Clean Air Act Approval and Promulgation of Title V, Section 507, Small Business Stationary Source Technical and Environmental Compliance Assistance Program for the State of South Dakota

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SD4-1-5671a; FRL-5077-6]

Clean Air Act Approval and Promulgation of Title V, Section 507,

Small Business Stationary Source Technical and Environmental Compliance

Assistance Program for the State of South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving the State Implementation Plan (SIP)

revision submitted by the State of South Dakota 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 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 notice; additional information is

available at the address indicated below.

DATES: This final rule will become effective on December 27, 1994

unless adverse or critical comments are received by November 25, 1994.

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

the Federal Register.

ADDRESSES: Comments should be addressed to Laura Farris, 8ART-AP, at

the EPA Regional Office listed.

Copies of the State's submittal and other supporting information

used in developing this final rule are available for public inspection

during normal business hours at the following location: U.S.

Environmental Protection Agency, Region 8, 999 18th Street, suite 500,

Denver, Colorado 80202.

FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP,Environmental

Protection Agency, Region VIII, 999 18th Street, suite 500, Denver,

Colorado 80202-2405, (303) 294-7539.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the Clean Air Act (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

the Environmental Protection Agency (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.

The State of South Dakota 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 (CAP) to

determine and report on the overall effectiveness of the SBAP.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial action and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing approval of the South Dakota

PROGRAM should adverse or critical comments be filed. Under the

procedures established in the May 10, 1994 Federal Register, this

action will be effective on December 27, 1994, unless by November 25,

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 then 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. 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 December 27, 1994.

II. Analysis

The State of South Dakota has met all of the requirements of

section 507 by submitting a SIP revision that implements all required

PROGRAM elements. The South Dakota Codified Laws (SDCL) was amended

effective July 1, 1992 to include provisions (34A-1-57 through 34A-1-

60, inclusive) which provide the authority to establish and fund the

PROGRAM. The authority to establish and fund the Compliance Advisory

Panel is found in SDCL 1-32-4.1 through 1-32-4.4, inclusive. The South

Dakota Department of Environment and Natural Resources held a public

hearing on November 6, 1992 to consider amending the South Dakota SIP

to include a plan which commits to the development and implementation

of the South Dakota PROGRAM. On November 10, 1992, the Governor of

South Dakota's designee, Robert E. Roberts, Secretary of the Department

of Natural Resources, submitted the South Dakota PROGRAM to the EPA.

Additional information was sent by request on January 20 and March 23,

1993. The PROGRAM was initially reviewed for administrative and

technical completeness and was deemed complete on April 5, 1993. The

submittal was then reviewed for approveability by EPA Region VIII and

EPA headquarters. One of the EPA headquarters reviewers, the Office of

the Small Business and Asbestos Ombudsman, did not concur on the South

Dakota PROGRAM for the following reasons: (1) The State failed to

correct deficiencies noted by EPA in their review of the proposed South

Dakota PROGRAM; (2) Further clarification and assurances are necessary

to insure that the State will implement all the statutory requirements

under section 507. The State subsequently made the necessary changes to

their PROGRAM, went back through public hearing on January 12, 1994,

and resubmitted the PROGRAM on April 11, 1994. The South Dakota PROGRAM

then received a concurrence from all reviewers.

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 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 these requirements by committing in its

SIP to ``Develop, collect, and coordinate information concerning

compliance methods and technologies for small businesses ...'' and to

``Assist small businesses with pollution prevention and accidental

release detection and prevention.'' The mechanisms the State has

committed to use to accomplish these commitments include: ``...

workshops, electronic bulletin boards, interaction with other states,

... public service announcements, mailings, workshops in the field and

through the Rural Development Telecommunications Network (RDTN), one-

on-one with the small businesses, and any other methods that are

determined during the development and implementation of the Program.''

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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 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 committing in its SIP to ``Provide

compliance assistance to small businesses to help them determine

applicable requirements and in receiving permits in a timely and

efficient manner.''

The fourth and fifth requirements are to develop adequate

mechanisms to assure that small business stationary sources receive

notice of their rights and 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. This must be done 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 these requirements by committing in its SIP to ``Notify small

businesses of their rights under the Federal Clean Air Act and assure

reasonably adequate time for such sources to evaluate compliance

methods and any relevant or applicable proposed or final regulation or

standard issued under the Federal Clean Air Act;'' and ``Inform small

businesses of their obligations under the Federal Clean Air Act. If the

state does not provide audits of the operations of such sources to

determine compliance with state and Federal air pollution regulations,

then the state will refer such sources to qualified auditors.'' The

mechanisms the State has committed to use to accomplish these

commitments include: ``... workshops, electronic bulletin boards,

interaction with other states, ... public service announcements,

mailings, workshops in the field and through the Rural Development

Telecommunications Network (RDTN), one-on-one with the small

businesses, and any other methods that are determined during the

development and implementation of the Program.''

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 committing in

its SIP to ``Provide procedures for considering requests from small

businesses for modifications of any work practice or technological

methods of compliance or the schedule of milestones for implementing

these modifications. No such modification may be granted unless it is

in compliance with the applicable state and Federal requirements.''

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 stating in its SIP that the Office of the

Small Business Ombudsman will be located in the Department of

Environment and Natural Resources.

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 committing in its

SIP to appoint the members of the CAP as stated above.

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 this requirements by listing the duties of the CAP in its SIP,

which are consistent with those stated above.

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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 South Dakota 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. This mechanism is

contained in the State's SIP.

The State of South Dakota 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. This provision is

contained in the State's SIP.

The State of South Dakota 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. This provision in contained in the State's SIP.

III. This Action

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

the State of South Dakota.

The State of South Dakota has submitted a SIP revision implementing

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

CAA. The members of the South Dakota CAP have been appointed, and the

Ombudsman for the South Dakota PROGRAM has been hired. EPA is therefore

approving this submittal.

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. 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 from the requirements of

section 3 of Executive Order 12291 for 2 years. The EPA has submitted a

request for a permanent waiver for Table 2 and Table 3 SIP revisions.

The OMB has agreed to continue the temporary waiver until such time as

it rules on EPA's request. This request continues in effect under

Executive Order 12866 which superseded Executive Order 12291 on

September 30, 1993.

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.

By today's 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 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 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.

List of Subjects in 40 CFR Part 52

Air pollution control, Incorporation by reference, Small business

assistance program.

Dated: September 14, 1994.

Jack W. McGraw,

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 asfollows:

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

Subpart QQ--South Dakota

2. Section 52.2170 is amended by adding paragraph (c)(15) to read

as follows:

Sec. 52.2170 Identification of plan.

* * * * *

(c) * * *

(15) On November 10, 1992, the Governor of South Dakota's designee

submitted a plan for the establishment and implementation of a Small

Business Assistance Program to be incorporated into the South Dakota

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

Act. An amendment to the plan was submitted by the Governor's designee

on April 1, 1994.

(i) Incorporation by reference.

(A) November 10, 1992 letter from the Governor of South Dakota's

designee submitting a Small Business Assistance Program plan to EPA.

(B) April 1, 1994 letter from the Governor of South Dakota's

designee submitting an amendment to the South Dakota Small Business

Assistance Program plan to EPA.

(C) The State of South Dakota amended plan for the establishment

and implementation of a Small Business Assistance Program, adopted

January 12, 1994 by the South Dakota Department of Environment and

Natural Resources.

(D) South Dakota Codified Laws 34A-1-57, effective July 1, 1992 and

34A-1-58 through 60, effective July 1, 1993, which gives the State of

South Dakota the authority to establish and fund the South Dakota Small

Business Assistance Program.

[FR Doc. 94-26355 Filed 10-24-94; 8:45 am]

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