Approval and Promulgation of Small Business Assistance Program: State of Idaho

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ID 6-1-6300a; FRL-5056-5]

Approval and Promulgation of Small Business Assistance Program:

State of Idaho

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves the State

Implementation Plan (SIP) revision submitted by the State of Idaho for

the purpose of establishing a Small Business Stationary Source

Technical and Environmental Compliance Assistance Program. The

implementation plan was submitted by the State to satisfy the Federal

mandate, found in section 507 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 the approval is set forth in this document; additional information

is available at the address indicated below.

DATES: This final rule will be effective on November 18, 1994 unless

adverse or critical comments are received by October 19, 1994. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston,

SIP Manager, Air and Radiation Branch (AT-082), EPA, 1200 Sixth Avenue,

Seattle, WA, 98101.Documents which are incorporated by reference are

available for public inspection at the Air and Radiation Docket and

Information Center, 401 M Street, SW., Washington, DC 20460. Copies of

the State's submittal and EPA's technical support document are

available for inspection during normal business hours at the following

locations: EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101, and

Idaho Division of Environmental Quality, 1410 North Hilton, Boise, ID,

83706.

FOR FURTHER INFORMATION CONTACT: David J. Dellarco, Air and Radiation

Branch (AT-082), EPA, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-

4978.

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 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 January 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.

The State of Idaho has submitted a SIP revision 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 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 to

determine and report on the overall effectiveness of the SBAP.

II. Analysis

1. Small Business Assistance Program

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

must meet to have an approvable SBAP. 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 first conducting

pilot programs to evaluate the best methods for organizing and

providing technical assistance to small businesses. In addition, the

State of Idaho plans to use both proactive and reactive elements to

provide information to small businesses. Proactive elements include

publications, news releases, public presentations, and outreach

performed by the Idaho Small Business Development Center, Idaho Small

Business Institute, and the States' five Regional Economic Development

and Planning Agencies. Reactive elements include a hotline to respond

to small business inquiries.

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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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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 through its plans to integrate the

States' pollution prevention and waste reduction programs' technical

assistance capabilities into its small business program. In addition,

Idaho will utilize the services of program staff to directly assist

small businesses in the areas of accidental release detection and

prevention.

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 providing assistance to small

businesses through the use of trained staff. The availability of

compliance assistance will be publicized and small business stationary

sources will be encouraged to seek assistance. Program staff will

identify alternative methods and technologies for compliance with each

specific regulation.

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 a policy to

provide as much notice of small business rights under the CAA as is

reasonable and practicable. Information on small business rights will

be included in information materials and other outreach activities.

Program staff will ensure that both small business rights and

obligations are provided to small business stationary sources in

advance of applicable regulations taking effect.

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 developing a program for qualified

auditors to provide small business stationary sources, upon request,

with an on-site determination of compliance with applicable air quality

regulations.

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 developing

standardized criteria and administrative procedures for considering

requests of the nature identified above, including provisions to ensure

that granting such requests will not effect the status of the

federally-approved SIP and is consistent with the applicable

requirements of the CAA.

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 appointing an Ombudsman, which Idaho calls

its Small Business Advocate.

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 State has met this requirement by establishing a

CAP, which Idaho calls its Small Business Assistance Advisory Board.

In addition to establishing the minimum membership of the CAP the

CAA 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 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 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 through its authorization of the Small Business

Assistance Advisory Board.

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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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4. 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.

The State of Idaho 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 CAA. The State of Idaho 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

CAA but do not emit more than 100 tpy of all regulated pollutants.

The State of Idaho 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

CAA.

III. This Action

In today's action, EPA approves the SIP revision submitted by the

State of Idaho. The State of Idaho has submitted a SIP revision

implementing each of the PROGRAM elements required by section 507 of

the CAA. At this time, the SBAP, the Ombudsman (Small Business

Advocate), and the CAP (Small Business Advisory Board) are all in place

and functioning. EPA is therefore approving this submittal.

IV. Administrative Review

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.

SIP approvals 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.SE.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42

U.S.C. 7410(a)(2).

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective November 18, 1994 unless, by October 19, 1994, adverse or

critical comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective on November 18, 1994.

The EPA has reviewed this request for revision of the federally-

approved SIP for conformance with the provisions of the 1990 Clean Air

Act Amendments enacted on November 15, 1990. The EPA has determined

that this action conforms with those requirements.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic and

environmental factors and in relation to relevant statutory and

regulatory requirements.

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. The OMB has exempted this regulatory action from

Executive Order 12866 review.

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 November 18, 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), 42 U.S.C.

7607(b)(2)).

List of Subjects in 40 CFR Part 52

Air pollution control, Incorporation by reference, Small business

assistance program.

Note: Incorporation by reference of the Implementation Plan for

the State of Idaho was approved by the Director of the Office of

Federal Register on July 1, 1982.

Dated: August 15, 1994.

Jane S. Moore,

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 N--Idaho

2. Section 52.670 is amended by adding paragraph (c) (30) to read

as follows:

Sec. 52.670 Identification of plan.

* * * * *

(c) * * *

(30) On January 7, 1994, the Administrator for the Idaho Department

of Health and Welfare, Division of Environmental Quality, submitted the

State PROGRAM as a revision to the Idaho SIP.

(i) Incorporation by reference.

(A) The January 3, 1994 letter from the Administrator of the Idaho

Department of Health and Welfare, Division of Environmental Quality,

submitting the PROGRAM to EPA.

(B) The State Implementation Plan Revision to Establish a State

Small Business Stationary Source Technical and Environmental Compliance

Assistance Program (which includes the text of Idaho Code 39-118E,

Small Business Assistance, signed into law Senate bill 1236 by Idaho

Governor, Cecil D. Andrus, on March 29, 1993), dated December 29, 1993,

and adopted on January 3, 1994.

[FR Doc. 94-23105 Filed 9-16-94; 8:45 am]

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