Approval and Promulgation of Implementation Plans: Oregon

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OR-31-1-5932a; FRL-5283-4]

Approval and Promulgation of Implementation Plans: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves the State

of Oregon Implementation Plan (SIP) revision submitted by the State of

Oregon for the purpose of establishing a Small Business Stationary

Source Technical and Environmental Compliance Assistance Program. The

implementation plan was submitted by the State to satisfy the Federal

mandate, found in Section 507 of the Clean Air Act (CAA or the Act), to

ensure that small businesses have access to the

[[Page 46026]]

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 is effective November 6, 1995 unless notice is

received by unless adverse or critical comments are received by October

5, 1995. If the effective date is delayed, timely notice will be

published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston,

SIP Manager, Air & Radiation Branch (AT-082), EPA, OR-31-1-5932, 1200

Sixth Avenue, Seattle, Washington 98101.

Documents which are incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

Center, Environmental Protection Agency, 401 M Street, SW., Washington,

DC 20460. Copies of material submitted to EPA may be examined during

normal business hours at the following locations: EPA, Region 10, Air &

Radiation Branch, 1200 Sixth Avenue (AT-082), Seattle, Washington

98101, and the Oregon Department of Environmental Quality, 811 SW.

Sixth Avenue, Portland, OR 97204.

FOR FURTHER INFORMATION CONTACT: David J. Dellarco, Air and Radiation

Branch (AT-082), EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101,

(206) 553-4978.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the Clean Air Act (CAA or 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 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 January 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 Oregon has submitted a SIP revision to EPA in order to

satisfy the requirements of Section 507. Section 468.330 of the Oregon

Revised Statutes establishes a Small Business Stationary Source

Technical and Environmental Compliance Assistance Program and requires

the Program to include each element specified in section 507(a) of the

Act. 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 to determine and report on the overall

effectiveness of the SBAP.

II. Analysis

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 State has met this requirement through participation

in a Pacific Northwest regional effort designed to ensure collection

and development of compliance methods and technologies for small

businesses. In addition, Oregon's SBAP has an information component and

a technical assistance component. The information component advises

small business about air quality regulations that may affect them,

through education, outreach, and toll-free telephone access. The

technical assistance component helps small businesses through direct

consultation and site visits.

\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 coordinating and integrating SBAP

activities with its pollution prevention activities, in particular the

toxics use and waste reduction program. In addition, Oregon's SBAP will

coordinate with the State Fire Marshal, Oregon-OSHA, and local

emergency response programs in order to ensure small businesses receive

assistance and information on 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 by training staff in regulatory and

permitting requirements, informing small businesses of their

responsibilities through outreach, and providing compliance assistance

through the SBAP.

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 regulation or standards issued under

the Act. The State has met this requirement by ensuring that small

business rights are included in education and outreach materials and

activities, as well as during the delivery of technical assistance.

Oregon follows a policy of providing the regulated community with at

least 30 calendar days advance notice before applicable requirements

take effect.

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

State has met this requirement through a policy of providing the

regulated community with at least 30 calendar days advanced notice of

their obligations under state law, developing a program for qualified

outside auditors

[[Page 46027]]

to provide compliance assessments upon request, and providing

compliance assistance through the Compliance Assessment 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 developing

standardized criteria and administrative procedures for considering

such requests.

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 establishing and filling a new technical

assistance coordinator position located in the administration section

of the Department's Regional Operations Division. The technical

assistance coordinator is assigned the responsibilities of the Small

Business Ombudsman.

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 establishing a

Compliance Advisory Panel comprised of these individuals. See ORS

468A.330(3).

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 Act;\2\ (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 by authorizing its CAP to address these

responsibilities. See ORS 468A.330(2).

\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 Oregon 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.

The State of Oregon 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.

The State of Oregon 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.

5. Onsite Technical Assistance

The statute establishing the Oregon Small Business Program, ORS

468A.330, provides that onsite technical assistance for the development

and implementation of the Small Business Stationary Source Technical

and Environmental Compliance Assistance Program shall not result in

inspections or enforcement actions except where there is reasonable

cause to believe that a clear and immediate danger to the public health

and safety or to the environment exists. See ORS 468A.330(4)(a). On

August 12, 1994, EPA issued a guidance memorandum entitled

``Enforcement Response Policy for Treatment of Information Obtained

Through Clean Air Act Section 507 Small Business Assistance Programs''

signed by Steven A. Herman (herein referred to as the ``SBA Enforcement

Guidance''), which sets forth EPA's enforcement response policy on the

treatment of violations detected during compliance assistance visits

under State Small Business Assistance Programs. The SBA Enforcement

Guidance endorses State PROGRAMS that either (1) voluntarily seek

compliance assistance a limited period to correct violations observed

or revealed as a result of compliance assistance or (2) if the PROGRAM

is independent of the delegated State air enforcement program, keep

confidential information that identifies the names and locations of

specific small businesses with violations revealed through compliance

assistance.

The Oregon statute does not satisfy the requirements of the first

option of the SBA Enforcement Guidance in that ORS 468A.330(4)(a) does

not simply give sources that receive onsite technical assistance a

limited opportunity to correct a violation, but instead prohibits

further enforcement inspections and enforcement actions that result

from onsite technical assistance. On May 16, 1995, the State or Oregon

submitted to EPA a guidance document entitled ``Air Quality Guidance:

Restriction of Information Obtained by the AQ Small Business Assistance

Program'' (hereinafter, ``Oregon's SBAP Confidentiality Guidance'').

This document requires the PROGRAM to be operated independently of

Oregon's air program enforcement efforts and requires the PROGRAM to

restrict access by Oregon air enforcement staff to information

regarding violations detected through onsite technical assistance

visits to small businesses.

EPA has reviewed Oregon's SBAP Confidentiality Guidance and

believes that it meets the conditions that apply to State's choosing

the confidentiality option. Specifically, Oregon's SBAP Confidentiality

Guidance is an official policy that establishes independence between

the PROGRAM and the Oregon air enforcement program; it restricts access

by Oregon air enforcement staff to information regarding violations

detected through onsite technical assistance visits to small

businesses; it requires the PROGRAM to report general statistical and

other information about small business compliance to the Department of

Environmental Quality and requires the PROGRAM to track

[[Page 46028]]

compliance progress where it identifies violations during onsite

technical assistance; the Department retains full discretion to take

enforcement action against violations documented independently of

onsite technical assistance visits; and Oregon's PROGRAM is subject to

the eligibility requirements of Section 507(c) of the Clean Air Act. In

summary, EPA believes that ORS 468A.330(4)(a), when implemented in

accordance with Oregon's SBA Confidentiality Guidance, is consistent

with EPA's SBA Enforcement Guidance.

III. This Action

In this action, EPA approves the SIP revision submitted by the

State of Oregon. The State of Oregon has submitted a SIP revision

implementing each of the required PROGRAM elements required by Section

507 of the CAA. The Program is currently being implemented. EPA is

therefore approving this submittal.

IV. Administrative Review

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 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 in

this action 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 business entities affected.

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. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42

U.S.C. 7410(a)(2).

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

The EPA has reviewed this request for revision of the Federally-

approved SIP for conformance with the provisions of the 1990 Clean Air

Act Amendments enacted on November 15, 1990. The EPA has determined

that this action conforms with those requirements.

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.

This action has been classified as a Table 3 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 a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective November 6, 1995 unless, within 30 days of its publication,

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 notice that will

withdraw the final action. All public comments received will 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 on

this action. 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 November 6, 1995.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by November 6, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the 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), 42 U.S.C.

7607(b)(2).

List of Subjects in 40 CFR Part 52

Air pollution control, Incorporation by reference, Small Business

Assistance Program.

Dated: August 8, 1995.

Charles Findley,

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 as follows:

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

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Subpart MM--Oregon

2. Section 52.1970 is amended by adding paragraph (c) (112) to read

as follows:

Sec. 52.1970 Identification of plan.

* * * * *

(c) * * *

(112) On November 16, 1992, the Director for the Oregon Department

of Environmental Quality (ODEQ) submitted the Oregon State Small

Business Stationary Source Technical and Environmental Compliance

Assistance Program and on May 16, 1995, the Administrator for ODEQ

submitted the Small Business Assistance Program Confidentiality Option

as revisions to the Oregon State Implementation Plan.

(i) Incorporation by reference.

(A) The November 16, 1992 letter from the Director of the Oregon

Department of Environmental Quality submitting the Small Business

Stationary Source Technical and Environmental Compliance Assistance

Program to EPA; The Oregon Air Quality Small Business Assistance

Program State Implementation Plan Revision adopted on October 16, 1992,

and evidence that the State has the necessary legal authority, Oregon

Revised Statutes 468A.330 (Small Business Stationary Source Technical

and Environmental Compliance Assistance Program).

(B) The May 16, 1995 letter from the Administrator of the Oregon

Department of Environmental Quality, Air Quality Division, submitting

the Small Business Assistance Program confidentiality option to EPA;

The Air Quality Guidance, Restriction of Information Obtained by the AQ

Small Business Assistance Program adopted on May 16, 1995.

[FR Doc. 95-21884 Filed 9-1-95; 8:45 am]

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