[Federal Register: April 26, 2004 (Volume 69, Number 80)]
[Rules and Regulations]
[Page 22447-22453]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ap04-25]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[AZ 116-0059a; FRL-7651-1]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving the maintenance plan for the Morenci area in
Greenlee County, Arizona and granting the request submitted by the
State to redesignate this area from nonattainment to attainment for the
National Ambient Air Quality Standards (NAAQS) for sulfur dioxide
(SO2). Elsewhere in this Federal Register, we are proposing
approval and soliciting written comment on this action; if adverse
written comments are received, we will withdraw the direct final rule
and address the comments received in a new final rule; otherwise no
further rulemaking will occur on this approval action.
DATES: This rule is effective June 25, 2004, without further notice,
unless we receive adverse comments by May 26, 2004. If EPA receives
adverse comments, we will publish a timely withdrawal in the Federal
Register and inform the public that this rule will not take effect.
ADDRESSES: Please mail or e-mail your comments to Wienke Tax, Air
Planning
[[Page 22448]]
Office (AIR-2), U.S. Environmental Protection Agency, Region 9, 75
Hawthorne Street, San Francisco, CA 94105. Telephone: (520) 622-1622.
E-mail: tax.wienke@epa.gov. Comments may also be submitted through the
Federal Register Web site at http://www.regulations.gov. We prefer
electronic comments.
You can inspect copies of EPA's Federal Register document and
Technical Support Document (TSD) at our Region 9 office during normal
business hours (see address above). Due to increased security, we
suggest that you call at least 24 hours prior to visiting the Regional
Office so that we can make arrangements to have someone meet you. The
Federal Register notice and TSD are also available as electronic files
on EPA's Region 9 Web page at http://www.epa.gov/region09/air.
You may inspect and copy the rulemaking docket for this notice at
the following location during normal business hours. Environmental
Protection Agency, Region 9, Air Division, Air Planning Office (AIR-2),
75 Hawthorne Street, San Francisco, CA 94105-3901.
Copies of the State Implementation Plan (SIP) materials are also
available for inspection at the address listed below: Arizona
Department of Environmental Quality, 1110 W. Washington Street, First
Floor, Phoenix, AZ 85007, Phone: (602) 771-4335.
FOR FURTHER INFORMATION CONTACT: Wienke Tax, U.S. EPA Region 9, (520)
622-1622, tax.wienke@epa.gov, or http://www.epa.gov/region09/air.
SUPPLEMENTARY INFORMATION: Elsewhere in this Federal Register, we are
proposing approval and soliciting written comment on this action.
Throughout this document, ``we,'' ``us,'' and ``our'' mean U.S. EPA.
Table of Contents
I. Summary of Action
II. Introduction
A. What National Ambient Air Quality Standards Are Considered in
Today's Rulemaking?
B. What Is a State Implementation Plan?
C. What Is the Background for This Action?
D. What Are the Applicable Clean Air Act (CAA) Provisions for
SO2 Nonattainment Area Plans?
E. What Are the Applicable Provisions for SO2
Maintenance Plans and Redesignation Requests?
III. Review of the Arizona State Submittals Addressing These
Provisions
A. Is the Maintenance Plan Approvable?
B. Has the State Met the Remaining Maintenance Plan Provisions?
C. Has the State Met the Redesignation Provisions of CAA Section
107(d)(3)(E)?
IV. Final Action
V. Statutory and Executive Order Reviews
I. Summary of Action
We are approving the maintenance plan for the Morenci
SO2 nonattainment area.\1\ We are also approving the State
of Arizona's request to redesignate the Morenci area from nonattainment
to attainment for the primary SO2 NAAQS.
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\1\ For the definition of the Morenci nonattainment area, see 40
CFR 81.303. EPA designated the entire area of Greenlee County as
nonattainment for SO2 on March 3, 1978 for lack of a
State recommendation. EPA approved the State's request that the
SO2-affected portion of Greenlee County be limited to the
townships surrounding Morenci on April 10, 1979 (44 FR 21261).
Townships T3S,R28E; T3S, R29E; T3S, R30E; T4S, R28E; T4S, R29E; T4S,
R30E; T5S, R28E; and T5S, R29E comprise the nonattainment area.
Township T5S, R30E is designated as ``cannot be classified.''
Morenci is a town in eastern Greenlee County near the border of
Arizona and New Mexico.
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II. Introduction
A. What National Ambient Air Quality Standards Are Considered in
Today's Rulemaking?
Sulfur dioxide is the subject of this action. The NAAQS are safety
thresholds for certain ambient air pollutants set to protect public
health and welfare. SO2 is among the ambient air pollutants
for which we have established a health-based standard.
SO2 causes adverse health effects by reducing lung
function, increasing respiratory illness, altering the lung's defenses,
and aggravating existing cardiovascular disease. Children, the elderly,
and people with asthma are the most vulnerable. SO2 has a
variety of additional impacts, including acidic deposition, damage to
crops and vegetation, and corrosion of natural and man-made materials.
There are both short- and long-term primary NAAQS for
SO2. The short-term (24-hour) standard of 0.14 parts per
million (ppm) is not to be exceeded more than once per year. The long-
term standard specifies an annual arithmetic mean not to exceed 0.030
ppm.\2\ The primary standards were established in 1972. (See 40 CFR
50.4.)
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\2\ The secondary SO2 NAAQS (3-hour) of 0.50 ppm is
not to be exceeded more than once per year. Secondary NAAQS are
promulgated to protect welfare. The Morenci area is not classified
nonattainment for the secondary standard, and this action relates
only to the primary NAAQS.
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B. What Is a State Implementation Plan?
The CAA requires States to attain and maintain ambient air quality
equal to or better than the NAAQS. The State's commitments for
attaining and maintaining the NAAQS are outlined in the State
Implementation Plan (or SIP) for that State. The SIP is a planning
document that, when implemented, is designed to ensure the achievement
of the NAAQS. Each State currently has a SIP in place, and the Act
requires that SIP revisions be made periodically as necessary to
provide continued compliance with the standards.
SIPs include, among other things, the following: (1) An inventory
of emission sources; (2) statutes and regulations adopted by the State
legislature and executive agencies; (3) air quality analyses that
include demonstrations that adequate controls are in place to meet the
NAAQS; and (4) contingency measures to be undertaken if an area fails
to attain the standard or make reasonable progress toward attainment by
the required date.
The State must make the SIP available for public review and comment
through a public hearing, it must be adopted by the State, and
submitted to us by the Governor or her/his designee. We take federal
action on the SIP submittal, thus rendering the rules and regulations
federally enforceable. The approved SIP serves as the State's
commitment to take actions that will reduce or eliminate air quality
problems. Any subsequent revisions to the SIP must go through the
formal SIP revision process specified in the Act.
C. What Is the Background for This Action?
1. When Was the Nonattainment Area Established?
The Phelps Dodge Morenci Incorporated (PDMI) operation was the
largest SO2 point source in the Morenci nonattainment area
during its operation. PDMI was located next to the Morenci copper mine,
one of the largest copper-producing operations in North America. The
Phelps Dodge smelter was located in the Gila River airshed, just north
of the Gila River at an altitude of about 4500 feet above sea level.
PDMI was located close to the community of Morenci, in eastern Greenlee
County, near the Arizona/New Mexico State boundary.
The details of the initial designation of the Morenci
SO2 nonattainment area are provided in footnote 1 in this
Federal Register notice. On the date of enactment of the 1990 CAA
Amendments, SO2 areas meeting the conditions of section
107(d) of the Act, including the pre-existing SO2
nonattainment areas, were designated nonattainment for the
SO2 NAAQS by operation of law. Thus, the Morenci area
remained nonattainment for the primary SO2 NAAQS following
enactment of the 1990 CAA Amendments on November 15, 1990.
[[Page 22449]]
2. How Has the SIP Addressed CAA Provisions?
As required by the CAA, Arizona submitted a State implementation
plan (SIP) for all major sources in the State in January 1972. EPA
disapproved the portion of the 1972 Arizona SIP related to smelters (37
FR 10849 and 37 FR 15081) on May 31 and July 27, 1972. On November 30,
1981, EPA proposed conditional approval of Arizona's Multipoint
Rollback (MPR) SIP revision (46 FR 58098). On June 3, 1982, Arizona
submitted SIP revisions to correct the conditional approval. EPA
formally approved Arizona's revised MPR rule as a final rulemaking on
January 14, 1983 (48 FR 1717). To complete the Arizona SO2
SIPS, EPA required that Arizona submit the necessary fugitive emissions
control strategies and regulations for existing smelters by August 1,
1984.
3. What Is the Current Status of the Area?
On December 31, 1984, the PDMI smelter was permanently deactivated.
Dismantling of the Morenci facility began in 1995 and was complete by
December 1996. On October 29, 1997, ADEQ confirmed that the facility
was dismantled and no longer existed at the former site. The area
remains sparsely settled, and there are minor industrial or commercial
activities such as cotton gins, a construction company, and a Federal
correctional institute in or near the nonattainment area that produce
small quantities of SO2 emissions.
Currently, there are no operating ambient SO2 monitors
in the Morenci area. We do not expect the cumulative impact of the
sources in and around Morenci to cause a violation of the NAAQS. No
significant new sources have located in the area, and the smelter was
the obvious cause of past violations. These are two additional reasons
why our action today is appropriate.
Ambient air quality monitoring data from 1980 to 1984 indicate
there were numerous exceedances of the SO2 NAAQS during the
last three years of the smelter operation, primarily in 1983. The
following table summarizes the ambient monitoring data from 1980
through 1985.
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No. of 24 hour 1st High 2nd High Annual
Year exceedances (ppm) (ppm) average (ppm)
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1980............................................ 13 0.211 0.210 0.038
1981............................................ 18 0.211 0.203 0.053
1982 \1\........................................ 1 0.175 0.091 0.009
1983............................................ 15 0.263 0.204 0.046
1984............................................ 3 0.196 0.163 0.037
1985 \1\........................................ 0 0.006 0.005 0.002
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\1\ Years that did not have complete data.
Source: EPA AIRS/AQS Database.
Since by far the largest source of SO2 in the area was
the smelter, it was not necessary to continue monitoring for this
pollutant once the source was permanently shut down. Currently, there
are no operating ambient SO2 monitors in the Morenci area.
D. What Are the Applicable Clean Air Act (CAA) Provisions for
SO2 Nonattainment Area Plans?
The air quality planning requirements for SO2
nonattainment areas are set out in subparts 1 and 5 of Part D of title
I of the Act. We have issued guidance in a General Preamble describing
our views on how we will review SIPs and SIP revisions submitted under
title I of the Act, including those containing SO2
nonattainment area and maintenance area SIP provisions. 57 FR 13498
(April 16, 1992); 57 FR 18070 (April 28, 1992). The General Preamble
discusses our interpretation of the title I requirements, and lists
SO2 policy and guidance documents.
1. What Statutory Provisions Apply?
CAA Sections 191 and 192 address requirements for SO2
nonattainment areas designated subsequent to enactment of the 1990 CAA
Amendments and areas lacking fully approved SIPs immediately before
enactment of the 1990 Clean Air Act Amendments. Morenci falls into
neither of these categories and is therefore subject to the
requirements of subpart 1 of part D of title I of the CAA (sections
171-179B). Section 172 of this subpart contains provisions for
nonattainment plans in general; these provisions were not significantly
changed by the 1990 CAA Amendments. Among other requirements, CAA
Section 172 provides that SIPs must assure that reasonably available
control measures (RACM) (including such reductions in emissions from
existing sources in the area as may be obtained through the adoption,
at a minimum, of reasonably available control technology (RACT)) shall
be implemented as expeditiously as practicable and shall provide for
attainment.
E. What Are the Applicable Provisions for SO2 Maintenance
Plans and Redesignation Requests?
1. What are the Statutory Provisions?
a. CAA Section 107(d)(3)(E).
The 1990 CAA Amendments revised section 107(d)(3)(E) to provide
five specific requirements that an area must meet in order to be
redesignated from nonattainment to attainment:
(1) The area must have attained the applicable NAAQS;
(2) The area has met all relevant requirements under section 110
and part D of the Act;
(3) The area has a fully approved SIP under section 110(k) of the
Act;
(4) the air quality improvement must be permanent and enforceable;
and,
(5) the area must have a fully approved maintenance plan pursuant
to section 175A of the Act.
b. CAA Section 175A
CAA section 175A provides the general framework for maintenance
plans. The maintenance plan must provide for maintenance of the NAAQS
for at least 10 years after redesignation, including any additional
control measures as may be necessary to ensure such maintenance. In
addition, maintenance plans are to contain such contingency provisions
as we deem necessary to assure the prompt correction of a violation of
the NAAQS that occurs after redesignation. The contingency measures
must include, at a minimum, a requirement that the state will implement
all control measures contained in the nonattainment SIP prior to
redesignation. Beyond these provisions, however, CAA section 175A does
not define the content of a maintenance plan.
[[Page 22450]]
2. What General EPA Guidance Applies to Maintenance Plans?
Our primary general guidance on maintenance plans and redesignation
requests is a September 4, 1992 memo from John Calcagni, entitled
``Procedures for Processing Requests to Redesignate Areas to
Attainment'' (``Calcagni Memo''). Specific guidance on SO2
redesignations also appears in a January 26, 1995 memo from Sally L.
Shaver, entitled ``Attainment Determination Policy for Sulfur Dioxide
Nonattainment Areas'' (``Shaver Memo'').
Guidance on SO2 maintenance plan requirements for an
area lacking ambient monitoring data, if the area's historic violations
were caused by a major point source that is no longer in operation, is
found in an October 18, 2000 memo from John S. Seitz entitled
``Redesignation of Sulfur Dioxide Nonattainment Areas in the Absence of
Monitored Data'' (``Seitz Memo''). The Seitz memo exempts eligible
areas from the maintenance plan requirements of continued monitoring.
3. What Are the Requirements for Redesignation of Single-Source
SO2 Nonattainment Areas in the Absence of Monitored Data?
Our historic redesignation policy for SO2 has called for
eight quarters of clean ambient air quality data as a necessary
prerequisite to redesignation of any area to attainment. The Seitz memo
provides guidance on SO2 maintenance plan requirements for
an area lacking monitored ambient data, if the area's historic
violations were caused by a major point source that is no longer in
operation. In order to allow for these areas to qualify for
redesignation to attainment, this policy requires that the maintenance
plan address otherwise applicable provisions, and include:
(1) Emissions inventories representing actual emissions when
violations occurred; current emissions; and emissions projected to the
10th year after redesignation;
(2) Dispersion modeling showing that no NAAQS violations will occur
over the next 10 years and that the shut down source was the dominant
cause of the high concentrations in the past;
(3) Evidence that if the shut down source resumes operation, it
would be considered a new source and be required to obtain a permit
under the Prevention of Significant Deterioration provisions of the
CAA; and
(4) A commitment to resume monitoring before any major
SOX source commences operation.
III. Review of the Arizona State Submittals Addressing These Provisions
A. Is the Maintenance Plan Approvable?
1. Did the State Meet the CAA Procedural Provisions?
On June 21, 2002, ADEQ submitted to EPA the ``Morenci Sulfur
Dioxide Nonattainment Area State Implementation and Maintenance Plan''
and request to redesignate the area to attainment. The State verified
that it had adhered to its SIP adoption procedures. On October 30,
2002, we found that the submittal met the completeness criteria in 40
CFR part 51, Appendix V, which must be satisfied before EPA formal
review.
2. Does the Area Qualify for Review under the Seitz Memo?
a. Were the Area's Violations Caused by a Major Point Source of
SOX Emissions That Is No Longer in Operation?
As discussed above, the only major source of SOX
emissions within the Morenci nonattainment area was the Phelps Dodge
Morenci Incorporated (PDMI) copper smelter, which ceased operation in
1984. The last recorded 24-hour or annual average exceedances of the
primary NAAQS at PDMI occurred in 1984. All monitors owned and operated
by Phelps Dodge and by ADEQ in the vicinity of the PDMI smelter were
removed by early 1985, the smelter operating permits expired, the
smelting equipment was removed over a period of years, and the smelter
was completely dismantled by December 1996. No new sources of
SO2 of the magnitude of PDMI have been located in the area.
Thus, Morenci meets this criterion for review under the Seitz Memo.
b. Has the State Met the Requirements of the Seitz Memo?
As discussed below, the State has addressed the requirements in the
Seitz Memo for emissions inventories, modeling, permitting of major new
sources, and agreement to commence monitoring if a new major source
locates in the area. Therefore, the State has met the special criteria
in the Seitz Memo for approval of maintenance plans and redesignation
requests.
(1) Emissions Inventory. The State provided the three emissions
inventories specified in the Seitz Memo for the sources in, and within
50 kilometers of, the Morenci nonattainment area. For a representative
year when the copper smelter was in operation (1984), direct
SOX emissions from smelting operations were 82,432 tons per
year (tpy). ADEQ identified 186.5 tpy SOX emissions in, or
within 50 kilometers of, the nonattainment area in 1999 based on
potential to emit (PTE), and ADEQ projected 208 tpy SOX
emissions based on PTE in, or within 50 kilometers of, Morenci in the
10th year after redesignation (2015). However, actual emissions in 1998
and 1999 were 4.1 and 1.2 tpy, respectively. We conclude that the
inventories are complete, accurate, and consistent with applicable CAA
provisions and the Seitz Memo.
(2) Modeling. Past EPA policy memoranda on SO2
redesignations all ask for dispersion modeling. The Seitz memo asks for
dispersion modeling of all point sources within 50 km of the
nonattainment area boundary. The submittal identifies only a single
point source in the nonattainment area, the Phelps Dodge Morenci Mine
(PDMM), with year 2000 SO2 emissions of 3.3 tpy, and year
2015 projected emissions of 3.6 tpy. The submittal also identifies five
sources in the 50 km boundary area, each of which emitted less than one
ton SO2 per year in 1999. Screening dispersion modeling was
performed with ISCST3 using conservative assumptions about the source
parameters and the meteorology. According to the screening modeling,
the maximum ambient air concentration due to the largest of the
remaining sources is less than five percent of any of the
SO2 NAAQS.
The October 18, 2000 Seitz memo requires a modeling analysis that
shows point sources were the dominant sources contributing to high
SO2 concentrations in the airshed. While MPR has been
accepted by EPA for modeling of smelters, as a rollback method it
assumes that the monitored SO2 violations are completely due
to the smelter being modeled. Thus, it cannot be relied upon for this
analysis. Instead, screening modeling can be used to show that non-
smelter sources have only an insignificant contribution. Since their
emissions have changed relatively little since the time that the
smelter shut down and was dismantled, this same screening modeling
shows that the non-smelter sources were insignificant in the past, and
hence the smelter was the dominant source contributing to past high
SO2 concentrations. EPA therefore finds that the ambient
SO2 modeling requirement for redesignations and maintenance
plans is met.
(3) Permitting of New Sources. For the Morenci SO2
nonattainment area, the nonattainment area new source review (NSR)
permit program responsibilities are held by ADEQ. ADEQ administers the
preconstruction review and permitting provisions of Arizona
[[Page 22451]]
Administrative Code (AAC), Title 18, Chapter 2, Articles 3 and 4. All
new major sources and modifications to existing major sources are
subject to the NSR requirements of these rules. We have not yet fully
approved the ADEQ NSR rules. ADEQ's SIP-approved NSR rules are at AAC
R9-3-302.
Section 172(c)(5) requires NSR permits for the construction and
operation of new and modified major stationary sources anywhere in
nonattainment areas. We have determined that areas being redesignated
from nonattainment to attainment do not need to comply with the
requirement that an NSR program be approved prior to redesignation
provided that the area demonstrates maintenance of the standard without
part D nonattainment NSR in effect. The rationale for this decision is
described in a memorandum from Mary Nichols dated October 14, 1994
(``Part D New Source Review (part D NSR) Requirements for Areas
Requesting Redesignation to Attainment''). We have determined that the
maintenance demonstration for Morenci does not rely on nonattainment
NSR. Prevention of Significant Deterioration (PSD) is the replacement
for NSR, and part of the obligation under PSD is for a new source to
review increment consumption and maintenance of the air quality
standards. PSD also requires preconstruction monitoring. Therefore, the
State need not have a fully approved nonattainment NSR program prior to
approval of the redesignation request.
ADEQ has a PSD permitting program (A.A.C. R9-3-304 is the SIP-
approved rule) that was established to preserve the air quality in
areas where ambient standards have been met. The State's PSD program
for all criteria pollutants except PM-10 was approved into the SIP
effective May 3, 1983 (48 FR 19878). The federal PSD program for PM-10
was delegated to the State on March 12, 1999. The PSD program requires
stationary sources to undergo preconstruction review before facilities
are constructed, modified, or reconstructed and to apply Best Available
Control Technology (BACT). These programs will apply to any major
source wishing to locate in the Morenci area once the area is
redesignated to attainment. The ADEQ commitment to treat any major
source in or near Morenci as ``new'' under the PSD program satisfies
the preconstruction permit provision of the Seitz memo as one of the
prerequisites to redesignation.
(4) Monitoring. ADEQ has confirmed that the State commits to resume
monitoring before any major source of SO2 commences to
operate. Moreover, the PSD permit program requires that permit
applicants conduct preconstruction monitoring to identify baseline
concentrations. Together, these commitments address the monitoring
provision of the Seitz Memo.
c. Has the State Met the Remaining Maintenance Plan Provisions?
As discussed above, CAA Section 175A sets forth the statutory
requirements for maintenance plans, and the Calcagni and Shaver memos
cited above contain specific EPA guidance. The only maintenance plan
element not covered by the Seitz Memo is the contingency provision. CAA
Section 175A provides that maintenance plans ``contain such contingency
provisions as the Administrator deems necessary to assure that the
State will promptly correct any violation of the standard which occurs
after the redesignation of the area as an attainment area.''
The Morenci Maintenance Plan includes the State's commitment to
continue to implement and enforce measures necessary to maintain the
SO2 NAAQS. ADEQ's current operating permit program places
limits on SO2 emissions from existing sources. Should an
existing facility want to upgrade or increase SO2 emissions,
the facility would be subject to the PSD program. Should a new facility
be constructed in the Morenci area, the facility would also be subject
to PSD as required in the Calcagni memo.
If these measures prove insufficient to protect against exceedances
of the NAAQS, the State has also committed to adopt, submit as a SIP
revision, and implement expeditiously any and all measures needed to
ensure maintenance of the NAAQS.
The Calcagni Memo emphasizes the importance of specific contingency
measures, schedules for adoption, and action levels to trigger
implementation of the contingency plan. Since there are no remaining
sources of SO2 emissions of the magnitude of the Phelps
Dodge smelter and there is no SO2 monitoring in the Morenci
area, we agree with the State that this level of specificity is not
appropriate, and we conclude that the State's commitment satisfactorily
addresses the CAA provisions. Since there are neither significant
SO2 sources nor SO2 monitoring in the Morenci
area, we agree with the State that the State's PSD permitting program
is sufficient to track future air quality trends and to assure that the
Morenci area will not violate the NAAQS. If the State identifies the
potential for a NAAQS violation through the permitting process, the
State would ascertain what measures would be needed to avoid the
violation.
B. Has the State Met the Redesignation Provisions of CAA Section
107(d)(3)(E)?
1. Has the Area Attained the 24-hour and Annual SO2 NAAQS?
As discussed above, the normal prerequisite for redesignation is
submittal of quality-assured ambient data with no violations of the
SO2 NAAQS for the last eight consecutive quarters. However,
the Seitz Memo recognizes that states should be provided an opportunity
to request redesignation where there is no longer monitoring but where
there is no reasonable basis for assuming that SO2
violations persist after closure of the sources that were the primary
or sole cause of these violations. Morenci is such an area, and the
State has submitted convincing evidence that no major stationary
sources of SOX emissions remain in operation in or within 50
kilometers of the area that might cause a violation of the
SO2 NAAQS.
2. Has the Area Met All Relevant Requirements Under Section 110 and
Part D of the Act?
CAA Section 110(a)(2) contains the general requirements for SIPs
(enforceable emission limits, ambient monitoring, permitting of new
sources, adequate funding, etc.) and part D contains the general
provisions applicable to SIPs for nonattainment areas (emissions
inventories, reasonably available control measures, demonstrations of
attainment, etc.). Over the years, we have approved Arizona's SIP as
meeting the basic requirements of CAA Section 110(a)(2), and the CAA
Part D requirements for Morenci addressed primarily by the regulations
applicable to the Phelps Dodge facility during the period of its
operation. The State has thus met the basic SIP requirements of the
CAA.
3. Does the Area Have a Fully Approved SIP Under Section 110(k) of the
Act?
We examined the applicable SIP, and also looked at the disapprovals
listed in 40 CFR 52.125 and no disapprovals remain relevant to the
applicable SIP. Arizona has a fully-approved SIP with respect to the
Morenci area.
4. Has the State Shown That the Air Quality Improvement in the Area Is
Permanent and Enforceable?
Yes. The Maintenance Plan shows that the exclusive cause of past
SO2 NAAQS violations (the Phelps Dodge copper smelter in
Morenci) no longer
[[Page 22452]]
exists. As a result, there is no reason to expect that SO2
ambient concentrations will exceed background levels.
5. Does the Area Have a Fully Approved Maintenance Plan Pursuant to
Section 175a of the Act?
Yes. As discussed above, we are approving the Morenci Maintenance
Plan in this action.
IV. Final Action
We are approving the Maintenance Plan for the Morenci area under
CAA Sections 110 and 175A. We are also approving the State's request to
redesignate the Morenci area to attainment of the primary
SO2 NAAQS.
We are publishing this action without prior proposal because we
view this as a noncontroversial amendment 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 State plan and redesignate the
area if relevant adverse comments are filed. This rule will be
effective June 25, 2004 without further notice unless relevant adverse
comments are received by May 26, 2004. If we receive such comments,
this action will be withdrawn before the effective date. All public
comments received will then be addressed in a subsequent final rule
based on the proposed action. We will not institute a second comment
period. 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 June 25, 2004.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 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 June 25, 2004. 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 CAA section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Sulfur dioxide.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: March 30, 2004.
Laura Yoshii,
Acting Regional Administrator, Region IX.
0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations
are amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--Arizona
0
2. Section 52.120 is amended by adding paragraph (c)(114) to read as
follows:
Sec. 52.120 Identification of plan.
* * * * *
(c) * * *
(114) The following plan was submitted on June 21, 2002, by the
Governor's designee.
(i) Incorporation by reference.
(A) Arizona Department of Environmental Quality.
(1) Morenci Sulfur Dioxide Nonattainment Area State
[[Page 22453]]
Implementation and Maintenance Plan, adopted by the Arizona Department
of Environmental Quality on June 21, 2002.
PART 81--[AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. In Sec. 81.303 the SO2 table is amended by revising the
entry for the Morenci area to read as follows:
Sec. 81.303 Arizona.
* * * * *
Arizona-SO2
----------------------------------------------------------------------------------------------------------------
Does not Does not Better
meet meet Cannot be than
Designated area primary secondary classified national
standards standards standards
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Morenci:
T3S, R28E \2\.............................................. .......... .......... ........... x
T3S, R29E.................................................. .......... .......... ........... x
T3S, R30E.................................................. .......... .......... ........... x
T4S, R28E \2\.............................................. .......... .......... ........... x
T4S, R29E.................................................. .......... .......... ........... x
T4S, R30E.................................................. .......... .......... ........... x
T5S, R28E \2\.............................................. .......... .......... ........... x
T5S, R29E \2\.............................................. .......... .......... ........... x
T5S, R30E.................................................. .......... .......... x
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * * * *
\2\ That portion in Greenlee County.
* * * * *
[FR Doc. 04-9277 Filed 4-23-04; 8:45 am]
BILLING CODE 6560-50-P