[Federal Register Volume 69, Number 80 (Monday, April 26, 2004)]
[Rules and Regulations]
[Pages 22447-22453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9277]


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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: [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 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, [email protected], or 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