Approval and Promulgation of Air Quality Implementation Plans; Maine; Title V, Section 507, Small Business Stationary Source Technical and Environmental Compliance Assistance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME-24-1-6911a; A-1-FRL-5284-8]

Approval and Promulgation of Air Quality Implementation Plans;

Maine; 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 a State Implementation Plan (SIP) revision

submitted by the State of Maine for the purpose of establishing a Small

Business Stationary Source Technical and Environmental Compliance

Assistance Program (PROGRAM). This SIP 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 as amended in 1990 (CAA).

DATES: This final rule is effective November 13, 1995, unless notice is

received by October 12, 1995 that adverse or critical comments will be

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

published in the Federal Register.

ADDRESSES: Comments may be mailed to Susan Studlien, Acting Director,

Air, Pesticides and Toxics Management Division, U.S. Environmental

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

Copies of the documents relevant to this action 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; Air and Radiation Docket and Information Center, U.S. Environmental

Protection Agency, 401 M Street, S.W., (LE-131), Washington, D.C.

20460; and Department of Environmental Protection, 71 Hospital Street,

Augusta, ME 04333.

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

SUPPLEMENTARY INFORMATION: Implementation of the provisions of the CAA,

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. 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 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.

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

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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

Maine has met all of the requirements of section 507 by submitting

a SIP revision that implements all required PROGRAM elements.

1. Small Business Assistance Program

Section 507(a) sets forth six requirements 1 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.

\1\ A seventh requirement of Section 507(a), establishment of an

Ombudsman office, is discussed in the next section.

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The SBAP has met this requirement by acting as a clearing house for

developing, compiling and disseminating technical information for small

businesses. Mechanisms include networking and obtaining information

from various agencies and departments within the State, EPA and

business sectors. The program will provide and prepare industry

guidelines for small businesses. The State has also established a toll-

free phone number to help answer small business questions.

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 providing assistance to small

businesses by responding to telephone and written requests.

Additionally, the state will sponsor conferences, workshops, etc. to

disseminate information. Maine's small business assistance program is

placed in the State's existing Office of Pollution Prevention.

Therefore, the SBAP is built on an already established program.

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's SBAP will be the responsibility of the small business

ombudsman and the staff within the Office of Pollution prevention. The

implementation of the program will also involve various functional

units within the Department of Environmental Protection. The SBAP will

assist air emission sources by providing sources with assistance in

identifying applicable rules; determining the need for a permit;

explaining permitting procedures; providing the necessary forms and

applications and assisting them in preparing the documents; providing

sources with information on the Small Business Assistance Program;

assisting them by identifying compliance assistance; and referring

small businesses with specialized problems or concerns to the

Ombudsman.

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 listing various mechanisms in

the SIP revision which will be utilized while implementing the program.

These mechanisms include, among others, assistance in identifying

applicable rules, explaining relevant issues, providing information and

notifying small businesses of their rights and obligations.

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 will meet this requirement by preparing brochures

outlining the rights and obligations under the CAA and the small

business assistance program. This effort will be further supplemented

by the staff's development of compliance and permitting workshops. The

audit program will be funded primarily by the Department with 25% of

the cost of the audit coming from the source. The State will offer two

types of audit services. The Department is also exploring other

possibilities of establishing a more effective and efficient audit

program.

The sixth requirement is to develop procedures for consideration of

requests from small business stationary sources 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 states that regulations for consideration of work

practices for technological methods of compliance exist in Maine's

regulations governing the Title V Operating Permit Program. All

requests for modifications will be considered according to the

regulations set forth in Title V whether or not that source is subject

to Maine's Title V Permit program. The regulations include: (1)

procedures for receiving requests from small businesses to modify the

provisions of state adopted regulations; (2) format of such requests;

(3) procedures for how requests shall 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,

applicable SIP or any Federal regulation.

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 placing the Ombudsman in the existing

Office of the Pollution Prevention. A specific list of Ombudsman duties

are listed in the SIP revision. Maine's legislation legally authorizes

the Ombudsman to carry out the role and functions of the federally

mandated position by specifically addressing the requirements in

section 507.

3. Compliance Advisory Panel

Section 507(e) requires the State to establish a Compliance

Advisory Panel 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 incorporating the compliance advisory

panel into the existing Pollution Prevention Advisory Committee. Since

the compliance advisory panel is being integrated into an already

established panel, the State has revised the make-up of the formal

Pollution Prevention Advisory committee to meet the requirements of

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section 507(e). The committee will be increased to 16 voting members.

Selection of the panel members is consistent with the CAA requirements

and the additional members of the panel do not change the overall

makeup of the panel as required in section 507(e).

In addition to establishing the membership of the CAP, the State

PROGRAM delineates four responsibilities of the Panel: (1) to render

advisory opinions concerning the effectiveness of the SBAP and the

difficulties encountered; (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 to the layperson; and (4)

the Ombudsman may serve as the Secretariat for the development and

dissemination of panel reports and advisory opinions.

\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's eligibility requirements for the PROGRAM is

consistent with the CAA. Additionally, the SIP revision says that it

will be the general policy of the Department of Environmental

Protection to assist all business in meeting the requirements of the

CAA. However, wherever resources become a limiting factor in providing

such assistance, the Department will give priority to businesses which

meet the definition of small business stationary source under section

507(c)(1) of the CAA.

Final Action

In this action, EPA is approving the SIP revision implementing each

of the required PROGRAM elements required by section 507 of the CAA.

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, EPA is proposing to approve the SIP revision should

adverse or critical comments be filed. This action removes the January

15, 1993 finding of failure to make a submittal for the Small Business

Assistance Program. This action will be effective November 13, 1995

unless adverse or critical comments are received by October 12, 1995.

If the EPA receives such comments, this action will be withdrawn

before the effective date by simultaneously publishing a subsequent

notice that will withdraw the final action. All public comments

received will then 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 on November 13, 1995.

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. Secs. 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.

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 document will inform the general public of

these tables. The Office of Management and Budget exempted this action

under Executive Order 12866.

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

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

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, local,

or tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the State and any affected local or tribal governments have

elected to adopt the program provided for under Section 507 of the

Clean Air Act. These rules may bind State, local and tribal governments

to perform certain actions and also require the private sector to

perform certain duties. The rules being approved by this action will

impose no new requirements because all affected sources are already

subject to these requirements under State law. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from this action. EPA has also determined that

this final action does not include a mandate that may result in

estimated costs of $100 million or more to State, local, or tribal

governments in the aggregate or to the private sector.

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.

By today's action, EPA is approving a state program created for the

purpose of assisting small business stationary sources in complying

with existing statutory and regulatory requirements. The program being

approved does not impose any new regulatory burden on small business

stationary sources; it is a program under which small business

stationary sources may elect to take advantage of assistance provided

by the State. Therefore, because 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 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 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 13, 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

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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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Small business assistance

program.

Note: Incorporation by reference of the State Implementation

Plan for the State of Maine was approved by the Director of the

Federal Register on July 1, 1982.

Dated: April 24, 1995.

John P. DeVillars,

Regional Administrator, Region I.

Part 52 of 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.

Subpart U--Maine

2. Section 52.1020 is amended by adding paragraph (c)(38) to read

as follows:

Sec. 52.1020 Identification of plan.

* * * * *

(c) * * *

(38) Revisions to the State Implementation Plan establishing a

Small Business Stationary Source Technical and Environmental Compliance

Assistance Program were submitted by the Maine Department of

Environmental Protection on July 7, and August 16, 1994.

(i) Incorporation by reference.

(A) Letter from the Maine Department of Environmental Protection

dated July 7, 1994 submitting a revision to the Maine State

Implementation Plan.

(B) Revisions to the State Implementation Plan for the Small

Business Stationary Source Technical and Environmental Compliance

Assistance Program dated July 12, 1994 and effective on May 11, 1994.

(C) Letter from the Maine Department of Environmental Protection

dated August 16, 1994 submitting a corrected page to the July 12, 1994

SIP revision.

[FR Doc. 95-22152 Filed 9-11-95; 8:45 am]

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