Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Virginia-Small Business Stationary Source Technical and Environmental Compliance Assistance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA15-1-5995; A-1-FRL-4831-8]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Virginia-Small Business Stationary Source Technical and

Environmental Compliance Assistance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the Commonwealth of Virginia for the purpose of

establishing a Small Business Stationary Source Technical and

Environmental Compliance Assistance Program. This SIP revision was

submitted by the Commonwealth 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. The rationale for approving is set forth in this

document; additional information is available at the address indicated.

This action is being taken in accordance with the provisions of the

CAA.

EFFECTIVE DATE: This action will become effective April 5, 1994, unless

notice is received on or before March 7, 1994, that adverse or critical

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

notice will be published in the Federal Register.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air,

Radiation, and Toxics Division, U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, PA 19107. Copies of

the documents relevant to this action are available for public

inspection during normal business hours at the Air, Radiation, and

Toxics Division, U.S. Environmental Protection Agency, Region III, 841

Chestnut Building, Philadelphia, PA 19107; Public Information Reference

Unit, U.S. Environmental Protection Agency, 401 M Street, SW.,

Washington, DC 20460; and Virginia Department of Environmental Quality,

629 E. Main Street, Richmond Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Lisa M. Donahue, (215) 597-9781.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the CAA 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 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.

On November 10, 1992, the Commonwealth of Virginia submitted a

formal revision to its SIP. The SIP revision consists of a plan for

establishing a Small Business Stationary Source Technical and

Environmental Compliance Assistance Program. In order to gain full

approval, the Commonwealth's 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. The plan must also determine the eligibility of small business

stationary sources for assistance in the PROGRAM. The plan includes the

duties, funding, and schedule of implementation for the three PROGRAM

components.

Under sections 10.1-1323 through 10.1-1326 of the Code of Virginia,

the Department of Air Pollution Control, now the Department of

Environmental Quality (VA DEQ), is authorized to create and administer

the Small Business Stationary Source Technical and Environmental

Compliance Assistance Program. This law authorizes VA DEQ to create and

administer the SBAP. This law also creates an Office of Small Business

Ombudsman and a Small Business Environmental Compliance Advisory Board,

and defines source eligibility for the SBAP.

II. Evaluation of SIP Revision

Section 507(a) of the CAA sets forth seven requirements that the

Commonwealth must meet to have an approvable SBAP. Four of these

requirements are discussed in the first section and the requirement for

the establishment of an Ombudsman in the second section. Discussion of

the remaining two requirements follows the third section.

1. Small Business Assistance Program

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 CAA. 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.

Virginia has met these first two requirements by establishing a

SBAP, located in the VA DEQ Office of Permit Assistance, with the

responsibility of serving as a clearinghouse for information related to

compliance methods and control technologies, pollution prevention and

accidental release prevention and detection. The Virginia SBAP will

disseminate information on compliance which is easily understandable to

a nontechnical audience as well as handle inquiries on specific methods

for achieving compliance with state and Federal regulations.

The information dissemination will be both proactive and reactive.

VA DEQ Air Division has presented a series of seminars throughout

Virginia to explain applicable requirements to small businesses and

interested citizens. Another series of seminars is being planned, with

the assistance of Virginia's Department of Economic Development. The VA

DEQ Air Division will also receive seminar assistance from the Waste

Management Division and the Emergency Services Division for pollution

prevention and accidental release prevention, respectively. The SBAP

manager and staff members will develop public service announcements

(PSAs) and information packages of print material, addressing all

topics germane to the SBAP, including compliance, pollution prevention,

accidental release prevention, legal rights under the CAA, permitting

assistance, notification of rights, audits, and source modification.

The PSAs and mailings of print material will begin in November, 1994.

For the reactive component of the SBAP, a toll-free number will be

installed by October, 1994. Through outreach techniques, the SBAP staff

will inform small business stationary sources of their obligations

under the CAA.

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 CAA in a timely and efficient manner, and

the fourth requirement is to develop adequate mechanisms to assure that

small business stationary sources receive notice of their rights under

the CAA 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

CAA. Virginia has met these requirements through the SBAP. The staff of

the SBAP will compile a list of technical referrals who will assist

them in responding to specific inquiries. The VA DEQ's Air Division,

Office of Compliance and Enforcement (OCE) and regional offices

currently offer compliance assistance to sources in determining

applicable requirements of the CAA. The OCE will serve as technical

experts available for referral by the SBAP in identifying applicable

rules, determining necessity of a permit, and identifying alternatives

for achieving compliance with state and local regulations.

2. Ombudsman Office

Section 507(a)(3) of the CAA requires the designation of a state

office to serve as the Ombudsman for small business stationary sources.

The Code of Virginia, section 10.1-1324 authorizes the creation of the

Ombudsman's office. In VA DEQ, the Director of the Office of Permit

Assistance serves as Ombudsman. The Ombudsman is appointed by the DEQ's

Director and reports directly to him or her, and the SBAP manager

reports to the Ombudsman. Additionally, each of Virginia's seven air

quality control regional offices will have an appointed liaison.

3. Compliance Advisory Board

Section 507(e) of the CAA 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. Virginia has established a Compliance Advisory Board

pursuant to the Code of Virginia, section 10.1-1325. It is comprised of

seven members who are appointed for four-year terms, starting on July

31, 1993. The makeup of the board is prescribed as is required by

section 507(e). Members of the board will serve without pay, and

administrative support for the Board will be funded through the

ombudsman's office.

In addition to establishing the minimum membership of the CAP the

CAA delineates four responsibilities of the Panel: (A) To render

advisory opinions concerning the effectiveness of the SBAP,

difficulties encountered and the degree and severity of enforcement

actions; (B) to review and assure that information for small business

stationary sources is easily understandable; (C) to develop and

disseminate the reports and advisory opinions made through the SBAP;

and (D) 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 Act. (Section 507(e)(1)(B)

requires the CAP to report on the compliance of the SBAP with these

three 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.) The duties and

responsibilities of Virginia's Compliance Advisory Board under section

10.1-1326 of the Code of Virginia indicate that it will be responsible

for all four of the activities listed above.

The sixth requirement of CAA section 507(a) 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 Commonwealth,

for providing audits of the operations of such sources to determine

compliance with the Act. Virginia's Ombudsman and Compliance Advisory

Board will develop procedures for referring sources to qualified

auditors. The procedures will determine how auditors will qualify, what

the cost will be, the format and content of the audit report, and

Virginia's actions in the event of a violation discovered during an

audit. The audit procedures will be completed by July 31, 1994.

The seventh requirement of CAA section 507(a) 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 practices or compliance methods. Virginia

has committed to develop procedures for consideration of requests from

a source for modification of work practices. The source modification

procedures will be completed by July 31, 1994.

4. Source 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.

Code of Virginia section 10.1-1323 duplicates the language of CAA

section 507(c)(1) in defining eligible stationary sources. It also

provides for the State Air Pollution Control Board to hear petitions

for eligibility and eligibility exclusions. The Board will consult with

both EPA and the Small Business Administration regarding exclusions.

The Ombudsman and Compliance Advisory Board will be responsible for

developing eligibility determination procedures.

III. Summary of SIP Revision

The Commonwealth of Virginia has submitted a SIP revision providing

for each of the program elements required by CAA section 507. As

previously stated, the authority to implement the SBAP has been

delegated to the Department of Environmental Quality. Program

implementation will begin no later than November 15, 1994. The Director

of the Department of Environmental Quality will appoint the Ombudsman

and hire the three staff dedicated to implementing the program at the

beginning of the Commonwealth's 1993-1994 fiscal year. The Code of

Virginia, section 10.1-1325 authorizes the creation of a Compliance

Advisory Board to periodically review the effectiveness of the SBAP.

All members will be appointed for four year terms, starting no later

than July 31, 1993. In this action, EPA is approving the SIP revision

submittal by the Commonwealth of Virginia. Accordingly, Sec. 52.2460 is

added to 40 CFR part 52, subpart VV-Virginia to reflect EPA's approval

action and the fact that it is considered part of the Virginia SIP.

EPA is approving this SIP revision without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. This action will be effective April 5, 1994,

unless, by March 7, 1994, notice is received that adverse or critical

comments will be submitted. If such notice is received, this action

will be withdrawn before the effective date by simultaneously

publishing two subsequent notices. One notice will withdraw the final

action and another will begin a new rulemaking by announcing a proposal

of the action and establishing a comment period. If no such comments

are received, the public is advised that this action will be effective

on April 5, 1994.

Final Action

EPA is approving Virginia's plan for the establishment of a Small

Business Stationary Source Technical and Environmental Compliance

Assistance Program. Accordingly, 40 CFR 52.2460 is added to reflect

EPA's approval action. The Agency has reviewed this request for

revision of the federally-approved state implementation plan for

conformance with the Clean Air Act, including sections 507 and section

110(a)(2)(E).

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 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.

In this action, 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. Therefore, 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.

This action to approve the establishment of a Small Business

Stationary Source Technical and Environmental Compliance Assistance

Program in Virginia has been classified as a Table 2 action for

signature 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. On January 6,

1989, the Office of Management and Budget waived Table 2 and Table 3

SIP revisions from the requirements 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 3 SIP revisions. OMB has agreed to

continue the temporary waiver until such time as it rules on EPA's

request. This request is still applicable under Executive Order 12866,

which superseded Executive Order 12291 on September 30, 1993.

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

of this action to approve the establishment of a Small Business

Stationary Source Technical and Environmental Compliance Assistance

Program in Virginia must be filed in the United States Court of Appeals

for the appropriate circuit by April 5, 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, Small business

assistance program.

Dated: November 10, 1993.

W.T. Wisniewski,

Acting Regional Administrator, Region III.

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 VV--Virginia

2. Subpart VV is amended by adding Sec. 52.2460 to read as follows:

Sec. 52.2460 Small business stationary source technical and

environmental compliance assistance program.

On November 10, 1992, the Executive Director of the Virginia

Department of Air Pollution Control submitted a plan for the

establishment and implementation of a Small Business Stationary Source

Technical and Environmental Compliance Assistance Program as a State

Implementation Plan revision, as required by title V of the Clean Air

Act. EPA approved the Small Business Stationary Source Technical and

Environmental Compliance Assistance Program on February 4, 1994, and

made it a part of the Virginia SIP. As with all components of the SIP,

Virginia must implement the program as submitted and approved by EPA.

[FR Doc. 94-2282 Filed 2-3-94; 8:45 am]

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