[Federal Register Volume 68, Number 212 (Monday, November 3, 2003)]
[Rules and Regulations]
[Pages 62239-62245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27263]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[AZ 115-0058a; FRL-7573-9]


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 Ajo area in Pima 
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 January 2, 2004, without further notice, 
unless we receive adverse comments by December 3, 2003. If EPA receives 
adverse comments, we will publish a timely withdrawal of the rule in 
the Federal Register and inform the public that this rule will not take 
effect.

ADDRESSES: Comments should be mailed or emailed to Wienke Tax, Office 
of Air Planning (AIR-2), U.S. Environmental Protection Agency, Region 
9, 75 Hawthorne Street, San Francisco, CA 94105-3901, 
[email protected]. 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 IX 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

[[Page 62240]]

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, [email protected], 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, the words ``we,'' ``us,'' or ``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 Ajo SO2 
nonattainment area.\1\ We are also approving the State of Arizona's 
request to redesignate the Ajo area from nonattainment to attainment 
for the primary SO2 NAAQS.
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    \1\ For the definition of the Ajo nonattainment area, see 40 CFR 
81.303. EPA designated the entire area of Pima 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 Pima County be limited to the 
townships surrounding Ajo on April 10, 1979 (44 FR 21261). Townships 
T11S,R6W; T11S, R5W; T12S, R6W; T12S, R5W; and T13S, R6W comprise 
the nonattainment area. Townships T11S, R7W; T12S, R7W; T13S, R5W; 
and T13S, R7W are designated as ``cannot be classified.'' Ajo is a 
town in Pima County in the southwestern portion of Arizona.
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II. Introduction

A. What National Ambient Air Quality Standards Are Considered in 
Today's Rulemaking?

    Sulfur dioxide (SO2) is the pollutant that is the 
subject of this action. The NAAQS are health-based and welfare-based 
standards for certain ambient air pollutants. 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 Ajo 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?
    Phelps Dodge Mining Company's Ajo Incorporated (PDAI) operation was 
the largest point source in the Ajo nonattainment area. The PDAI copper 
smelter was situated at the eastern end of the Little Ajo Mountains.
    On March 3, 1978, at 43 FR 8968, for lack of a state 
recommendation, we designated Pima County as a primary SO2 
nonattainment area based on monitored violations of the primary 
SO2 NAAQS in the area between 1975 and 1977. At the request 
of the Arizona Department of Environmental Quality (ADEQ), the 
nonattainment area was subsequently reduced to five townships in and 
around Ajo on April 10, 1979 (44 FR 21261). As a result, townships 
T11S, R6W; T11S, R5W; T12S, R6W; T12s, R5W; and T13S, R6W make up the 
nonattainment area. Townships T11S, R7W; T12S, R7W; T13S, R7W; and 
T13S, R5W are classified as ``cannot be classified'' areas.
    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 Ajo 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 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.

[[Page 62241]]

3. What Is the Current Status of the Area?

    On April 4, 1985, the PDAI smelter was permanently deactivated. 
Dismantling of the Ajo facility began in 1995. By February of 1996, the 
facility was completely dismantled. On October 15, 1997, ADEQ confirmed 
that the facility was dismantled and no longer existed at the former 
site. The area remains sparsely settled, and there are only minor 
industrial or commercial activities in or near the nonattainment area 
that produce small quantities of SO2 emissions. The only 
point source consists of several generators run by Phelps Dodge which 
have a potential to emit (PTE) of 49.2 tons per year (tpy) of 
SO2. The ADEQ submission also included emissions from a 
proposed Gila Bend regional landfill, which was expected to have a PTE 
of 24.1 tpy of S02 when built. Because of their potential emissions, 
ADEQ classified these two sources as point sources. The Phelps Dodge 
generators are used only as a backup energy source, have emitted less 
than 1 tpy of SO2 for the past five years of operation, and 
are not expected to emit more than 1.2 tpy of SO2 in 2015. 
The landfill has not been built, and we were informed by the State on 
August 8, 2003 that the permit for the landfill was terminated by the 
permittee on August 28, 2002.
    Currently, there are no operating ambient SO2 monitors 
in the Ajo area. However, we do not expect the cumulative impact of the 
sources in and around Ajo to cause a violation of the NAAQS because 
their emissions are so low. No significant new sources have located in 
the area, another reason why our action today is appropriate.

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. Ajo 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.
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 monitored ambient 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.

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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 18, 2002, ADEQ submitted to EPA the ``Ajo Sulfur Dioxide 
Nonattainment Area, State Implementation and Maintenance Plan'' and a 
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 Ajo nonattainment area was the Phelps Dodge Mining 
Company's Ajo Incorporated (PDAI) copper smelter, which ceased 
operation in 1985. The last recorded 24-hour or annual average 
exceedances of the primary NAAQS at PDAI occurred in 1984. During the 
monitoring network's history, annual average SO2 levels were 
generally one half of the current NAAQS standard (0.030 ppm). ADEQ 
removed the SO2 monitor in 1985, the smelter operating 
permits expired, the smelting equipment was removed over a period of 
years, and the smelter was completely dismantled by February 1996. No 
new sources of SO2 of the magnitude of PDAI have located in 
the area. Thus, Ajo 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 Ajo nonattainment area. For a representative year 
when the copper smelter was in operation (1981), direct SOx 
emissions from smelting operations were 39,596 tpy. The ADEQ submittal 
identifies only a single existing point source within the Ajo Area, the 
Phelps Dodge Generator Station, with 2000 SO2 emissions of 
about 1 tpy, and 2015 projected emissions of 1.2 tpy. Phelps Dodge has 
only operated the generators as emergency/back up electric supply in 
recent years. The ADEQ submittal also identified the proposed Gila Bend 
Landfill, and projected its emissions at 29.7 tpy in 2015.\3\ We 
conclude that the inventories are complete, accurate, and consistent 
with applicable CAA provisions and the Seitz Memo.
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    \3\ Since its original submission, ADEQ has informed EPA that 
the Gila Bend Regional Landfill permit was terminated by the 
permittee on August 28, 2002, and this proposed source was never 
constructed.
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    (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. Screening dispersion modeling was 
performed with SCREEN3 using conservative assumptions about source 
parameters and the meteorology. The modeling indicated that the 
existing and then-proposed (Gila Landfill) sources would likely have an 
impact of about 66 percent of any of the SO2 standards.
    The 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 emission controls 
were placed on the smelter, 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 Ajo SO2 
nonattainment area, the nonattainment area new source review 
(NSR)permit program responsibilities are shared by ADEQ and Pima 
Department of Environmental Quality (PDEQ). ADEQ administers the 
preconstruction review and permitting provisions of Arizona 
Administrative Code, Title 18, Chapter 2, Articles 3 and 4. PDEQ 
administers the NSR program under Pima County Code, Title 17, Chapter 
17.12 and Chapter 17.16, Article VIII. 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 
and PDEQ NSR rules.
    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 Ajo does not rely on nonattainment NSR. 
Prevention of Significant Deterioration (PSD) is the replacement for 
NSR in attainment areas, 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 and PDEQ have PSD permitting programs (A.A.C. R18-2-406 and 
Pima County Code (PCC) 17.16.590) that were 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 19879). The federal PSD program 
for PM-10 was delegated to the State on March 12, 1999. Pima's PSD 
program (for all criteria pollutants) was delegated effective April 14, 
1994. 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 
Ajo area once the area is redesignated to attainment. The ADEQ and PDEQ 
commitments to treat any major source in or near Ajo as ``new'' under 
the PSD program satisfies the preconstruction permit provision of the

[[Page 62243]]

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. This addresses the monitoring provision of the Seitz Memo.

B. 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 Ajo 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 Ajo 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 Ajo 
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. We believe that the State and County's 
PSD permitting program is sufficient to track future air quality trends 
and to assure that the Ajo area will not violate the NAAQS. If either 
the State or the County identifies the potential for a NAAQS violation 
through the permitting process, they would ascertain what measures 
would be needed to avoid the violation.

C. 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. Ajo 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. We do 
not believe that, even in the aggregate, the remaining minor sources 
which are present would 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 Ajo 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 
Ajo 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 
Ajo) 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 Ajo Maintenance Plan 
in this action.

IV. Final Action

    We are approving the Maintenance Plan for the Ajo area under CAA 
Sections 110 and 175A. We are also approving the State's request to 
redesignate the Ajo 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 January 2, 2004 without further notice unless relevant 
adverse comments are received by December 3, 2003. 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 January 2, 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

[[Page 62244]]

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 (Public Law 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. section 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. 
section 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 January 2, 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 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: September 25, 2003.
Deborah Jordan,
Acting Regional Administrator, Region 9.

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)(111) to read as 
follows:


Sec.  52.120  Identification of plan.

* * * * *
    (a) * * *
    (111) The following plan was submitted on June 18, 2002, by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Department of Environmental Quality.
    (1) Ajo Sulfur Dioxide State Implementation and Maintenance Plan, 
adopted by Arizona Department of Environmental Quality on June 18, 
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 Ajo 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ajo (T11-13S, R5W-R6W).........................................................  ................  ................  ................                 x
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 62245]]

* * * * *
[FR Doc. 03-27263 Filed 10-31-03; 8:45 am]
BILLING CODE 6560-50-P