[Federal Register Volume 71, Number 39 (Tuesday, February 28, 2006)]
[Rules and Regulations]
[Pages 9941-9947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1850]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R09-OAR-2005-AZ-0008; FRL-8022-5]
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 Douglas area in
Cochise 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 action will be effective on May 1, 2006, without further
notice, unless EPA receives adverse comments by March 30, 2006.
If we receive such comments, we will publish a timely withdrawal in
the Federal Register to notify the public that this rule will not take
effect and that we will respond to submitted comments and take
subsequent final action.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2005-AZ-0008, by one of the following methods:
1. Agency web site: http://www.regulations.gov. EPA prefers
receiving comments through this electronic public docket and comment
system. Follow the on-line instructions to submit comments.
2. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions.
3. E-mail: [email protected].
4. Mail or deliver: Wienke Tax, Office of Air Planning (AIR-2),
U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street,
San Francisco, CA 94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through the
agency Web site, eRulemaking portal, or e-mail. The agency Web site and
eRulemaking portal are ``anonymous access'' systems, and EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send e-mail directly to EPA, your e-mail
address will be automatically captured and included as part of the
public comment. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment.
Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region 9, 75 Hawthorne Street, San Francisco, California. 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 in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Wienke Tax, U.S. EPA Region 9, (520)
622-1622, [email protected], or www.epa.gov/region09/air/actions.
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``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 (SIP)?
C. What Is the Background for This Action?
D. What Are the Applicable CAA Provisions for SO2
Nonattainment Area Plans?
[[Page 9942]]
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 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 Douglas
SO2 nonattainment area.\1\ We are also approving the State
of Arizona's request to redesignate the Douglas area from nonattainment
to attainment for the primary SO2 NAAQS.
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\1\ For the definition of the Douglas nonattainment area, see 40
CFR 81.303. On March 3, 1978, EPA designated the entire area of
Cochise County as nonattainment for SO2 for lack of a
State recommendation. On April 10, 1979, EPA approved Arizona's
request that the SO2-affected portion of Cochise County
be limited to three townships surrounding Douglas (44 FR 21261).
Townships T23S, R27E; T24S, R27E; and T24S, R28E comprise the
nonattainment area. Townships T23S, R26E; T23S, R28E; and T24S, R26E
are designated as ``cannot be classified''. Douglas is a town in
southern Cochise County near the Mexican border.
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II. Introduction
A. What National Ambient Air Quality Standards Are Considered in
Today's Rulemaking?
The subject of this action is SO2. 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 health-based standards.
SO2 causes adverse health effects: 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 Douglas area is not classified
as nonattainment for the secondary SO2 standard, and this
action relates only to the primary NAAQS.
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B. What Is a State Implementation Plan (SIP)?
The Clean Air Act (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
approved 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 a SIP submittal such as the one we are
addressing 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, rendering the rules and regulations federally enforceable if
and when we approve them. The approved SIP serves as the state's
commitment to take actions that will reduce or eliminate air quality
problems. Any subsequent proposals to revise the SIP must go through
the formal EPA 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 Douglas Reduction Works Smelter (PDDRWS) operation
was the largest SO2 point source in the Douglas
nonattainment area during its operation. PDDRWS was located 1.5 miles
west of Douglas.
The details of the initial designation of the Douglas
SO2 nonattainment area are provided in footnote 1 in this
Federal Register action. 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 Douglas area
remained nonattainment for the primary SO2 NAAQS following
enactment of the 1990 CAA Amendments on November 15, 1990.
2. How Has the SIP Addressed CAA Provisions?
Arizona submitted a 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. The PDDRWS smelter closed in 1987 and was
dismantled in 1991. In December of 2001, ADEQ submitted a redesignation
request and maintenance plan to us.
3. What Is the Current Status of the Area?
Currently, there are no operating ambient SO2 monitors
in the Douglas area. Since the smelter was by far the largest source of
SO2 in the area, it was not necessary to continue monitoring
for this pollutant once the source was permanently shut down. We do not
expect the cumulative impact of the minor sources of SO2 in
and around Douglas to cause a violation of the NAAQS. A few new minor
sources have located in the area but the smelter was the obvious cause
of past violations.
D. What Are the Applicable 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
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?
Douglas is subject to the requirements of subpart 1 of Part D of
title I of the CAA (Sections 171-179B). Section 172
[[Page 9943]]
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 contingency provisions that
are 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.
2. What General EPA Guidance Applies to Maintenance Plans?
General guidance on maintenance plans and redesignation requests is
provided in 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
SO2 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 December 14, 2001, ADEQ submitted to EPA the ``Douglas Sulfur
Dioxide 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. In electronic mail
correspondences dated March 8, 2002, and August 21, 2002, we asked the
state for additional information on emissions inventories and modeling.
On May 12, 2003 and April 2, 2004 Arizona submitted additional and
revised technical information to EPA to support its redesignation
request. A further revision was submitted on September 16, 2005. The
2003 submittal was withdrawn on November 21, 2005, as it was wholly
replaced by the 2004 and 2005 submittals.\3\ We will refer to the
original submittal as the ``Douglas maintenance plan'' and the
additional submittals as the A2004 Supplement'' and the A2005
Supplement''.
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\3\ See letter from Stephen A. Owens, Director, Arizona
Department of Environmental Quality, to Wayne Nastri, Regional
Administrator, EPA Region 9, dated November 21, 2005.
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2. Does the Area Qualify for Review Under the Seitz Memo?
a. Were the Area's Violations Caused by a Major Point Source of
SO2 Emissions That Is No Longer in Operation?
As discussed above, the only major source of SO2
emissions within the Douglas nonattainment area was the Phelps Dodge
Douglas Incorporated (PDDRWS) copper smelter, which ceased operation in
1987. The last recorded 24-hour or annual average exceedances of the
primary NAAQS at PDDRWS occurred in 1986, the last year of extensive
monitoring. All but one monitor was removed before 1987 and all the
remaining monitors owned and operated by Phelps Dodge and by ADEQ in
the vicinity of the PDDRWS smelter were removed by 1988. The smelter
operating permits expired, the smelting equipment was removed over a
period of years, and the smelter was completely dismantled by 1991. No
new sources of SO2 of the magnitude of PDDRWS have located
in the area. Thus, Douglas meets this criterion for review under the
Seitz Memo.
[[Page 9944]]
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 Douglas nonattainment area. These were updated in
the ``2005 Supplement'', based on new emissions and location
information for two plants in neighboring Mexico. Projected emissions
for 2015 were also corrected in the ``2005 Supplement'' for area,
mobile, and the four existing point sources located within the
nonattainment area. For a representative year when the copper smelter
was in operation (1985), direct SO2 emissions from smelting
operations were over 330,000 tons per year (tpy). ADEQ identified
826.88 tpy of SO2 emissions in, or within 50 kilometers (km)
of, the nonattainment area in 1999 based on actual emissions, and ADEQ
projected 842.97 tpy SO2 emissions based on actual emissions
in, or within 50 kilometers of, Douglas in the 10th year after
redesignation (2015). Table 1 presents a summary of actual
SO2 emissions for 1985, 1999, and projected actual emissions
for 2015. We conclude that the inventories are complete, accurate, and
consistent with applicable CAA provisions and the Seitz Memo.
Table 1.--Actual SO2 Emissions Inventories for 1985, 1999, and 2015 for the Douglas Nonattainment, Unclassified,
and 50 km Boundary Areas (in tpy) a
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Source category 1985 1999 2015
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Point Sources.......................................... 330,021.16 746.62 747.03
Area and Mobile Sources................................ 93.02 80.26 95.94
Totals............................................. 330,114.18 826.88 842.97
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\a\ Source: ADEQ ``2005 Supplement'', Attachment 6.
(2) Modeling. The basic modeling requirements for redesignation of
SO2 nonattainment areas lacking current monitoring data are
(1) modeling of sources in the nonattainment area and a 50 km buffer
zone, showing that concentrations meet the NAAQS for (a) a current year
and (b) for 10 years into the future, and (2) a showing that past
monitored violations were due to sources that have since shut down.
ADEQ used the EPA-recommended SCREEN3 dispersion model to estimate
SO2 impacts due to sources in and within 50 km of the
nonattainment area. SCREEN3 gives a conservatively high estimate by
computing concentrations over a range of wind speed, atmospheric
stability, and distance, and then choosing the maximum. For sources
outside the nonattainment area, ADEQ used the modeled impact at the
nonattainment area boundary, which is conservative since impacts
decrease with distance past the first kilometer. Since SCREEN3 is a
single-source model, results from multiple runs must be combined to get
the total impact for comparison to the NAAQS. The most conservative way
to do this is the approach ADEQ used, adding up the maxima from the
individual source modeling. (The Agua Prieta power plant in Mexico was
modeled separately for an Environmental Assessment Report, included in
the SIP submittal. Its impacts were scaled up to reflect expected
operations through 2015, and added to the total impacts.) Thus the ADEQ
estimates are conservative in multiple ways: They assume that emissions
occur all the time, that worst-case meteorology occurs all the time,
and that the individual source maxima all coincide in space.
One way in which the ADEQ modeling was potentially not conservative
was in its assumption of simple terrain. Terrain with elevations above
stack height, i.e., ``complex terrain'', can sometimes experience
higher impacts than simple terrain. The Perilla Mountains appear to
abut the east edge of the nonattainment area. EPA assessed their effect
by rerunning SCREEN3 using its complex terrain option (including the
Agua Prieta power plant). Terrain height was assumed to be the same as
the plume height, to maximize modeled potential impacts. In this case,
the complex terrain impacts were lower than the simple terrain
algorithm, so the ADEQ results continue to represent a conservative
estimate.
ADEQ's SCREEN3 analysis was carried out for both current 1999
emissions, and for emissions projected to 2015 (the latter was based on
historic trends for some sources, and on ``Potential to Emit'' for
others). For both current and future years, the sum of all source
impacts and monitored background levels is well below the
SO2 NAAQS. For 3-hour, 24-hour, and annual standards, the
conservatively high modeled impacts are 39%, 63%, and 59% of the NAAQS,
respectively. This demonstrates attainment of the NAAQS both currently
and for the future.
There have been no monitored or modeled SO2 NAAQS
violations since the end of operations at the PDDRW smelter. The
smelter's potential emissions of over 400,000 tons per year were over
100 times the total of the current sources combined. The smelter caused
NAAQS exceedances when modeled with SCREEN3. Since monitored and
modeled NAAQS exceedances occur only with smelter operation, it is
reasonable to conclude that the historical NAAQS violations were caused
by the smelter, and not by existing sources. This shows that, even
without current monitoring data, with the dismantling of the smelter,
the sole cause of NAAQS exceedances no longer exists, and the NAAQS is
protected.
(3) Permitting of New Sources. For the Douglas 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
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
A.A.C. 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
[[Page 9945]]
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 Douglas 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 Douglas area once the area is
redesignated to attainment. The ADEQ commitment to treat any major
source in or near Douglas 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 on page 7.2 of the December 2001
maintenance plan 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 Douglas 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 most existing sources. Should
an existing facility want to upgrade or increase SO2
emissions, the facility would be subject to the PSD program, and
required to undergo preconstruction review and to apply BACT. Should a
new facility be constructed in the Douglas area, the facility would be
subject to PSD as required in the Calcagni memo, as well as to A.A.C.
R18-2-406, Permit Requirements for Sources Located in Attainment and
Unclassifiable Areas, after redesignation.
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 Douglas
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. 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 a 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. Douglas is such an area, and the
State has submitted convincing evidence that no major stationary
sources of SO2 emissions remain in operation in or within 50
kilometers of the area that might cause a violation of the
SO2 NAAQS in this area.
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 Douglas were 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
Douglas 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 primary cause of past
SO2 NAAQS violations (the Phelps Dodge copper smelter in
Douglas) no longer 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 Douglas Maintenance
Plan in this action.
IV. Final Action
We are approving the maintenance plan for the Douglas area under
CAA Sections 110 and 175A. We are also approving the State's request to
redesignate the Douglas area to attainment of the primary
SO2 NAAQS.
We are publishing this action without prior proposal because we do
not view this as a controversial amendment and do not anticipate
adverse comments. However, in the proposed rules section of this
Federal Register publication, we
[[Page 9946]]
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 May 1, 2006 without
further notice unless relevant adverse comments are received by March
30, 2006. 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 May 1, 2006.
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 May 1, 2006. 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
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: December 27, 2005.
Jane Diamond,
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 paragraphs (c)(126), (c)(127)
and (c)(128) to read as follows:
Sec. 52.120 Identification of plan.
* * * * *
(c) * * *
(126) The following plan was submitted on December 14, 2001, by the
Governor's designee.
(i) Incorporation by reference.
(A) Arizona Department of Environmental Quality.
(1) Douglas Sulfur Dioxide Nonattainment Area State Implementation
and Maintenance Plan, dated November 29, 2001, adopted by the Arizona
Department of Environmental Quality on December 14, 2001.
(127) The following plan was submitted on April 2, 2004, by the
Governor's designee.
(i) Incorporation by reference.
(A) Arizona Department of Environmental Quality.
(1) Modeling Supplement--Douglas Sulfur Dioxide (SO2)
State Implementation and Maintenance Plan, adopted by the Arizona
Department of Environmental Quality on April 2, 2004.
(128) The following plan was submitted on September 16, 2005, by
the Governor's designee.
(i) Incorporation by reference.
(A) Arizona Department of Environmental Quality.
(1) Modeling and Emissions Inventory Supplement for the Douglas
Sulfur
[[Page 9947]]
Dioxide Nonattainment Area State Implementation and Maintenance Plan
and Redesignation Request, dated September 2005, adopted by the Arizona
Department of Environmental Quality on September 16, 2005.
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 table entitled ``Arizona--SO2'' is
amended by revising the entry for the Douglas area to read as follows:
Sec. 81.303 Arizona.
* * * * *
Arizona.--SO2
----------------------------------------------------------------------------------------------------------------
Does not meet Does not meet Better than
Designated area primary secondary Cannot be national
standards standards classified standards
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Douglas:
T23S, R27E.............................. ............... ............... ............... x
T24S, R27E.............................. ............... ............... ............... x
T24S, R28E.............................. ............... ............... ............... x
T23S, R26E.............................. ............... ............... x ...............
T23S, R28E.............................. ............... ............... x ...............
T24S, R26E.............................. ............... ............... x ...............
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 06-1850 Filed 2-27-06; 8:45 am]
BILLING CODE 6560-50-P