Clean Air Act Approval and Promulgation of Title V, Section 507, Small Business Stationary Source Technical and Environmental Compliance Assistance Program for Region 2 States: New Jersey, New York, Puerto Rico, and the U.S. Virgin Islands

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NJ12-2-6314; NY9-2-6315; PR2-2-6316; VI2-2-6317; FRL-5004-6]

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

Small Business Stationary Source Technical and Environmental Compliance

Assistance Program for Region 2 States: New Jersey, New York, Puerto

Rico, and the U.S. Virgin Islands

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing the conditional approvals to each state

implementation plan (SIP) revision submitted by the States of New

Jersey and the U.S. Virgin Islands, and the full approvals to each

state SIP revision submitted by New York and the Commonwealth of Puerto

Rico as proposed in the Federal Register on December 21, 1993 for the

purpose of establishing State Small Business Stationary Source

Technical and Environmental Compliance Assistance Programs (PROGRAMs).

The implementation plans were submitted by the states to satisfy the

Federal mandate of the Clean Air Act (CAA) to ensure that small

businesses have access to the technical assistance and regulatory

information necessary to comply with the CAA.

EFFECTIVE DATE: This action is effective on August 4, 1994.

ADDRESSES: Copies of all of the States' submittals and EPA's technical

support documents are available for inspection during normal business

hours at the EPA Region II Office, 26 Federal Plaza, room 505, New

York, New York 10278. In addition, copies of a specific state submittal

and EPA's technical support document can be found at the appropriate

state office below:

New Jersey--Office of Permit Information and Assistance, New Jersey

Department of Environmental Protection and Energy, 401 East State

Street, Trenton, NJ 08625-0423, Attention: Chuck McCarty.

New York--Bureau of Technical Services, Air Resources Division, New

York State Department of Environmental Conservation, 50 Wolf Road,

Albany, NY 12233, Attention: Virginia Rest.

Puerto Rico--Air Programs Area, Puerto Rico Environmental Quality

Board, Eurobank Building, 431 Ponce de Leon Avenue, Hato Rey, PR 00910,

Attention: Francisco Claudio.

The U.S. Virgin Islands--Virgin Islands Department of Planning and

Natural Resources, Division of Environmental Protection, Building 111,

Apartment 114, Water Gut Homes, Christiansted, St. Croix, VI 00820,

Attention: Benjamin Nazario.

FOR FURTHER INFORMATION CONTACT: Steven C. Riva, Chief, Permitting and

Toxics Support Section, at the above EPA address or at telephone number

(212) 264-9356.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the Clean Air Act (CAA), 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 February 1992, EPA issued

Guidelines for the Implementation of Section 507 of the 1990 Clean Air

Act Amendments (Final Guidelines) 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 States of New Jersey, New York, Puerto Rico, and the U.S.

Virgin Islands have submitted SIP revisions 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

components: (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.

EPA proposed to conditionally approve New Jersey's and the U.S.

Virgin Islands' SIPs and fully approve New York's and Puerto Rico's

SIPs for the establishment of State PROGRAMs on December 21, 1993 (58

FR 67383). A detailed discussion of each state's PROGRAM and EPA's

evaluations of the PROGRAMs is contained in the above cited Federal

Register.

In addition, a thirty day public comment period was provided in the

December 21, 1993 Federal Register. Comments were received only on New

York's PROGRAM. For New Jersey, Puerto Rico, and the U.S. Virgin

Islands, no comments were received.

II. Summary of Submittals

A. New Jersey

New Jersey has met all of the requirements of section 507 of the

CAA by submitting a SIP revision on January 11, 1993 that implements

all required PROGRAM elements or delineates milestone dates for when

any remaining PROGRAM elements will be enacted by November 15, 1994.

The final plan was adopted by the New Jersey Department of

Environmental Protection and Energy (DEPE) on January 11, 1993.

New Jersey has met the first PROGRAM component by locating the SBAP

within DEPE's Office of Permit Information and Assistance and by

committing in its SIP to meet the six requirements set forth in section

507(a) of the CAA. New Jersey has met the second PROGRAM component and

the seventh requirement of section 507(a) of the CAA by designating the

New Jersey Department of Commerce and Economic Development, Office of

Business Advocacy, to be the Small Business Ombudsman's Office. To meet

the third PROGRAM component and section 507(e) of the CAA, New Jersey

will enact legislation in order to authorize the establishment of a

CAP, and members to the CAP will be appointed no later than November

15, 1994.

EPA finds that New Jersey presently lacks the requisite authority

to establish a CAP. Therefore, EPA is conditionally approving New

Jersey's section 507 program. Full approval will be granted once

authority to establish a CAP has been enacted and submitted as a SIP

revision.

B. New York

New York has met all of the requirements of section 507 of the CAA

by submitting a SIP revision on January 11, 1993 that implements all

required PROGRAM elements or delineates milestone dates for when any

remaining PROGRAM elements will be enacted by November 15, 1994. A copy

of New York's adopted legislation authorizing the PROGRAM was sent as a

supplement to the SIP on August 26, 1993. The final plan was adopted by

the New York State Department of Environmental Conservation (DEC) on

January 11, 1993.

New York has met the first PROGRAM component by locating the SBAP

within the New York State Environmental Facilities Corporation (EFC)

with oversight provided by DEC's Small Business Section. New York has

also committed in its SIP to meet the six requirements set forth in

section 507(a) of the CAA for the Small Business Assistance Program.

New York has met the second PROGRAM component and the seventh

requirement of section 507(a) of the CAA by designating the New York

State Department of Economic Development, Division of Small Business,

to be the Small Business Ombudsman's Office. To meet the third PROGRAM

component and section 507(e) of the CAA, New York has enacted

legislation which authorizes the duties of the CAP and the appointment

of members. Because New York has met all requisite requirements and has

the authority to implement all PROGRAM elements, EPA is approving New

York's section 507 program. However, New York still needs to appoint

members to the CAP, which must occur no later than November 15, 1994.

EPA received two comments on New York's revised SIP during the 30

day public comment period. The comments have been evaluated by EPA, and

a summary of the comments and EPA's responses are set forth below.

Comment #1: The Environmental Facilities Corporation (EFC), New

York's SBAP Office, commented that New York's PROGRAM could be

strengthened if the following changes were made to the SIP: (1) The

SBAP is evaluated by the CAP only and not by the state Ombudsman; and

(2) the SBAP is able to address the CAP directly as its own

representative instead of the Ombudsman acting as the representative of

the SBAP before the CAP. EFC believes that in order for the PROGRAM to

function most effectively, the Ombudsman and SBAP must be partners with

a mutually beneficial relationship. However, this equal partnership is

disturbed under New York's PROGRAM because: the Ombudsman has

evaluative power over the SBAP; and the SBAP does not have the power to

represent itself, its program and its efforts directly to the CAP, but

is indirectly represented by a third voice, the Ombudsman.

Response: The two suggestions raised by EFC have been carefully

considered by EPA and DEC, and EPA is providing the following specific

responses.

With regards to the first suggestion, EPA disagrees with the

concept of a state Ombudsman not evaluating the SBAP. In EPA's Final

Guidelines, EPA delineates several suggested duties of an Ombudsman's

office. Two of the duties include: conducting independent evaluations

of all aspects of the SBAP; and periodically reviewing the work and

services provided by the SBAP with trade associations and small

business representatives. One of EPA's criteria in determining whether

the state office chosen as Ombudsman can adequately serve in its duties

is whether the Ombudsman's office has been granted sufficient

independent authority to identify problems and make recommendations as

they relate to the implementation of the SBAP. New York has met EPA's

criteria by granting the Ombudsman the above evaluative roles.

Furthermore, the Ombudsman's office, in its role as the representative

of small businesses, is the place where small businesses go if they

have grievances regarding the SBAP or are not getting the necessary

technical assistance. The Ombudsman must, therefore, have the authority

to make recommendations on how the SBAP can be more effective. Thus,

EPA believes New York's SIP should not be revised to remove the

Ombudsman's ability to evaluate the SBAP as such an evaluative role is

imperative for the Ombudsman's Office to be a true representative of

the small business community.

With regards to the second suggestion, New York had always intended

that the SBAP could present itself, its program and its efforts

directly to the CAP. The SIP also allows for each small business office

(including the SBAP, Ombudsman, and DEC) to provide input to the CAP in

the form of progress reports, pending issues and proposed actions for

the CAP to use during its quarterly or semiannual meetings.

Nevertheless, in order to alleviate any confusion, New York submitted a

supplement to its SIP which clarifies what New York meant when stating

that the ``Ombudsman will serve as the representative of the SBAP to

the Compliance Advisory Panel.'' The word ``representative'' in this

phrase means ``overall evaluator''. In other words, the Ombudsman will

provide the CAP with an overall evaluation of the SBAP. The word

``representative'' is not meant to infer that the Ombudsman will act as

the agent of the SBAP before the CAP. The supplement further clarifies

that the SBAP can present itself before the CAP to explain its

accomplishments, make recommendations, and express any program needs.

EPA finds that the structure as provided in New York's SIP is

acceptable based on section 507 of the CAA and EPA's Final Guidelines.

Therefore, EPA is finalizing its approval of New York's PROGRAM.

Comment #2: The Erie County Environmental Compliance Services

Program commented that New York's SBAP should be encouraged to utilize

the services of local agencies that already provide assistance to small

businesses in the State. The Erie County program, as well as several

other local programs throughout New York State, already successfully

provide many of the services/functions in rendering technical

assistance to small businesses as proposed for the SBAP. The Erie

County program endorses that local programs continue to receive state

and federal funds, including funds to be supported by Title V fees, so

that the local programs can work with the SBAP on technical assistance

to the small business community.

Response: EPA supports Erie County's endorsement that New York use

existing local infrastructures as a means to reach out to the small

business community. New York also endorses the concept. One reason DEC

chose EFC as the SBAP is that EFC has the ability to subcontract with

local agencies. EFC fully intends to limit the size of its in-house

staff working on the SBAP and will use existing local programs to

perform audits and conduct other field activities where the scope and

volume of those activities exceed EFC's in-house staff capacity.

C. Puerto Rico

Puerto Rico has met all of the requirements of section 507 of the

CAA by submitting a SIP revision on November 16, 1992 that implements

all required PROGRAM elements or delineates milestone dates for when

any remaining PROGRAM elements will be enacted by November 15, 1994.

Supplemental information was sent on January 14, 1993 and October 25,

1993, which included Puerto Rico's adopted legislation authorizing the

PROGRAM. The final plan was adopted by the Puerto Rico Environmental

Quality Board (EQB) on November 4, 1992.

Puerto Rico has met the first PROGRAM component by locating the

SBAP within EQB's Planning Division and committing in its SIP to meet

the six requirements set forth in section 507(a) of the CAA. Puerto

Rico has met the second PROGRAM component and the seventh requirement

of section 507(a) of the CAA by recommending that the Governor choose

the existing Citizen's Ombudsman's, the Puerto Rico Citizen's

Investigating Official as Puerto Rico's Ombudsman's Office. Legislation

has been enacted which provides authority for the Ombudsman's duties.

To meet the third PROGRAM component and section 507(e) of the CAA,

Puerto Rico has enacted legislation which authorizes the duties of the

CAP and the appointment of members. Because Puerto Rico has met all the

requisite requirements and has the authority to implement all PROGRAM

elements, EPA is approving Puerto Rico's section 507 program. However,

Puerto Rico still needs to have an Ombudsman's Office in place and

appoint members to the CAP, which must occur no later than November 15,

1994.

D. The U.S. Virgin Islands

The U.S. Virgin Islands has met all of the requirements of section

507 of the CAA by submitting a SIP revision on January 15, 1993 that

implements all required PROGRAM elements or delineates milestone dates

for when any remaining PROGRAM elements will be enacted by November 15,

1994. The final plan was adopted by the Virgin Islands Department of

Planning and Natural Resources (DPNR) on January 14, 1993.

The U.S. Virgin Islands has met the first PROGRAM component by

locating the SBAP within DPNR's Division of Environmental Protection

and by committing in its SIP to meet the six requirements set forth in

section 507(a) of the CAA. The U.S. Virgin Islands has met the second

PROGRAM component and the seventh requirement of section 507(a) of the

CAA by designating the Virgin Islands Small Business Development Agency

to be the Small Business Ombudsman's Office. The Ombudsman's Office

will be assisted by the Small Business Development Center of the

University of the Virgin Islands. To meet the third PROGRAM component

and section 507(e) of the CAA, the U.S. Virgin Islands will enact

legislation to authorize the establishment of a CAP, and members to the

CAP will be appointed no later than November 15, 1994.

EPA finds that the U.S. Virgin Islands presently lacks the

requisite authority to establish a CAP. Therefore, EPA is conditionally

approving the U.S. Virgin Islands' section 507 program. Full approval

will be granted once authority to establish a CAP has been enacted and

submitted as a SIP revision.

III. Final Action

EPA is conditionally approving the SIP revisions submitted by the

States of New Jersey and the U.S. Virgin Islands, and fully approving

the SIP revisions submitted by New York and Puerto Rico. The revisions

were made to satisfy the requirements of section 507 of the CAA.

Because New Jersey and the U.S. Virgin Islands have made

commitments that EPA believes meet the requirements necessary for EPA

to grant conditional approval, EPA is granting a conditional approval

under section 110(k)(4) of the Act. New Jersey and the U.S. Virgin

Islands must meet their commitment to have their programs fully

operational by November 15, 1994 and submit these requirements to EPA

by that date. If New Jersey or the U.S. Virgin Islands fails to adopt

or submit any of these requirements to EPA within this time frame, 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 Jersey or U.S.

Virgin Islands SIP. EPA subsequently will publish a notice in the

notice section of the Federal Register. If the state adopts and submits

these requirements to EPA 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 submittal. If

EPA disapproves the new submittal, the conditionally approved Small

Business Plan will also be removed from the SIP. If EPA approves the

submittal, those newly approved rules will become a part of the SIP and

will modify or replace the commitment and the Small Business Plan on

which the conditional approval is based.

If the conditional approval is converted to a disapproval, the

sanctions clock under section 179(a) will begin. This clock will begin

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 the sanctions clock has begun. If the State does

not submit and EPA does not approve the rule on which the disapproval

was based within 18 months of the disapproval, EPA must impose one of

the sanctions under section 179(b)--highway funding restrictions or the

offset sanction. In addition, the final disapproval triggers the

federal implementation plan (FIP) requirement under section 110(c).

This action has been classified as a Table 3 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 notice 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

requirements 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 EPA's request. This

request continues in effect under Executive Order 12866 which

superseded Executive Order 12291 on September 30, 1993.

Nothing in this action shall be construed as permitting or allowing

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

any state implementation plan. Each request for revision to the state

implementation plan shall be considered separately in light of specific

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

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 or fully approving four (4)

State programs created for the purpose of assisting small businesses in

complying with existing statutory and regulatory requirements. The

programs being conditionally or fully approved today do not impose any

new regulatory burden on small businesses; these are programs under

which small businesses may elect to take advantage of assistance

provided by the state. Therefore, because the EPA's conditional or full

approvals of these four programs do not impose any new regulatory

requirements on small businesses, EPA certifies that this action does

not have a significant economic impact on any small entities affected.

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit within 60 days from date of publication. 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)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Small business

assistance program.

Dated: June 10, 1994.

William J. Muszynski,

Acting Regional Administrator.

40 CFR Part 52 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 FF--New Jersey

2. Section 52.1607 is added to read as follows:

Sec. 52.1607 Small business technical and environmental compliance

assistance program.

On January 11, 1993, the New Jersey Department of Environmental

Protection and Energy submitted a plan for the establishment and

implementation of a Small Business Stationary Source Technical and

Environmental Compliance Assistance Program for incorporation in the

New Jersey state implementation plan. This plan satisfies the

requirements of section 507 of the Clean Air Act, and New Jersey must

implement the program as approved by EPA.

Subpart HH--New York

3. Section 52.1690 is added to read as follows:

Sec. 52.1690 Small business technical and environmental compliance

assistance program.

On January 11, 1993, the New York State Department of Environmental

Conservation submitted a plan for the establishment and implementation

of a Small Business Stationary Source Technical and Environmental

Compliance Assistance Program for incorporation in the New York state

implementation plan. This plan meets the requirements of section 507 of

the Clean Air Act, and New York must implement the program as approved

by EPA.

Subpart BBB--Puerto Rico

4. Section 52.2732 is added to read as follows:

Sec. 52.2732 Small business technical and environmental compliance

assistance program.

On November 16, 1992, the Puerto Rico Environmental Quality Board

submitted a plan for the establishment and implementation of a Small

Business Stationary Source Technical and Environmental Compliance

Assistance Program for incorporation in the Puerto Rico state

implementation plan. This plan meets the requirements of section 507 of

the Clean Air Act, and Puerto Rico must implement the plan as approved

by EPA.

Subpart CCC--Virgin Islands

5. Section 52.2782 is added to read as follows:

Sec. 52.2782 Small business technical and environmental compliance

assistance program.

On January 15, 1993, the Virgin Islands Department of Planning and

Natural Resources submitted a plan to establish and implement a Small

Business Stationary Source Technical and Environmental Compliance

Assistance Program for incorporation in the Virgin Islands state

implementation plan. This plan meets the requirements of section 507 of

the Clean Air Act, and the U.S. Virgin Islands must implement the

program as approved by EPA.

[FR Doc. 94-16128 Filed 7-1-94; 8:45 am]

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