Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Pennsylvania Small Business Assistance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA32-1-5966; FRL-5126-1]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Pennsylvania Small Business Assistance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the Commonwealth of Pennsylvania. This revision

establishes a Small Business Stationary Source Technical and

Environmental Compliance Assistance Program (PROGRAM). This SIP

revision was submitted by the State to satisfy the Federal mandate of

the Clean Air Act (``the CAA'' or ``the Act'') which lists specific

program criteria to ensure that small businesses have access to the

technical assistance and regulatory information necessary to comply

with the CAA. The intended effect of this action is to approve this SIP

revision. This action is being taken under section 110 of the CAA.

DATES: This action will become effective March 6, 1995, unless adverse

comments received on or before February 6, 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 Thomas J. Maslany, Director, Air,

Radiation, and Toxics Division (3AT00), U.S. Environmental Protection

Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania

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, Pennsylvania 19107;

Pennsylvania Department of Environmental Resources Bureau of Air

Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg,

Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Makeba Morris, (215) 597-2923.

SUPPLEMENTARY INFORMATION:

Background

Implementation of the provisions of 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. [[Page 1739]] 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, section 507 of 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, section 507 of 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 February 1, 1993, the Commonwealth of Pennsylvania 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 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 business

stationary sources in connection with the implementation of the CAA;

and (3) the creation of a Compliance Advisory Panel (CAP) to determine

and report on the overall effectiveness of the SBAP and the state Small

Business Ombudsman. The plan must also determine the eligibility of

small business stationary sources for assistance in the program. The

plan must include the duties, funding and schedule for implementation

for the three program components.

Analysis

1. Small Business Assistance Program

Sections 7.7 through 7.9 of the 1992 Pennsylvania Air Pollution

Control Act, authorize the establishment of a Small Business Assistance

Program which meets the requirements of section 507 of the CAA. In

developing the PROGRAM submittal, the Commonwealth has delegated the

majority of its functions to the Department of Environmental Resources

(DER).

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

must meet to have an approvable SBAP. Six requirements will be

discussed in this section of this document, while the seventh

requirement, establishment of a state Small Business Ombudsman, will be

discussed in the next section.

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. 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.

Pennsylvania has met the first requirement through the use of a

independent contractor, who will conduct the reactive technical

assistance and proactive outreach portion of the program. The DER will

train the contractor in state and federal permitting and enforcement

policies. The contractor will then have the responsibility of serving

as a clearinghouse for information related to compliance methods and

control technologies, pollution prevention and accidental release

prevention and detection. In the reactive portion of the program, the

contractor will maintain a toll free telephone line for small

businesses and be responsible for responding to questions raised by

small businesses. All answers will be verified with the DER prior to

issuance. In addition, the contractor will maintain a database of all

questions and answers.

The DER will also monitor permit applications and compliance

reports, contact trade associations and the EPA for information

regarding the appropriate compliance techniques for small businesses

and maintain a database of this information, which will be used to

advise small businesses of compliance alternatives.

The contractor, in conjunction with the DER and the small business

ombudsman will implement the proactive outreach portion of the program

through the development of outreach documents (pamphlets and brochures,

etc.), and seminars for small businesses and trade associations. In

addition, the DER will maintain a computer bulletin board system which

will allow sources to download up to date information regarding

regulations and other policy documents.

The second requirement will be met through the outreach and audit

programs. Pamphlets will contain information regarding accidental

release prevention and pollution prevention. In addition, pollution

prevention and accidental release information will be provided during

onsite audits, which may be requested by the small businesses.

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.

Pennsylvania has met this requirement by providing contractor

assistance in the application process. The contractor will assist the

small business in determining if a permit is required and provide the

source with all applicable permit application forms as well as the

proper interpretation of the application forms. In addition, the

proactive outreach and reactive technical assistance portion of the

program, discussed above, will be used to assure small business will be

informed of the applicable requirements in a timely manner.

The fourth requirement is to develop adequate mechanisms to assure

that small businesses 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 fifth requirement 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.

Pennsylvania has met these requirements by planning to maintain a toll

free telephone line to allow easy access to information regarding

federal and/or state requirements. In addition the State will inform

affected small businesses, in a timely manner by the proactive

mechanisms described above. The State will provide material, through

the outreach portion of the program on environmental auditors to assist

small businesses in meeting the requirements of CAA. The environmental

audit will determine applicable requirements, compliance status,

control options and pollution prevention alternatives. [[Page 1740]]

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 practices or

compliance methods. Pennsylvania has met this requirement by

establishing a mechanism to receive, review and process requests for

work practice, compliance method or milestone modifications. The

mechanism provides that the small business must submit the request in

writing to the DER, which will review said request in 30 days and make

a decision no later than 6 months from the date of submittal. Requests

will be reviewed to ensure that no violation of state or federal

requirement occur.

2. Ombudsman

Section 507(a)(3) of the CAA requires the designation of a state

office to serve as the Ombudsman for small business stationary sources.

The Pennsylvania Air Pollution Control Act, Section 7.9 designates the

Department of Commerce to house the Office of Small Business Ombudsman.

The Ombudsman will be readily accessible to small businesses and, on

their behalf, be authorized to provide reports to and communicate with

state air pollution control authorities. In addition, the Ombudsman

will review and handle complaints from small businesses regarding

improper treatment by the DER, and recommend procedural changes that

may improve relations with small businesses. The Ombudsman may sponsor

meetings and conferences and work directly with trade associations.

Finally, on an annual basis the Ombudsman must report to the Governor

and State Legislature on the effectiveness of the PROGRAM, and also

prepare reports evaluating proposed regulations for their economic

impact on small businesses.

Ombudsman's office will be staffed by two individuals, an Ombudsman

and a secretary.

3. Compliance Advisory Panel

Section 507(e) of the CAA requires the state to establish a

Compliance Advisory Panel (the 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 Pennsylvania Compliance Advisory

Committee was established by the State Air Pollution Control Act,

Section 7.8. The Committee will include eleven members, seven of which

will be chosen consistent with the requirements of section 507(e) of

the CAA. The four additional members consist of the Secretary of

Commerce, the Small Business Ombudsman and two additional members

selected by the Governor.

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.) Pennsylvania has met

these requirements by delegating the above mentioned duties to the

Compliance Advisory Committee, specifically the SIP submittal states:

the Committee will report on the program's compliance with the

requirements of the Paperwork Reduction Act, the Regulatory Flexibility

Act and the Equal Access to Justice Act and report on the program and

recommend changes that are needed as well as new material that may be

necessary to improve the effectiveness of the program.

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.

Under Section 507(c)(2) major sources may petition for admittance to

the PROGRAM. The Pennsylvania SIP revision provides a mechanism for

source inclusion upon approval by EPA. Except for source categories

which the EPA Administrator or the Commonwealth of Pennsylvania

determines (in accordance with sections 507(c)(3) (A) and (B)), to have

sufficient financial and technical capabilities to meet the

requirements of the Act without PROGRAM assistance, all small business

stationary sources located in Pennsylvania will be eligible to receive

assistance under the PROGRAM. Pennsylvania's PROGRAM criteria for

defining a ``small business stationary source'' is substantially

equivalent to the criteria listed in Section 507(c)(1) of the CAA. The

Commonwealth has provided for the extension of eligibility for

assistance under the PROGRAM beyond the requirements of Sections

507(c)(1)(C-E) with notice and opportunity for public comment as

provided in Section 7.5 of the Pennsylvania Air Pollution Control Act.

Summary of SIP Revision

The Commonwealth of Pennsylvania has submitted a SIP revision

implementing each of the PROGRAM elements required by section 507 of

the CAA. The Small Business Assistance Program (SBAP) will be

administered by the Department of Environmental Resources. Program

implementation will begin no later than November 1994. By this action,

EPA is hereby approving the SIP revision submitted by the Commonwealth

of Pennsylvania. Accordingly, Sec. 52.2060 is added to 40 CFR part 52,

subpart NN in order to reflect EPA's approval action and the fact that

it is considered part of the Pennsylvania SIP.

Final Action

EPA is approving the Commonwealth of Pennsylvania SIP revision

submittal for the establishment of the Small Business Assistance

Program submitted February 1, 1993. Accordingly, Sec. 52.2060 is added

to 40 CFR part 52, subpart NN--Pennsylvania to reflect EPA's approval

action. EPA has reviewed this request for revision of the federally-

approved state implementation plan for conformance with the CAA

including section 507 and section 110(a)(2)(E).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

[[Page 1741]] 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.

By 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 EPA's approval of

this program does not impose any new regulatory requirements on small

businesses, the Administrator certifies that it does not have a

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 Assistant

Administrator for Air and Radiation. The OMB has exempted this

regulatory action from E.O. 12866 review.

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

judicial review of this action to approve the Pennsylvania Small

Business Stationary Source Technical and Environmental Compliance

Assistance Program must be filed in the United States Court of Appeals

for the appropriate circuit by March 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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Small business

assistance program.

Dated: August 11, 1994.

W.T. Wisniewski,

Acting Regional Administrator, Region III.

40 CFR part 52 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 NN--Pennsylvania

2. Section 52.2060 is added to read as follows:

Sec. 52.2060 Small Business Assistance Program.

On February 1, 1993, the Secretary of the Pennsylvania Department

of Environmental Resources submitted a plan for the establishment and

implementation of the Small Business Assistance Program as a state

implementation plan (SIP) revision, as required by Title V of the Clean

Air Act Amendments. EPA approved the Small Business Assistance Program

on March 6, 1995, and made it part of the Pennsylvania SIP. As with all

components of the SIP, Pennsylvania must implement the program as

submitted and approved by EPA.

[FR Doc. 95-259 Filed 1-4-95; 8:45 am]

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