Two upcoming rulemakings for which the EPA is looking for small business involvement and plans to conduct Small Business Advocacy Review (SBAR) panels follow:
NSPS for oil and natural gas. The development of a rule that proposes to reduce emissions of greenhouse gases (GHGs), including methane, and volatile organic compounds (VOCs) under its New Source Performance Standards for the oil and natural gas industry.
GHGs from power plants. The development of a federal plan to regulate GHG emissions from power plants.
Other planned rules for which the EPA has indicated its intent to develop SBAR Panels are:
- Drinking Water Regulatory Actions for Perchlorate
- Financial Responsibility Requirements for Hard Rock Mining
- Lead Renovation, Repair, and Painting Program for Public and Commercial Buildings
- Regulation of N-Methylpyrrolidone and Methyl Chloride in Paint and Coating Removal Under Section 6(a) of TSCA
- Regulation of Trichloroethylene Under TSCA Section 6(a)
Each SBAR Panel is led by EPA’s Small Business Advocacy Chair (SBAC) and is comprised of federal employees from the EPA, Small Business Administration (SBA), and Office of Management and Budget (OMB). The EPA is seeking Small Entity Representatives (SERs) who will provide advice and recommendations to the Panels.
Since 1997, the EPA has convened 46 SBAR Panels. The EPA claims to have used the recommendations from the Panel reports in the development of the rules.
Should You Be a SER?
A small entity stakeholder is eligible to be an SER if he or she is directly subject to the particular proposed regulation that is under development and meets one of the definitions of small entity—i.e., small business, small organization, and small governmental jurisdiction. (See yesterday’s Advisor for an analysis of these definitions.)
According to the EPA, the Agency prefers the actual owners or operators of small businesses, community officials, and nonprofit organizations for this purpose. However, a person from a trade association that exclusively or primarily represents potentially regulated small entities may also serve as an SER.
Who Chooses SERs?
For each rule that may have a significant economic impact on a substantial number of small entities, the EPA identifies what types of small entities are likely to be subject to the rule and develops a list of potential SERs. The EPA also consults with the SBA Chief Counsel for Advocacy to identify individuals to serve as SERs. The SBAC considers these recommendations and appoints a group of official SERs.
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Two Sample SBAR Panel Reports
The EPA is in the final rule stage for these rules for which an SBAR Panel provided recommendations. Brief summaries of the recommendations are:
- The SBAR Panel for Rulemaking for Implementing the Formaldehyde Standards for Composite Wood Products (final rule projected for September 2015):
- Found that 505,800 small entities may be affected by the rule.
- Recommended that recordkeeping, reporting, and other compliance requirements closely align with those required by the California Air Resources Board and that a third-party certification program be an integral part of the regulatory scheme.
- The SBAR Panel for Rulemaking to Establish NESHAP for Clay Products Manufacturing and /Clay Ceramics Manufacturing (final rule projected for October 2015):
- Found that 38 small businesses would be affected.
- Recommended (in part) that work practices standards be developed for mercury and HAP metals and dioxins and that health-based emissions levels be developed for hydrogen flouride, hydrochloric acid, and chlorine.
- Recommended (in part) subcategorization for kilns based on size.
- Recommended that the EPA set the MACT floor on 12 percent of the entire source category rather than to 12 percent of the data available to the Agency.