Approval and Promulgation of Implementation Plans Alabama: Title V, Section 507, Small Business Stationary Source Technical and Environmental Compliance Assistance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AL-37-1-5925a; FRL-5090-6]

Approval and Promulgation of Implementation Plans Alabama: Title

V, Section 507, Small Business Stationary Source Technical and

Environmental Compliance Assistance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the State Implementation Plan

(SIP) submitted by the State of Alabama through the Alabama Department

of Environmental Management (ADEM) for the purpose of establishing a

Small Business Stationary Source Technical and Environmental Compliance

Assistance Program (PROGRAM), which will be fully implemented by

November 15, 1994. This implementation plan was submitted by the State

on November 13, 1992, 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 as amended in

1990 (CAA).

DATES: This final rule is effective on December 30, 1994 unless notice

is received by November 30, 1994 that someone wishes to submit adverse

or critical comments. If the effective date is delayed, timely notice

will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Kimberly Bingham,

Regulatory Planning and Development Section, Air Programs Branch, Air,

Pesticides & Toxics Management Division, Region IV Environmental

Protection Agency, 345 Courtland Street, NE., Atlanta, Georgia 30365.

Copies of the material submitted by the State of Alabama may be

examined during normal business hours at the following locations:

Air and Radiation Docket and Information Center (Air Docket 6102),

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

DC 20460.

Environmental Protection Agency, Region IV Air Programs Branch, 345

Courtland Street, NE., Atlanta, Georgia 30365.

Alabama Department of Environmental Management, Office of General

Counsel, 1751 Congressman W.L. Dickinson Drive, Montgomery, Alabama

36130.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham, Regulatory Planning

and Development Section, Air Programs Branch, Air, Pesticides & Toxics

Management Division, Region IV Environmental Protection Agency, 345

Courtland Street, NE., Atlanta, Georgia 30365. The telephone number is

404/347-3555 ext. 4195.

SUPPLEMENTARY INFORMATION: Implementation of the CAA will require small

businesses to comply with specific regulations in order for areas to

attain and maintain the national ambient air quality standards (NAAQS)

and reduce the emission of air toxics. 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 the small

business assistance program 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 and the EPA guidance document

Guidelines for the Implementation of section 507 of the 1990 Clean Air

Act Amendments. 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 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.

Section 507(a) and (e) of the CAA set forth requirements the State

must meet to have an approvable PROGRAM. The State of Alabama has

addressed these requirements and established a PROGRAM as described

below.

1. Small Business Assistance Program (SBAP)

Alabama has established a mechanism to implement the following six

requirements set forth in section 507 of title V of the CAA:

A. The establishment of 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 comply with the CAA;

B. The establishment of 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;

C. The development of a compliance and technical assistance

program for small business stationary sources which assist small

businesses in determining applicable permit requirements under the

CAA in a timely and efficient manner;

D. The development of 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;

E. The development of adequate mechanisms for informing small

business stationary sources of their obligations under the CAA,

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 CAA; and

F. The development of 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 of Alabama Department of Environmental Management has

indicated the Chief of the Non-Industrial Section in the Engineering

Branch of the Air Division will be designated the coordinator of the

Technical and Environmental Assistance Group (TEAG). The coordinator

will direct and coordinate the activities of a group of at least six

individuals with experience in permitting, source sampling, dispersion

modeling, and public information. ADEM will support the TEAG with

additional personnel as warranted. The TEAG will establish a

clearinghouse of relevant technical and regulatory literature to

disseminate to the small business community. It will provide

information concerning compliance methods and technologies for small

business stationary sources to operators and owners through interaction

and cooperation with the Alabama Development Office (ADO), the Alabama

Department of Economic and Community Affairs (ADECA), Alabama Small

Business Development Consortium, Safe-State, the Waste Reduction and

Technology Transfer (WRATT) program, trade associations, and other

appropriate groups.

The TEAG will provide information concerning pollution prevention

and accidental release detection and prevention programs. This shall

include providing information about alternative technologies, process

changes, products, and methods of operation that reduce air pollution.

The TEAG will support the activities of the Ombudsman and answer

questions from that office, other state and local agencies, trade

associations, and other appropriate groups concerning air permit

requirements and applicability in a timely and efficient manner. Public

notices will be posted in the State's four largest newspapers of

proposed and/or final rules, regulations or standards issued under the

CAA. Personnel from the TEAG will speak at forums and/or meetings

concerning applicable proposed or final rules, regulations or standards

issued under the CAA. The TEAG will serve as the secretariat to the

Ombudsman and the Compliance Advisory Panel in the development and

dissemination of reports, advisory opinions and other information.

The TEAG will inform small businesses of the procedures for the

Department to consider requests for a variance from a rule, work

practice, standard or compliance date. The WRATT will be included in

the Assistance Group where multi-media pollution prevention opportunity

information is requested. Public service announcements, seminars and

workshops will be developed and utilized. The TEAG will use EPA

services such as the Control Technology Center (CTC) and the Emission

Measurement Technical Information Center (EMTIC). Compliance Assistance

to small businesses will be provided to aid them to identify applicable

requirements and procedures to obtain permits in a timely fashion. The

TEAG has developed and continues to work on responsive techniques,

outreach techniques and information packets. This will cover topics

such as pollution prevention, accidental release prevention and

detection, source rights and obligations, and how to obtain approval

for modification of work practices, compliance methods or schedules of

compliance.

The Department will perform on-site audits at the request of small

businesses to evaluate work practices, compliance monitoring procedures

and recordkeeping procedures. Such audits may be performed by

Department personnel or by the WRATT program at no cost to the small

businesses.

2. Ombudsman

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

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

Alabama has appointed a Small Business Ombudsman and established the

office of Alabama Small Business Ombudsman to represent the interests

of small businesses as they come under the regulation of the CAA and

the oversight of the Small Business Technical and Environmental

Assistance Group. The Ombudsman reports directly to the Director of the

Department of Environmental Management. The Alabama Ombusman operates a

toll-free hotline to provide free confidential help to small businesses

on specific source problems and grievances. The Ombudsman is authorized

to communicate directly with the Governor's Office, the Director of

ADEM, the Chief of the Air Division, other state agencies and other

government officials. The Ombudsman may propose legislation or

administrative action through ADEM or the Compliance Advisory Panel.

3. Compliance Advisory Panel

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. Alabama established a seven member CAP with a

membership consistent with the aforementioned CAA requirements. The

makeup of the CAP is prescribed as required by the CAA and

administrative support will be provided by the Department to fulfill

all the responsibilities under the CAA.

The duties of the CAP include: rendering advisory opinions

regarding the effectiveness of the Small Business Technical and

Environmental Assistance Group; reviewing information for small

business stationary air pollution sources to assure such information is

understandable by the layperson; and to make periodic reports to the

Administrator of the Environmental Protection Agency in accordance with

the requirements of the Paperwork Reduction Act, the Regulatory

Flexibility Act, and the Equal Access to Justice Act.

4. Source Eligibility

Alabama has incorporated section 507(c)(1) and defined a Small

Business Stationary Source as a source that:

(1) Operates in Alabama;

(2) Is owned or operated by a person who employs 100 or fewer

individuals;

(3) Is a small business concern as defined in the Small Business

Act;

(4) Is not a major stationary source as defined in Titles I and

III of the CAA which means the potential to emit for the source is

less than:

a. 100 tons per year (tpy) of any criteria air pollutant;

b. 10 tpy of any toxic pollutant; or

c. 25 tpy of all toxic pollutants;

(5) Does not emit 50 tpy or more of any regulated pollutant; and

(6) Emits less than 75 tpy of all regulated pollutants.

Alabama has established the following mechanisms as required by

section 507: (1) A process 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; (2) A process 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; and (3) A process 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 Department determines to

have sufficient technical and financial capabilities to meet the

requirements of the CAA.

Final Action

In this action, EPA is approving the PROGRAM SIP revision submitted

by the State of Alabama through the Alabama Department of Environmental

Management. This action is being taken without prior proposal because

the changes are noncontroversial and EPA anticipates no significant

comments on them. The public should be advised that this action will be

effective on December 30, 1994. However, if notice is received by

November 30, 1994 that someone wishes to submit adverse or critical

comments, this action will be withdrawn and two subsequent notices will

be published before the effective date. 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.

Under section 307(b)(1) of the Act, 42 U.S.C. 7607 (b)(1),

petitions for judicial review of this action must be filed in the

United States Court of Appeals for the appropriate circuit by December

30, 1994. Filing a petition for reconsideration by the Administrator of

this final rule does not affect the finality of this rule for 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) of the Act, 42 U.S.C. 7607 (b)(2)).

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 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 waiver until such time as it rules

on USEPA's request. This request continues in effect under Executive

Order 12866 which superseded Executive Order 12291 on September 30,

1993.

Nothing in this action shall be construed as permitting or allowing

or establishing a precedent for any future request for a 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.

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. Environmental Protection Agency, 427 U.S. 246,

256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2) and 7410(k).

List of Subjects in 40 CFR Part 52

Air Pollution Control, Incorporation by reference,

Intergovernmental relations, Small business stationary source technical

and environmental assistance program.

Dated: October 4, 1994.

Patrick M. Tobin,

Acting Regional Administrator.

Part 52 of chapter I, title 40, Code of Federal Regulations, is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Subpart B--Alabama

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

2. Section 52.50 is amended by adding paragraph (c) (62) to read as

follows:

Sec. 52.50 Identification of plan.

* * * * *

(c) * * *

(62) The Alabama Department of Environmental Management has

submitted revisions to chapter 11 of the Alabama Statute on November

13, 1992. These revision address the requirements of section 507 of

Title V of the CAA and establish the Small Business Stationary Source

Technical and Environmental Assistance Program (PROGRAM).

(i) Incorporation by reference.

(A) Alabama statute 11.1, effective November 13, 1993.

(ii) Additional information--None.

* * * * *

[FR Doc. 94-26840 Filed 10-28-94; 8:45 am]

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