Approval and Promulgation of Small Business Assistance Program: State of Washington

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WA-18-1-5933a; FRL-5151-9]

Approval and Promulgation of Small Business Assistance Program:

State of Washington

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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

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

of Washington 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 of the Clean Air Act (CAA or Act), 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 is effective on May 8, 1995, unless notice is

received by April 7, 1995 that someone wishes to submit adverse or

critical comments. 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 and Radiation Branch (AT-082), EPA, 1200 Sixth Avenue,

Seattle, WA 98101.

Documents which are incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

Center, 401 M Street, SW., Washington, DC 20460.

Copies of materials submitted to EPA may be examined during normal

business hours at the following locations: EPA Region 10, 1200 Sixth

Avenue, Seattle, WA 98101, and Washington State Department of Ecology,

P.O.Box 47600, PV-11, Olympia, WA 98504-7600.

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

Branch (AT-082), EPA, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-

4978.

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 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 EPA to oversee

[[Page 12686]] 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 Washington has submitted a SIP revision to EPA in

order to satisfy the requirements of section 507. In order to gain full

approval, the State submittal must provide for each of the following

PROGRAM elements: (1) The establishment of a Small Business Assistance

Program (SBAP) to provide technical and compliance assistance to small

businesses; (2) the establishment of a State Small Business Ombudsman

to represent the interests of small businesses in the regulatory

process; and (3) the creation of a Compliance Advisory Panel 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 of Washington 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, Washington's SBAP is comprised of both

proactive and reactive components. The proactive component includes

agressive outreach to the business community with information which

details their rights and obligations under the Act. The reactive

component establishes an information network to respond to questions

from small businesses concerning regulatory requirements, appropriate

control technologies, and other specific inquiries such as pollution

prevention opportunities.

\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 planning to provide direct support

for these areas to small businesses. The SBAP can also draw upon the

expertise of the Department of Ecology's pollution prevention program-

the Washington Department of Ecology's Waste Reduction, Recycling, and

Litter Control program (WRRLC). In conjunction with the WRRLC program,

the SBAP has the ability to utilize consultation, information

distribution, and general engineering assistance to support the

pollution prevention needs of small businesses. The SBAP can also draw

upon State expertise with Superfund Amendments and Reauthorization Act

(SARA) Title III to address small business needs in the area of

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 planning to have trained SBAP and/or

local air pollution control agency staff available to help interpret

Federal, State, and local air quality requirements, as well as provide

permit assistance.

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 planning to assure that

small businesses receive information regarding their rights through

various outreach mechanisms such as mass mailings and workshops. In

addition, the SBAP commits to coordinating with regulatory development

organizations, including local air pollution control agencies, so that

small businesses have sufficient lead time to evaluate compliance

methods and applicable requirements.

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 by planning to utilize activities such

as on-site consultation/site assessments provided by the SBAP or local

air control authority, or provide lists of qualified auditors on

request.

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 State has met this requirement through State law

(RCW 70.94.181) which establishes these provisions.

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 creating a Small Business Ombudsman

position within the Washington Department of Ecology.

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 representatives.

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 Act2; (3) to

[[Page 12687]] 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 directing its Compliance

Advisory Panel to address these areas of responsibility as their

primary function.

\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 Washington 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 Washington 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 Washington 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. Technical Assistance Visits

Washington submitted RCW 70.94.035, the statute authorizing

Washington's PROGRAM as part of its SBAP submittal. Washington has

another statute, RCW 43.21A.087, which also authorizes technical

assistance visits which was not submitted as part of Washington's SBAP

submittal. Importantly, each of these statutes places certain limits on

the State's authority to bring enforcement actions for violations

observed during technical assistance visits. RCW 70.94.035, which was

enacted in 1991 and specifically applies to the air program, prohibits

enforcement action ``unless and until the facility owner or operator

has been provided a reasonable time to correct the violation.''

According to an opinion of the Washington Attorney General, this

provision does not prevent a permitting authority from commencing an

enforcement action for a violation observed during a technical

assistance visit, but merely requires the permitting authority to give

the source a reasonable opportunity to comply before deciding whether

enforcement action is appropriate. The Attorney General similarly

interprets RCW 43.21A.087, enacted in 1992, which allows the permitting

authority to reinspect the facility and take enforcement action ``[i]f

the owner or operator of the facility does not correct the

violation.''3 The Attorney General also states that because RCW

70.94.035 applies specifically to the air program and specifically

requires that the technical assistance program be consistent with the

Federal Clean Air Act, this provision would prevail in the event of any

conflict with RCW 43.21A.087, which applies to technical assistance

visits under all of Ecology's environmental programs. EPA agrees that

RCW 70.94.035 would allow enforcement action in such a case provided

the enforcement action was commenced after the source had an

opportunity to comply. EPA also believes that RCW 70.94.035, and not

RCW 43.21A.087, applies in the case of technical assistance visits

under the air program. EPA therefore believes that Washington's

technical assistance statutes, as interpreted by the Attorney General,

do not bar approval of Washington's SBAP PROGRAM.

\3\Both statutes allow Ecology to commence immediate enforcement

action for any violation that places anyone in imminent danger of

death or substantial bodily harm or causes substantial property

damage.

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III. This Action

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

State of Washington. Based on the Attorney General's opinion discussed

above that RCW 70.94.035 is the statute that applies in the case of

technical assistance visits under the Washington's SBAP PROGRAM, EPA is

approving RCW 70.94.035 as part of Washington's SBAP SIP revision. The

State of Washington has submitted a SIP revision implementing each of

the PROGRAM elements required by section 507 of the CAA. At this time,

the Small Business Assistance Program, the Ombudsman, and the

Compliance Advisory Panel are all in place and functioning. 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.

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 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 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. [[Page 12688]]

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 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 OMB 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 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), 42 U.S.C.

7607(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 Implementation Plan for

the State of Washington was approved by the Director of the Office

of Federal Register on July 1, 1982.

Dated: February 1, 1995.

Chuck Clarke,

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 WW--Washington

2. Section 52.2470 is amended by adding paragraph (c)(45) to read

as follows:

Sec. 52.2470 Identification of plan.

* * * * *

(c) * * *

(45) On November 16, 1992 the Director of the Washington State

Department of Ecology submitted ``State Implementation Plan for the

Washington State Business Assistance Program,'' adopted November 13,

1992, as a revision to the Washington SIP.

(i) Incorporation by reference.

(A) November 13, 1992 letter from the Director of the Washington

State Department of Ecology submitting ``State Implementation Plan for

the Washington State Business Assistance Program'' to EPA.

(B) State Implementation Plan for the Washington State Business

Assistance Program, including Appendix B, Revised Code of Washington

(RCW) 70.94.035; Appendix D, Washington Administrative Code 173-400-

180; Appendix E, RCW 70.94.181; and Appendix F, Business Assistance

Program Guidelines (and exluding Appendices A, C, and G), dated

November 1992, and adopted November 13, 1992.

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[FR Doc. 95-5447 Filed 3-7-95; 8:45 am]

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