40 CFR Part 52

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WY5-1-6450; FRL-4886-9]

Clean Air Act Approval and Promulgation of Title V, Section 507,

Small Business Stationary Source Technical and Environmental

Compliance Assistance Program for the State of Wyoming

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rulemaking.

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SUMMARY: The EPA is approving the State Implementation Plan revision

submitted by the Governor of Wyoming on November 1, 1993 for the

purpose of establishing a Small Business Stationary Source Technical

and Environmental Compliance Assistance Program (PROGRAM). This PROGRAM

satisfies 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. Since this Program does

not impose any new regulatory burdens on small businesses, and because

the EPA views this as a noncontroversial amendment and anticipates no

adverse comments, the EPA is publishing this action without prior

proposal.The rationale for this approval follows.

EFFECTIVE DATE: This final rule will become effective on August 19,

1994 unless notice is received by July 20, 1994 that adverse critical

comments will be submitted. If the effective date is delayed, timely

notice will be published in the Federal Register.

ADDRESSES: Comments can be mailed to: Douglas M. Skie, Chief, Air

Programs Branch, Environmental Protection Agency, Region VIII, Mail

Code-8ART-AP, 999 18th Street, suite 500, Denver, Colorado 80202-2405.

Copies of the State's submittal and EPA's technical support document

are available for inspection during normal business hours at the

following location: Air Programs Branch, Environmental Protection

Agency, Region VIII, 999 18th Street, suite 500, Denver, Colorado

80202-2405.

FOR FURTHER INFORMATION CONTACT: Laura Farris, Mail Code 8ART-AP, EPA

Region 8, 999 18th Street, suite 500, Denver, Colorado 80202-2405,

(303) 294-7539.

SUPPLEMENTARY INFORMATION:

I. Background of Revision

Implementation of the provisions of the Clean Air Act (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 State Implementation Plan (SIP). In

addition, the Act directs the Environmental Protection Agency (EPA) to

oversee these 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,

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 Wyoming has submitted a SIP revision to the 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. Summary of Submittal

The deadline for submittal of the PROGRAM to EPA was November 15,

1992. The state of Wyoming did not meet this deadline, and on January

15, 1993, EPA made a finding of failure to submit the PROGRAM pursuant

to section 179(a)(1) of the Act in a letter to the Governor of Wyoming.

Within 18 months of the date of the finding, the state was to make a

complete submittal of their PROGRAM to avoid the imposition of

sanctions authorized under section 110(m) of the Act.

The Wyoming Environmental Quality Council adopted the final version

of the PROGRAM on September 17, 1993, as authorized by the Wyoming

Environmental Quality Act, Article 2, Sections 35-11-209 through 35-11-

211. The Wyoming PROGRAM was submitted to EPA by the Governor of

Wyoming on November 1, 1993 as an addition to the Wyoming SIP. It was

initially reviewed for administrative and technical completeness. In a

letter dated November 22, 1993, EPA requested additional information

from the State in order to make a positive determination on the

submittal. After receiving the additional information in a letter dated

November 30, 1993, EPA notified the State in a letter to the Governor

dated December 13, 1993 that the submittal was administratively and

technically complete. At that time, the State of Wyoming had met all of

the requirements of section 507 and the 18 month sanctions clock was

terminated. The submittal was then reviewed for approvability by EPA

Region VIII and EPA Headquarters, and received a concurrence from all

reviewers.

II. Analysis

A. Small Business Assistance Program

Section 507(a) sets forth six requirements1 that the State

must meet to have an approvable SBAP to meet the requirements of the

first PROGRAM element.

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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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1. 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 committing in Addendum 1, page 5 of its SIP

revision to ``track the Federal Register notices for proposed and new

standards and utilize EPA's informational systems ... to provide notice

of proposed standards, new standards, and compliance time frames and to

assist and provide affected sources with various compliance methods and

technologies ....'' The State will additionally ``continue to provide

the small business community with technical assistance such as process

and control technologies and, if required and sufficient resources

exist, perform computer modeling analyses.'' The mechanisms the State

has committed to use to accomplish this include ``... coordinate with

the Small Business Administration, Ombudsman and other Department

officials to disseminate compliance and technical information in a

timely manner through: (a) Various trade and interest groups .... (b)

Public service announcements. (c) Seminars and workshops. (d)

Information packets.''

2. 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 committing in Addendum 1, page 5 of

its SIP revision to ``... provide technical expertise 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

mechanisms the State has committed to use to accomplish this are stated

in 1. above.

3. 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 committing in Addendum 1, page 5 of

its SIP revision to ``... assist small businesses in meeting the

requirements necessary to process the operating permits in an

expeditious manner ....'' The State will accomplish this by determining

applicable requirements as stated in 1. above. Additionally, the State

has committed to ``... continue to inform affected facilities through

direct mailing of any applicable proposed or final regulations or

standards issued under the Operating Permit Program or the Clean Air

Act or adopted through the Wyoming Environmental Quality Council.''

4. 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 committing in

Addendum 1, page 5 of its SIP revision to ``... inform the small

business stationary sources of their rights under the Clean Air Act.''

The mechanisms the State has committed to use to accomplish this are

stated in 1. above.

5. 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 committing in Addendum 1, pages 5 and

6 of its SIP revision to ``... assist small businesses in meeting the

requirements necessary to process the operating permits in an

expeditious manner and encourage lawful cooperation and compliance with

the Clean Air Act ....'' The State ``... will maintain a list of

consultants who may provide audits for small business stationary

sources.'' As resources allow, the State ``... may conduct audits of

small business stationary sources to determine compliance or non-

compliance with any rules, regulations, standards, permits or orders

....''

6. 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 committing in

Addendum 1, pages 5 and 6 of its SIP revision to ``... consider any

request from a small business stationary source for modification of:

(a) Any work practice or technological methods of compliance. (b) The

schedule of milestones for implementing a work practice or method of

compliance ....'' The procedures the State will use to accomplish this

include determining the ``... technological and financial capability of

the small business stationary source,'' and not granting any

modification ``... unless it is in compliance with the applicable

requirements established pursuant to Wyoming Air Quality Standards and

Regulations, the Clean Air Act, and the requirements of the Operating

Permit Program.'' Additionally, the State will ``... provide in a

timely manner the Ombudsman with all small business operating permits

and any small business requests for operational change and

modification.''

B. Ombudsman

The State has met the second PROGRAM element, the establishment of

a State Small Business Ombudsman to represent the interests of small

businesses in the regulatory process, by committing in Addendum 1, page

2 of its SIP revision to locate the position of the Small Business

Ombudsman in the Department of Environmental Quality, but separate from

the Division of Air Quality. Addendum 1, page 4 of the State's SIP

revision details the responsibilities and authorities of the Ombudsman,

including ``... act for and on behalf of the small business stationary

sources in connection with the implementation of the operating permit

program and the 1990 Clean Air Amendments ....''

C. Compliance Advisory Panel

The third PROGRAM element is the creation of a CAP to determine and

report on the overall effectiveness of the SBAP. The CAP 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 Act also 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 Act2; (3) to review and assure that

information for small businesses is easily understandable; and (4) to

develop and disseminate the reports and advisory opinions made through

the SBAP.

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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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The State has met these requirements by committing in Addendum 1,

pages 2 and 3 of its SIP revision to appoint the members of the CAP as

stated above, and to designate to the CAP the four responsibilities

listed in the Act. Two additional members will be appointed by the

Governor who represent major source operators in the State. The State

considers the two additional CAP members to be appropriate because the

operating permit fees from major sources fund the PROGRAM.

D. 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.

The State of Wyoming 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 Act. This mechanism is contained in the

Addendum 1, page 1 of the State's SIP revision.

The State of Wyoming 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 Act but do not emit more

than 100 tpy of all pollutants. This provision is contained in Addendum

1, page 1 of the State's SIP revision.

The State of Wyoming 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

Act. This provision is contained in Addendum 1, page 2 of the State's

SIP revision.

III. Final Action

In this action, the EPA is approving the SIP revision submitted by

the State of Wyoming. This SIP revision implements each of the PROGRAM

elements required by section 507 of the Act. Addendum 1, page 7 of the

State's SIP revision contains a schedule of milestones which show

implementation of the PROGRAM by November 15, 1994. The EPA is

therefore approving this submittal.

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. 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 from the requirements of

section 3 of Executive Order 12291 for 2 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 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., 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 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 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. 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, Incorporation by reference, Air pollution

control, Small business assistance program.

Dated: May 11, 1994.

Kerrigan Clough,

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.

Subpart ZZ--Wyoming

2. Section 52.2620 is amended by adding paragraph (c)(23) to read

as follows:

Sec. 52.2620 Identificaiton of plan.

* * * * *

(c) * * *

(23) On November 1, 1993, the Governor of Wyoming submitted a plan

for the establishment and implementation of a Small Business Assistance

Program to be incorporated into the Wyoming State Implementation Plan

as required by section 507 of the Clean air Act.

(i) Incorporation by reference.

(A) November 1, 1993 letter from the Governor of Wyoming submitting

a Small Business Assistance Program plan to EPA.

(B) The State of Wyoming plan for the establishment and

implementation of a Small Business Assistance Program, adopted

September 16, 1993 by the Wyoming Environmental Quality Council.

[FR Doc. 94-14890 Filed 6-17-94; 8:45 am]

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