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 Montana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT14-1-5669; FRL-4843-9]

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 Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rulemaking.

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SUMMARY: The EPA is approving the State Implementation Plan revision

submitted by the Governor of Montana on October 19, 1992 for the

purpose of establishing a Small Business Stationary Source Technical

and Environmental Compliance Assistance Program to satisfy the Federal

mandate of the Clean Air Act to ensure that small businesses have

access to the technical assistance and regulatory information necessary

to comply with the Act. Since this is a voluntary program that does not

impose any new regulatory burdens on small businesses, the EPA is

proceeding with a direct final approval of this SIP revision. The

rationale for this approval follows.

EFFECTIVE DATE: This rule will become effective on April 4, 1994.

FOR FURTHER INFORMATION CONTACT: Laura Farris, Mail Code 8ART-AP, EPA

Region 8, 999 18th Street, suite 500, Denver, Colorado 80202-2405,

(303) 294-7539.

SUPPLEMENTARY INFORMATION:

I. Background of Revision

Implementation of the provisions of the Clean Air Act (Act), 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 Act 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 State Implementation Plan (SIP). In

addition, the Act 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 Act. In February 1992, the

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 Montana has submitted a SIP revision to the 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.

II. Summary of Submittal

The State of Montana has met all of the requirements of section 507

by submitting a SIP revision that implements all required PROGRAM

elements. House Bill (HB) 318 signed into law on April 23, 1993,

provides authority for the Montana Department of Health and

Environmental Sciences to establish a PROGRAM. The Montana Board of

Health and Environmental Sciences held a public hearing on September

25, 1992 to consider and approve the PROGRAM, which will amend the

Montana SIP to add Chapter 10 of Volume I. The Montana PROGRAM was

submitted to the EPA by the Governor of Montana on October 19, 1992 as

an addition to the Montana SIP. It was initially reviewed for

administrative and technical completeness, and was deemed complete on

April 19, 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

(OSBO) did not concur on the Montana PROGRAM for the following reasons:

(1) Insufficient designation of Small Business Ombudsman position in

the Montana Department of Commerce (DOC) to make an effective decision;

(2) No designated role for the SBAP to act as secretariat to the CAP

and Ombudsman; (3) Manpower resources appear inadequate to support the

SBAP, and there are no quantitative or qualitative or other support for

the SBAP from the DOC or others; and (4) It is advantageous for the

Ombudsman and the SBAP to both have a toll-free hotline to serve the

public. The State addressed these issues in a letter dated January 3,

1994, and subsequently received the concurrence of the OSBO.

A. Small Business Assistance Program

The State has met the first PROGRAM element, the establishment of a

SBAP to provide technical and compliance assistance to small

businesses, by committing in its SIP revision Chapter 10.2.3 to

establish a SBAP in the Montana Department of Health and Environmental

Sciences, Air Quality Bureau. It will be administered by an

environmental specialist. Chapter 10.2.3 describes the details of the

SBAP, which meet the six requirements set forth in section 507(a),

including such activities as: (1) ``Provide information to small

business stationary sources on compliance methods and technologies;''

(2) ``Provide information to small business stationary sources on ...

pollution prevention and accidental release detection and prevention;''

(3) ``Assist small business stationary sources in determining

applicable requirements under this chapter and in receiving permits in

a timely and efficient manner;'' (4) ``Provide small business

stationary sources timely notice of both their rights and obligations

under this chapter;'' (5) ``Provide information ... regarding the

availability of audits services which are useful for determining

compliance status with the requirements of this chapter;'' and (6)

Consider `` ... requests from small business stationary sources for

modifications of work practices or technological methods of

compliance.''

B. Ombudsman

The State has met the second PROGRAM element, the establishment of

a State Small Business Ombudsman to represent the interests of small

businesses in the regulatory process, by locating the office of the

Ombudsman in the Montana DOC as stated in Chapter 10.2.2 of its SIP

revision.

C. Compliance Advisory Panel

The third PROGRAM element is the creation of a CAP to determine and

report on the overall effectiveness of the SBAP. The CAP 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 Act also 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 the 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\1\;

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\1\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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(3) To review and assure that information for small businesses is

easily understandable; and

(4) To develop and disseminate the reports and advisory opinions

made through the SBAP.

The State has met these requirements by committing in Chapter

10.2.4 of its SIP revision to appoint the members of the CAP as stated

above, and to designate to the CAP the four responsibilities listed in

the Act.

D. Eligibility

Section 507(c)(1) of the Act 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 Montana 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 Act. This mechanism is contained in the

State's Title V enabling legislation, HB 318, Section 1, which is

Chapter 10.2.1 of the State's SIP revision.

The State of Montana 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 Act but do not emit more

than 100 tpy of all pollutants. This provision is contained in Chapter

10.2.1 of the State's SIP revision.

The State of Montana 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

Act. This provision in contained in Chapter 10.2.1 of the State's SIP

revision.

III. Final Action

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

the State of Montana. This SIP revision implements each of the PROGRAM

elements required by section 507 of the Act. Chapter 10.3 of the

revision contains a schedule for implementation of the PROGRAM by

November 15, 1994. The 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 notice 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 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., the 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, the 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 this action, the 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. 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 Subject in 40 CFR Part 52

Environmental protection, Air pollution control, Small business

assistance program.

Dated: February 16, 1994.

Robert L. Duprey,

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 BB--Montana

2. Section 52.1389 is added to subpart BB to read as follows:

Sec. 52.1389 Small business stationary source technical and

environmental compliance assistance program.

The Governor of Montana submitted on October 19, 1992 a plan to

develop and implement a Small Business Stationary Source Technical and

Environmental Compliance Assistance Program to meet the requirements of

section 507 of the Clean Air Act by November 15, 1994. The plan commits

to provide technical and compliance assistance to small businesses,

hire an Ombudsman to serve as an independent advocate for small

businesses, and establish a Compliance Advisory Panel to advise the

program and report to the EPA on the program's effectiveness.

[FR Doc. 94-4991 Filed 3-3-94; 8:45 am]

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