Small Business Technical and Environmental Compliance Assistance Program; Wisconsin

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI34-01-5765; FRL-4883-1]

Small Business Technical and Environmental Compliance Assistance

Program; Wisconsin

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: The USEPA approves the Wisconsin State Implementation Plan

(SIP) revision submitted by the State of Wisconsin 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, found in 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 document; additional information is

available at the addresses indicated.

DATES: This direct final rule will be effective October 11, 1994,

unless notice is received by September 9, 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 USEPA'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

Wisconsin Department of Natural Resources, 101 South Webster

Street, P.O. Box 7921, Madison, Wisconsin 53707.

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, USEPA, 401 M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Constantine Blathras, USEPA (AT-18J),

77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0671.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the Clean Air Act, as amended

in 1990, (``CAA'' or ``the Act''), will require many small businesses

to be regulated so that areas may attain and maintain the national

ambient air quality standards (NAAQS) and the emission of air toxics

will be reduced. 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 to be incorporated as a

revision of the Federally approved SIP. In addition, the Act directs

the USEPA 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, USEPA 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 an acceptable PROGRAM.

In order to gain full approval, a 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.

On November 18, 1992 and January 21, 1993 the State of Wisconsin

submitted such a PROGRAM to USEPA in order to satisfy the requirements

of section 507. The submittals contained the following portions of 1991

Wisconsin Act 269 and 1991 Wisconsin Act 302: Natural Resources (NR)

144.36--small business stationary source technical and environmental

compliance assistance program definitions; section 15.157(10) of the

Wisconsin Statutes--small business environmental council members;

section 560.11 of the Wisconsin Statutes--small business environmental

council duties; NR 144.399--fees; section 560.03(9) of the Wisconsin

Statutes--business and industrial development (small business ombudsman

clearinghouse); and section 96--nonstatutory provisions of 1991

Assembly Bill 1055--development.

II. Analysis

1. Small Business Assistance Program

Section 507(a) sets forth six requirements that the State must meet

to have an approvable SBAP.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 requiring the

Wisconsin Department of Natural Resources (WDNR) to develop information

pertaining to the technical issues of regulations. The Wisconsin

Department of Development (WDOD), the University of Wisconsin's Small

Business Development Center--Solid and Hazardous Waste Education

Center, and the University of Wisconsin-Extension Engineering

Professional Development Center (University of Wisconsin-Extension)

will assist WDNR in making the materials understandable to the

layperson. Rule developers will also analyze the impact of new

regulations on small business stationary sources to aid in the

development of assistance materials. Advisory committees will be

developed to encourage lawful cooperation and compliance with the Act.

Advisory committees will also be involved during rule development,

giving small businesses the opportunity to voice their concerns.

\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 promoting pollution prevention and

hazardous waste minimization through several existing programs.

Informational materials are developed by: WDNR's Pollution Prevention

Office, WDNR's Bureau of Solid and Hazardous Waste, and the University

of Wisconsin-Extension. WDOD's Hazardous Pollution Prevention Board

coordinates and monitors hazardous pollution prevention, advises WDNR

and the University of Wisconsin-Extension in their pollution prevention

efforts, provides hazardous pollution prevention reports to the

Governor and the State legislature, and awards pollution prevention

audit grants to businesses and manufacturers.

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 developing mechanisms to inform small

business stationary sources about applicable requirements through

WDNR's Bureau of Air Management and WDOD's Small Business Ombudsman's

Office and Permit Information Center. These mechanisms include an 800

telephone service (1-800-HELP-BUS-iness); permit applicability

determinations; dissemination of written materials (including permit

application process guidance); individual technical and business

consultations; and potential permit application workshops.

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 new regulations. These

mechanisms include public notices and hearings on draft State rules;

mailings to trade associations, small businesses, and representatives

of small businesses; newspaper notices, radio and television

announcements, and other media for widely disseminating information;

and an 800 telephone service. Preliminary notices will also be

disseminated prior to adoption of a final rule in order to allow

businesses time to prepare for the impacts of a rule.

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, Wisconsin has developed

mechanisms for referring small business stationary sources to qualified

auditors. These mechanisms include providing information on Hazardous

Pollution Prevention Audit Grants, providing information through the

University of Wisconsin-Extension Solid and Hazardous Waste Education

Center, and developing a guide to assist small business stationary

sources in hiring auditors. The SBAP may also develop a list of

consultants which provide environmental compliance audits.

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 through permit revision procedures. The SBAP will assist

businesses with the permit revision process.

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 WDOD as the Ombudsman,

using several services offered by WDOD, including the Small Business

Ombudsman Clearinghouse, the Permit Information Center, and the 800

telephone service. Two additional WDOD staff will be added to handle

the additional responsibilities and workload that cannot be met through

existing WDOD services. Wisconsin's Small Business Ombudsman performs

many duties, including: serving as an information and assistance center

for small businesses affected by the Act; assuming responsibility for

program evaluation, information collection and dissemination, and

dispute resolution for small businesses; and working with other State

agencies and organizations that provide Act related services to small

businesses to ensure that information is useful and efficiently

provided.

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 number of CAP members will be appointed and

consistent with statues according to section 507(e)(2).

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 USEPA 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 establishing the Small Business Environmental

Council (SBEC) to meet these responsibilities. The SBEC consists of

representatives of small businesses, the public, the WDNR and the WDOD,

and oversee the activities of the SBAP to advise the program on how to

improve its services. In addition, the Ombudsman staff and SBAP staff

will provide support for the SBEC in its efforts to carry out these

responsibilities.

\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, U.S. 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.

The State of Wisconsin 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. Wisconsin intends to use these mechanisms

only if the resources of the PROGRAM are abused by those for whom it

was not intended, or if the PROGRAM becomes overburdened by providing

assistance to sources which do not meet the small business stationary

source definition. Pursuant to section 507(c)(2) of the Act, the State

of Wisconsin 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 regulated pollutants. In response to petition by a stationary

source, WDNR may, by rule, extend the definition of small business

stationary source as outlined above.

The State of Wisconsin has provided for exclusion from the small

business stationary source definition, after consultation with the

USEPA 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. WDNR has the authority to narrow the definition in this manner

through rulemaking.

III. This Action

The State of Wisconsin has submitted a SIP revision implementing

each of the required PROGRAM elements required by section 507 of the

Act. The Small Business Ombudsman elements began delivering assistance

services in July 1993. The SBEC was fully functional by October 1993.

The SBAP will be fully implemented by the effective date of Wisconsin's

Title V Operating Permit Program, which may occur before November 1994.

USEPA is, therefore, approving this submittal.

Because USEPA considers this final rule noncontroversial and

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

will become effective on October 11, 1994. However, if we receive

notice by September 9, 1994, that someone wishes to submit adverse

comments, then USEPA will publish: (1) A document that withdraws the

action, and (2) a document 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 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. USEPA 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 USEPA's request.

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), USEPA

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, of 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,

users 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., USEPA

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, USEPA 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, USEPA 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 USEPA'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.

Dated: April 5, 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 APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

Subpart YY--Wisconsin

2. Section 52.2570 is amended by adding paragraph (c)(72) to read

as follows:

Sec. 52.2570 Identification of plan.

* * * * *

(c) * * *

(72) On November 18, 1992 and January 21, 1993, the State of

Wisconsin submitted a Small Business Stationary Source Technical and

Environmental Assistance Program for incorporation in the Wisconsin

State Implementation Plan as required by Section 507 of the Clean Air

Act. Included in the State's submittal were portions of 1991 Wisconsin

Act 269 and 1991 Wisconsin Act 302.

(i) Incorporation by reference.

(A) Section 15.157(10)--small business environmental council--91-92

Wis. Stats., Effective date: May 14, 1992.

(B) Section 144.36--small business stationary source technical and

environmental compliance assistance program--91-92 Wis. Stats.,

Effective date: May 14, 1992.

(C) Section 144.399(2)(c)--fees--91-92 Wis. Stats., Effective date:

July 1, 1992.

(D) Section 560.03(9)--business and industrial development--91-92

Wis. Stats., Effective date: May 14, 1992.

(E) Section 560.11--small business environmental council--91-92

Wis. Stats., Effective date: May 14, 1992.

(F) Section 560, Subchapter III--permit information center--91-92

Wis. Stats., Effective date: November 17, 1983.

(G) Section 96--nonstatutory provisions; development--91 WisAct

302, 1991 Laws of Wisconsin. Effective date May 14, 1992.

(ii) Other material.

(A) Program description.

3. New section 52.2586 is added to subpart YY to read as follows:

Sec. 52.2586 Small business stationary source technical and

environmental compliance assistance program.

The Wisconsin small business stationary source technical and

environmental compliance assistance program submitted on November 18,

1992 and January 21, 1993, satisfies the requirements of Section 507 of

the Clean Air Act.

[FR Doc. 94-19449 Filed 8-9-94; 8:45 am]

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