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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH-8-1-6599; A-1-FRL-5075-4]

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

Stationary Source Technical and Environmental Compliance Assistance

Program for New Hampshire

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 State of New Hampshire 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 rational for this conditional approval is set forth in this

final rulemaking action; additional information is available at the

address indicated below.

EFFECTIVE DATE: This final rule is effective on November 3, 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 Air Resources Division, Department of

Environmental Services, 64 North Main Street, Caller Box 2033, Concord,

NH 03302-2033.

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 June 14, 1994 (59 FR 30564), EPA published a notice of

proposed rulemaking (NPR) for the State of New Hampshire. The NPR

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

revision was submitted by New Hampshire on January 12, 1993 and May 19,

1994. 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 New Hampshire's PROGRAM and is conditionally approving

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

condition that New Hampshire meet its commitment to submit

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

to establish and implement the PROGRAM and also submits the

documentation designating a state agency to house the small business

ombudsman. 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. No public comments were received on the NPR.

Final Action

EPA is conditionally approving the SIP revision submitted by the

State of New Hampshire on January 12, 1993 and May 19, 1994 as a

revision to the New Hampshire SIP. The State must submit to EPA by

November 15, 1994 documentation of a designated state agency to house

the small business ombudsman and adequate legal authority which allows

a compliance advisory panel and a small business ombudsman 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 New Hampshire 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.

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 document will inform the general public of

these tables. The Office of Management and Budget (OMB) has exempted

this action under Executive Order 12866.

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 December 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, Incorporation by

reference, Intergovernmental relations, Small business assistance

program.

Note: Incorporation by reference of the State Implementation

Plan for the State of New Hampshire was approved by the Director of

the Federal Register on July 1, 1982.

Dated: August 26, 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 EE--New Hampshire

2. Section 52.1519 is added to subpart EE to read as follows:

Sec. 52.1519 Identification of plan--Conditional approval.

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

specified.

(1) On January 12, 1993, the New Hampshire Department of

Environmental Services submitted a small business stationary source

technical and environmental compliance assistance program (PROGRAM). On

May 19, 1994, New Hampshire submitted a letter deleting portions of the

January 12, 1993 submittal. In these submissions, the State commits to

designate a state agency to house the small business ombudsman and to

submit adequate legal authority to establish and implement a compliance

advisory panel and a small business ombudsman. Additionally, the State

commits to have a fully operational PROGRAM by November 15, 1994.

(i) Incorporation by reference.

(A) Letter from the New Hampshire Department of Environmental

Services dated January 12, 1993 submitting a revision to the New

Hampshire State Implementation Plan.

(B) State Implementation Plan Revision for a Small Business

Technical and Environmental compliance Assistance Program dated January

12, 1993.

(C) Letter from the New Hampshire Department of Environmental

Services dated May 19, 1994 revising the January 12, 1993 submittal.

(ii) Additional materials.

(A) Non-regulatory portions of the State submittal.

[FR Doc. 94-24422 Filed 10-3-94; 8:45 am]

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