Clean Air Act Approval and Promulgation of Title V, Section 507, Small Business Stationary Source Technical and Environmental Compliance Assistance Program for Arkansas

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AR-3-1-5727a; FRL-5155-8]

Clean Air Act Approval and Promulgation of Title V, Section 507,

Small Business Stationary Source Technical and Environmental Compliance

Assistance Program for Arkansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving the State Implementation Plan (SIP)

revision submitted by the State of Arkansas 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, found in 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 rationale for the approval is set forth in this

document; additional information is available at the address indicated

in the ADDRESSES section.

DATES: This final rule will become effective on May 8, 1995, unless

adverse or critical comments are received by April 7, 1995. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Written comments on this action should be addressed to Mr.

Thomas Diggs, Chief (6T-AP), Planning Section, at the EPA Regional

Office listed below. Copies of the documents relevant to this action

are available for public inspection during normal business hours at the

following locations. The interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least 24 hours before the visiting day.

U.S. Environmental Protection Agency, Region 6, Air Programs Branch

(6T-AP), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733.

Air and Radiation Docket and Information Center, U.S. Environmental

Protection Agency, 401 M Street, SW., Washington, DC 20460.

Arkansas Department of Pollution Control and Ecology, Division of Air

Pollution Control, 8001 National Drive, Little Rock, Arkansas 72209.

FOR FURTHER INFORMATION CONTACT: Dr. John Crocker, Planning Section

(6T-AP), Air Programs Branch, U.S. Environmental Protection Agency,

Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214)

665-7596.

SUPPLEMENTARY INFORMATION:

I. Background

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 emissions of air toxics. Small businesses frequently

lack the technical expertise and financial resources

[[Page 12692]] 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 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, the 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 Arkansas submitted a SIP revision to the 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

three 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. All areas in the State are classified attainment for each of the

NAAQS pollutants.

The Region used section 507 of the CAA and considered the ``SIP

Revision Approval Checklist for Section 507 Small Business Assistance

Program'' when reviewing the State submittal for approvability. The SIP

revision, discussed in detail in the Technical Support Document, is

briefly outlined below.

II. Analysis

A. Procedural Background

The State of Arkansas has met all of the requirements of section

507 by submitting a SIP revision that implements all required PROGRAM

elements. Arkansas Act 251 (Senate Bill 347) enacted by the 79th

General Assembly Regular Session in 1993 and approved by the Governor

on February 26, 1993, provides authority for the State to establish a

CAP for the PROGRAM as required by Section 507 of the CAA. The PROGRAM

is to be administered by the Arkansas Department of Pollution Control

and Ecology (ADPC&E), and is intended to help eligible small businesses

understand and comply with the CAA. Included in the Act are provisions

creating a CAP, establishing membership and terms of the CAP, and

establishing CAP duties.

The State held a public hearing on October 19, 1992, to consider

public comments on the proposed PROGRAM, which will amend the Arkansas

SIP to add a revision entitled, ``Arkansas Small Business Stationary

Source Technical and Environmental Compliance Assistance Program SIP

Revision''. No public comments were received on the PROGRAM. The

proposed SIP revision was adopted November 5, 1992, by the Arkansas

Commission on Pollution Control and Ecology. The Arkansas PROGRAM was

submitted to the EPA by the Governor of Arkansas on November 6, 1992,

as a revision to the Arkansas SIP. Additional information (draft

Arkansas CAP legislation) was submitted on January 6, 1993. The

submittal was initially reviewed for completeness and was determined

complete on January 15, 1993. Supplemental information (Arkansas Act

251) was submitted on April 23, 1993. The submittal was then reviewed

for approvability by EPA Region 6 and EPA headquarters.

B. Plan Requirements

1. Small Business Assistance Program

The first PROGRAM element is the establishment of a SBAP to provide

technical and compliance assistance to small businesses.

The State has met the first PROGRAM element by committing in its

SIP revision, sections (c) ``Small Business Assistance Program

(SBAP)'', and (g) ``Schedule of Program Implementation'', to establish

an SBAP in the Air Division of the ADPC&E, which meets the six

requirements set forth in section 507(a). (Details are presented in the

EPA's Technical Support Document and the State's submittal.) It will be

administered by an SBAP coordinator in the Air Division.

a. 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 CAA.

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

Ombudsman office, is discussed in the next section.

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The State has met this requirement. The SBAP coordinator will be

charged with the duties of collecting, developing, and coordinating

information on compliance methods and technologies for small business

stationary sources. The SBAP will include a proactive component and a

reactive component.

(i) Proactive Component. The SBAP coordinator will be responsible

for operating the SBAP and will work in the Air Division of the ADPC&E.

Small businesses that are, or will be, affected by CAA requirements

will be placed in a computer database. The database will contain

information such as the facility address, environmental contact, and

Standard Industrial Classification code. Possible sources of data for

this database are the existing ADPC&E data files and the Arkansas

Industrial Development Commission database. This system will enable the

SBAP to notify small businesses of the existence of the SBAP (through

newsletters) and any new or upcoming applicable air pollution

requirements of the CAA. Additionally, the SBAP coordinator will be

available, upon reasonable request, to trade associations or industry

groups representing small businesses for seminars and workshops.

(ii) Reactive Component. The SBAP coordinator will be responsible

for handling questions from small businesses. The coordinator will act

as an information clearinghouse, and will be responsible for making

sure that small businesses receive the requested information either by

phone or by mail. A small library of applicable literature will be

maintained by the coordinator. If the coordinator cannot supply the

requested information directly, he shall be responsible for seeking out

the information from other available channels, such as the Air Division

staff, EPA technical support services (including the Technology

Transfer Network bulletin board), industry contacts, etc. The names and

the direct telephone numbers of the SBAP coordinator and Ombudsman will

be published in a newsletter to allow for quick access.

b. 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.

[[Page 12693]]

The State has met this requirement. The SBAP will address pollution

prevention and accidental release detection and prevention.

(i) Pollution Prevention. The SBAP coordinator will conduct an

information clearinghouse on small business pollution prevention

topics. Available literature from the EPA Pollution Prevention Office

and other sources will be kept in the SBAP library. The availability of

such information will be announced in newsletters.

(ii) Accidental Release. The SBAP coordinator will conduct an

information clearinghouse for prevention, detection, and monitoring of

accidental chemical releases. Basic information will cover four areas:

(1) Requirements under the accidental release provisions of the CAA;

(2) related requirements under Superfund Amendments and Reauthorization

Act title III; (3) the Occupational Safety and Health Administration

process safety standard as required by the CAA; and (4) general

information on prevention practices and technologies. EPA publications

on this subject matter shall be kept in the SBAP library. The

availability of such information will be announced in newsletters.

c. 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.

The State has met this requirement. The SBAP coordinator shall be

responsible for providing small businesses with information regarding

applicability to CAA requirements and the ADPC&E permitting process

(applications, fees, enforcement, etc.)

d. The fourth requirement is to develop adequate mechanisms to

assure that small business stationary sources receive notice of their

rights under the CAA 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 State has met this requirement. The SBAP coordinator will be

responsible for notifying small businesses of their rights under the

CAA. The SBAP computer database discussed above in II.B.1.a. will be

used to notify small businesses in a timely manner of any upcoming

regulations that could potentially affect them. This should give small

businesses plenty of time to evaluate compliance methods far in advance

of compliance dates. In addition, the SBAP coordinator shall operate an

information clearinghouse on small business ``legal rights'' under the

CAA.

e. 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.

The State has met this requirement. The SBAP will address

obligations and audits.

(i) Obligations. The SBAP coordinator will be responsible for

notifying small businesses of their obligations under the CAA. The SBAP

database and newsletters will be used to inform small businesses of

their obligations.

(ii) Audits. The SBAP coordinator shall be responsible for keeping

a list of qualified compliance auditors for small businesses to

contact. This list shall contain qualified ADPC&E personnel and other

qualified environmental consultants. Environmental consultants may be

placed on the qualified auditors list by sending a written request and

resume to the SBAP coordinator. Simple complimentary audits performed

by ADPC&E personnel shall be done at the convenience of ADPC&E

personnel commensurate with available resources, and there shall be no

charge for the service. Any violations uncovered during an audit

performed by ADPC&E personnel shall be dealt with immediately. Audits

performed by qualified environmental consultants may entail a fee (to

be paid by the audited business) at the discretion of the consultant.

f. 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. Procedures for the permitting

of stationary source modifications are contained in Section 19.4 of the

State Implementation Plan. No such request for permit modification

shall be granted unless it meets all applicable State and Federal

requirements. Application processing priority, to the extent

practicable, will be given to applications requesting modifications

necessary to achieve compliance with applicable regulations.

2. Ombudsman

The second PROGRAM element is the establishment of a State Small

Business Ombudsman to represent the interests of small businesses in

the regulatory process. 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 committing to establish

(prior to November 1994) a dedicated Small Business Ombudsman Office

within the ADPC&E, as stated in section (d) ``Ombudsman'' of its SIP

revision. The Ombudsman Office will not be within the Air Division, but

will be within the agency. Thus, the Ombudsman's Office is going to be

separate from the air quality regulatory branch of the State agency,

and therefore can be an independent advocate for small businesses. The

Ombudsman position will be filled prior to November 15, 1994. The

Ombudsman Office will have sufficient resources to discharge its duties

effectively.

The Ombudsman will have access to the Governor's office, the

Director of the ADPC&E, and to other State agencies. He will have the

ability to informally request information from other State agencies,

and to formally obtain information from other agencies through the

Governor's office. The Ombudsman, through the Director, will have a

channel for proposing legislation or administrative action necessary to

assist eligible small businesses.

3. Compliance Advisory Panel (CAP)

The third PROGRAM element is the creation of a CAP to determine and

report on the overall effectiveness of the SBAP. Section 507(e)

requires the State to establish a 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.

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 the EPA concerning the SBAP's

adherence to the principles of the Paperwork Reduction Act, the Equal

Access to Justice Act, and the Regulatory [[Page 12694]] 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.

\2\Section 507(e)(1)(B) of the CAA 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,

the 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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The State has met these requirements: (A) By enacting the State law

creating the CAP and providing it with the enumerated responsibilities;

and (B) by committing to appoint members to the Panel by November 1994.

Sections 1.-2. of Arkansas Act 251 of 1993 creates the State Compliance

Advisory Panel with responsibilities consistent with the requirements

in title V of the Federal CAA and specifies the panel's make-up,

qualifications, terms, and duties. Adequate support sources and

sufficient resources to conduct business will be provided to the Panel

by the ADPC&E through the SBAP administered by the Air Division, which

shall serve as secretariat to the Panel. Section 2. of Act 251 (i.e.,

Arkansas Code 8-4-314(1)(A)(4)) authorizes the SBAP to serve as the

secretariat to the Panel. Details of these commitments to appoint the

members of the CAP as stated above, and to designate to the CAP the

four responsibilities listed in the CAA, are discussed in section (e)

``Compliance Advisory Panel'' of its SIP revision.

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 Arkansas 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. This mechanism is contained in the

State's narrative SIP revision, section (b) entitled ``Eligibility and

Program Scope''.

The State of Arkansas 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 has also 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 hearing, 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.

III. Final Action

In this action, the EPA is approving the SIP revision submitted by

the State of Arkansas for establishing a Small Business Stationary

Source Technical and Environmental Compliance Assistance Program.

The State of Arkansas has submitted a SIP revision for establishing

each of the required PROGRAM elements required by section 507 of the

CAA. The EPA has reviewed this revision to the Arkansas SIP and is

approving it as submitted because the State's PROGRAM meets the

requirements of section 507 of the CAA. The SIP includes a schedule of

implementation which commits the State to have all three principal

PROGRAM elements fully implemented by November 15, 1994. SIP schedule

implementation milestones are being tracked and monitored by the Region

as part of the State's normal Program review. Currently, the State has

selected and staffed the SBAP coordinator and initiated the SBAP (i.e.,

in the Air Division of the ADPC&E), designated the State Office to

serve as Small Business Ombudsman, hired the Ombudsman in November

1993, and created a CAP (and begun appointing its members).

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. Thus, today's direct

final action will be effective May 8, 1995 unless, by April 7, 1995,

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 document 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 May 8, 1995.

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.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the 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, the 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 entities affected.

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. The Office of Management and Budget has exempted

this regulatory action from Executive Order 12866 review.

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

judicial review of this action must be filed in the United

[[Page 12695]] States Court of Appeals for the appropriate circuit by

May 8, 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, Incorporation by

reference, Small business assistance program.

Note: Incorporation by reference of the SIP for the State of

Arkansas was approved by the Director of the Federal Register on

July 1, 1982.

Dated: January 24, 1995.

William B. Hathaway,

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.

Subpart E--Arkansas

2. Section 52.170 is amended by adding paragraph (c)(31) to read as

follows:

Sec. 52.170 Identification of plan.

* * * * *

(c) * * *

(31) The State is required to implement a Small Business Stationary

Source Technical and Environmental Compliance Assistance Program

(PROGRAM) as specified in the plan revision submitted by the Governor

on November 6, 1992. This plan submittal, as adopted by the Arkansas

Commission on Pollution Control and Ecology on November 5, 1992, was

developed in accordance with section 507 of the Clean Air Act. On April

23, 1993, the Governor submitted Act 251 of 1993 which establishes the

Compliance Advisory Panel (CAP) for the PROGRAM.

(i) Incorporation by reference.

(A) Act 251 of 1993 approved by the Governor on February 26, 1993.

Included in this Act are provisions creating a CAP, establishing

membership of the CAP, and addressing the responsibilities and duties

of the CAP.

(B) Arkansas Department of Pollution Control and Ecology, Minute

Order No. 92-81, adopted November 5, 1992.

(ii) Additional material.

(A) Revision entitled, ``Arkansas Small Business Stationary Source

Technical and Environmental Compliance Assistance Program SIP

Revision'', adopted November 5, 1992.

(B) Legal opinion letter dated November 5, 1992, from Steve Weaver,

Chief Counsel, Arkansas Department of Pollution Control and Ecology,

regarding legality of Commission teleconference meeting.

3. Section 52.183 is added to subpart E to read as follows:

Sec. 52.183 Small business assistance program.

The Governor of Arkansas submitted on November 6, 1992, a plan

revision to develop and implement a Small Business Stationary Source

Technical and Environmental Compliance Assistance Program (PROGRAM) to

meet the requirements of section 507 of the Clean Air Act by November

15, 1994. The plan commits to provide technical and compliance

assistance to small businesses, hire an Ombudsman to serve as an

independent advocate for small businesses, and establish a Compliance

Advisory Panel to advise the program and report to the EPA on the

program's effectiveness. On April 23, 1993, the Governor submitted Act

251 of 1993 which establishes the Compliance Advisory Panel for the

PROGRAM.

[FR Doc. 95-5442 Filed 3-7-95; 8:45 am]

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