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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Parts 52 and 81
EPA ID: [EPA-R09-OAR-2005-AZ-0008; FRL-8022-5]
NOTICE: RULES
ACTION: Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas:
DOCUMENT ACTION: Direct final rule.
SUBJECT CATEGORY: Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Arizona
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.
DOCUMENT 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
(SO
SUMMARY: Arizona,
SUPPLEMENTAL 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 SO
[[Page 9942]]
E. What Are the Applicable Provisions for SO
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
SO
\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 SO
II. Introduction
A. What National Ambient Air Quality Standards Are Considered in Today's Rulemaking?
The subject of this action is SO
SO
There are both short and longterm primary NAAQS for
SO
\2\ The secondary SO
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 SO
The details of the initial designation of the Douglas
SO
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
SO
3. What Is the Current Status of the Area?
Currently, there are no operating ambient SO
D. What Are the Applicable CAA Provisions for SO
The air quality planning requirements for SO
1. What Statutory Provisions Apply?
Douglas is subject to the requirements of subpart 1 of Part D of title I of the CAA (Sections 171179B). 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 SO
Guidance on SO
Our historic redesignation policy for SO
(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 SO
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''.
\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.
2. Does the Area Qualify for Review Under the Seitz Memo?
a. Were the Area's Violations Caused by a Major Point Source of SO
As discussed above, the only major source of SO
[[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 SO
Totals............................................. 330,114.18 826.88 842.97 \a\ Source: ADEQ ``2005 Supplement'', Attachment 6.
(2) Modeling. The basic modeling requirements for redesignation of
SO
ADEQ used the EPArecommended SCREEN3 dispersion model to estimate
SO
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
SO
There have been no monitored or modeled SO
(3) Permitting of New Sources. For the Douglas SO
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. R93304 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 PM10 was approved into the SIP
effective May 3, 1983 (48 FR 19878). The federal PSD program for PM10
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 SO
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
SO
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 SO
1. Has the Area Attained the 24hour and Annual SO
As discussed above, the normal prerequisite for redesignation is
submittal of qualityassured ambient data with no violations of the
SO
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 fullyapproved 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
SO
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
SO
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 preexisting 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. 1044).
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.
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations are amended as follows:
PART 52[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart DArizona
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 SupplementDouglas Sulfur Dioxide (SO
(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]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 81.303 the table entitled ``ArizonaSO
* * * * *
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. 061850 Filed 22706; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT Wienke Tax, U.S. EPA Region 9, (520) 6221622, tax.wienke@epa.gov, or http://www.epa.gov/region09/air/actions.
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