Federal Register / Vol. 68, No. 212 / Monday, November 3, 2003 / Rules and Regulations 62239

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds.

Dated: October 21, 2003. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4.

■ Part 52 of chapter I, title 40, 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 S—Kentucky

■ 2. Section 52.920, the Jefferson County 

Regulations table in paragraph (c) is 

amended by revising the entries for 

‘‘1.08,’’ ‘‘2.05,’’ ‘‘2.09,’’ and ‘‘2.17’’ to 

read as follows:

§ 52.920 Identification of plan.

* * * * *

(c) * * *

EPA-APPROVED JEFFERSON COUNTY REGULATIONS FOR KENTUCKY

Reg Title/subject 

EPA approval 

date 

Federal Register notice 

District 

effective 

date 

Reg 1 General Provisions 

* * * * * * * 

1.08 ................... Administrative Procedures ............................................................................ 11/3/03 [Insert citation of publication].6/19/02 

* * * * * * * 

Reg 2 Permit Requirements 

* * * * * * * 

2.05 ................... Prevention of Significant Deterioration of Air Quality ................................... 11/3/03 [Insert citation of publication].6/19/02 

* * * * * * * 

2.09 ................... Causes for Permit Modification, Revocation, or Suspension ....................... 11/3/03 [Insert citation of publication].6/19/02 

* * * * * * * 

2.17 ................... Federally Enforceable District Origin Operating Permits ............................. 11/3/03 [Insert citation of publication].6/19/02 

* * * * *

[FR Doc. 03–27551 Filed 10–31–03; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[AZ 115–0058a; FRL–7573–9] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Arizona

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving the 

maintenance plan for the Ajo area in 

Pima County, Arizona and granting the 

request submitted by the State to 

redesignate this area from 

nonattainment to attainment for the 

National Ambient Air Quality Standards 

(NAAQS) for sulfur dioxide (SO2). 

Elsewhere in this Federal Register, we 

are proposing approval and soliciting 

written comment on this action; if 

adverse written comments are received, 

we will withdraw the direct final rule 

and address the comments received in 

a new final rule; otherwise no further 

rulemaking will occur on this approval 

action.

DATES: This rule is effective January 2, 

2004, without further notice, unless we 

receive adverse comments by December 

3, 2003. If EPA receives adverse 

comments, we will publish a timely 

withdrawal of the rule in the Federal 

Register and inform the public that this 

rule will not take effect.

ADDRESSES: Comments should be 

mailed or emailed to Wienke Tax, Office 

of Air Planning (AIR–2), U.S. 

Environmental Protection Agency, 

Region 9, 75 Hawthorne Street, San 

Francisco, CA 94105–3901, 

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 IX office during normal 

business hours (see address above). Due 

to increased security, we suggest that 

you call at least 24 hours prior to 

visiting the Regional Office so that we 

can make arrangements to have 

someone meet you. The Federal 

Register notice and TSD are also 

available as electronic files on EPA’s 

Region 9 Web Page at http://

www.epa.gov/region09/air. 

You may inspect and copy the 

rulemaking docket for this notice at the 

following location during normal 

business hours.

Environmental Protection Agency, 

Region 9, Air Division, Air Planning 

Office (AIR–2), 75 Hawthorne Street, 

San Francisco, CA 94105–3901.

Copies of the State Implementation 

Plan (SIP) materials are also available 

62240 Federal Register / Vol. 68, No. 212 / Monday, November 3, 2003 / Rules and Regulations 

1For the definition of the Ajo nonattainment area, 

see 40 CFR 81.303. EPA designated the entire area 

of Pima County as nonattainment for SO2 on March 

3, 1978 for lack of a State recommendation. EPA 

approved the State’s request that the SO2-affected 

portion of Pima County be limited to the townships 

surrounding Ajo on April 10, 1979 (44 FR 21261). 

Townships T11S,R6W; T11S, R5W; T12S, R6W; 

T12S, R5W; and T13S, R6W comprise the 

nonattainment area. Townships T11S, R7W; T12S, 

R7W; T13S, R5W; and T13S, R7W are designated 

as ‘‘cannot be classified.’’ Ajo is a town in Pima 

County in the southwestern portion of Arizona.

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 Ajo area is not classified 

nonattainment for the secondary standard, and this 

action relates only to the primary NAAQS.

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 http:/

/www.epa.gov/region09/air.

SUPPLEMENTARY INFORMATION: Elsewhere 

in this Federal Register, we are 

proposing approval and soliciting 

written comment on this action. 

Throughout this document, the words 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ mean U.S. EPA.

Table of Contents 

I. Summary of Action 

II. Introduction 

A. What National Ambient Air Quality 

Standards Are Considered in Today’s 

Rulemaking? 

B. What Is a State Implementation Plan? 

C. What Is the Background for This Action? 

D. What Are the Applicable Clean Air Act 

(CAA) Provisions for SO2 Nonattainment 

Area Plans? 

E. What Are the Applicable Provisions for 

SO2 Maintenance Plans and 

Redesignation Requests? 

III. Review of the Arizona State Submittals 

Addressing These Provisions 

A. Is the Maintenance Plan Approvable? 

B. Has the State Met the Remaining 

Maintenance Plan Provisions? 

C. Has the State Met the Redesignation 

Provisions of CAA Section 107(d)(3)(E)? 

IV. Final Action 

V. Statutory and Executive Order Reviews

I. Summary of Action 

We are approving the maintenance 

plan for the Ajo SO2 nonattainment 

area.1 We are also approving the State of 

Arizona’s request to redesignate the Ajo 

area from nonattainment to attainment 

for the primary SO2 NAAQS.

II. Introduction 

A. What National Ambient Air Quality 

Standards Are Considered in Today’s 

Rulemaking? 

Sulfur dioxide (SO2) is the pollutant 

that is the subject of this action. The 

NAAQS are health-based and welfarebased standards for certain ambient air 

pollutants. SO2 is among the ambient air 

pollutants for which we have 

established a health-based standard. 

SO2 causes adverse health effects by 

reducing lung function, increasing 

respiratory illness, altering the lung’s 

defenses, and aggravating existing 

cardiovascular disease. Children, the 

elderly, and people with asthma are the 

most vulnerable. SO2 has a variety of 

additional impacts, including acidic 

deposition, damage to crops and 

vegetation, and corrosion of natural and 

man-made materials.

There are both short- and long-term 

primary NAAQS for SO2. The short-term 

(24-hour) standard of 0.14 parts per 

million (ppm) is not to be exceeded 

more than once per year. The long-term 

standard specifies an annual arithmetic 

mean not to exceed 0.030 ppm.2 The 

primary standards were established in 

1972. (See 40 CFR 50.4).

B. What Is a State Implementation Plan? 

The CAA requires states to attain and 

maintain ambient air quality equal to or 

better than the NAAQS. The state’s 

commitments for attaining and 

maintaining the NAAQS are outlined in 

the State Implementation Plan (or SIP) 

for that state. The SIP is a planning 

document that, when implemented, is 

designed to ensure the achievement of 

the NAAQS. Each state currently has a 

SIP in place, and the Act requires that 

SIP revisions be made periodically as 

necessary to provide continued 

compliance with the standards. 

SIPs include, among other things, the 

following: (1) An inventory of emission 

sources; (2) statutes and regulations 

adopted by the state legislature and 

executive agencies; (3) air quality 

analyses that include demonstrations 

that adequate controls are in place to 

meet the NAAQS; and (4) contingency 

measures to be undertaken if an area 

fails to attain the standard or make 

reasonable progress toward attainment 

by the required date. 

The state must make the SIP available 

for public review and comment through 

a public hearing, it must be adopted by 

the state, and submitted to us by the 

Governor or her/his designee. We take 

federal action on the SIP submittal, thus 

rendering the rules and regulations 

federally enforceable. The approved SIP 

serves as the state’s commitment to take 

actions that will reduce or eliminate air 

quality problems. Any subsequent 

revisions to the SIP must go through the 

formal SIP revision process specified in 

the Act. 

C. What Is the Background for This 

Action? 

1. When Was the Nonattainment Area 

Established? 

Phelps Dodge Mining Company’s Ajo 

Incorporated (PDAI) operation was the 

largest point source in the Ajo 

nonattainment area. The PDAI copper 

smelter was situated at the eastern end 

of the Little Ajo Mountains. 

On March 3, 1978, at 43 FR 8968, for 

lack of a state recommendation, we 

designated Pima County as a primary 

SO2 nonattainment area based on 

monitored violations of the primary SO2

NAAQS in the area between 1975 and 

1977. At the request of the Arizona 

Department of Environmental Quality 

(ADEQ), the nonattainment area was 

subsequently reduced to five townships 

in and around Ajo on April 10, 1979 (44 

FR 21261). As a result, townships T11S, 

R6W; T11S, R5W; T12S, R6W; T12s, 

R5W; and T13S, R6W make up the 

nonattainment area. Townships T11S, 

R7W; T12S, R7W; T13S, R7W; and 

T13S, R5W are classified as ‘‘cannot be 

classified’’ areas. 

On the date of enactment of the 1990 

CAA Amendments, SO2 areas meeting 

the conditions of section 107(d) of the 

Act, including the pre-existing SO2

nonattainment areas, were designated 

nonattainment for the SO2 NAAQS by 

operation of law. Thus, the Ajo area 

remained nonattainment for the primary 

SO2 NAAQS following enactment of the 

1990 CAA Amendments on November 

15, 1990. 

2. How Has the SIP Addressed CAA 

Provisions? 

Arizona submitted a state 

implementation plan (SIP) for all major 

sources in the State in January 1972. 

EPA disapproved the portion of the 

1972 Arizona SIP related to smelters (37 

FR 10849 and 37 FR 15081) on May 31 

and July 27, 1972. On November 30, 

1981 EPA proposed conditional 

approval of Arizona’s Multipoint 

Rollback (MPR) SIP revision (46 FR 

58098). On June 3, 1982, Arizona 

submitted SIP revisions to correct the 

conditional approval. EPA formally 

approved Arizona’s revised MPR Rule 

as a final rulemaking on January 14, 

1983 (48 FR 1717). To complete the 

Arizona SO2 SIPs, EPA required that 

Arizona submit the necessary fugitive 

emissions control strategies and 

regulations for existing smelters by 

August 1, 1984. 

Federal Register / Vol. 68, No. 212 / Monday, November 3, 2003 / Rules and Regulations 62241

3. What Is the Current Status of the 

Area? 

On April 4, 1985, the PDAI smelter 

was permanently deactivated. 

Dismantling of the Ajo facility began in 

1995. By February of 1996, the facility 

was completely dismantled. On October 

15, 1997, ADEQ confirmed that the 

facility was dismantled and no longer 

existed at the former site. The area 

remains sparsely settled, and there are 

only minor industrial or commercial 

activities in or near the nonattainment 

area that produce small quantities of 

SO2 emissions. The only point source 

consists of several generators run by 

Phelps Dodge which have a potential to 

emit (PTE) of 49.2 tons per year (tpy) of 

SO2. The ADEQ submission also 

included emissions from a proposed 

Gila Bend regional landfill, which was 

expected to have a PTE of 24.1 tpy of 

S02 when built. Because of their 

potential emissions, ADEQ classified 

these two sources as point sources. The 

Phelps Dodge generators are used only 

as a backup energy source, have emitted 

less than 1 tpy of SO2 for the past five 

years of operation, and are not expected 

to emit more than 1.2 tpy of SO2 in 

2015. The landfill has not been built, 

and we were informed by the State on 

August 8, 2003 that the permit for the 

landfill was terminated by the permittee 

on August 28, 2002.

Currently, there are no operating 

ambient SO2 monitors in the Ajo area. 

However, we do not expect the 

cumulative impact of the sources in and 

around Ajo to cause a violation of the 

NAAQS because their emissions are so 

low. No significant new sources have 

located in the area, another reason why 

our action today is appropriate. 

D. What Are the Applicable Clean Air 

Act (CAA) Provisions for SO2

Nonattainment Area Plans? 

The air quality planning requirements 

for SO2 nonattainment areas are set out 

in subparts 1 and 5 of Part D of title I 

of the Act. We have issued guidance in 

a General Preamble describing our 

views on how we will review SIPs and 

SIP revisions submitted under title I of 

the Act, including those containing SO2

nonattainment area and maintenance 

area SIP provisions. 57 FR 13498 (April 

16, 1992); 57 FR 18070 (April 28, 1992). 

The General Preamble discusses our 

interpretation of the title I requirements, 

and lists SO2 policy and guidance 

documents. 

1. What Statutory Provisions Apply? 

CAA Sections 191 and 192 address 

requirements for SO2 nonattainment 

areas designated subsequent to 

enactment of the 1990 CAA 

Amendments and areas lacking fully 

approved SIPs immediately before 

enactment of the 1990 Clean Air Act 

Amendments. Ajo falls into neither of 

these categories and is therefore subject 

to the requirements of subpart 1 of Part 

D of title I of the CAA (Sections 171–

179B). Section 172 of this subpart 

contains provisions for nonattainment 

plans in general; these provisions were 

not significantly changed by the 1990 

CAA Amendments. Among other 

requirements, CAA Section 172 

provides that SIPs must assure that 

reasonably available control measures 

(RACM) (including such reductions in 

emissions from existing sources in the 

area as may be obtained through the 

adoption, at a minimum, of reasonably 

available control technology (RACT)) 

shall be implemented as expeditiously 

as practicable and shall provide for 

attainment. 

E. What Are the Applicable Provisions 

for SO2 Maintenance Plans and 

Redesignation Requests? 

1. What Are the Statutory Provisions? 

a. CAA Section 107(d)(3)(E). 

The 1990 CAA Amendments revised 

section 107(d)(3)(E) to provide five 

specific requirements that an area must 

meet in order to be redesignated from 

nonattainment to attainment: 

(1) the area must have attained the 

applicable NAAQS; 

(2) the area has met all relevant 

requirements under section 110 and Part 

D of the Act; 

(3) the area has a fully approved SIP 

under section 110(k) of the Act; 

(4) the air quality improvement must 

be permanent and enforceable; and, 

(5) the area must have a fully 

approved maintenance plan pursuant to 

section 175A of the Act. 

b. CAA Section 175A. 

CAA section 175A provides the 

general framework for maintenance 

plans. The maintenance plan must 

provide for maintenance of the NAAQS 

for at least 10 years after redesignation, 

including any additional control 

measures as may be necessary to ensure 

such maintenance. In addition, 

maintenance plans are to contain such 

contingency provisions as we deem 

necessary to assure the prompt 

correction of a violation of the NAAQS 

that occurs after redesignation. The 

contingency measures must include, at 

a minimum, a requirement that the state 

will implement all control measures 

contained in the nonattainment SIP 

prior to redesignation. Beyond these 

provisions, however, CAA section 175A 

does not define the content of a 

maintenance plan. 

2. What General EPA Guidance Applies 

to Maintenance Plans? 

Our primary general guidance on 

maintenance plans and redesignation 

requests is a September 4, 1992 memo 

from John Calcagni, entitled 

‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment’’

(‘‘Calcagni Memo’’). Specific guidance 

on SO2 redesignations also appears in a 

January 26, 1995 memo from Sally L. 

Shaver, entitled ‘‘Attainment 

Determination Policy for Sulfur Dioxide 

Nonattainment Areas’’ (‘‘Shaver 

Memo’’). 

Guidance on SO2 maintenance plan 

requirements for an area lacking 

monitored ambient data, if the area’s 

historic violations were caused by a 

major point source that is no longer in 

operation, is found in an October 18, 

2000 memo from John S. Seitz, entitled 

‘‘Redesignation of Sulfur Dioxide 

Nonattainment Areas in the Absence of 

Monitored Data’’ (‘‘Seitz Memo’’). The 

Seitz Memo exempts eligible areas from 

the maintenance plan requirements of 

continued monitoring. 

3. What Are the Requirements for 

Redesignation of Single-Source SO2

Nonattainment Areas in the Absence of 

Monitored Data? 

Our historic redesignation policy for 

SO2 has called for eight quarters of clean 

ambient air quality data as a necessary 

prerequisite to redesignation of any area 

to attainment. The Seitz memo provides 

guidance on SO2 maintenance plan 

requirements for an area lacking 

monitored ambient data, if the area’s 

historic violations were caused by a 

major point source that is no longer in 

operation. In order to allow for these 

areas to qualify for redesignation to 

attainment, this policy requires that the 

maintenance plan address otherwise 

applicable provisions, and include: 

(1) Emissions inventories representing 

actual emissions when violations 

occurred; current emissions; and 

emissions projected to the 10th year 

after redesignation; 

(2) Dispersion modeling showing that 

no NAAQS violations will occur over 

the next 10 years and that the shut 

down source was the dominant cause of 

the high concentrations in the past;

(3) Evidence that if the shut down 

source resumes operation it would be 

considered a new source and be 

required to obtain a permit under the 

Prevention of Significant Deterioration 

provisions of the CAA; and 

(4) A commitment to resume 

monitoring before any major SOx source 

commences operation. 

62242 Federal Register / Vol. 68, No. 212 / Monday, November 3, 2003 / Rules and Regulations 

3Since its original submission, ADEQ has 

informed EPA that the Gila Bend Regional Landfill 

permit was terminated by the permittee on August 

28, 2002, and this proposed source was never 

constructed.

III. Review of the Arizona State 

Submittals Addressing These 

Provisions 

A. Is the Maintenance Plan Approvable? 

1. Did the State Meet the CAA 

Procedural Provisions? 

On June 18, 2002, ADEQ submitted to 

EPA the ‘‘Ajo Sulfur Dioxide 

Nonattainment Area, State 

Implementation and Maintenance Plan’’

and a request to redesignate the area to 

attainment. The State verified that it had 

adhered to its SIP adoption procedures. 

On October 30, 2002, we found that the 

submittal met the completeness criteria 

in 40 CFR Part 51, Appendix V, which 

must be satisfied before EPA formal 

review. 

2. Does the Area Qualify for Review 

Under the Seitz Memo? 

a. Were the Area’s Violations Caused 

by a Major Point Source of SOx

Emissions that Is No Longer in 

Operation? 

As discussed above, the only major 

source of SOx emissions within the Ajo 

nonattainment area was the Phelps 

Dodge Mining Company’s Ajo 

Incorporated (PDAI) copper smelter, 

which ceased operation in 1985. The 

last recorded 24-hour or annual average 

exceedances of the primary NAAQS at 

PDAI occurred in 1984. During the 

monitoring network’s history, annual 

average SO2 levels were generally one 

half of the current NAAQS standard 

(0.030 ppm). ADEQ removed the SO2

monitor in 1985, the smelter operating 

permits expired, the smelting 

equipment was removed over a period 

of years, and the smelter was completely 

dismantled by February 1996. No new 

sources of SO2 of the magnitude of PDAI 

have located in the area. Thus, Ajo 

meets this criterion for review under the 

Seitz Memo. 

b. Has the State Met the Requirements 

of the Seitz Memo? 

As discussed below, the State has 

addressed the requirements in the Seitz 

Memo for emissions inventories, 

modeling, permitting of major new 

sources, and agreement to commence 

monitoring if a new major source locates 

in the area. Therefore, the State has met 

the special criteria in the Seitz Memo 

for approval of maintenance plans and 

redesignation requests. 

(1) Emissions Inventory. The State 

provided the three emissions 

inventories specified in the Seitz Memo 

for the sources in, and within 50 

kilometers of, the Ajo nonattainment 

area. For a representative year when the 

copper smelter was in operation (1981), 

direct SOx emissions from smelting 

operations were 39,596 tpy. The ADEQ 

submittal identifies only a single 

existing point source within the Ajo 

Area, the Phelps Dodge Generator 

Station, with 2000 SO2 emissions of 

about 1 tpy, and 2015 projected 

emissions of 1.2 tpy. Phelps Dodge has 

only operated the generators as 

emergency/back up electric supply in 

recent years. The ADEQ submittal also 

identified the proposed Gila Bend 

Landfill, and projected its emissions at 

29.7 tpy in 2015.3 We conclude that the 

inventories are complete, accurate, and 

consistent with applicable CAA 

provisions and the Seitz Memo.

(2) Modeling. Past EPA policy 

memoranda on SO2 redesignations all 

ask for dispersion modeling. The Seitz 

Memo asks for dispersion modeling of 

all point sources within 50 km of the 

nonattainment area boundary. Screening 

dispersion modeling was performed 

with SCREEN3 using conservative 

assumptions about source parameters 

and the meteorology. The modeling 

indicated that the existing and thenproposed (Gila Landfill) sources would 

likely have an impact of about 66 

percent of any of the SO2 standards. 

The Seitz Memo requires a modeling 

analysis that shows point sources were 

the dominant sources contributing to 

high SO2 concentrations in the airshed. 

While MPR has been accepted by EPA 

for modeling of smelters, as a rollback 

method it assumes that the monitored 

SO2 violations are completely due to the 

smelter being modeled. Thus, it cannot 

be relied upon for this analysis. Instead, 

screening modeling can be used to show 

that non-smelter sources have only an 

insignificant contribution. Since their 

emissions have changed relatively little 

since the time that emission controls 

were placed on the smelter, this same 

screening modeling shows that the 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 

Ajo SO2 nonattainment area, the 

nonattainment area new source review 

(NSR)permit program responsibilities 

are shared by ADEQ and Pima 

Department of Environmental Quality 

(PDEQ). ADEQ administers the 

preconstruction review and permitting 

provisions of Arizona Administrative 

Code, Title 18, Chapter 2, Articles 3 and 

4. PDEQ administers the NSR program 

under Pima County Code, Title 17, 

Chapter 17.12 and Chapter 17.16, 

Article VIII. All new major sources and 

modifications to existing major sources 

are subject to the NSR requirements of 

these rules. We have not yet fully 

approved the ADEQ and PDEQ NSR 

rules. 

Section 172(c)(5) requires NSR 

permits for the construction and 

operation of new and modified major 

stationary sources anywhere in 

nonattainment areas. We have 

determined that areas being 

redesignated from nonattainment to 

attainment do not need to comply with 

the requirement that an NSR program be 

approved prior to redesignation 

provided that the area demonstrates 

maintenance of the standard without 

Part D nonattainment NSR in effect. The 

rationale for this decision is described 

in a memorandum from Mary Nichols 

dated October 14, 1994 (‘‘Part D New 

Source Review (Part D NSR) 

Requirements for Areas Requesting 

Redesignation to Attainment’’). We have 

determined that the maintenance 

demonstration for Ajo does not rely on 

nonattainment NSR. Prevention of 

Significant Deterioration (PSD) is the 

replacement for NSR in attainment 

areas, and part of the obligation under 

PSD is for a new source to review 

increment consumption and 

maintenance of the air quality 

standards. PSD also requires 

preconstruction monitoring. Therefore, 

the State need not have a fully approved 

nonattainment NSR program prior to 

approval of the redesignation request. 

ADEQ and PDEQ have PSD permitting 

programs (A.A.C. R18–2–406 and Pima 

County Code (PCC) 17.16.590) that were 

established to preserve the air quality in 

areas where ambient standards have 

been met. The State’s PSD program for 

all criteria pollutants except PM–10 was 

approved into the SIP effective May 3, 

1983 (48 FR 19879). The federal PSD 

program for PM–10 was delegated to the 

State on March 12, 1999. Pima’s PSD 

program (for all criteria pollutants) was 

delegated effective April 14, 1994. The 

PSD program requires stationary sources 

to undergo preconstruction review 

before facilities are constructed, 

modified, or reconstructed and to apply 

Best Available Control Technology 

(BACT). These programs will apply to 

any major source wishing to locate in 

the Ajo area once the area is 

redesignated to attainment. The ADEQ 

and PDEQ commitments to treat any 

major source in or near Ajo as ‘‘new’’

under the PSD program satisfies the 

preconstruction permit provision of the 

Federal Register / Vol. 68, No. 212 / Monday, November 3, 2003 / Rules and Regulations 62243

Seitz memo as one of the prerequisites 

to redesignation. 

(4) Monitoring. ADEQ has confirmed 

that the State commits to resume 

monitoring before any major source of 

SO2 commences to operate. This 

addresses the monitoring provision of 

the Seitz Memo.

B. Has the State Met the Remaining 

Maintenance Plan Provisions? 

As discussed above, CAA Section 

175A sets forth the statutory 

requirements for maintenance plans, 

and the Calcagni and Shaver Memos 

cited above contain specific EPA 

guidance. The only maintenance plan 

element not covered by the Seitz Memo 

is the contingency provision. CAA 

Section 175A provides that maintenance 

plans ‘‘contain such contingency 

provisions as the Administrator deems 

necessary to assure that the State will 

promptly correct any violation of the 

standard which occurs after the 

redesignation of the area as an 

attainment area.’’

The Ajo Maintenance Plan includes 

the State’s commitment to continue to 

implement and enforce measures 

necessary to maintain the SO2 NAAQS. 

ADEQ’s current operating permit 

program places limits on SO2 emissions 

from existing sources. Should an 

existing facility want to upgrade or 

increase SO2 emissions, the facility 

would be subject to the PSD program. 

Should a new facility be constructed in 

the Ajo area, the facility would also be 

subject to PSD as required in the 

Calcagni Memo. 

If these measures prove insufficient to 

protect against exceedances of the 

NAAQS, the State has also committed to 

adopt, submit as a SIP revision, and 

implement expeditiously any and all 

measures needed to ensure maintenance 

of the NAAQS. 

The Calcagni Memo emphasizes the 

importance of specific contingency 

measures, schedules for adoption, and 

action levels to trigger implementation 

of the contingency plan. Since there are 

no remaining sources of SO2 emissions 

of the magnitude of the Phelps Dodge 

smelter and there is no SO2 monitoring 

in the Ajo area, we agree with the State 

that this level of specificity is not 

appropriate, and we conclude that the 

State’s commitment satisfactorily 

addresses the CAA provisions. We 

believe that the State and County’s PSD 

permitting program is sufficient to track 

future air quality trends and to assure 

that the Ajo area will not violate the 

NAAQS. If either the State or the 

County identifies the potential for a 

NAAQS violation through the 

permitting process, they would 

ascertain what measures would be 

needed to avoid the violation. 

C. Has the State Met the Redesignation 

Provisions of CAA Section 107(d)(3)(E)? 

1. Has the Area Attained the 24-Hour 

and Annual SO2 NAAQS? 

As discussed above, the normal 

prerequisite for redesignation is 

submittal of quality-assured ambient 

data with no violations of the SO2

NAAQS for the last eight consecutive 

quarters. However, the Seitz Memo 

recognizes that states should be 

provided an opportunity to request 

redesignation where there is no longer 

monitoring but where there is no 

reasonable basis for assuming that SO2

violations persist after closure of the 

sources that were the primary or sole 

cause of these violations. Ajo is such an 

area, and the State has submitted 

convincing evidence that no major 

stationary sources of SOx emissions 

remain in operation in or within 50 

kilometers of the area that might cause 

a violation of the SO2 NAAQS. We do 

not believe that, even in the aggregate, 

the remaining minor sources which are 

present would cause a violation of the 

SO2 NAAQS. 

2. Has the Area Met All Relevant 

Requirements Under Section 110 and 

Part D of the Act? 

CAA Section 110(a)(2) contains the 

general requirements for SIPs 

(enforceable emission limits, ambient 

monitoring, permitting of new sources, 

adequate funding, etc.) and Part D 

contains the general provisions 

applicable to SIPs for nonattainment 

areas (emissions inventories, reasonably 

available control measures, 

demonstrations of attainment, etc.). 

Over the years, we have approved 

Arizona’s SIP as meeting the basic 

requirements of CAA Section 110(a)(2), 

and the CAA Part D requirements for 

Ajo addressed primarily by the 

regulations applicable to the Phelps 

Dodge facility during the period of its 

operation. The State has thus met the 

basic SIP requirements of the CAA. 

3. Does the Area Have a Fully Approved 

SIP Under Section 110(k) of the Act? 

We examined the applicable SIP, and 

also looked at the disapprovals listed in 

40 CFR 52.125 and no disapprovals 

remain relevant to the applicable SIP. 

Arizona has a fully-approved SIP with 

respect to the Ajo area. 

4. Has the State Shown That the Air 

Quality Improvement in the Area is 

Permanent and Enforceable? 

Yes. The Maintenance Plan shows 

that the exclusive cause of past SO2

NAAQS violations (the Phelps Dodge 

copper smelter in Ajo) no longer exists. 

As a result, there is no reason to expect 

that SO2 ambient concentrations will 

exceed background levels. 

5. Does the Area Have a Fully Approved 

Maintenance Plan Pursuant to Section 

175A of the Act? 

Yes. As discussed above, we are 

approving the Ajo Maintenance Plan in 

this action. 

IV. Final Action 

We are approving the Maintenance 

Plan for the Ajo area under CAA 

Sections 110 and 175A. We are also 

approving the State’s request to 

redesignate the Ajo area to attainment of 

the primary SO2 NAAQS.

We are publishing this action without 

prior proposal because we view this as 

a noncontroversial amendment and 

anticipate no adverse comments. 

However, in the proposed rules section 

of this Federal Register publication, we 

are publishing a separate document that 

will serve as the proposal to approve the 

State plan and redesignate the area if 

relevant adverse comments are filed. 

This rule will be effective January 2, 

2004 without further notice unless 

relevant adverse comments are received 

by December 3, 2003. If we receive such 

comments, this action will be 

withdrawn before the effective date. All 

public comments received will then be 

addressed in a subsequent final rule 

based on the proposed action. We will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

If no such comments are received, the 

public is advised that this action will be 

effective January 2, 2004. 

V. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

62244 Federal Register / Vol. 68, No. 212 / Monday, November 3, 2003 / Rules and Regulations 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Public Law 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the state to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.).

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 2, 2004. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Sulfur dioxide. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas.

Dated: September 25, 2003. 

Deborah Jordan, 

Acting Regional Administrator, Region 9.

■ 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)(111) to read as 

follows:

§ 52.120 Identification of plan.

* * * * *

(a) * * * 

(111) The following plan was 

submitted on June 18, 2002, by the 

Governor’s designee. 

(i) Incorporation by reference. 

(A) Arizona Department of 

Environmental Quality. 

(1) Ajo Sulfur Dioxide State 

Implementation and Maintenance Plan, 

adopted by Arizona Department of 

Environmental Quality on June 18, 

2002.

PART 81—[AMENDED]

■ 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 Ajo 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 

Ajo (T11–13S, R5W–R6W) .............................................................. ............................ ............................ ............................ x 

*******

Federal Register / Vol. 68, No. 212 / Monday, November 3, 2003 / Rules and Regulations 62245

* * * * *

[FR Doc. 03–27263 Filed 10–31–03; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

42 CFR Part 73 

Possession, Use, and Transfer of 

Select Agents and Toxins

AGENCY: Centers for Disease Control and 

Prevention, HHS.

ACTION: Interim final rule and request 

for comments. 

SUMMARY: We are amending an interim 

final rule published on December 13, 

2002, that established requirements 

regarding possession and use in the 

United States, receipt from outside the 

United States, and transfer within the 

United States, of select agents and 

toxins. The requirements were 

established to implement provisions of 

the Public Health Security and 

Bioterrorism Preparedness and 

Response Act of 2002. The December 

2002 interim final rule established a 

phase-in period for certain requirements 

to allow entities to comply without 

causing disruption or termination of 

research or educational projects. The 

phase-in for entities that on February 7, 

2003, were already conducting activities 

under a certificate of registration issued 

under 42 CFR 72.6, or already were 

lawfully possessing select agents and 

toxins, required entities applying for 

registration with the select agent 

program, and individuals requiring 

access to select agents and toxins, to 

undergo a security risk assessment by 

the Attorney General before November 

12, 2003. The regulations also provided 

that an entity that on February 7, 2003, 

was not already conducting activities 

under a certificate of registration issued 

under 42 CFR 72.6, or was not already 

lawfully possessing select agents and 

toxins, would be eligible for registration 

to possess, use, or transfer select agents 

and toxins as soon as the entity met all 

of the applicable requirements of Part 

73, including the requirement for the 

Attorney General to conduct a security 

risk assessment. We are now amending 

the applicability requirements to allow 

for the issuance of provisional 

registration certificates for all entities, 

and provisional grants of access for all 

individuals, from whom, prior to 

November 12, 2003, the Attorney 

General has received all of the 

information required by the Attorney 

General to conduct a security risk 

assessment if those entities and 

individuals otherwise meet all of the 

requirements of Part 73. This action is 

necessary to ensure that both ongoing 

and new research and educational 

efforts important to the national defense 

are not disrupted.

DATES: This interim final rule is 

effective as of November 3, 2003. 

Written comments must be submitted 

on or before January 2, 2004.

ADDRESSES: Select Agent Program, 

Centers for Disease Control and 

Prevention, 1600 Clifton Rd., E–79, 

Atlanta, GA 30333. Comments may be emailed to: SAPcomments@CDC.GOV.

FOR FURTHER INFORMATION CONTACT:

Mark Hemphill, Chief of Policy, Select 

Agent Program, Centers For Disease 

Control and Prevention, 1600 Clifton 

Rd., MS E–79, Atlanta Ga. 30333. (404) 

498–2255.

SUPPLEMENTARY INFORMATION: The 

December 2002 interim final rule 

implements provisions of the Public 

Health Security and Bioterrorism 

Preparedness and Response Act of 2002, 

Public Law 107–188 (referred to below 

as the Act). The Act bolstered the 

authority of the Secretary of the United 

States Department of Health and Human 

Services (referred to below as HHS) to 

protect the American public against the 

misuse of select agents and toxins 

whether inadvertent or the result of 

terrorist acts against the United States 

homeland (such as the recent terrorist 

acts involving anthrax) or other criminal 

acts. The Act gave to the Secretary broad 

discretion in establishing and enforcing 

the new regulations to ensure that select 

agents and toxins would remain 

available for research, education, and 

other legitimate purposes. 

In a document published in the 

Federal Register on December 13, 2002 

(67 FR 76886), we promulgated an 

interim final rule to establish 

requirements regarding possession and 

use in the United States, receipt from 

outside the United States, and transfer 

within the United States, of certain 

biological agents and toxins (referred to 

below as select agents and toxins). This 

includes requirements concerning 

registration, security risk assessments, 

safety plans, security plans, emergency 

response plans, training, transfers, 

record keeping, inspections, and 

notifications. The December 2002 

interim final rule is set forth at 42 CFR 

part 73. 

In general, the entities regulated 

under the December 2002 interim final 

rule are academic institutions and 

biomedical centers; commercial 

manufacturing (the pharmaceutical 

industry) or distribution facilities; 

federal, state, and local laboratories, 

including clinical and diagnostic 

laboratories; and research facilities. 

The Act also gives the United States 

Department of Agriculture (referred to 

below as USDA) the authority and 

responsibility for regulating activities 

regarding select agents and toxins to 

protect animal and plant health and 

animal and plant products. The Act 

gives the Secretary of HHS the authority 

and responsibility for regulating 

activities regarding select agents and 

toxins to protect the public health and 

safety. Some of the select agents and 

toxins regulated under the HHS 

December 2002 interim final rule are 

also regulated by USDA under 9 CFR 

part 121. The select agents and toxins 

subject to regulation by both agencies 

are identified as ‘‘overlap’’ select agents 

and toxins and those regulated solely by 

HHS are identified as HHS select agents 

and toxins. The Act provides for 

interagency coordination between the 

two departments regarding overlap 

select agents and toxins.

The December 2002 interim final rule 

established a phase-in period for certain 

requirements to allow entities to comply 

without causing disruption or 

termination of research or educational 

projects. The phase-in for entities that 

on February 7, 2003, were already 

conducting activities under a certificate 

of registration issued under 42 CFR 

72.6, or already were lawfully 

possessing select agents and toxins, 

required that entities applying for 

registration with the select agent 

program, and individuals requiring 

access to select agents and toxins, to 

undergo a security risk assessment by 

the Attorney General before November 

12, 2003. The regulations also provided 

that an entity that on February 7, 2003, 

was not already conducting activities 

under a certificate of registration issued 

under 42 CFR 72.6, or was not already 

lawfully possessing select agents and 

toxins, would be eligible for registration 

to possess, use, or transfer select agents 

and toxins as soon as the entity met all 

of the applicable requirements of Part 

73, including the requirement for the 

Attorney General to conduct a security 

risk assessment. 

The Attorney General has assigned 

the responsibility to conduct the 

security risk assessments required by 

the Act to the Federal Bureau of 

Investigation (FBI). The Criminal Justice 

Information Services (CJIS) Division is 

the component of the FBI responsible 

for implementing this program. The CJIS 

Division continues to receive complete 

application packages, which consist of 

completed FBI Information Forms (FD–

961) and usable fingerprint cards, and 

has finalized over 5,000 security risk