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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA-20-01-5783; A-1-FRL-4825-5]

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

Stationary Source Technical and Environmental Compliance Assistance

Program for Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes to conditionally approve the State

Implementation Plan (SIP) revision submitted by the Commonwealth of

Massachusetts for the purpose of establishing a small business

stationary source technical and environmental compliance assistance

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 rationale for the conditional

approval is set forth in this proposal; additional information is

available at the address indicated below.

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

ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air,

Pesticides and Toxics Management Division, U.S. Environmental

Protection Agency, Region I, JFK Federal Bldg., Boston, MA 02203.

Copies of the State submittal and EPA's technical support document 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 and Department of Environmental Protection, One

Winter Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Emanuel Souza, Jr., (617) 565-3248.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the Clean Air Act Amendments of

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 Commonwealth of Massachusetts 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.

II. Analysis

1. Small Business Assistance Program

Massachusetts' SIP revision delegates the responsibility for

implementation of the SBAP to various functional units within the

Executive Office of Environmental Affairs (EOEA) and the Department of

Environmental Protection (DEP). SBAP staff will be located in the

Office of Technical Assistance. Primary responsibility for program

oversight, development, and coordination will lie with the small

business ombudsman and the SBAP staff.

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 State has met this requirement by offering a

proactive and reactive approach to gathering and disseminating

information on compliance issues and control technologies. This

approach includes: an information clearinghouse, workshops, and an

audit 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 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 this requirement by stating that the Massachusetts Office

of Technical Assistance (OTA) will provide help in identifying

pollution prevention opportunities. These services are provided at no

charge. Additionally, the SBAP staff will provide small business

stationary sources with information and referral to appropriate sources

regarding requirements related to accidental release detection and

prevention.

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. As stated earlier, responsibility for

the implementation of the small business assistance program will

involve various units within the EOEA and the DEP, with primary

responsibility for program oversight, development, and coordination

lying with the small business ombudsman and SBAP staff in EOEA, Office

of Technical Assistance. The air quality staff at each DEP Regional

Office will provide assistance to small business stationary sources in

the following: identifying applicable rules, determining their need for

permits, explanation of the permitting procedures, providing the

necessary forms and applications, and assisting them in preparing the

required documents.

The fourth 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 regulations or standards issued under

the Act. The State has met this requirement by providing that the DEP's

Division of Air Quality Control (DAQC) will be responsible for the

development of policies and regulations for implementing the provisions

of the CAA. The staff in that office will provide assistance in

identifying applicable rules. Additionally, that office will provide

the necessary information regarding rules and procedures for complying

with Federal and state laws and regulations. Furthermore, it will be

the DAQC's responsibility to inform businesses of their rights through

brochures and workshops.

The fifth requirement is to develop adequate mechanisms for

informing small business stationary sources of their 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. The

SIP revision provides that the DAQC is responsible for the development

of policies and regulations for implementing the provisions of the CAA.

The SBAP staff will also be responsible for providing audits. These

include on-site assessments by the OTA and through audit referrals. On-

site assessments will be arranged in conjunction with technical staff

from the OTA. Audit referrals will be arranged by having the staff

provide a list of qualified private sector auditors or consultants to

small business stationary sources.

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 SIP revision provides that specific regulations

for modifications of work practices or technological methods of

compliance will be submitted in November 1993. These regulations will

include: (1) Procedures for receiving requests from small businesses to

modify the provisions of State-adopted regulations; (2) format for such

requests; (3) procedures for how requests will be reviewed and acted

upon; and (4) requirements to ensure that no such modification may be

granted unless it is in compliance with the applicable requirements of

the CAA, the SIP and the applicable Federal regulations.

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 designating the small business ombudsman

within the EOEA. The EOEA is a secretariat answering directly to the

Governor. The designation of a small business ombudsman within the

Commonwealth's environmental secretariat but outside of the

secretariat's regulatory agency will:

(1) Enhance impartiality in resolving disputes involving compliance

and enforcement;

(2) Reduce potential for conflicts of interest;

(3) Improve utilization by the business community;

(4) Allow for a high level of independence, authority, and

communication;

(5) Allow the small business ombudsman to build upon established

contacts with the business community and other government offices and

agencies; and

(6) Strengthen the ombudsman's ability to provide program oversight

and evaluation.

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 not fully met this requirement due to the

lack of adequate statutory authority to establish the CAP. However, EPA

expects Massachusetts to submit a legislative resolve to EPA when it is

finally approved. The SIP revision provides that legislative approval

and selection of CAP members will be completed by January 30, 1994.

In addition to establishing the minimum membership of the CAP the

CAA delineates four responsibilities for it: (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 these

requirements in the SIP revision by authorizing the panel to: render

advisory opinions on the effectiveness of the small business assistance

program; prepare periodic reports to EPA on the status of the SBAP with

regard to the Paper Work Reduction Act, the Regulatory Flexibility Act,

and the Equal Access to Justice Act; and review information for small

business stationary sources to assure such information is

understandable by the layperson. Additionally, the SIP revisions

provide the small business ombudsman with the authority to oversee all

aspects of the SBAP and allows for the ombudsman to act as secretariat

to the panel.

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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 SIP revision states that it is the general policy of the EOEA

and the DEP to assist all businesses in identifying applicable

regulations and in meeting their obligations under the requirements of

the CAA. However, recognizing the special needs of the small business

stationary sources, EOEA and DEP shall, wherever resources become a

limiting factor in providing such assistance, give priority to

businesses which meet the definition of small business stationary

source under title V, section 507(c)(1) of the Clean Air Act.

Additionally, the Commonwealth of Massachusetts allows businesses that

do not meet the provisions of sections 507(c)(1)(C)-(E) to petition the

SBAP for assistance in accordance with the procedures established in

section 507(c)(2) of the CAA.

The SBAP staff, with the advice of the ombudsman and the CAP, may

consider the development of provisions for excluding any category or

subcategory of sources with sufficient financial and technical

resources, from receiving assistance under the SBAP in accordance with

the provisions of the Act.

III. Proposed Action

The Commonwealth of Massachusetts has submitted a SIP revision

implementing each of the required PROGRAM elements required by section

507 of the CAA. The State expects all the elements of the PROGRAM to be

fully operational by November 14, 1994.

The State needs full adequate legal authority to implement the

PROGRAM before EPA can fully approve this SIP revision. Therefore, EPA

is proposing to conditionally approve the Massachusetts SIP revision

for the small business stationary source technical and environmental

compliance assistance program, which was submitted on November 13, 1993

upon the condition that Massachusetts submits the additional legal

authority necessary to fully implement the PROGRAM.

EPA is soliciting public comments on the issues discussed in this

proposal or on other relevant matters. These comments will be

considered before EPA takes 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 action.

Proposed Action

EPA is proposing to conditionally approve the small business

stationary source technical and environmental compliance assistance

program submitted on November 13, 1992 and July 22, 1993. The one

outstanding issue with this SIP revision concerns Massachusetts' lack

of adequate legal authority to establish and implement a compliance

advisory panel. The State plans to address this issue in a legislative

resolve which it will forward to EPA by November 14, 1994. For this

reason EPA is proposing to conditionally approve this SIP revision on

the condition that the State meet its commitment to submit a

legislative resolve allowing a compliance panel to be established and

implemented, incorporating all the elements listed in section 507(e) of

the Clean Air Act and have the program fully operational by November

14, 1994. Under section 110(k)(4) of the Act, EPA may conditionally

approve a plan based on a commitment from the State to adopt specific

enforceable measures by a date certain, but not later than 1 year from

the date of approval. If EPA takes final conditional approval on the

commitment, the State must meet its commitment to have the program

fully operational by November 14, 1994. 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 Massachusetts SIP.

EPA subsequently will publish a notice in the notice section of 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 EPA determines that it cannot issue a final conditional approval

or 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.

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 Administer for Air

and Radiation. On January 6, 1989 the Office of Management and Budget

(OMB) waived Table 2 and 3 SIP revisions (54 FR 2222) from the

requirement 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 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., 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 conditionally approving a State program

created for the purpose of assisting small businesses in complying with

existing statutory and regulatory requirements. The program being

proposed for conditional approval 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 conditional 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.

The Regional Administrator's decision to approve or disapprove the

SIP revision will be based on whether it meets the requirements of

sections 110(a)(2)(A)-(K) and 110(a)(3) of the Clean Air Act, as

amended, and EPA regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental

relations, Small business assistance program.

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

Dated: December 21, 1993.

Paul G. Keough,

Acting Regional Administrator, Region I.

[FR Doc. 94-760 Filed 1-11-94; 8:45 am]

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