistance. Pollution

prevention efforts will be coordinated with the DES toxic use and waste

reduction programs. SBTAP will work proactively to promote awareness of

pollution prevention techniques and related issues.

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. The SBTAP will develop materials

explaining regulatory and permit requirements for small business

stationary sources. Program staff will identify alternative methods and

technologies for compliance with specific regulations. This will

involve coordination with other DES programs; other state and Federal

agencies; and trade associations and professional/technical societies.

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 ensuring that small

business sources are aware of their rights through outreach materials

and ensuring that small businesses understand their rights when

individual technical assistance is provided. Additionally, Program

staff will ensure that small business stationary sources receive

sufficient advance notice of their rights before applicable regulations

take effect. The SBTAP will follow applicable Department rules. Program

policy will be to provide as much notice as is reasonable and

practicable, but never less than 30 calendar days.

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 states that the Program staff will ensure that small

business stationary sources receive sufficient advance notice of their

obligations under the Act within 30 days or more. Additionally, the

staff will develop a program of qualified auditors to provide

compliance assessments for small business stationary sources. This

Compliance Assessment Program will provide a source with an on-site

determination of whether the facility complies with the applicable air

quality regulations. Portions of section (5) of NH's January 12, 1993,

SIP revision appeared to provide the State with enforcement discretion

to allow small businesses an exemption from enforcement. Pursuant to

EPA's request, the State submitted a letter to EPA on May 19, 1994

clarifying and revising this portion of the SIP revision. The letter

deletes two portions of section (5) and explains that the portions were

originally put into the January 12, 1993 SIP as examples of the type of

issues that needed to be addressed, but which would not necessarily

become final policies.

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 states that the SBTAP, in

coordination with other Division staff will develop standardized

criteria and administrative procedures for considering requests for

modifications, including provisions to ensure that granting such

requests will not affect the status of the federally approved SIP and

is consistent with applicable requirements of the CAA. The SIP revision

lists the information that will be used in developing the criteria and

procedures for consideration of requests for modifications of

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 partially met this requirement by outlining the responsibilities

and duties of the small business ombudsman. The small business

ombudsman responsibilities will be assigned to a proposed technical

assistance coordinator position. It will be the state's central

position for organizing technical assistance for environmental matters.

The ombudsman will serve as an advocate for small business stationary

sources in investigating and resolving complaints and disputes

involving air quality regulations. Other activities of the ombudsman

may include reviewing SBTAP services with trade associations and small

business representatives. The ombudsman will help disseminate

information to small businesses and encourage small businesses to

participate in the development of regulations. The ombudsman will be

the key contact person for the Governor's office for referrals of

complaints and problems.

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 New Hampshire to submit the legislative authority to EPA when

it is passed by the New Hampshire legislature.

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: evaluate

the effectiveness of the SBTAP and the Small Business Ombudsman, and

issue advisory opinions to the Air Resources Division and EPA; prepare

periodic reports to EPA on the status of the SBTAP 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 revision states that the SBTAP staff

will serve as the administrative staff for 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.

New Hampshire's SIP revision states that assistance through the

SBTAP will be available to all small business stationary sources, as

defined in section 507 of the CAA. No source defined as eligible under

the CAA will be excluded from the program without prior consultation

with EPA. The SBTAP will also be available to small businesses which

need help to comply with state air quality regulations other than

Federal CAA requirements.

As allowed under section 507(c)(2) of the CAA, the State program

may, under specific conditions listed in the SIP revision, include as a

small business stationary source for purposes of receiving assistance a

source that does not meet the criteria of subparagraphs (C), (D) or (E)

above, provided that the source cannot emit more than 100 tons per year

of all regulated pollutants.

Additionally, the State may exclude from assistance any category or

subcategory of small business stationary sources, as allowed under

section 507(c)(3)(B) of the CAA, which have been determined to have

sufficient financial and technical resources to meet their regulatory

obligations under the CAA.

III. Proposed Action

The State of New Hampshire 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 15, 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 New Hampshire SIP revision

for the small business stationary source technical and environmental

compliance assistance program, submitted on January 12, 1993 and May

19, 1994, provided that New Hampshire submits in a timely manner the

additional legal authority necessary to fully implement the PROGRAM and

also submits the documentation designating a state agency to house the

small business ombudsman.

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.

EPA is proposing to conditionally approve the small business

stationary source technical and environmental compliance assistance

program submitted on January 12, 1993 with revisions on May 19, 1994.

The two outstanding issues with this SIP revision concern New

Hampshire's lack of a designated state agency to house the small

business ombudsman and the lack of adequate legal authority to

establish and implement the compliance advisory panel and small

business ombudsman. For this reason, EPA is proposing to conditionally

approve this SIP revision provided that the State meets its commitment

to submit the legislative authority allowing a compliance advisory

panel and small business ombudsman to be established and implemented.

Additionally, the state must demonstrate through documentation which

state agency will house the state small business ombudsman. 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 conditionally approves the commitment in a final

rulemaking action, the State must meet its commitment to have the

program fully operational by November 15, 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 New Hampshire

SIP. EPA subsequently will publish a document in 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. A future document will inform the general public of

these tables. 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

section 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: June 6, 1994.

John P. DeVillars,

Regional Administrator, Region III.

[FR Doc. 94-14418 Filed 6-13-94; 8:45 am]

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