[Federal Register Volume 81, Number 47 (Thursday, March 10, 2016)]
[Rules and Regulations]
[Pages 12595-12599]
[FR Doc No: 2016-05162]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2014-0642; FRL-9943-43-Region 6]

Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; and Albuquerque/Bernalillo County; Revisions To Establish
Small Business Stationary Source Technical and Environmental Compliance
Assistance Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is approving
revisions to the New Mexico State Implementation Plan (SIP) for both
the State and Albuquerque/Bernalillo County. These revisions establish
Small Business Stationary Source Technical and Environmental Compliance
Assistance Programs. The EPA is approving these revisions pursuant to
section 110 and section 507(a) of the Clean Air Act (CAA).

DATES: This rule is effective on May 9, 2016 without further notice
unless EPA receives relevant adverse comments by April 11, 2016. If EPA
receives such comments, EPA will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2014-0642, at http://www.regulations.gov or via email to
<EMAIL_ADDRESS>Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact John Walser, 214-665-
7128<EMAIL_ADDRESS>For the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the
www.regulations.gov index and in hard copy at EPA Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas. While all documents in the docket are
listed in the index, some information may be publicly available only at
the hard copy location (e.g., copyrighted material), and some may not
be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Mr. John Walser (6PD-L), (214) 665-
7128<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.

Table of Contents

I. Background
    A. What is a SIP?
    B. Small Business Assistance Program (SBAP)
II. Overview of the November 5 and November 16, 1992 State
Submittals
    A. New Mexico
    B. Albuquerque
    C. General
III. Plan Requirements and Our Evaluation
    A. Small Business Assistance Program
    B. Ombudsman
    C. Compliance Assistance Panel (CAP)
    D. Eligibility
    E. Section 110(l)
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

A. What is a SIP?

    Section 110 of the CAA requires states to develop air pollution
regulations and control strategies to ensure that air quality meets the
National Ambient Air Quality Standards (NAAQS) established by EPA. The
NAAQS are established under section 109 of the CAA and currently
address six criteria pollutants: Carbon monoxide, nitrogen dioxide,
ozone, lead, particulate matter, and sulfur dioxide. A SIP is a set of
air pollution regulations, control strategies, other means or
techniques, and technical analyses developed by the state, to ensure
that air quality in the state meets the NAAQS. It is required by
section 110 and other provisions of the CAA. A SIP protects air quality
primarily by addressing air pollution at its point of origin. SIPs can
be extensive, containing state regulations or other enforceable
documents, and supporting information such as city and county
ordinances, monitoring networks, and modeling demonstrations. Each
state must submit any SIP revision to EPA for approval and
incorporation into the federally-enforceable SIP.
    The New Mexico SIP includes a variety of control strategies,
including the regulations that outline general provisions applicable to
and implemented by the Albuquerque/Bernalillo County Air Quality
Control Board (AQCB).

B. Small Business Assistance Program

    Implementation of the provisions of the CAA, as amended in 1990,
requires 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 necessary to evaluate
state regulations and to determine the appropriate mechanisms for
compliance. Congress anticipated the impact of these requirements on
small businesses and, accordingly, required in CAA section 507 that
each state submit a SIP revision with plans for establishing a Small
Business Stationary Source Technical and Environmental Compliance
Assistance Program (Program). A key Program requirement outlined in CAA
section 507(a), is the establishment of a Small Business Assistance
Program (SBAP) to provide technical and compliance assistance to small
businesses. In January 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
states on submitting acceptable SIP revisions. That guidance described
the SBAP as the ``core'' of a state's Program, because the SBAP is,
``where the actual assistance to small businesses occurs.'' \1\
---------------------------------------------------------------------------

    \1\ U.S. EPA, ``Guidelines for the Implementation of Section 507
of the 1990 Clean Air Act Amendments'' (January 1992) at vii.
---------------------------------------------------------------------------

II. Overview of the November 5 and November 16, 1992 State Submittals

A. New Mexico

    On November 5, 1992, the Governor of New Mexico submitted revisions
to the New Mexico SIP to establish the Program. The submittal was
adopted by the Environmental Improvement Board (EIB) on October 9,
1992, consistent with the public notice requirements of CAA section
110(l). The revisions established a Program for the State of New
Mexico, excluding Albuquerque/Bernalillo County.
    The November 5, 1992 revisions to the SIP were in the form of a
narrative commitment for full implementation of the Program by November
15, 1994 and a commitment to coincide with the effective date of the
State's operating permit program. The Ombudsman (Director of Strategic
Initiatives and Special Projects) is located in the Office of the NMED
Secretary and was appointed before November 15, 1994, to represent the
interests of small businesses, as they relate to the implementation of
Section 507(a)(3) of the CAA.
    In addition to designating a State Ombudsman to satisfy CAA section
507(a)(3), the State submitted its plans for the creation of a state
SBAP. The State explained that the technical component of the SBAP
would consist of state technical experts who would respond to requests
for assistance from small businesses. The state explained that these
technical staff would be located in the Air Quality Bureau's Planning
Section, and would respond to permitting and compliance questions. As
part of the SBAP, New Mexico's submission detailed the adequate
mechanisms and procedures that would satisfy the remaining requirements
of CAA section 507(a)(1)-(2), (4)-(7).

B. Albuquerque

    On November 16, 1992, The Governor of New Mexico submitted
revisions to the New Mexico SIP for Albuquerque/Bernalillo County. The
submittal was adopted by the Air Quality Control Board on October 7,
1992, consistent with the public notice requirements of CAA section
110(l). The revisions establish the Small Business Stationary Source
Technical and Environmental Compliance Program for Albuquerque/
Bernalillo County.
    The November 16, 1992 revisions to the SIP were in the form of a
narrative commitment for full implementation of the SBAP by November
15, 1994 and a commitment to coincide with the effective date of the
State's operating permit program. The Small Business Ombudsman is in
the office of the Albuquerque Environmental Health Director (AEHD). The
establishment of a SBAP for providing technical and compliance
assistance to small businesses was committed to be in the AEHD Air
Pollution Control Division's Planning Section to give small businesses
correct technical, permitting and compliance information for all
applicable CAA requirements.

C. General

    In an August 28, 2015 letter, the State of New Mexico withdrew the
elements of the 1992 SIP pertaining to the Compliance Assistance Panel
(CAP), a requirement of CAA section 507(e) that EPA has historically
viewed as a required component of the Program. Since the New Mexico
legislature created one CAP for both the State and Albuquerque/
Bernalillo County, the withdrawal, therefore, applies to both the State
and Albuquerque/Bernalillo County.\2\
---------------------------------------------------------------------------

    \2\ August 28, 2015 Letter from Ryan Flynn, Secretary, State of
New Mexico Environment Department, to Ron Curry, Regional
Administrator for EPA Region 6, to withdraw the CAP from the 1992
SIP submittal.
---------------------------------------------------------------------------

    Through an administrative oversight, these SIP revisions were not
acted upon when submitted. EPA is now moving forward to take action on
these revisions as part of our national SIP backlog reduction efforts.

III. Plan Requirements and Our Evaluation

    Section 507 of the CAA describes three broad sets of requirements:
(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 in the regulatory process; and (3) the
creation of a Compliance Advisory Panel (CAP) ``on the State level'' to
determine and report on the overall effectiveness of the SBAP.

A. Small Business Assistance Program

    The overarching purpose of establishing an SBAP is to provide
technical and compliance assistance to small businesses. As interpreted
by EPA, CAA section 507(a) sets forth six requirements which must be
met by the State in order to have an approvable SBAP.\3\ The first SBAP
requirement is for the State 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.\4\
---------------------------------------------------------------------------

    \3\ Notably, section 507(a) sets forth seven requirements, in
subsections (1)-(7). The third of these, section 507(a)(3), requires
the establishment of an Ombudsman Office--a key Program element. The
Ombudsman requirement of section 507(a)(3) is discussed in the next
section.
    \4\ See CAA section 507(a)(1).
---------------------------------------------------------------------------

    The second SBAP requirement is that the State 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.\5\
---------------------------------------------------------------------------

    \5\ See id. section 507(a)(2).
---------------------------------------------------------------------------

    The third SBAP 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.\6\
---------------------------------------------------------------------------

    \6\ See id. section 507(a)(4).
---------------------------------------------------------------------------

    The fourth SBAP 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 or final
regulation or standards issued under the Act.\7\
---------------------------------------------------------------------------

    \7\ See id. section 507(a)(5).
---------------------------------------------------------------------------

    The fifth SBAP requirement is to develop adequate mechanisms for
informing small business stationary sources of their obligation under
the CAA, including mechanisms for referring such sources to qualified
auditors or, at the option of the State, for providing audits of
operations of such sources to determine compliance with the CAA.\8\
---------------------------------------------------------------------------

    \8\ See id. section 507(a)(6).
---------------------------------------------------------------------------

    The sixth SBAP 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.\9\
---------------------------------------------------------------------------

    \9\ See id. section 507(a)(7).
---------------------------------------------------------------------------

    The SIP narratives for both the State and Albuquerque/Bernalillo
County discuss how their respective SBAPs meet the above requirements,
and include further information about how each entity expects to
implement and maintain their Programs. Further explanation of our
analysis of the adequacy of the submissions with respect to the SBAP
requirements can be found in the TSD for this action.

B. Ombudsman

    Section 507(a) also requires states to establish a State Small
Business Ombudsman to represent the interests of small businesses in
the regulatory process. CAA 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 appointing an
Ombudsman in the Office of the NMED Secretary in 1992. Albuquerque/
Bernalillo County met this requirement by committing to appoint an
Ombudsman in the Office of the Albuquerque Environmental Health
Department before the November 15, 1994 statutory deadline.

C. Compliance Advisory Panel (CAP)

    In addition to the SBAP and Ombudsman, CAA section 507 envisions
the creation of a Compliance Advisory Panel (CAP) ``on the State
level'' to, among other things, evaluate and report on the overall
effectiveness of the SBAP.\10\ Congress narrowly prescribed the
membership of the CAP, including which state officials would be
responsible for appointing members representing various interests.\11\
At the time of the submittal in 1992, the New Mexico program included a
statewide CAP that met these stringent requirements, and which New
Mexico believed was a required Program element because of EPA's 1992
Program Guidance. Since that time, however, and after having a CAP in
place for over 10 years, the State did not continue to operate a CAP.
As mentioned previously, the State withdrew the portions of its SIP
submission regarding the CAP in a letter dated August 28, 2015, a copy
of which may be found in the docket for this action.
---------------------------------------------------------------------------

    \10\ See id. section 507(e)(1).
    \11\ See id. section 507(e)(2).
---------------------------------------------------------------------------

    Although 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.
    Before taking an action that, as here, differs from past guidance
or practice, EPA's internal practices direct Regional Offices to follow
a SIP consistency process to ensure consistency in across regional
actions. The SIP consistency process was established in 1995 as part of
the delegation to Regional Administrators of SIPs and SIP revision
approval/disapprovals actions.\12\
---------------------------------------------------------------------------

    \12\ See Memorandum from William L. Wehrum, Acting Assistant
Administrator, to Air Division Directors, Regions I-X (September 7,
2005) (outlining the process). A copy of that memorandum is included
in the docket.

---------------------------------------------------------------------------

    Pursuant to 40 CFR 56.6(b) and the SIP consistency guidelines, EPA
Region 6 followed this process. Pursuant to the SIP consistency
process, EPA Region 6 consulted with all other EPA regional offices,
the Office of Air and Radiation, and the Office of General Counsel.
Region 6 received no objections to this shift in approach.
    EPA is approving the New Mexico and Albuquerque Small Business
Assistance Programs as revised with the withdrawal of the element
relating to the CAP. Approval in the SIP will support state and local
efforts to maintain their respective Programs.

D. Eligibility

    While not a required Program element, it is also important that the
SIP establishes criteria and procedures for determining the eligibility
of a source to receive assistance under the Program. 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 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. This mechanism is
described in the state's narrative SIP revision.
    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.

E. Section 110(l)

    Section 110(l) of the Act provides that a SIP revision must be
adopted by a State after reasonable notice and public hearing. The
submitted revisions address the City of Albuquerque/Bernalillo County
and the State of New Mexico's Small Business Assistance Programs, as
discussed in Section II of this preamble. Additionally, CAA section
110(l) states that the EPA cannot approve a SIP revision if that
revision would interfere with any applicable requirement regarding
attainment, reasonable further progress (RFP) or any requirement
established in the CAA. The revisions do not interfere with any
applicable requirement. To the contrary, they enhance the current SIP
by providing for technical and compliance assistance for small
businesses.

IV. Final Action

    Pursuant to sections 110 and 507 of the Act, EPA is approving
through a direct final action, revisions to the New Mexico SIP that
were submitted on November 5, 1992 and November 16, 1992. We evaluated
the state's submittals and determined that they meet the applicable
requirements of the CAA section 507(a). Also, in accordance with CAA
section 110(l), the proposed revisions will not interfere with
attainment of the NAAQS, reasonable further progress, or any other
applicable requirement of the CAA. Finally, this approval is in
accordance with 40 CFR 56.6(b) and our SIP consistency guidelines.
These revisions do not apply to Indian lands over which the State or
the AQCB lacks jurisdiction.
    EPA is publishing this rule without prior proposal because we view
these as non-controversial amendments and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if relevant adverse
comments are received. This rule will be effective on May 9, 2016
without further notice unless we receive relevant adverse comments by
April 11, 2016. If we receive relevant adverse comments, we will
publish a timely withdrawal of this direct final rulemaking in the
Federal Register informing the public that the direct final rule will
not take effect. We will address all public comments in a subsequent
final rule based on the proposed rule. We will not institute a second
comment period on this action. Any parties interested in commenting
must do so now. Please note that if we receive adverse comment on an
amendment, paragraph, or section of this rule and if that provision may
be severed from the remainder of the rule, we may adopt as final those
provisions of the rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249,

November 9, 2000), nor will it impose substantial direct costs on
tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 9, 2016. 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, Intergovernmental relations, Nitrogen dioxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.

    Dated: February 24, 2016.
Ron Curry,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart GG--New Mexico

0
2. In Sec.  52.1620(e), the second table in paragraph (e), entitled
``EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures
in the New Mexico SIP'' is amended by adding two new entries at the end
of the table to read as follows:

Sec.  52.1620  Identification of plan.

* * * * *
    (e) * * *

            EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP
----------------------------------------------------------------------------------------------------------------
                                       Applicable           State
      Name of SIP Revision           geographic of       submittal/     EPA approval date        Explanation
                                   nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Small Business Stationary Source  Statewide,               11/05/1992  3/10/2016, [Insert   ....................
 Technical and Environmental       excluding                            Federal Register
 Compliance Assistance Program.    Bernalillo County.                   Citation].
Small Business Stationary Source  Albuquerque/             11/16/1992  3/10/2016, [Insert   ....................
 Technical and Environmental       Bernalillo County.                   Federal Register
 Compliance Assistance Program.                                         Citation].
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2016-05162 Filed 3-9-16; 8:45 am]
 BILLING CODE 6560-50-P