Review of New Mexico State Implementation Plan Submittal 

Required Under Section 507 for the 

Small Business Stationary Source Technical and 

Environmental Compliance Assistance Program 

Docket ID EPA-R06-OAR-2014-0642 

 

Technical Support Document 

February 2016 

Table of Contents: 

I. Summary 

II. Background 

III. Criteria Used in Evaluation 

IV. Analysis of State Submittal 

A. Procedural Background 

B. Plan Requirements 

1. Small Business Assistance Program 

2. Ombudsman 

3. Compliance Advisory Panel 

4. Eligibility of Small Business Stationary Sources 

V. Conclusion 

VI. SIP Implementation 

Appendix: SIP Revision Approval Checklist for Section 507 Small Business Assistance 

Program 

I. Summary 

This Technical Support Document (TSD) reviews the State Implementation Plan (SIP) revision 

submitted by the State of New Mexico for the purpose of establishing a Small Business 

Stationary Source Technical and Environmental Compliance Assistance Program. The SIP 

revision was submitted by New Mexico to satisfy the Federal mandate, found in section 507 of 

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 proposing 

approval of this SIP revision is set forth in this TSD. 

II. Background 

Implementation of the provisions of the CAA, as amended in 1990, requires regulation of 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 necessary to evaluate such regulations and to determine the 
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appropriate mechanisms for compliance. Anticipating the potential impacts of these requirements 

on small businesses, the 1990 amendments to the CAA require that each State 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. 

III. Criteria Used in Evaluation 

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 requirements and as a tool to provide further guidance to the States on submitting 

approvable SIP revisions. 

The State of New Mexico on November 5, 1992, 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 direct the efforts and determine and report on the overall effectiveness of the 

SBAP. 

The Region relied on section 507 of the CAA and the “SIP Revision Approval Checklist for 

Section 507 Small Business Assistance Program” in our review of New Mexico’s SIP submittal 

for approvability. The checklist, developed by EPA, is included as an attachment to this 

Technical Support Document. The checklist focuses on the following topics: (1) Program 

implementation milestones; (2) the three principal Program elements described above, which 

include (a) a Small Business Assistance Program, (b) a State Small Business Ombudsman, and 

(c) the Compliance Advisory Panel; and (3) additional Program elements such as (a) source 

eligibility and (b) fee reduction authority. 

IV. Analysis of State Submittal 

A. Procedural Background 

The State of New Mexico has met all of the requirements of section 507 by submitting a SIP 

revision that provides for the implementation of all required Program elements. The New Mexico 

legislature amended the New Mexico Air Quality Control Act in 1992 to provide authority for 

the New Mexico Environment Department (NMED) to establish a Program. Specifically, Section 

74-2-5 of the Act was amended to require that the NMED “establish a small business stationary 

source technical and environmental compliance assistance program, consistent with the 

provisions of Section 507 of the federal act.” (see NMSA Chapter 20, Section 74-2-5.1.E.) 
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The State held a public hearing on October 9, 1992, following an official 30-day public comment 

period that commenced on August 31, 1992, to consider public comments on the proposed 

Program. The proposed SIP revision was adopted on October 9, 1992, by the Environmental 

Improvement Board of New Mexico. The SIP revision was submitted to the EPA by the 

Governor of New Mexico on November 5, 1992, as a revision to the New Mexico SIP. It was 

initially reviewed for completeness and was determined to be complete on January 15, 1993. 

B. Plan Elements 

1. Small Business Assistance Program 

The first Program element is the establishment of a Small Business Assistance Program (SBAP) 

to provide technical and compliance assistance to eligible small businesses. Section 507(a) sets 

forth six requirements1

 that the State must meet in order 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 source and other 

persons to further compliance with the Act. 

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 third requirement is to develop a compliance and technical assistance program for small 

business stationary sources that assists small businesses in determining applicable requirements 

and in receiving permits under the Act in a timely and efficient manner. 

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 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 the status of their compliance with the requirements of the Act. 

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. 

 

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 A seventh requirement of section 507(a), the establishment of an Ombudsman office, is discussed in the next 

section. 
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New Mexico met the first Program element by committing in its SIP revision, Section II, to 

establish an SBAP within the organizational structure of the New Mexico Environment 

Department, to be administered by a staff of two to three state technical experts, who are tasked 

with responding to requests for assistance from small businesses. Section II of the SIP revision 

submittal describes the details and responsibilities of the New Mexico SBAP, which meet the six 

requirements set forth in section 507(a) and discussed above. 

2. Ombudsman Office 

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. 

New Mexico met this requirement by committing to establish in 1994 the Small Business 

Ombudsman Office within the office of the Secretary of the NMED, as described in Section I of 

the SIP revision. New Mexico also committed to provide sufficient resources to the State 

Ombudsman’s Office to enable it to discharge its responsibilities effectively, including adequate 

funding from Title V permitting fees collected by the NMED. Additionally, provisions have been 

made to provide the Ombudsman with direct access to the government agencies and officials, 

such as the Secretary of the Environment Department, the Governor’s office, the Attorney 

General, and others, as necessary, to ensure that the concerns of small businesses will be heard. 

Furthermore, the Ombudsman is vested with sufficient authority to identify and propose 

solutions to small business problems as they relate to the implementation of the federal CAA. 

The first Ombudsman of the NMED was appointed in December 1993. 

3. Compliance Advisory Panel (CAP) 

The third Program element is the creation of a CAP to direct the efforts and determine and report 

on the overall effectiveness of the SBAP. Section 507(e) requires the State to establish a CAP. 

The responsibilities of the CAP are also specified, as well as the minimum number of individuals 

who must comprise the CAP and how they are to be appointed. 

The specific responsibilities of the CAP include: 

 Rendering advisory opinions concerning the effectiveness of the State’s Program; 

 Making periodic reports to the Administrator concerning the compliance of the State’s 

Program with the requirements of the Paperwork Reduction Act, the Regulatory 

Flexibility Act, and the Equal Access to Justice Act;2

 

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 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 these statutes, EPA believes that the 

State Programs 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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 Reviewing information for small business stationary sources to assure such information is 

understandable by the layperson; and 

 Having the State’s Program serve as the secretariat for the development and 

dissemination of such reports and advisory opinions. 

Section 507(e)(2) specifies that the CAP must be comprised of at least seven individuals, and 

that the appointment of these CAP members is to be distributed between the Governor, majority 

and minority leaders of both houses of the State’s legislative body, and the State’s environmental 

protection agency (in this case, the NMED): 

 Two members, who are not owners or representatives of owners of small business 

stationary sources, are to be selected by the Governor to represent the general public; 

 Two members, who are owners or represent owners of small business stationary sources, 

are to be selected by the lower house of the State legislature (one each by the majority 

and minority leadership); 

 Two members, who are owners or represent owners of small business stationary sources, 

are to be selected by the upper house of the State legislature (one each by the majority 

and minority leadership); and 

 One member, who is to be selected by the head of the department or agency of the State 

responsible for air pollution permit programs to represent the interests of that agency. 

New Mexico met this requirement by committing to appoint the members of the CAP as outlined 

above, and to designate to the CAP the four responsibilities specified by the CAA. 

As discussed above and in the direct final federal register notice, EPA has historically viewed the 

CAP as a necessary component of a Program, the Agency no longer believes that to be the case. 

In CAA section 507(a), Congress directed that EPA “shall approve” a Program if it meets the 

criteria outlined in section 507(a)(1)-(7). The requirement for the creation of a CAP, located in 

section 507(e), is not one of those criteria. This distinguishes the CAP from the requirements to 

designate a state office to serve as Ombudsman or to establish an SBAP, which are criteria for 

Program approval in CAA section 507(a). Although a State may submit a CAP for inclusion as a 

component of its Program—and indeed, EPA still believes that CAPs serve an important role in 

the continued operational success of a Program—Congress, in locating the CAP requirement in 

section 507(e), envisioned that the requirement to create a CAP would be severable from the 

Program requirements outlined in section 507(a). Accordingly, New Mexico’s withdrawal of the 

CAP portion of its SIP submission does not prevent EPA from acting on the remainder of the 

submission. EPA believes that New Mexico, including Albuquerque/Bernalillo County, 

continues to operate a robust SBAP providing the required services to eligible small businesses. 
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Eligibility of Small Business Stationary Sources 

Section 507(c)(1) of the CAA defines the term “small business stationary source” as a stationary 

source of air emissions that meets the following four criteria: 

 Is owned or operated by a person who employs 100 or fewer individuals; 

 Is a small business concern as defined in the Small Business Act; 

 Is not a major stationary source (as defined by the Act); 

 Does not emit 50 tons per year or more of any regulated pollutant; and 

 Emits less than 75 tons per year of all regulated pollutants. 

The State of New Mexico 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. 

New Mexico 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 tons per year of all regulated pollutants. 

New Mexico has also provided for exclusion from the small business stationary source 

definition, following consultation with EPA and the Administrator of the Small Business 

Administration, 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 

resources to meet the requirements of the CAA. 

C. State Submittal 

By cover letter dated November 5, 1992 and November 16, 1992, Governor Bruce King of New 

Mexico submitted SIP revisions to the EPA for the purpose of establishing a Small Business 

Stationary Source Technical and Environmental Compliance Assistance Program for both the 

State and Albuquerque/Bernalillo County. The SIP revisions were submitted by the State to 

satisfy the Federal mandate, found in section 507 of the CAA, to ensure that small businesses 

have access to the technical assistance and regulatory information necessary to comply with the 

CAA. 

The EPA has reviewed the State’s submittals and developed this evaluation report, or Technical 

Support Document. The results of this review are shown in the attached “SIP Revision Approval 

Checklists for Section 507 Small Business Assistance Program.” The checklists indicate that all 

required Program elements found in section 507 of the CAA are met by the New Mexico SIP 

revision submittals. 
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V. Conclusion 

The New Mexico SIP revisions meet all the requirements for a Small Business Stationary Source 

Technical and Environmental Compliance Assistance Program as outlined in section 507 of the 

CAA. Based on this review, approval of this New Mexico SIP revisions, as submitted, is 

recommended. Also, included are the review checklists for both the State and 

Albuquerque/Bernalillo County showing our recommended approval for both Programs. 

VI. SIP Implementation 

The SIP revision includes a schedule, which committed the State to gradual implementation of 

all three principal Program elements, with full implementation to be achieved by November 15, 

1994. The SBAP was launched in November 1994; the Ombudsman was appointed early, in 

December 1993; and the CAP conducted its first meeting in January 1995 (please note the 

discussion on the CAP above and in the Federal Register notice for this action). 
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SIP Revision Approval Checklist 

The following pages shows the checklist that was reviewed by EPA in 1992 for approval of the 

Section 507 Small Business Assistance Program. The checklist indicates that State met the 

Program milestones by the required date. On Page 18 of this TSD, the checklist for 

Albuquerque/Bernalillo County indicates that Albuquerque met the Program milestones by the 

required date. Additional details of the entire submittal are located in the docket for this 

rulemaking. 
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