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Federal Register/Vol. 73, No. 13/Friday, January 18, 2008 /Rules and Regulations

Dated: November 29, 2007.

Wayne Nastri,

Regional Administrator, Region IX.

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

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

n 1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart DD-Nevada

* 2: Section 52.1470 is amended by

adding paragraph (c)(65) to read as

follows:

§52.1470 Identification of plan.

(c) * * *

(65) The following plan was

submitted on May 30, 2007 by the

Governor's designee.

(i) Incorporation by reference.

(A) Washoe County District Health

Department, Air Quality Management

Division.

(1) Maintenance Plan for the Washoe

County 8-Hour Ozone Attainment Area

(April 2007), Washoe County District

Health Department, excluding

appendices.

[FR Doc. E8-743 Filed 1-17-08; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[EPA-R09-OAR-2006-0214; FRL-8514-7]

Approval and Promulgation of Air

Quality Implementation Plans;

Designation of Areas for Air Quality

Planning Purposes; Arizona; San

Manuel Sulfur Dioxide State

Implementation Plan and Request for

Redesignation to Attainment

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final

action under the Clean Air Act to

approve the Final State Implementation

Plan Revision, San Manuel Sulfur

Dioxide Nonattainment Area, March

2007 as a revision to the Arizona state

implementation plan. The Arizona

Department of Environmental Quality

developed this plan to maintain the

sulfur dioxide national ambient air

quality standards in the San Manuel,

Arizona area and to request

redesignation of the area to attainment.

The maintenance plan contains various

elements, including contingency

provisions that will be implemented if

measured ambient concentrations of

sulfur dioxide are above certain trigger

levels. EPA is also approving the State

of Arizona's request for redesignation of

the San Manuel area from

nonattainment to attainment for the

sulfur dioxide standards.

EPA is taking these actions consistent

with provisions in the Clean Air Act

that obligate the Agency to approve or

disapprove submittals of revisions to

state implementation plans and requests.

for redesignation. The intended effect is

to redesignate the San Manuel, Arizona

sulfur dioxide nonattainment area to

attainment, and to provide for

maintenance of the standard for the tenyear period following redesignation.

DATES: This rule is effective on March

18, 2008 without further notice, unless

EPA receives adverse comments by

February 19, 2008. If we receive such

comments, we will publish a timely

withdrawal in the Federal Register to

notify the public that this direct final

rule will not take effect.

ADDRESSES: Submit comments,

identified by docket number EPA-R09-

OAR-2006-0214, by one of the

following methods:

1. Federal eRulemaking Portal:

www.regulations.gov. Follow the on-line

instructions.

2. E-mail: robin.marty@epa.gov.

3. Mail or deliver: Marty Robin (Air2), U.S. Environmental Protection

Agency Region IX, 75 Hawthorne Street,

San Francisco, CA 94105-3901.

'Instructions: All comments will be

included in the public docket without

change and may be made available

online at www.regulations.gov,

including any personal information

provided, unless the comment includes

Confidential Business Information (CBI)

or other information whose disclosure is

restricted by statute. Information that

you consider CBI or otherwise protected

should be clearly identified as such and

should not be submitted through the

www.regulations.gov or e-mail.

www.regulations.gov is an "anonymous

access" system, and EPA will not know

your identity or contact information

unless you provide it in the body of

your comment. If you send e-mail

directly to EPA, your e-mail address

will be automatically captured and

included as part of the public comment.

If EPA cannot read your comment due

to technical difficulties and cannot

contact you for clarification, EPA may

not be able to consider your comment.

Docket: The index to the docket for

this action is available electronically at

www.regulations.gov and in hard copy

at EPA Region IX, 75 Hawthorne Street,

San Francisco, California. While all

documents in the docket are listed in

the index, some information may be

publicly available only at the hard copy

location (e.g., copyrighted material), and

some may not be publicly available in

either location (e.g., CBI). To inspect the

hard copy materials, please schedule an

°appointment during normal business

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Marty Robin, Air Planning Office, (415)

972-3961 or by e-mail at

robin.marty@epa.gov.

SUPPLEMENTARY INFORMATION: Elsewhere

in this Federal Register, we are

proposing approval and soliciting'

written comment on this action.

Throughout this document, the words

we, "us," or "our" mean U.S. EPA.

Table of Contents

I. Summary of Today's Direct Final Action

II. Introduction

A. The SO 2 NAAQS

B. State Implementation Plans (SIPs)

C. History of SO 2 Planning in Arizona

1. Development of the SO2 SIP

2. San Manuel SO 2 Nonattainment Area

D. Sources of SO2 Emissions in the San

Manuel Area

III. CAA Requirements for Redesignation

Requests and Maintenance Plans

IV. EPA's Evaluation of the Redesignation

Request and Maintenance Plan for the

San Manuel, Arizona SO2 Nonattainment

Area

A. The Area Must Be Attaining the SO2

NAAQS

B. The Area's Applicable Implementation

Plan Must Be Fully Approved Under

Section-110(k)

C. The Improvement in Air Quality Must

Be Due to Permanent and Enforceable

Reductions in Emissions

D. The Area Must Have Met All Applicable

Requirements Under Section 110 and

Part D

1. Section 110 Requirements

2. Part D Requirements

E. The Area Must Have a Fully Approved

Maintenance Plan

1. Attainment Emissions Inventory

2. Maintenance Demonstration

3. Monitoring Network

4. Verification of Continued Attainment

5. Contingency Plan

6. Subsequent Maintenance Plan Revisions

7. Conclusion

V. Public Comment and EPA's Final Action

VI. Statutory and Executive Order Reviews

I. Summary of Today's Direct Final

Action

On June 7, 2007, the Arizona

Department of Environmental Quality

("ADEQ" or "State") submitted to EPA

Region IX its Final Arizona State

Implementation Plan Revision, San

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Manuel Sulfur Dioxide Nonattainment

Area, March 2007 and its request for

redesignation to attainment ("San

Manuel SO 2 Maintenance Plan" or "submittal"). The submittal summarizes

the progress the State has made in

attaining the 24-hour and annual

average sulfur dioxide (SO 2) national

ambient air quality standards (NAAQS)

in the San Manuel nonattainment area

in Pima and Pinal Counties, Arizona

("San Manuel area") and includes a

plan to assure continued attainment of

the SO 2 NAAQS for at least the next 10

years. The State's June 2007 submittal

also requested the withdrawal of the

June 2002 Final San Manuel Sulfur

Dioxide Nonattainment Area State

Implementation and Maintenance Plan.

The June 2007 submittal updated the

SIP to account for the closure of the

dominant source of SO2 emissions, the

BHP Billiton copper smelter. The March

2007 SIP revision contains current

information and analyses which

supercede the obsolete information in

the June 2002 SIP.

In today's direct final action, we are

approving ADEQ's June 7, 2007

submittal as a revision to the Arizona

SIP and redesignating the San Manuel

area from nonattainment to attainment

for the SO 2 NAAQS because we find

that the San Manuel SO 2 Maintenance

Plan meets the requirements for

maintenance plans under section 175A

of the Clean Air Act (CAA) and that the

San Manuel area qualifies for

redesignation under CAA section

107(d)(3)(E).

II. Introduction

The following section discusses the

NAAQS for SO 2, CAA requirements for

state implementation plans, SO 2

planning in Arizona generally and in

the San Manuel area more specifically,

and sources of emissions in the San

Manuel area.

A. The S0 2 NAAQS

The NAAQS for SO 2 consists of three

standards: two primary standards for the

protection of public health and a

secondary standard for protection of

public welfare. The primary SO2

standards address 24-hour average and

annual average ambient SO 2

concentrations. The secondary standard

addresses 3-hour average ambient SO 2

concentrations. The level of the annual

SO 2 standard is 0.030 parts per million

(ppm), which is equivalent to 80

micrograms per cubic meter (tg/m3), not

to be exceeded in a calendar year. The

level of the 24-hour standard is 0.14

ppm (365 pg/m3), not to be exceeded

more than once per calendar year. The

level of the secondary SO 2 standard is

a 3-hour standard of 0.5 ppm (1,300 .g/ m 3

), not to be exceeded more than once

per calendar year. See 40 CFR 50.2-

50.5.

B. State Implementation Plans (SIPs)

The CAA requires states to

implement, maintain, and enforce

ambient air quality equal to or better

than the NAAQS. A state's strategies for

implementing, maintaining, and

enforcing the NAAQS are submitted to

EPA for approval, and, once approved,

become part of the State Implementation

Plan (or SIP) for that State. SIPs are

compilations of regulatory and nonregulatory elements adopted, submitted,

and approved at different times to

address various types of changes in

circumstances, such as new or revised

NAAQS or amendments to the CAA.

SIPs include, among other things, the

following: (1) An inventory of emission

soutces; (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 proposed changes to the SIP

available for public review and

comment through a public hearing, and

must formally adopt the changes before

submitting them to EPA for approval.

Upon our approval, a SIP revision

becomes federally enforceable.

C. History of S0 2 Planning in Arizona

1. Development of the SO 2 SIP

* In the early 1970s, soon after the CAA

Amendments of 1970 were passed,

Arizona began developing air quality

regulations that applied to all Arizona

primary copper smelters, including the

one operating at that time in San

Manuel. These regulations focused on

establishing an air quality monitoring

network in the areas surrounding the

smelters and determining the allowable

emission rates from the smelters so that

the SO 2 NAAQS could be attained and

maintained. Arizona submitted various

SIP revisions during the 1970s to

establish approvable emission limits for

the primary copper smelters operating

in the state. On September 20, 1979, the

State submitted its SIP revision to EPA

Which contained its multi-point rollback

(MPR) technique to establish operating

limitations on smelters. After EPA's

proposed conditional approval on

November 30, 1981 (46 FR 58098),

Arizona made necessary changes which

corrected identified deficiencies. EPA

granted full approval of the MPR-based

SIP submittal on January 14, 1983 (48

FR 1717), but was not able to grant full

approval to the SO 2 SIPs for six smelter

areas (including San Manuel) because

they lacked a strategy for addressing

fugitive sources of SO 2.1

On November 1, 2004, EPA approved

several revisions to the SO 2 SIP,

including fugitive emissions standards,

site-specific requirements, and

compliance and monitoring for existing

primary copper smelters. See 69 FR

63321. In that same notice, EPA

promulgated a limited approval/limited

disapproval of Arizona Administrative

Code (AAC) R18-2-Appendix 8, which

sets out procedures for calculating

sulfur emissions using a sulfur balance

method. ADEQ subsequently corrected

the identified deficiencies and EPA

approved the new version of R18-2-

Appendix 8 as a SIP revision on April

12, 2006, effective June 12, 2006. See 71

FR 18624.

2. San Manuel SO 2 Nonattainment Area

Initially, the air quality planning area

we refer to as the San Manuel SO2

nonattainment area comprised all of

Pima and Pinal Counties (43 FR 8969;

March 3, 1978) but at the request of the

State of Arizona, the boundaries were

subsequently reduced to eleven

townships around the primary copper

smelter located near San Manuel (44 FR

21261, April 10, 1979). In addition, four

adjacent townships were designated as

unclassified.2 All but one of the

townships that define the

nonattainment area are located in

southeastern Pinal County, with the

remaining southernmost township

located in neighboring Pima County.

The current boundaries of the

nonattainment and unclassified areas

are codified at 40 CFR 81.303 and are

defined as follows: "Does Not Meet

Primary Standards": T8S, R16E; T8S,

R17E; T8S, R18E; T9S, R15E; T9S, R16E;

T9S, R17E; T9S, R18E; T1OS, R15E;

T10S, R16E; T10S, R17E; T11S, R16E,

and "Cannot Be Classified": T10S,

R18E; TlS, R17E; T12S, R16E; T12S,

R17E.

In June of 2002, ADEQ submitted the

Final San Manuel Sulfur Dioxide

Nonattainment Area State

Implementation and Maintenance Plan

and redesignation request. Since then,

the San Manuel copper smelter, the

"Fugitive" in this context refers to emissions

that could not reasonably pass through a stack,

chimney, vent or a functionally equivalent opening.

2 Following the enactment of the 1990 CAA

Amendments, the San Manuel area was classified

by operation of law as nonattainment for the

primary SO2 standards, effective on November 15,

1990.

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Federal Register/Vol. 73, No. 13/Friday, January 18, 2008/Rules and Regulations

dominant source of emissions in the

area, has permanently ceased operation.

In January 2005, BHP Copper Inc. (BHP

Billiton) notified ADEQ that the

company intended to permanently cease

operating the San Manuel smelter. As

indicated in Appendix B of the current

SIP submittal, in March 2005, ADEQ

terminated the permit for the facility.

The smelter stacks were dismantled in

January 2007. The smelting facility

cannot reopen without submitting New

Source Review (NSR) and Title V (Part

70) permit applications to ADEQ.

D: Sources df S02 Emissions in the San

Manuel Area

Emissions inventories for the San

Manuel Nonattainment Area

demonstrate that, although there were

other sources of SO 2 emissions, the

primary source of SO 2 emissions in the

San Manuel area while it was operating

was the San Manuel smelter, which

comprised more than 99.5 percent of

total SO 2 emissions in the

nonattainment area. Data show that no

other point, area, or mobile sources have

contributed in the past or currently

contribute to the same levels of SO 2

emissions in the San Manuel

Nonattainment Area as those attributed

to the smelter. Figure 4.1 on page 30 of

the SIP illustrates sulfur dioxide -

emissions levels for the San Manuel

smelter from 1972 through 2005.

Implementation of new emissions

control technologies at the smelter in

the mid 1970s and again in the late

1980s are clearly reflected in the

resulting emissions reductions for these

periods. Closure of the smelter reduced

emissions by more than 10,000 tons of

SO2 per year.

M. CAA Requirements for

Redesignation Requests and

Maintenance Plans

Arizona has requested that we

redesignate the San Manuel SO 2

- nonattainment area to attainment. Any

redesignation from nonattainment to

attainment requires EPA to determine

whether the requirements of CAA

section 107(d)(3)(E) have been met.

These criteria are:'(1) At the time of the

redesignation, we must find that the

area has attained the relevant NAAQS;

(2) the state must have a fully approved

SIP for the area; (3) we must determine

that the improvements in air quality are

due to permanent and enforceable

reductions in emissions resulting from

implementation of the SIP and

applicable federal regulations and other

permanent and enforceable reductions;

(4) the state must have met all the

nonattainment area requirements

applicable to the area; and (5) we must

have fully approved a maintenance plan

for the area under CAA.section 175A.

To evaluate the State's redesignation

request for the San Manuel area, we

relied upon the Clean Air Act,

particularly section 110 and part D (of

title I), EPA's NAAQS and SIP

regulations in 40 CFR parts 50 and 51,

and guidance set forth in "General

Preamble for the Implementation of

Title I of the Clean Air Act.Amendments

of 1990" (57 FR 13498, April 16, 1992),

and in the following EPA guidance

documents: "Procedures for Processing

Requests To Redesignate Areas to

Attainment," dated September 4, 1992,

from John Calcagni, ("Calcagni Memo"),

"Attainment Determination Policy for

Sulfur Dioxide Nonattainment Areas,"

dated January 26, 1995, from Sally L.

Shaver, ("Shaver Memo"), and "Part D

New Source Review (part D NSR)

Requirements for Areas Requesting

Redesignation to Attainment," dated

October 14, 1994, from Mary D. Nichols

("Nichols Memo").

IV. EPA's Evaluation of the

Redesignation Request and

Maintenance Plan for the San Manuel,

Arizona S02 Nonattainment Area

A. The Area Must Be Attaining the S02

NAAQS

Under CAA section 107(d)(3)(E)(i), in

order for an area to be redesignated, we

must determine that the area has

attained the applicable NAAQS. The air

quality data should be representative of

the area of highest concentration and

should be measured by monitors that

remain at the same location for the

duration of the monitoring period

required for demonstrating attainment.

The data should be collected and

quality-assured in accordance with 40

CFR part 58 and recorded in EPA's Air

Quality System database (AQS) to be

available for public review. Under 40

CFR part 58, States certify data that is

entered into AQS on an annual basis.

For the purposes of determining

whether an area has attained the SO2

NAAQS, we require no fewer than two

consecutive years of clean data (i.e., no

violations) as recorded in AQS. In

addition, to qualify for attainment

determination purposes, the annual

average and second-highest 24-hour

average concentrations must be based

upon hourly data that are at least 75

percent complete in each calendar

quarter. See 40 CFR 50.4.

The State of Arizona began ambient

SO 2 monitoring in the San Manuel area

as early as 1969.3 Over time, an

extensive monitoring network was

developed with more than eighteen

stationary and mobile monitoring sites.

This ambient SO2 network, comprised

of EPA, state, and facility monitors, was

developed as the result of extensive

efforts to identify maximum ambient

impact areas using diffusion modeling,

monitored atmospheric dispersion

parameters, citizen observations, and

ambient SO 2 concentrations.

Further refinement of the monitoring

network was required by the adoption of

the MPR rules that established stack

emissions limits for the smelter in 1979

based on permanent controls. Placement

of additional monitors was

accomplished with EPA consultation to

further evaluate ambient impacts.

Following implementation of

continuous emissions control

technology and compliance with

emissions limits as defined in AAC

R18-2-715(F) at the San Manuel

smelter, the number of permanent

monitors was gradually reduced to a

network of four: LDS Church, Townsite,

Dorm Site, and Hospital. These were all

high impact ambient monitor sites

found to be representative of air quality

for the area. The Dorm Site and Hospital

monitors were primarily fugitive impact

siteg. The Townsite and the LDS Church

site were primarily stack impact sites.

The Townsite monitor was the "limiting

site" for the original MPR analysis. 4

These monitoring site decisions were

made by ADEQ in accordance with EPA

guidance.

Following the shutdown of smelting

operations in 1999, the facility-operated

Townsite, Dorm Site, and Hospital

monitors were closed. ADEQ continues

to operate a monitor a! the LDS Church

site. Table 1 summarizes ambient SO 2

air quality monitoring from 1997 to

2005.

Sulfur Dioxide Monitoring Network Study,

Arizona State Department of Health, Environmental

Health Services, Division of Air Pollution Control,

1969.

4 See Ultimate Sulfur Dioxide Limits for Arizona

Copper Smelters, Moyers and Peterson, September

14, 1979.

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Federal Register / Vol. 73, No. 13 / Friday, January 18, 2008 / Rules and Regulations

TABLE 1.-SUMMARY OF SAN MANUEL, SULFUR DIOXIDE AMBIENT AIR QUALITY

MONITORING DATA, 1997-2005 (IN ig/m3 )

[Primary NAAQS: Annual average 80 gig/m 3 [0.030 ppm], 24-hour average 365 gig/m 3 [0.14 ppm]: 3-hour 1300 gg/m3 [0.5 ppm]]

Annual Max value Max value Data

Site or city 3-hl Maveae 24-Hour recovery *

averagav erage average (valid hourly samples)

2005: LDS Church ....................................................................................................... 5 16 8 8,716

2004: LDS Church ....................................................................................................... 4 26 9 8,742

2003: LDS Church ....................................................................................................... 4 15 8.5 8,711

2002: LDS Church (opened 3/02) ............................................................................... 4 24 8 6,827

1999:

LDS Church (closed 10/99) .................................................................................. 9 204.5 56.5 6,121

Townsite ............................................................................................................... 4 272.5 63 n/a

Dorm Site .............................................................................................................. 4 258.5 53 n/a

Hospital ................................................................................................................. 8 416 111.5 n/a

1998:

LDS Church .......................................................................................................... 21 487.5 88 8,469

Townsite ............................................................................................................... 8 406.5 93 8,656

Dorm Site .............................................................................................................. 8 258.5 98.5 8,714

Hospital ................................................................................................................. 11 464 184 8,642

1997:

LDS Church .......................................................................................................... 12 252 63 8,589

Townsite ............................................................................................................... 33 313.5 93 8,725

Dorm Site ............................................................................................. ................ 11 386 66.5 8,751

Hospital ................................................................................................................. 32 654.5 180 8,742

*Note: Does not include Golf Course site for 1997 (site closed August 1997). Townsite, Dorm Site, and Hospital data are as contained in

BHP's monthly reports. The facility reported zero concentrations for the period 2000-2001 at the Townsite, Dorm Site, and Hospital locations.

LDS Church site data for 2002-2005 were obtained from ADEQ Annual Reports. LDS Church site data for 1997-1999 were calculated from data

in EPA's Air Quality System Report (October 3, 2006) by multiplying sulfur dioxide values in parts per million by 2620 to convert to micrograms

per cubic meter.

After reviewing the historic ambient

S02 monitoring data, EPA concludes the

data was collected in accordance with

EPA guidelines. The monitoring sites

were found to.be representative of air

quality for the area. As required for

redesignation, the nonattainment area

has recorded more than eight current,

consecutive quarters of quality-assured

monitoring data that is free of NAAQS

violations.

ADEQ had included monitoring data

in Chapter 3 of the SIP. ADEQ's review

of historic ambient S02 monitoring data

in the San Manuel area collected by

ADHS, BAQC, and ADEQ confirms that

the primary S02 NAAQS has not been

violated since 1979 and the secondary

S02 NAAQS has not been violated since

1985.

In the San Manuel SIP submittal,

ADEQ proposes to close the San Manuel

SO2 monitoring site effective December

31, 2007. Federal regulations at 40 CFR

58.14 allows sites to be closed under

specific circumstances. ADEQ believes

that the closure of the San Manuel SO 2

site meets these criteria. Specifically,

the option under 40 CFR 58.14(c)(3)

allows for discontinuation of a monitor

within an attainment, nonattainment, or

maintenance area, "* * provided the

monitor has not measured violations of

the applicable NAAQS in the previous

five years, and the approved SIP

provides for a specific, reproducible

approach to representing the air quality

of the affected county in the absence of

actual monitoring data." This position is

supported with the information

provided below.

Monitoring data for 2002 through

2006 indicate that maximum ambient

concentrations were three percent or

less of the NAAQS for the 3-hour

standard; five percent or less of the

NAAQS for the 24-hour standard; and

less than seven percent of the NAAQS

for the annual standard. Following the

shutdown of the San Manuel ambient

S02 monitor, ADEQ will continue to

demonstrate attainment and

maintenance of the SO 2 NAAQS

through updates to the emissions

inventory as described in the San

Manuel SO2 Maintenance Plan, March

2007. Analyses contained in the SIP

demonstrate that, although there were

other sources of SO 2 emissions, the San

Manuel copper smelter, which

permanently closed in 2005, was the

primary emissions source in the

nonattainment area and comprised more

than 99.5 percent of total emissions

while it was operating. The more than

99 percent emissions reduction due to

the closure of the smelter corresponds to

a greater than 92 percent reduction in 3-

hour average and 24-hour average

ambient SO 2 concentrations.

With the permanent closure of the

San Manuel smelter, no major point

sources exist in the nonattainment area.

Sulfur dioxide emissions in 2017 are

projected to be less than 0.5 percent of

1997 and 1998 total nonattainment area

emissions, a period in which the San

Manuel smelter was operating full time.

Arizona does not anticipate any

substantial increase in existing point

source emissions between now and

2017 for the nonattainment area. Should

any growth occur due to construction of

additional SO 2 point sources, the ADEQ,

Pinal County Air Quality Control

District (PCAQCD), and Pima County

Department of Environmental Quality

(PDEQ) permit programs limit all

emissions as part of construction of new

point sources or upgrading of existing

sources. ADEQ commits to re-establish

an appropriate network before any

major source of SO 2 begins operations in

the San Manuel planning area.

Maintenance of the SO2 NAAQS in

San Manuel area will be tracked through

updates to the emissions inventory and

permit applications received for SO 2

emitting sources.

Therefore, ADEQ has demonstrated,

and we concur, that the closure of the

San Manuel SO 2 site meets the criteria

set forth in 40 CFR 5 8 .14 .

5 We also

5EPA sets out requirements for ambient air

quality surveillance in 40 CFR part 58. After the

closure of the San Manuel SO2 monitoring site,

ADEQ will continue to monitor SO 2 emissions at

Continued

3399
Federal Register / Vol. 73, No. 13/Friday, January 18, 2008 / Rules and Regulations

conclude that the area has attained the

SO 2 NAAQS.

B. The Area's Applicable

Implementation Plan Must Be Fully

Approved Under CAA Section 110(k)

Under CAA section 107(d)(3)(E)(ii),

the SIP for the San Manuel area must be

fully approved under CAA section

110(k) of the Act. We examined the

applicable SIP for Arizona and also

looked at the disappiovals listed in 40

CFR 52.125 and have determined that

no disapprovals listed remain relevant

to the applicable SIP. Arizona has a

fully approved SIP with respect to SO 2

in the San Manuel area.

C. The Improvement in Air Quality Must

Be Due to Permanent and Enforceable

Reductions in Emissions

CAA section 107(d)(3)(E)(iii) requires

that EPA determine that the

improvement in air quality is due to

permanent and enforceable reductions

in emissions resulting from

implementation of the SIP and/or

applicable federal measures. As shown

in Table 1, as required for redesignation,

the nonattainment area has recorded

more than eight current, consecutive

quarters of quality-assured, violationfree data. Monitoring data for 1997

through 1999, while the San Manuel

smelter was still operating, indicate that

maximum ambient concentrations were

less than 55 percent of the NAAQS for

the 3-hour standard, less than 59

percent of the NAAQS for the 24-hour

standard, and less than 33 percent of the

NAAQS for the annual standard.

Closure of the smelter in 1999 further

reduced emissions and resultant

ambient SO2 concentrations. Monitoring

data for 2004 through 2005 indicate that

maximum ambient concentrations were

two percent of the NAAQS for the 3-

hour standard and less than three

percent for the 24-hour standard; and

less than seven percent of the NAAQS

for the annual standard. Monitoring

network data for the period 1997

through 2005 are presented in Table 1.

Closure of the smelter has resulted in

permanent and enforceable emissions

reductions, as required by the CAA.

D. The Area Must Have Met All

Applicable Requirements Under Section

110 and PartD

Under CAA section 107(d)(3)(E)(v),

we must determine whether the State of

several other sites within the state. For more

information about the air monitoring system in

place in Arizona, the reader may wish to consult

the State of Arizona Air Monitoring Network Plan

For the Year 2007 submitted by ADEQ to EPA. This

report can be found on Arizona's Web site at

http://www.azdeq.govlenvironlairlmonitoringl

download/airmonitoring.pdf.

Arizona has met all requirements under

section 110 and under part D (of title I)

of the CAA applicable to the San

Manuel SO 2 nonattainment area.

1. Section 110 Requirements

CAA section 110 contains the general

requirements for SIPs (enforceable

emissions limits, ambient monitoring,

permitting of new sources, adequate

funding, etc.). EPA's guidance for

implementing section 110 of the Act is

discussed in the General Preamble to

Title 1 (57 FR 13498, April 16, 1992).

Over the years, we have approved

Arizona's SIP as meeting these basic

requirements. The SIP includes

enforceable emission limitations;

requires monitoring, compiling, and

analyzing of ambient air quality data;

requires preconstruction review of new

major stationary sources and major

modifications to existing ones; provides.

for adequate funding, staff, and

associated resources necessary to

implement its requirements; and

requires stationary source emission

monitoring and reporting.

2. Part D Requirements

Before an area can be redesignated to

attainment, it must have fulfilled the

applicable requirements under part D

(of title I). For this area, the relevant

requirements are found in subparts 1

and 5 of part D. Subpart I of part D

specifies the basic requirements

applicable to all nonattainment areas.

Subpart 5 sets out additional provisions

for areas designated nonattainment for

SO2. As discussed below, EPA'finds that

Arizona has met the requirements of

subpart 1 of part D, specifically sections

172(c) and 176, and subpart 5 as

applicable for the San Manuel SO2

nonattainment area.

a. Section 172

CAA section 172 contains the general

requirements for nonattainment SIPs. A

thorough discussion of the requirements

of 172(c) can be found in the General

Preamble for the implementation of

title 1 (57 FR 13498, April 16, 1992).

Additional guidance can be found in the

Calcagni memo. EPA has interpreted the requirements

of CAA sections 172(c)(2) (reasonable

further progress-RFP), 172(c)(6) (other

measures), and 172(c)(9) (contingency

measures) as not relevant to a

redesignation request because they only

have meaning for an area that is not

attaining the standard (see the General

Preamble and the Calcagni Memo), and

as discussed above in section IV.A. of

this notice, we find that the San Manuel

area is attaining the SO2 standard.

Furthermore, the State has not sought to

exercise options that would trigger

section 172(c)(4) (identification of

certain emissions increases). Thus, this

provision is not relevant to this

redesidnation request. The other

provisions under 172(c) are discussed

below.

Reasonably available control

measures. Under CAA section 172(c)(1),

reasonably available control measures

(RACM), which include requirements

for reasonably available control

technology (RACT), are required for

existing sources in nonattainment areas.

In 1983, we approved the State's

submittal of A.A.C. R9--3-315, a

predecessor to the State's current

smelter rules codified at A.A.C. R18-2-

715. See 48 FR 1717 (January 14, 1983).

This rule limited stack emissions from

primary copper smelters, including the

smelter which was located in the San

Manuel area. We concluded, however,

that the control strategy for SO 2 in

Arizona's six SO2 nonattainment areas

was incomplete due to the failure to

address fugitive emissions problems:

See 48 FR 1717 (January 14, 1983) and

40 CFR 52.125(a)(1).

In 1998, 2003, and 2006, the State

submitted amended rules (AAC R18-2-

715 (sections F, G, and H), R18-2-

715.01, R18-2-715.02, and R18-.2-

Appendix 8).6 These rules address both

fugitive and stack emissions from

smelters and, in approving the rules, we

found that the amended rules met the

RACT requirement under CAA sections

172(c)(1) and 191(b). See 69 FR 26789

at 26788 (May 14, 2004), 69 FR 63321

(November 2, 2004), and 71 FR 18624 at

18625 (April 12, 2006). Furthermore,

because the area has attained the

standard, no further demonstration that

RACM has been implemented need be

submitted by the State.

Emissions inventory. The emissions

inventory requirement of section

172(c)(3) is satisfied by the maintenance

plan inventory requirements. The

maintenance plan inventory is

evaluated below, in section IV.E.1.

NSR permit program. Section

172(c)(5) requires new source review

(NSR) permits for the construction and

operation of new and modified major

stationary sources located in

nonattainment areas. ADEQ is the

agency responsible for implementing

the nonattainment area NSR permit

program in the San Manuel area. Under

ADEQ's rules, all new major sources

and modifications to existing major

6A more extensive summary of the regulatory

history of copper smelters in Arizona is included

in EPA's proposed action on these rules. See 69 FR

26786 (May 14, 2004).

I

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Federal Register/Vol. 73, No. 13/Friday, January 18, 2008/Rules and Regulations

sources are subject to the NSR

requirements of these rules.

We have not yet fully approved the

ADEQ NSR rules. 7 We have, however,

determined that an area being

redesignated from nonattainment to

attainment does not need to have an

approved NSR program prior to

redesignation, provided that the area

demonstrates maintenance of the

standard without nonattainment NSR in

effect.8 We have determined that the

maintenance demonstration for San

Manuel does not rely on nonattainment

NSR.

Prevention of significant deterioration

(PSD) is the permitting program that

applies in attainment areas. PSD was

established to preserve air quality in

areas that are meeting the NAAQS. The

PSD program requires new or

reconstructed major stationary sources

or major modifications to existing major

stationary sources to undergo

preconstruction review and to apply

best available control technology. In

addition, sources dre required to review

air quality and other impacts, which

includes analysis of PSD increment

consumption and undertake

preconstruction modeling ADEQ has an

EPA-approved PSD permitting program

AAC R18-2-406 for all criteria

pollutants except respirable particulate

matter (PM10). See 48 FR 19878 (May 3,

1983). The federal PSD program for

PM10 was delegated to the State on

March 12, 1999. ADEQ's partiallyapproved, partially-delegated PSD

program will apply automatically to

new major sources or major

modifications to existing sources of SO 2

in the San Manuel area once the area is

redesignated to attainment.9

7 ADEQ's NSR rules are included in the

preconstruction review and permitting provisions

of AAC, Title 18, Chapter'2, Articles 3 and 4. EPA

approved an earlier version of ADEQ's NSR

requirements (AAC R9-3-302) on May 5, 1982 (47

FR 19328) and August 10, 1988 (53 FR 30200).

8 See memorandum from Mary Nichols dated

October 14, 1994 ("Part D New Source Review (part

D NSR) Requirements for Areas Requesting

Redesignation to Attainment.")

9 PSD also applies to new major sources or major

modifications in Pima County. One township of the

nonattainment area is in the Pima County. The

federal PSD program applies with Pima County. See

40 CFR 52.144; 48 FR 19878 (May 3, 1983). PDEQ

was delegated authority for the federal PDS program

in 1994.

Compliance with section 1 1O(a)(2).

Under section 172(c)(7), plan provisions

submitted to satisfy part D must meet

the applicable provisions of section

110(a)(2) of the CAA. As noted in

section IV.B. above, the San Manuel

portion of the Arizona SIP meets these

requirements.

b. Section 176

Section 176(c) of the CAA requires

states to establish criteria and

procedures to ensure that federally

supported or funded projects conform to

the air quality planning goals in the

applicable SIP. The requirement to

determine conformity applies to

transportation plans, programs, and

projects developed, funded or approved

under title 23 U.S.C. or the Federal

Transit Laws ("transportation

conformity") as well as to all other

federally supported or funded projects

("general conformity"). Because EPA

does not consider SO 2 a transportationrelated pollutant, only the requirements

related to general conformity apply to

the San Manuel SO 2 area. The State of

Arizona adopted general conformity

criteria and procedures as a revision to

the Arizona SIP. EPA approved

Arizona's general conformity SIP on

April 23, 1999 (64 FR 19916). Thus, the

requirements of CAA section 176 have

been satisfied.

c. Subpart 5

Subpart 5 of part D contains

additional provisions for areas

designated nonattainment for SO2.

Under CAA section 191(b), States with

existing nonattainment areas for the

primary SO 2 NAAQS where those areas

lack fully approved SIPs, including part

D plans, must submit implementation

plans meeting the requirements of

subpart 1 of part D. As discussed in

section IV.D.2.a of this notice, the State

of Arizona has met the requirements of

subpart I of part D for the San Manuel

area. Under CAA section 192(b), such areas were required to meet the primary

SO2 NAAQS as expeditiously as possibly but no later than November 15,

1995. As discussed in section IV.A of

this notice, the San Manuel SO 2

nonattainment area met the primary SO 2

standards well before the applicable

attainment date of November 15, 1995

and has continued to attain since then.

E. The Area Must Have a Fully

Approved Maintenance Plan

Section 107(d)(3)(E)(iv) of the Act

makes EPA approval of a maintenance

plan meeting the requirements of

section 175A another prerequisite to

redesignation. Under section 175A, a

maintenance plan must provide for

maintenance of the NAAQS for at least

10 years after redesignation, and include

any additional control measures as may

be necessary to ensure such

maintenance. The Calcagni Memo

contains EPA guidance on the contents

of maintenance plans submitted for the

purposes of meeting section 175A.

Generally, such plans should address

the following five topics: The

attainment emissions inventory,

maintenance demonstration, monitoring

network, verification of continued

attainment,.and a contingency plan.

Maintenance plans are to contain such

contingency provisions as EPA deems

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.

Lastly, under CAA Section 175A(b),

states are required to submit a

subsequent maintenance plan eight'

years after redesignation providing for

maintenance of the NAAQS for an

additional 10-year period beyond the

initial 10-year maintenance period.

ADEQ has made a commitment to

submit a subsequent maintenance plan

to EPA eight years into the initial 10-

year maintenance period (see page 15 of

the submitted plan) and thereby satisfies

the requirements of Section 175A(b).

1. Attainment Emissions Inventory

As required in the Calcagni memo as one of the core provisions necessary to

ensure maintenance of the relevant

NAAQS in an area seeking

redesignation from nonattainment to

attainment, the San Manuel

Maintenance Plan includes an

emissions inventory for point sources, area sources, and mobile sources for

1997 through 2005 as well as a

projection of emissions to 2017.

3401
Federal Register/Vol. 73, No. 13/Friday, January 18, 2008 /Rules and Regulations

TABLE 2.-SAN MANUEL NONATTAINMENT AREA SO 2 EMISSIONS AND EMISSIONS PROJECTIONS, ALL SOURCES (TONS):

1997-2017

Area and Point Annual totals

mobile

1997 .................................................................................................................

30 11482 11512

1998 .................................................................................................................

; ..................... 30 10409 10439

1999 .................................................................................................................

38 3625 3663

2000 ........ . ..................... ........................................ 36 0.7 36.7

2001 ........................................................... .............................................................................. 33 0.9 33.9

2002 .................................................................................................................

26 0.3 26.3

2003 .................................................................................................................

... n/a 0.2 0.2

2004 .............. * ..........................................................................................................

...:.. n/a 0.7 _>0.7

2005 .................................................................................................................

27 0.6 27.6

2010 .................................................................................................................

29 4.3 33.3

2015 .................................................................................................................

30 4.3 34.3

2017 .................................................................................................................

31 4.3 35.3

Note: Sulfur dioxide emissions in 2017 are projected to be less than 0.5 percent of 1997 and

riod in which the San Manuel smelter was operating full time.

Based on our review of the submitted

plan, we conclude that the current and

projected emissions inventories are

based on reasonable methods and

assumptions and are comprehensive

and accurate.

2. Maintenance Demonstration

EPA allows states to demonstrate

maintenance of the NAAQS by either

showing that future emissions of a

pollutant or its precursors will not

exceed the level of the attainment

inventory, or by modeling to show that

the future mix of sources and emission

rates will not cause a violation of the

NAAQS. 1° When ADEQ first submitted

a maintenance plan for the San Manuel

area in 2002, the plan contained a

modeling exercise. In January 2005,

BHP Copper Inc. (BHP Billitoji) notified

ADEQ of the company's intent to

permanently cease operations and.

remove all equipment and buildings at

their San Manuel smelting facility. In

March 2005, ADEQ terminated the

permit for the facility. Closure of the

smelter reduced SO 2 emissions in.the

San Manuel area by more than 10,000

tons per year. Based on monitored data,

the area had already attained the SO 2

ambient air quality standards. Annual

ambient concentrations measured from

1997 through 1999 were less than 42

percent of the NAAQS and maximum

24-hour concentrations were less than

59 percent of the NAAQS.11 ADEQ

subsequently withdrew the 2002

maintenance plan, but included the

modeling exercise in Appendix A of the

current submittal. Since the modeling

exercise demonstrated that the area

could maintain the standard while the

smelter was operating, we concur with

the state that maintenance of the

10See Calcagni Memo., at p. 9.

"See page 8 of Appendix A of ADEQ's submittal.

standard will continue since the smelter

is no longer operating.

In addition, the projected inventory

from the San Manuel SO 2 Maintenance

Plan shows that emissions in the area

are estimated to remain well below

attainment period levels in 2017, the

10th year after redesignation. Although

there is slight growth in total emissions

from 2005 to 2017, projected 2017

emissions are 0.3 percent of 1998

emissions levels, due largely to the

cessation of smelter operations.

Therefore, we conclude that the San

Manuel SO 2 maintenance plan contains

an adequate maintenance

demonstration.

3. Monitoring Network

Once an area has been redesignated,

in accordance with 40 CFR Part 58, the

State is required to continue operation

of an appropriate air quality monitoring

network to verify the attainment status

of the area. The maintenance plan

should-contain provisions for continued

operation of air quality monitors that

will provide such verification.

EPA allows a state to discontinue a

monitor within a nonattainment or

maintenance area provided the monitor

has not measured violations of the

applicable NAAQS in the previous five

years, and the approved SIP provides for

a specific, reproducible approach to

representing the air quality of the

affected area in the absence of actual

monitoring data. Because the primary

source of SO 2 emissions in the

nonattainment area permanently closed

and recorded air quality data for 2002

through 2005 indicate that maximum

ambient concentrations are less than

seven percent of the primary and

secondary NAAQS, ADEQ intends to

discontinue monitoring at this site.

EPA concurs with ADEQ's decision to

discontinue SO 2 monitoring in the San

1998 total nonattainment area emissions, a peManuel area. Since the main source of

SO 2 emissions has been permanently

shut down and dismantled there is no

longer any reason to monitor for this

pollutant at this time. Section 7.2 of the

SIP states that ADEQ commits to

reestablishing an appropriate S02

monitoring network in the San Manuel

area before any future major source of

SO2 begins operations in the San

Manuel planning area.

4. Verification of Continued Attainment

ADEQ intends to track the progress of

the San Manuel SO 2 Maintenance Plan

through implementation and

enforcement of the monitoring,

reporting, and certification procedures

to which permitted sources are subject

under AAC R18-2-306 and R18-2-309.

ADEQ anticipates no relaxation of any

implemented control measures used to

attain and maintain the ambient air

quality standards.

Maintenance of the SO 2 NAAQS in

San Manuel area will be tracked through

updates to the emissions inventory and

permit applications received from SO 2

emitting sources. The projected

inventory from the San Manuel SO 2

Maintenance Plan shows that emissions

in the area are estimated to remain well

below attainment period levels in 2017,

the loth year after redesignation.

Although there is slight growth in total

emissions from 2005 to 2017, projected

2017 emissions are 0.3 percent of 1998

emissions levels, due largely to the

cessation of smelter operations. The

PCAQCD and PDEQ have authority for

sources under their jurisdiction.

Considered together, the submitted

plan and relevant state and local EPAapproved regulations adequately

provide for verification of continued

attainment of the SO 2 NAAQS in the

San Manuel area.

3402
Federal Register/Vol. 73, No. 13/Friday, January 18, 2008/Rules and Regulations.

5. Contingency Plan

Section 175A(d) of the CAA requires

that maintenance plans include

contingency provisions to promptly

correct any violation of the NAAQS that

occurs after redesignation of the area.

The Calcagni memo provides additional

guidance, noting that although a State is

not required to have fully-adopted

contingency measures that will take

effect without further action by the State

in order for the maintenance plan to be

approved, the maintenance plan should

ensure that the contingency measures

are adopted expediently once they are.

triggered* Specifically, the maintenance

plan should clearly identify the

measures to be adopted, include a

schedule and procedure for adoption

and implementation of the measures,

and contain a specific time limit for

action by the State. In addition, the

State should identify specific indicators,

or triggers, that will be used to

determine when the contingency

measures need to be implemented. -

The only threat to the SO 2 NAAQS in

this planning area is from new sources.

Because the primary source of SO2

emissions in the San Manuel area is

permanently closed, measures to -ensure

continued attainment of the SO 2

NAAQS are PSD permitting

requirements. Any new source

proposing 1o operate in the San Manuel

area is subject to the provisions of

A.A.C. R18-2-403, "Permits for Sources

Located in Nonattainment Areas," and

those in A.A.C. R18-2-406, "Permit

Requirements for Sources Located in

Attainment and Unclassified Areas."

With our redesignation of San Manuel,

.they will only be subject to A.A.C. R18-

2-406. These programs address NSR

and PSD requirements applicable to SO 2

sources. Under the PSD program, new

major stationary or major modifications

to existing major sources are required to

undergo preconstruction review before

the facility is constructed, modified, or

reconstructed, and to apply Best

Available Control Technology (BACT).

If a new source is not a major source,

it may still be required to obtain a

permit under minor source permitting

rules at AAC R18-2-Article 3.12

Upon review of the contingency plan

summarized above, we find that ADEQ

has established a workable contingency

plan for the San Manuel area. Since

12 Pima and Pinal counties have their own air

pollution control agencies and have jurisdiction

over stationary sources of air pollutants within their

counties, except for refineries, copper smelters,

coal-fired power plants, Portland cement plants, or

portable sources that will operate in multiple

counties. These sources must obtain permits from

ADEQ. Facilities located on most Indian lands in

Arizona are under the jurisdiction of U.S. EPA.

ADEQ anticipates no relaxation of any

implemented control measures, and

commits to submit to us any changes to

rules or emission limits applicable to

SO 2 sources, as well as committing to

maintain the necessary resources to

promptly correct any violations of the

SO2 NAAQS that occur after the

redesignation of the San Manuel area to

attainment, the State thereby satisfies

the requirements of CAA section

175A(d).

6. Subsequent Maintenance Plan

Revisions

As noted previously, CAA section

175A(b) requires states to submit a

subsequent maintenance plan revision

eight years after the redesignation

request is approved by EPA. The

subsequent maintenance plan is to

provide for maintenance of the NAAQS

for an additional 10 years following the

first 10-year maintenance period. ADEQ

has made a commitment to submit a

subsequent maintenance plan to EPA

eight years into the initial 10-year

maintenance period (see page 15 of the

submitted plan) and thereby satisfies

CAA section 175A(b).

7. Conclusion

ADEQ's Final State Implementation

Plan Revision, San Manuel Sulfur

Dioxide Nonattainment Area, March

2007 adequately addresses the five basic

topics that maintenance plans should

address, including attainment

inventory, maintenance demonstration,

monitoring network, verification of

continued attainment, and contingency

plan, and also provides for submittal of

a subsequent maintenance plan.

Therefore, we approve the San Manuel

SO 2 Maintenance Plan as a revision to

the Arizona SIP and thereby satisfy the

related redesignation criteria of CAA

section 107(d)(3)(E)(iv).

V. Public Comment and EPA's Final

Action

As authorized under section 110(k)(3)

of the Act, EPA is.approving the Final

State Implementation Plan Revision,

San Manuel Sulfur Dioxide

Nonattainment Area, March, 2007 as

submitted by ADEQ on June 7, 2007, as

a revision to the Arizona SIP. In so

doing, we find that the maintenance

plan meets the requirements for such

plans under CAA section 175A.

EPA is also approving the State of

Arizona's request for redesignation of

the San Manuel area from

nonattainment to attainment for the SO 2

NAAQS based on our conclusion that

all of the redesignation criteria in CAA

section 107(d)(3)(E) have been satisfied.

Specifically, we find that (1) the San

Manuel area has attained the SO 2

NAAQS; (2) Arizona has a fully

approved SIP for the San Manuel area;

(3) the improvements in air quality in

the San Manuel area are due to

permanent and enforceable reductions

in emissions resulting from the

permanent closure of the smelter and

from implementation of EPA's Title V

permit conditions; (4) Arizona has met

all of the nonattainment area

requirements applicable to the San

Manuel areai and (5) the State's

submitted maintenance plan meets all

relevant CAA requirements and is being

approved in this notice.

EPA is finalizing this action without

proposing it in advance because the

Agency views this action as

noncontroversial and anticipates no

adverse comments. However, in the

Proposed Rules section of this Federal

Register, we are simultaneously

proposing approval of the same

maintenance plan and request for

redesignation of the San Manuel, AZ

SO 2 area. If we receive adverse

comments by February 19, 2008, we will

publish a timely withdrawal in the

Federal Register to notify the public

that the direct final approval will not

take effect and we will address the

comments in a subsequent final action

based on the proposal. If we do not

receive timely adverse comments, the

direct final approval will be effective

without further notice on March 18,

2008. This will approve the

redesignation request and maintenance

plan submitted by Arizona on June 7,

2007.

Please note that if EPA receives

adverse comment on an amendment,

paragraph, or section of this rule and if

that provision may be severehl from the

remainder of the rule, EPA may adopt

as final those provisions of the rule that

are not the subject of an adverse

comment.

VI. 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

3403
Federal Register / Vol. 73, No. 13 / Friday, January 18,, 2008 / Rules and Regulations

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 pr 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 hgve

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 approves a state rule

implementing a Federal standard.

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 1996rgenerally 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 March 18, 2008.

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 oxides.

40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: December 20, 2007.

Wayne Nastri,

Regional Administrator, Region LX.

* Parts 52 and 81, chapter I, title 40 of

the Code of Federal Regulations are

amended as follows:

PART 52-[AMENDED]

E 1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401 6t seq.

Subpart D-Arizona

.E 2. Section 52.120 is amended by

adding paragraph (c)(140) to read as

follows:

§ 52.120 Identification of plan.

(c) * * *

(140) The following plan was

submitted on June 7, 2007 by the

Governor's designee.

(i) Incorporation by reference.

(A) Arizona Department of

Environmental Quality. (1) Final

Arizona State Implementation Plan

Revision, San Manuel Sulfur Dioxide

Nonattainment Area, March 2007,

Arizona Department of Environmental

Quality.

PART 81-[AMENDED]

* 3. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

* 4. In § 81.303 the table entitled

"Arizona-SO2" is amended by revising

the entry for the "San Manuel" area to

read as follows:

§ 81.303 Arizona.

ARIZONA-SO 2

Does not meet Does not meet cannot Better than

Designated area primary secondary classified national

standards standards stapdards

San Manuel:

T8S, R16E ..........................................................................................................

T8S, R17E .............................................. ... ...... ......... ................

T8S, R18E ............................................................................................... ........................

T9S, R15E ................................................................................................. ........................

T9S, R16E ................................................................................................. ........................

T9S, R17E ................................................................................................. .......................

3404
Federal Register/Vol. 73, No. 13/Friday, January 18, 2008/Rules and Regulations

ARIZONA-SO 2-Continued

Does not meet Does not meet Cannot be Better than

Designated area primary secondary classified national

standards standards standards

T9S, R18E ................................................................................................. ........................ ........................ .................. X

T10S, R15E ............................................................................................... ........................ ........................ .................. X

TIOS, R16E ............................................................................................... ........................ ................................... X

T10S, R17E ............................................................................................... ......................... ........................ ........................ X T11S, R16E ............................................................................................... ....................... .. ........................ .................. X

T10S, R18E ............................................................................................... ........................ ........................ .................. X

T11S, R17E ...................................................................................... X

T12S, R16E ............................................................................................... ........................ ........................ .................. X

T12S, R17E ............................................................................................... ........................ ........................ ....................... . X

[FR Doc. E8-803 Filed 1-17-08; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Centers for Medicare & Medicaid

Services

42 CFR Part 488

[CMS-2278-1FC3]

RIN 0938-AP22

Revisit User Fee Program for Medicare

Survey and Certification Activities

AGENCY: Centers for Medicare &

Medicaid Services (CMS), HHS.

ACTION: Interim final rule with comment

period.

SUMMARY: This interim final rule with

comment period implements the

continuation of the revisit user fee

program for Medicare Survey and

Certification activities, in accordance

with the statutory authority in the

Continuing Appropriations Resolution

entitled, "Making further continuing

appropriations for the fiscal year 2008,

and for all other purposes," Public Law

110-137 ("Continuing Resolution")

passed by the Congress and signed by

the President on December 14, 2007. On

September 19, 2007, we published a

final rule that established a system of

revisit user fees applicable to health

care facilities that have been cited for

deficiencies during initial certification,

recertification or substantiated

complaint surveys and require a revisit

to confirm that previously-identified

deficiencies have been corrected.

DATES: Effective date: These regulations

-are effective January 18, 2008, and

applicable beginning December 14,

2007.

Comment date: To be assured

consideration, comments must be

received at one of the addresses

provided below, no later than 5 p.m. on

March 18, 2008.

ADDRESSES: In commenting, please refer

to file code CMS-2278-IFC3. Because of

staff and resource limitations, we cannot

accept comments by facsimile (FAX)

transmission.

You may submit comments in one of

four ways (no duplicates, please):

1. Electronically. You may submit

electronic comments on specific issues

in this regulation to http://

www.cms.hhs.gov/eRulemaking. Click

on the link "Submit electronic

comments on CMS regulations with an

open comment period." (Attachments

should be in Microsoft Word,

WordPerfect, or Excel; however, we

prefer Microsoft Word.)

2. By regular mail. You may mail

written comments (one original and two

copies) to the following address ONLY:

Centers for Medicare & Medicaid

Services, Department of Health and

Human Services, Attention: CMS-2278-

IFC3, P.O. Box 8010, Baltimore, MID

21244-8016.

Please allow sufficient time for mailed

comments to be received before the

close of the comment period.

3. By express or overnight mail..You

may send written comments (one

original and two copies) to the following

address only: Centers for Medicare &

Medicaid Services, Department of

Health and Human Services, Attention:

CMS-2278-IFC3, Mail Stop C4-26--05,

7500 Security Boulevard, Baltimore, MD

21244-1850.

4. By hand or courier. If you prefer,

you may deliver (by hand or courier)

your written comments (one original

and two copies) before the close of the

comment period to one of the following

addresses. If you intend to deliver your

comments to the Baltimore address,

please call telephone number (410) 786-

7195 in advance to schedule your

arrival with one of our staff members.

Room 445-G, Hubert H. Humphrey

Building, 200 Independence Avenue,

SW., Washington, DC 20201; or 7500

Security Boulevard, Baltimore, MD

21244-1850. (Because access to the

interior of the HHH Building is not

readily available to persons without

Federal Government identification,

commenters are encouraged to leave

their comments in the CMS drop slots

located in the main lobby of the

building. A stamp-in clock is available

for persons wishing to retain a proof of

filing by stamping in- and retaining an

extra copy of the comments being filed.)

Comments mailed to the addresses

-Indicated as appropriate for hand or

courier delivery may be delayed and

received after the comment period.

For information on viewing public

comments, see the beginning of the

SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT:

Kelley Tinsley, (410) 786-6664.

SUPPLEMENTARY INFORMATION:

Submitting Comments: As the public

was provided an opportunity to

comment on the substance of the rule

during the comment period prior to the

publication of the September 19, 2007

final rule, and as the substance of the

rule is not changed by this interim final

rule with comment period, we are

accepting comments only to the extent

that they pertain to the applicability of

the new authority for the rule. You can

assist us by referencing the file code

CMS-2278-IFC3.

Inspection of Public Comments: All

comments received before the close of

the comment period are available for

viewing by the public, including any

personally identifiable or confidential

business information that is included in

a comment. We post all comments

received before the close of the

comment period on the following Web

site as soon as possible after they have

been received: http://www.cms.hhs.govl

eRulemaking. Click on the link

"Electronic Comments on CMS

3405