Approval and Promulgation of Air Quality Implementation Plans; Delaware-Small Business Stationary Source Technical and Environmental Compliance Assistance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE15-1-6000; A-1-FRL-4825-6]

Approval and Promulgation of Air Quality Implementation Plans;

Delaware-Small Business Stationary Source Technical and Environmental

Compliance Assistance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)

revision submitted by the State of Delaware for the purpose of

establishing a Small Business Stationary Source Technical and

Environmental Compliance Assistance Program (SBTCP). This SIP revision

was submitted by Delaware to satisfy the Federal mandate 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 rational for approving is set forth in this notice;

additional information is available at the address indicated below.

This action is being taken in accordance with the provisions of the

Clean Air Act.

DATES: Comments must be received on or before February 11, 1994.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air,

Radiation, and Toxics Division, U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, PA 19107. Copies of

the documents relevant to this action are available for public

inspection during normal business hours at the Air, Radiation, and

Toxics Division, U.S. Environmental Protection Agency, Region III, 841

Chestnut Building, Philadelphia, PA 19107; Jerry Kurtzweg (ANR-443),

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

20460; and Delaware Department of Natural Resources and Environmental

Control, P.O. Box 1401, Dover Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Lisa M. Donahue, (215) 597-9781.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions the CAA 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, 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 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 January 11, 1993, the State of Delaware submitted a formal

revision to its SIP. The SIP revision consists of a plan for

establishing an SBTCP. 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 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.

Delaware Department of Natural Resources and Environmental Control

(DE DNREC) is authorized to create and administer the SBTCP. Delaware

DNREC can create and administer the SBAP, and create the Office of the

Ombudsman. Through an executive order, the Governor of the State of

Delaware will establish the Compliance Advisory Panel.

II. Summary and Analysis of SIP Revision

Section 507(a) of the CAA sets forth seven requirements that

Delaware must meet to have an approvable SBAP. Three requirements will

be discussed in the first section, and the remaining four requirements,

including the establishment of an Ombudsman, in the second section.

1. Small Business Assistance Program

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 CAA. Delaware

has met this requirement by establishing a SBAP, with the

responsibility of serving as a clearinghouse for information related to

compliance methods and control technologies.

Small businesses will be referred to state technical experts

specifically trained to handle questions relevant to achieving

compliance with the CAA. The SBAP will be coordinated through the Air

Quality Management Section and will respond to inquiries from small

businesses received through the ombudsman's toll-free hotline.

Information workshops, industry-specific compliance publications, and

roundtable groups are examples of planned outreach activities. A list

of potentially affected parties will be developed in conjunction with

the State of Delaware Department of Labor.

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.

Delaware DNREC established a Pollution Prevention Program in 1990 which

provides education, technical assistance, and financial incentives to

improve environmental quality. Small businesses have access to

Delaware's Waste Minimization/Pollution Prevention Information

Clearinghouse. In addition to distributing pollution prevention guides,

DE DNREC has established a Pollution Prevention Industry Roundtable to

facilitate technology transfer between large and small businesses.

To address accidental release detection and prevention, the Air

Quality Management Section has been administering Delaware's

``Regulation for the Management of Extremely Hazardous Substances''

through the Industrial Disaster Prevention Group (IDPG). Facility

visits and compliance discussions are a part of this program, as is the

distribution of generic procedures to assist with compliance with the

regulation.

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 CAA in a timely and efficient manner.

Delaware has met this requirement through the Engineering and

Compliance Branch (ECB) of the Air Quality Management Section. The ECB

will identify applicable rules, determine whether a permit is needed,

identify compliance alternatives, and explain the fees, application

process, violations, and appeals, as needed.

2. Ombudsman Office

The fourth requirement of section 507(a)(3) is the designation of a

state office to serve as the Ombudsman for small business stationary

sources. Delaware's Secretary of DE DNREC is authorized to create the

ombudsman's office within DNREC. The ombudsman will be appointed by the

Secretary of DE DNREC and will report directly to him or her. The

Delaware Office of the Ombudsman (Delaware Ombudsman) will be

independent of the Division of Air and Waste Management and the Air

Quality Management Section.

The fifth 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 CAA. The Delaware Ombudsman will ensure that small businesses

receive notice of their rights in sufficient time to evaluate

compliance. Information delineating legal rights will be disseminated

with the technical and compliance information by the SBAP. In addition,

field inspectors will be trained to properly inform small businesses of

their rights during site visits.

The sixth requirement of CAA section 507(a) is to develop 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. The Delaware Ombudsman will develop procedures

for referring sources to qualified auditors. A list of qualified

environmental consulting firms who could conduct audits will be

provided by the Delaware Ombudsman to small businesses. The Delaware

Ombudsman, ECB, IDPG and Pollution Prevention Program may elect to

provide qualified auditors, if available.

The seventh requirement of CAA section 507(a) 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 practices or compliance methods. Delaware's

Office of the Ombudsman will receive written requests from a small

businesses for modification of work practices.

3. Compliance Advisory Panel

Section 507(e) of the CAA requires Delaware 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. Members of the Delaware CAP will be selected in the

following manner for the first term, after which all will serve four

year terms: (1) The majority leader of the Senate shall appoint one

member for 4 years; (2) the minority leader of the Senate shall appoint

one member for 2 years; (3) the majority leader of the House of

Representatives will appoint one member for three years; (4) the

minority leader of the House of Representatives shall appoint one

member for one year; (5) the Governor will select two members for four

years; and (6) the Air Quality Management Program Administrator will

select one member for four years. The makeup of Delaware's CAP is

prescribed as is required by section 507(e).

The Delaware CAP will meet at least once per quarter. Any member

absent from three consecutive meetings will be replaced. Administrative

and logistical support for the Delaware CAP will be funded through the

Delaware Ombudsman's office. The Delaware Ombudsman will also serve a

Secretariat for the development and dissemination of CAP reports.

In addition to establishing the minimum membership of the CAP the

CAA delineates four responsibilities of the Panel: (A) to render

advisory opinions concerning the effectiveness of the SBAP,

difficulties encountered and the degree and severity of enforcement

actions; (B) to review and assure that information for small business

stationary sources is easily understandable; (C) to develop and

disseminate the reports and advisory opinions made through the SBAP;

and (D) 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 Act. (Section 507(e)(1)(B)

requires the CAP to report on the compliance of the SBAP with these

three 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.) The duties and

responsibilities described in Delaware's submittal indicate that the

Delaware CAP will be responsible for all four of the activities listed

above, except that the Delaware Ombudsman will disseminate reports.

4. Source 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.

Delaware's submittal duplicates the language of CAA section 507(c)(1)

in defining eligible stationary sources. It also provides for the

state, after consultation with the Administrator and the Administrator

of the Small Business Administration and notice and opportunity for

public comment, to include or exclude a category or subcategory of

sources.

III. Summary of SIP Revision

Delaware has submitted a SIP revision requiring implementation of

each of the program elements required by CAA section 507. As previously

stated, the authority to implement the SBAP has been delegated to the

Department of Natural Resources and Environmental Control, Air Quality

Management Section. Program implementation will begin no later than

January 1, 1994. The Secretary of DE DNREC will appoint the Ombudsman

by July 1, 1993 and hire the staff dedicated to implementing the

program. An Executive Order establishing the Compliance Advisory Panel

will be executed by the Governor of the State of Delaware by March 1,

1993. In this action, EPA is approving the SIP revision submittal by

the State of Delaware. Accordingly, Sec. 52.460 is added to 40 CFR part

52, subpart I-Delaware to reflect EPA's approval action and the fact

that it is considered part of the Delaware's SIP.

EPA is proposing to approve the Delaware SIP revision for

establishing a Small Business Stationary Source Technical and

Environemental Compliance Assistance Program, which was submitted on

January 11, 1993. EPA is soliciting public comments on the issues

discussed in this notice or on other relevant matters. These comments

will be considered before taking final action. Interested parties may

participate in the Federal rulemaking procedure by submitting written

comments to the EPA Regional office listed in the Addresses section of

this document.

Proposed Action

EPA is proposing to approve Delaware's plan for the establishment

of a Small Business Stationary Source Technical and Environmental

Compliance Assistance Program.

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.

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.

In this 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 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 asignificant economic

impact on any small entities affected.

This action has been classified as a Table 2 action for signature

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

Assistance Administrator for Air and Radiation. On January 6, 1989, the

Office of Management and Budget (OMB) waived Table 2 and Table 3 SIP

revisions from the requirements of section 3 of Executive Order 12291

for a period of two years. EPA has submitted a request for a permanent

waiver for Table 2 and 3 SIP revisions. OMB has agreed to continue the

waiver until such time as it rules on EPA's request. This request is

still applicable under Executive Order 12866, which superseded

Executive Order 12291 on September 30, 1993.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Small business

assistance program.

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

Dated: October 22, 1993.

W.T. Wisniewski,

Acting Regional Administrator, Region III.

[FR Doc. 94-759 Filed 1-11-94; 8:45 am]

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