Approval and Promulgation of Title V, Section 507, Small Business Stationary Source Technical and Environmental Compliance Assistance Program for Massachusetts

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA-20-1-6469; A-1-FRL-5004-4]

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

Stationary Source Technical and Environmental Compliance Assistance

Program for Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is conditionally approving a State Implementation Plan

(SIP) revision submitted by the Commonwealth of Massachusetts for the

purpose of establishing a small business stationary source technical

and environmental compliance assistance program (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 this conditional approval is set forth in this

final rule; additional information is available at the address

indicated below.

EFFECTIVE DATE: This final rule will become effective on September 14,

1994.

ADDRESSES: Copies of the documents relevant to this action 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; Air and Radiation Docket and Information Center,

U.S. Environmental Protection Agency, 401 M Street, SW., (LE-131),

Washington, DC. 20460; and the Department of Environmental Protection,

One Winter Street, 7th floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT:

Emanuel Souza, Jr., (617) 565-3248.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the 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 PROGRAM, and

submit this PROGRAM as a revision to the Federally approved SIP. In

addition, the CAA directs the 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 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.

On January 12, 1994 (59 FR 1695), EPA published a notice of

proposed rulemaking (NPR) for the Commonwealth of Massachusetts. The

NPR proposed conditional approval of the State's PROGRAM. The formal

SIP revision was submitted by Massachusetts on November 13, 1992 and

July 22, 1993. A more detailed account of EPA's action can be found in

the proposed rule.

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

EPA reviewed Massachusetts' PROGRAM and is conditionally approving

it pursuant to section 110(k)(4) of the CAA. This approval is on the

condition that Massachusetts meet its commitment to submit

documentation to EPA by November 15, 1994 of adequate legal authority

to establish and implement a compliance advisory panel incorporating

all the elements listed in section 507(e) of the CAA. Additionally, the

PROGRAM must be fully operational by November 15, 1994.

Other specific requirements of this SIP revision and the rationale

for EPA's action are explained in the NPR and will not be restated

here. One comment letter was received in support of EPA's approval of

Massachusetts' PROGRAM.

Final Action

EPA is conditionally approving the SIP revision submitted by the

DEP on November 13, 1992 and July 22, 1993 as a revision to the

Massachusetts SIP. The State must submit to EPA by November 15, 1994

documentation of adequate legal authority which allows a compliance

advisory panel to be established and implemented, incorporating all the

elements listed in section 507(e) of the CAA; the PROGRAM must also be

fully operational by that date. 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 Massachusetts 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 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.

Conditional approvals of SIP submittals under section 110 and

subchapter I, part D of the CAA do not create any new requirements, but

simply approve requirements that the State is already imposing.

Therefore, because the federal SIP-approval does not impose any new

requirements, I certify that it does not have a significant impact on

any small entities affected.

Moreover, due to the nature of the federal-state relationship under

the CAA, preparation of a regulatory flexibility analysis would

constitute federal inquiry into the economic reasonableness of state

action. The CAA forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct.

1976); 42 U.S.C. 7410(a)(2).

If the conditional approval is converted to a disapproval under

section 110(k), based on the State's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new federal requirement. Therefore, EPA certifies

that this disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing state requirements nor does it substitute a new federal

requirement.

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.

The Office of Management and Budget has exempted this action from

Executive Order 12866 Review.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

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 section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by October 14, 1994. 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, Incorporation by

reference, Intergovernmental relations, Small business assistance

program.

Note: Incorporation by reference of the State Implementation

Plan for the State of Massachusetts was approved by the Director of

the Federal Register on July 1, 1982.

Dated: June 17, 1994.

John P. DeVillars,

Regional Administrator, Region I.

Part 52 of 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 W--Massachusetts

2. Section 52.1119 is added to subpart W to read as follows:

Sec. 52.1119 Identification of plan--conditional approval.

(a) The following plan revisions were submitted on the dates

specified.

(1) On November 13, 1992, the Massachusetts Department of

Environmental Protection submitted a small business stationary

source technical and environmental compliance assistance program

(PROGRAM). On July 22, 1993, Massachusetts submitted a letter

clarifying portions of the November 13, 1992 submittal. In these

submissions, the State commits to submit adequate legal authority to

establish and implement a compliance advisory panel and to have a

fully operational PROGRAM by November 15, 1994.

(i) Incorporation by reference.

(A) Letter from the Massachusetts Department of Environmental

Protection dated November 13, 1992 submitting a revision to the

Massachusetts State Implementation Plan.

(B) State Implementation Plan Revision for a Small Business

Technical and Environmental Compliance Assistance Program dated

November 13, 1992.

(ii) Additional materials.

(A) Letter from the Massachusetts Department of Environmental

Protection dated July 22, 1993 clarifying portions of Massachusetts'

November 13, 1992 SIP revision.

[FR Doc. 94-19846 Filed 8-12-94; 8:45 am]

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