Federal Register / Vol. 69, No. 80 / Monday, April 26, 2004 / Rules and Regulations 22447

III. 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. 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 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 section 

307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds.

Dated: April 12, 2004. 

Wayne Nastri, 

Regional Administrator, Region IX.

■ Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is 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 F—California

■ 2. Section 52.220 is amended by 

adding paragraph (c)(324) to read as 

follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * * 

(324) Amended regulation for the 

following AQMD was submitted on 

April 1, 2004, by the Governor’s 

designee. 

(i) Incorporation by reference. 

(A) South Coast Air Quality 

Management District. 

(1) Rule 1132, adopted on January 19, 

2001 and amended on March 5, 2004.

[FR Doc. 04–9282 Filed 4–23–04; 8:45 am] 

BILLING CODE 6560–50–P

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.

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 

22448 Federal Register / Vol. 69, No. 80 / Monday, April 26, 2004 / Rules and Regulations 

1For 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.

2The 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.

Office (AIR–2), U.S. Environmental 

Protection Agency, Region 9, 75 

Hawthorne Street, San Francisco, CA 

94105. Telephone: (520) 622–1622. Email: tax.wienke@epa.gov. Comments 

may also be submitted through the 

Federal Register Web site at http://

www.regulations.gov. We prefer 

electronic comments. 

You can inspect copies of EPA’s 

Federal Register document and 

Technical Support Document (TSD) at 

our Region 9 office during normal 

business hours (see address above). Due 

to increased security, we suggest that 

you call at least 24 hours prior to 

visiting the Regional Office so that we 

can make arrangements to have 

someone meet you. The Federal 

Register notice and TSD are also 

available as electronic files on EPA’s 

Region 9 Web page at http://

www.epa.gov/region09/air.

You may inspect and copy the 

rulemaking docket for this notice at the 

following location during normal 

business hours. Environmental 

Protection Agency, Region 9, Air 

Division, Air Planning Office (AIR–2), 

75 Hawthorne Street, San Francisco, CA 

94105–3901. 

Copies of the State Implementation 

Plan (SIP) materials are also available 

for inspection at the address listed 

below: Arizona Department of 

Environmental Quality, 1110 W. 

Washington Street, First Floor, Phoenix, 

AZ 85007, Phone: (602) 771–4335.

FOR FURTHER INFORMATION CONTACT:

Wienke Tax, U.S. EPA Region 9, (520) 

622–1622, tax.wienke@epa.gov, or 

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.

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.)

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 copperproducing 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. 

Federal Register / Vol. 69, No. 80 / Monday, April 26, 2004 / Rules and Regulations 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.

Year No. of 24 hour 

exceedances 

1st High

(ppm) 

2nd High

(ppm) 

Annual

average

(ppm) 

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 

1Years 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. 

22450 Federal Register / Vol. 69, No. 80 / Monday, April 26, 2004 / Rules and Regulations 

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 nonsmelter 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 

Federal Register / Vol. 69, No. 80 / Monday, April 26, 2004 / Rules and Regulations 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 

22452 Federal Register / Vol. 69, No. 80 / Monday, April 26, 2004 / Rules and Regulations 

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.

■ 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 D—Arizona

■ 2. Section 52.120 is amended by 

adding paragraph (c)(114) to read as 

follows:

§ 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 

Federal Register / Vol. 69, No. 80 / Monday, April 26, 2004 / Rules and Regulations 22453

Implementation and Maintenance Plan, 

adopted by the Arizona Department of 

Environmental Quality on June 21, 

2002.

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 § 81.303 the SO2 table is amended 

by revising the entry for the Morenci area 

to read as follows:

§ 81.303 Arizona.

* * * * *

ARIZONA–SO2

Designated area 

Does not 

meet

primary 

standards 

Does not 

meet

secondary 

standards 

Cannot be 

classified 

Better than 

national 

standards 

*******

Morenci: 

T3S, R28E2 .................................................................................................................... .................. .................. .................... x 

T3S, R29E ....................................................................................................................... .................. .................. .................... x 

T3S, R30E ....................................................................................................................... .................. .................. .................... x 

T4S, R28E2 .................................................................................................................... .................. .................. .................... x 

T4S, R29E ....................................................................................................................... .................. .................. .................... x 

T4S, R30E ....................................................................................................................... .................. .................. .................... x 

T5S, R28E2 .................................................................................................................... .................. .................. .................... x 

T5S, R29E2 .................................................................................................................... .................. .................. .................... x 

T5S, R30E ....................................................................................................................... .................. .................. x 

*******

*******

2That portion in Greenlee County. 

* * * * *

[FR Doc. 04–9277 Filed 4–23–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[FRL–7652–9] 

National Oil and Hazardous 

Substances Contingency Plan; 

National Priorities List Update

AGENCY: Environmental Protection 

Agency.

ACTION: Notice of partial deletion of the 

West Virginia Ordnance Works Site 

from the National Priorities List. 

SUMMARY: The Environmental Protection 

Agency (EPA) Region III announces the 

partial deletion of portions of the West 

Virginia Ordnance Works (WVOW) site 

from the National Priorities List (NPL). 

The NPL constitutes appendix B of 40 

CFR part 300, which is the National Oil 

and Hazardous Substances Contingency 

Plan (NCP), which EPA promulgated 

pursuant to section 105 of the 

Comprehensive Environmental 

Response, Compensation and Liability 

Act of 1980 (CERCLA), as amended. 

EPA and the State of West Virginia have 

determined that all appropriate 

responses under CERCLA have been 

implemented at the portions of the site 

being deleted from the NPL and that no 

further cleanup by responsible parties is 

appropriate. Moreover, EPA and the 

State of West Virginia have determined 

that response actions conducted at the 

site to date remain protective of public 

health, welfare, and the environment.

DATES: Effective Date: April 26, 2004.

ADDRESSES: Comprehensive information 

on this release is available for viewing 

at the site information repositories at the 

following locations:

Mason County Public Library, 508 

Viand Street, Point Pleasant, WV 

25550, (304) 675–0894. Hours of 

Operation: Monday through 

Thursday, 10 a.m.–8 p.m., and Friday 

through Saturday, 10 a.m.–5 p.m. 

U.S. EPA Region III Library, 1650 Arch 

Street, Philadelphia, PA 19103–2029, 

(215) 814–5254. Hours of Operation: 

Monday through Friday, 8 a.m.–5 

p.m. 

U.S. Army Corps of Engineers, 

Huntington District, 502 8th Street, 

Huntington, WV 25701, (800) 822–

8413 or (304) 399–5388. Hours of 

Operation: Monday through Friday, 8 

a.m.–4:30 p.m.

FOR FURTHER INFORMATION CONTACT: Mr. 

Jack Potosnak, PE, Remedial Project 

Manager, U.S. EPA Region III (3HS13), 

1650 Arch Street, Philadelphia, PA 

19103–2029, (215) 814–3362.

SUPPLEMENTARY INFORMATION: The 

portions of the site to be deleted from 

the NPL are the Operable Unit 10 (OU–

10) South Acids Area, Cooling Tower 

Area, and Toluene Storage Areas; the 

Expanded Site Investigation 1 (ESI–1) 

Magazine Area; the ESI–4 Red Water 

Outfall Sewer; the ESI–6 Motorpool/

Maintenance Area; and the ESI–7 

Former Sewage Treatment Plant. 

A Notice of Intent to Delete for this 

site was published March 3, 2004 (69 FR 

9988). The closing date for comments on 

the Notice of Intent to Delete was April 

2, 2004. EPA received no comments. 

EPA identifies releases which appear 

to present a significant risk to public 

health, welfare, or the environment, and 

it maintains the NPL as the list of those 

releases. Releases on the NPL may be 

the subject of remedial actions financed 

by the Hazardous Substance Superfund. 

Any release deleted from the NPL 

remains eligible for Fund-financed 

remedial actions in the unlikely event 

that conditions at the site warrant such 

action. Section 300.425(e)(3) of the NCP 

states that Fund-financed actions may 

be taken at sites deleted from the NPL. 

Deletion of a site from the NPL does not 

affect responsible party liability or 

impede agency efforts to recover costs 

associated with response efforts.

List of Subjects in 40 CFR Part 300 

Environmental protection, Chemicals, 

Hazardous substances, Hazardous 

waste, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Superfund.

Dated: April 15, 2004. 

Richard J. Kampf, 

Acting Regional Administrator, U.S. 

Environmental Protection Agency, Region III.

[FR Doc. 04–9286 Filed 4–23–04; 8:45 am] 

BILLING CODE 6560–50–P