Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Arizona, 9941-9947 [06-1850]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 39 (Tuesday, February 28, 2006)]
[Rules and Regulations]
[Pages 9941-9947]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1850]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R09-OAR-2005-AZ-0008; FRL-8022-5]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Arizona

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the maintenance plan for the Douglas area in 
Cochise County, Arizona and granting the request submitted by the State 
to redesignate this area from nonattainment to attainment for the 
National Ambient Air Quality Standards (NAAQS) for sulfur dioxide 
(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 action will be effective on May 1, 2006, without further 
notice, unless EPA receives adverse comments by March 30, 2006.
    If we receive such comments, we will publish a timely withdrawal in 
the Federal Register to notify the public that this rule will not take 
effect and that we will respond to submitted comments and take 
subsequent final action.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2005-AZ-0008, by one of the following methods:
    1. Agency web site: https://www.regulations.gov. EPA prefers 
receiving comments through this electronic public docket and comment 
system. Follow the on-line instructions to submit comments.
    2. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the on-line instructions.
    3. E-mail: tax.wienke@epa.gov.
    4. Mail or deliver: Wienke Tax, Office of Air Planning (AIR-2), 
U.S. Environmental Protection Agency, Region 9, 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 https://
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 
agency Web site, eRulemaking portal, or e-mail. The agency Web site and 
eRulemaking portal are ``anonymous access'' systems, 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 https://www.regulations.gov and in hard copy at EPA 
Region 9, 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: Wienke Tax, U.S. EPA Region 9, (520) 
622-1622, tax.wienke@epa.gov, or www.epa.gov/region09/air/actions.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' mean U.S. EPA.

Table of Contents

I. Summary of Action
II. Introduction
    A. What National Ambient Air Quality Standards Are Considered In 
Today's Rulemaking?
    B. What Is a State Implementation Plan (SIP)?
    C. What Is the Background for This Action?
    D. What Are the Applicable CAA Provisions for SO2 
Nonattainment Area Plans?

[[Page 9942]]

    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 Redesignation Provisions of CAA Section 
107(d)(3)(E)?
IV. Final Action
V. Statutory and Executive Order Reviews

I. Summary of Action

    We are approving the maintenance plan for the Douglas 
SO2 nonattainment area.\1\ We are also approving the State 
of Arizona's request to redesignate the Douglas area from nonattainment 
to attainment for the primary SO2 NAAQS.
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    \1\ For the definition of the Douglas nonattainment area, see 40 
CFR 81.303. On March 3, 1978, EPA designated the entire area of 
Cochise County as nonattainment for SO2 for lack of a 
State recommendation. On April 10, 1979, EPA approved Arizona's 
request that the SO2-affected portion of Cochise County 
be limited to three townships surrounding Douglas (44 FR 21261). 
Townships T23S, R27E; T24S, R27E; and T24S, R28E comprise the 
nonattainment area. Townships T23S, R26E; T23S, R28E; and T24S, R26E 
are designated as ``cannot be classified''. Douglas is a town in 
southern Cochise County near the Mexican border.
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II. Introduction

A. What National Ambient Air Quality Standards Are Considered in 
Today's Rulemaking?

    The subject of this action is SO2. The NAAQS are safety 
thresholds for certain ambient air pollutants set to protect public 
health and welfare. SO2 is among the ambient air pollutants 
for which we have established health-based standards.
    SO2 causes adverse health effects: Reducing lung 
function, increasing respiratory illness, altering the lung's defenses, 
and aggravating existing cardiovascular disease. Children, the elderly, 
and people with asthma are the most vulnerable. SO2 has a 
variety of additional impacts, including acidic deposition, damage to 
crops and vegetation, and corrosion of natural and man-made materials.
    There are both short- and long-term primary NAAQS for 
SO2. The short-term (24-hour) standard of 0.14 parts per 
million (ppm) is not to be exceeded more than once per year. The long-
term standard specifies an annual arithmetic mean not to exceed 0.030 
ppm.\2\ The primary standards were established in 1972. (See 40 CFR 
50.4).
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    \2\ The secondary SO2 NAAQS (3-hour) of 0.50 ppm is 
not to be exceeded more than once per year. Secondary NAAQS are 
promulgated to protect welfare. The Douglas area is not classified 
as nonattainment for the secondary SO2 standard, and this 
action relates only to the primary NAAQS.
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B. What Is a State Implementation Plan (SIP)?

    The Clean Air Act (CAA) requires states to attain and maintain 
ambient air quality equal to or better than the NAAQS. The state's 
commitments for attaining and maintaining the NAAQS are outlined in the 
approved SIP for that state. The SIP is a planning document that, when 
implemented, is designed to ensure the achievement of the NAAQS. Each 
state currently has a SIP in place, and the Act requires that SIP 
revisions be made periodically as necessary to provide continued 
compliance with the standards.
    SIPs include, among other things, the following: (1) An inventory 
of emission sources; (2) statutes and regulations adopted by the state 
legislature and executive agencies; (3) air quality analyses that 
include demonstrations that adequate controls are in place to meet the 
NAAQS; and (4) contingency measures to be undertaken if an area fails 
to attain the standard or make reasonable progress toward attainment by 
the required date.
    The state must make a SIP submittal such as the one we are 
addressing available for public review and comment through a public 
hearing, it must be adopted by the state, and submitted to us by the 
Governor or her/his designee. We take federal action on the SIP 
submittal, rendering the rules and regulations federally enforceable if 
and when we approve them. The approved SIP serves as the state's 
commitment to take actions that will reduce or eliminate air quality 
problems. Any subsequent proposals to revise the SIP must go through 
the formal EPA SIP revision process specified in the Act.

C. What Is the Background for This Action?

1. When Was the Nonattainment Area Established?
    The Phelps Dodge Douglas Reduction Works Smelter (PDDRWS) operation 
was the largest SO2 point source in the Douglas 
nonattainment area during its operation. PDDRWS was located 1.5 miles 
west of Douglas.
    The details of the initial designation of the Douglas 
SO2 nonattainment area are provided in footnote 1 in this 
Federal Register action. 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 Douglas 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 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. The PDDRWS smelter closed in 1987 and was 
dismantled in 1991. In December of 2001, ADEQ submitted a redesignation 
request and maintenance plan to us.
3. What Is the Current Status of the Area?
    Currently, there are no operating ambient SO2 monitors 
in the Douglas area. Since the smelter was by far the largest source of 
SO2 in the area, it was not necessary to continue monitoring 
for this pollutant once the source was permanently shut down. We do not 
expect the cumulative impact of the minor sources of SO2 in 
and around Douglas to cause a violation of the NAAQS. A few new minor 
sources have located in the area but the smelter was the obvious cause 
of past violations.

D. What Are the Applicable 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 
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?
    Douglas is subject to the requirements of subpart 1 of Part D of 
title I of the CAA (Sections 171-179B). Section 172

[[Page 9943]]

of this subpart contains provisions for nonattainment plans in general; 
these provisions were not significantly changed by the 1990 CAA 
Amendments. Among other requirements, CAA Section 172 provides that 
SIPs must assure that reasonably available control measures (RACM) 
(including such reductions in emissions from existing sources in the 
area as may be obtained through the adoption, at a minimum, of 
reasonably available control technology (RACT)) shall be implemented as 
expeditiously as practicable and shall provide for attainment.

E. What Are the Applicable Provisions for SO2 Maintenance Plans and 
Redesignation Requests?

1. What Are the Statutory Provisions?
a. CAA Section 107(d)(3)(E)
    The 1990 CAA Amendments revised section 107(d)(3)(E) to provide 
five specific requirements that an area must meet in order to be 
redesignated from nonattainment to attainment:
    (1) The area must have attained the applicable NAAQS;
    (2) The area has met all relevant requirements under section 110 
and Part D of the Act;
    (3) The area has a fully approved SIP under section 110(k) of the 
Act;
    (4) The air quality improvement must be permanent and enforceable; 
and,
    (5) The area must have a fully approved maintenance plan pursuant 
to section 175A of the Act.
b. CAA Section 175A
    CAA section 175A provides the general framework for maintenance 
plans. The maintenance plan must provide for maintenance of the NAAQS 
for at least 10 years after redesignation, including any additional 
control measures as may be necessary to ensure such maintenance. In 
addition, maintenance plans are to contain contingency provisions that 
are necessary to assure the prompt correction of a violation of the 
NAAQS that occurs after redesignation. The contingency measures must 
include, at a minimum, a requirement that the state will implement all 
control measures contained in the nonattainment SIP prior to 
redesignation. Beyond these provisions, however, CAA section 175A does 
not define the content of a maintenance plan.
2. What General EPA Guidance Applies to Maintenance Plans?
    General guidance on maintenance plans and redesignation requests is 
provided in a September 4, 1992 memo from John Calcagni, entitled 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment'' (``Calcagni Memo''). Specific guidance on SO2 
redesignations also appears in a January 26, 1995 memo from Sally L. 
Shaver, entitled ``Attainment Determination Policy for Sulfur Dioxide 
Nonattainment Areas'' (``Shaver Memo'').
    Guidance on SO2 maintenance plan requirements for an 
area lacking ambient monitoring data, if the area's historic violations 
were caused by a major point source that is no longer in operation, is 
found in an October 18, 2000 memo from John S. Seitz entitled 
``Redesignation of Sulfur Dioxide Nonattainment Areas in the Absence of 
Monitored Data'' (``Seitz Memo''). The Seitz memo exempts eligible 
areas from the maintenance plan requirements of continued monitoring.
3. What Are the Requirements for Redesignation of Single-Source 
SO2 Nonattainment Areas in the Absence of Monitored Data?
    Our historic redesignation policy for SO2 has called for 
eight quarters of clean ambient air quality data as a necessary 
prerequisite to redesignation of any area to attainment. The Seitz memo 
provides guidance on SO2 maintenance plan requirements for 
an area lacking monitored ambient data, if the area's historic 
violations were caused by a major point source that is no longer in 
operation. In order to allow for these areas to qualify for 
redesignation to attainment, this policy requires that the maintenance 
plan address otherwise applicable provisions, and include:
    (1) Emissions inventories representing actual emissions when 
violations occurred; current emissions; and emissions projected to the 
10th year after redesignation;
    (2) Dispersion modeling showing that no NAAQS violations will occur 
over the next 10 years and that the shut down source was the dominant 
cause of the high concentrations in the past;
    (3) Evidence that if the shut down source resumes operation, it 
would be considered a new source and be required to obtain a permit 
under the Prevention of Significant Deterioration provisions of the 
CAA; and
    (4) A commitment to resume monitoring before any major 
SO2 source commences operation.

III. Review of the Arizona State Submittals Addressing These Provisions

A. Is the Maintenance Plan Approvable?

1. Did the State Meet the CAA Procedural Provisions?
    On December 14, 2001, ADEQ submitted to EPA the ``Douglas Sulfur 
Dioxide State Implementation and Maintenance Plan'' and request to 
redesignate the area to attainment. The State verified that it had 
adhered to its SIP adoption procedures. In electronic mail 
correspondences dated March 8, 2002, and August 21, 2002, we asked the 
state for additional information on emissions inventories and modeling. 
On May 12, 2003 and April 2, 2004 Arizona submitted additional and 
revised technical information to EPA to support its redesignation 
request. A further revision was submitted on September 16, 2005. The 
2003 submittal was withdrawn on November 21, 2005, as it was wholly 
replaced by the 2004 and 2005 submittals.\3\ We will refer to the 
original submittal as the ``Douglas maintenance plan'' and the 
additional submittals as the A2004 Supplement'' and the A2005 
Supplement''.
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    \3\ See letter from Stephen A. Owens, Director, Arizona 
Department of Environmental Quality, to Wayne Nastri, Regional 
Administrator, EPA Region 9, dated November 21, 2005.
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2. Does the Area Qualify for Review Under the Seitz Memo?
a. Were the Area's Violations Caused by a Major Point Source of 
SO2 Emissions That Is No Longer in Operation?
    As discussed above, the only major source of SO2 
emissions within the Douglas nonattainment area was the Phelps Dodge 
Douglas Incorporated (PDDRWS) copper smelter, which ceased operation in 
1987. The last recorded 24-hour or annual average exceedances of the 
primary NAAQS at PDDRWS occurred in 1986, the last year of extensive 
monitoring. All but one monitor was removed before 1987 and all the 
remaining monitors owned and operated by Phelps Dodge and by ADEQ in 
the vicinity of the PDDRWS smelter were removed by 1988. The smelter 
operating permits expired, the smelting equipment was removed over a 
period of years, and the smelter was completely dismantled by 1991. No 
new sources of SO2 of the magnitude of PDDRWS have located 
in the area. Thus, Douglas meets this criterion for review under the 
Seitz Memo.

[[Page 9944]]

b. Has the State Met the Requirements of the Seitz Memo?
    As discussed below, the State has addressed the requirements in the 
Seitz Memo for emissions inventories, modeling, permitting of major new 
sources, and agreement to commence monitoring if a new major source 
locates in the area. Therefore, the State has met the special criteria 
in the Seitz Memo for approval of maintenance plans and redesignation 
requests.
    (1) Emissions Inventory. The State provided the three emissions 
inventories specified in the Seitz Memo for the sources in, and within 
50 kilometers of, the Douglas nonattainment area. These were updated in 
the ``2005 Supplement'', based on new emissions and location 
information for two plants in neighboring Mexico. Projected emissions 
for 2015 were also corrected in the ``2005 Supplement'' for area, 
mobile, and the four existing point sources located within the 
nonattainment area. For a representative year when the copper smelter 
was in operation (1985), direct SO2 emissions from smelting 
operations were over 330,000 tons per year (tpy). ADEQ identified 
826.88 tpy of SO2 emissions in, or within 50 kilometers (km) 
of, the nonattainment area in 1999 based on actual emissions, and ADEQ 
projected 842.97 tpy SO2 emissions based on actual emissions 
in, or within 50 kilometers of, Douglas in the 10th year after 
redesignation (2015). Table 1 presents a summary of actual 
SO2 emissions for 1985, 1999, and projected actual emissions 
for 2015. We conclude that the inventories are complete, accurate, and 
consistent with applicable CAA provisions and the Seitz Memo.

Table 1.--Actual SO2 Emissions Inventories for 1985, 1999, and 2015 for the Douglas Nonattainment, Unclassified,
                                       and 50 km Boundary Areas (in tpy) a
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                    Source category                             1985               1999               2015
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Point Sources..........................................         330,021.16             746.62             747.03
Area and Mobile Sources................................              93.02              80.26              95.94
    Totals.............................................         330,114.18             826.88            842.97
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\a\ Source: ADEQ ``2005 Supplement'', Attachment 6.

    (2) Modeling. The basic modeling requirements for redesignation of 
SO2 nonattainment areas lacking current monitoring data are 
(1) modeling of sources in the nonattainment area and a 50 km buffer 
zone, showing that concentrations meet the NAAQS for (a) a current year 
and (b) for 10 years into the future, and (2) a showing that past 
monitored violations were due to sources that have since shut down.
    ADEQ used the EPA-recommended SCREEN3 dispersion model to estimate 
SO2 impacts due to sources in and within 50 km of the 
nonattainment area. SCREEN3 gives a conservatively high estimate by 
computing concentrations over a range of wind speed, atmospheric 
stability, and distance, and then choosing the maximum. For sources 
outside the nonattainment area, ADEQ used the modeled impact at the 
nonattainment area boundary, which is conservative since impacts 
decrease with distance past the first kilometer. Since SCREEN3 is a 
single-source model, results from multiple runs must be combined to get 
the total impact for comparison to the NAAQS. The most conservative way 
to do this is the approach ADEQ used, adding up the maxima from the 
individual source modeling. (The Agua Prieta power plant in Mexico was 
modeled separately for an Environmental Assessment Report, included in 
the SIP submittal. Its impacts were scaled up to reflect expected 
operations through 2015, and added to the total impacts.) Thus the ADEQ 
estimates are conservative in multiple ways: They assume that emissions 
occur all the time, that worst-case meteorology occurs all the time, 
and that the individual source maxima all coincide in space.
    One way in which the ADEQ modeling was potentially not conservative 
was in its assumption of simple terrain. Terrain with elevations above 
stack height, i.e., ``complex terrain'', can sometimes experience 
higher impacts than simple terrain. The Perilla Mountains appear to 
abut the east edge of the nonattainment area. EPA assessed their effect 
by rerunning SCREEN3 using its complex terrain option (including the 
Agua Prieta power plant). Terrain height was assumed to be the same as 
the plume height, to maximize modeled potential impacts. In this case, 
the complex terrain impacts were lower than the simple terrain 
algorithm, so the ADEQ results continue to represent a conservative 
estimate.
    ADEQ's SCREEN3 analysis was carried out for both current 1999 
emissions, and for emissions projected to 2015 (the latter was based on 
historic trends for some sources, and on ``Potential to Emit'' for 
others). For both current and future years, the sum of all source 
impacts and monitored background levels is well below the 
SO2 NAAQS. For 3-hour, 24-hour, and annual standards, the 
conservatively high modeled impacts are 39%, 63%, and 59% of the NAAQS, 
respectively. This demonstrates attainment of the NAAQS both currently 
and for the future.
    There have been no monitored or modeled SO2 NAAQS 
violations since the end of operations at the PDDRW smelter. The 
smelter's potential emissions of over 400,000 tons per year were over 
100 times the total of the current sources combined. The smelter caused 
NAAQS exceedances when modeled with SCREEN3. Since monitored and 
modeled NAAQS exceedances occur only with smelter operation, it is 
reasonable to conclude that the historical NAAQS violations were caused 
by the smelter, and not by existing sources. This shows that, even 
without current monitoring data, with the dismantling of the smelter, 
the sole cause of NAAQS exceedances no longer exists, and the NAAQS is 
protected.
    (3) Permitting of New Sources. For the Douglas SO2 
nonattainment area, the nonattainment area new source review (NSR) 
permit program responsibilities are held by ADEQ. ADEQ administers the 
preconstruction review and permitting provisions of Arizona 
Administrative Code (AAC), Title 18, Chapter 2, Articles 3 and 4. All 
new major sources and modifications to existing major sources are 
subject to the NSR requirements of these rules. We have not yet fully 
approved the ADEQ NSR rules. ADEQ's SIP-approved NSR rules are at 
A.A.C. R9-3-302.
    Section 172(c)(5) requires NSR permits for the construction and 
operation of new and modified major stationary sources anywhere in 
nonattainment areas. We have determined that areas being redesignated 
from nonattainment to attainment do not need to comply with the 
requirement that an NSR program be approved prior to redesignation 
provided that the area demonstrates

[[Page 9945]]

maintenance of the standard without part D nonattainment NSR in effect. 
The rationale for this decision is described in a memorandum from Mary 
Nichols dated October 14, 1994 (``Part D New Source Review (part D NSR) 
Requirements for Areas Requesting Redesignation to Attainment''). We 
have determined that the maintenance demonstration for Douglas does not 
rely on nonattainment NSR. Prevention of Significant Deterioration 
(PSD) is the replacement for NSR, and part of the obligation under PSD 
is for a new source to review increment consumption and maintenance of 
the air quality standards. PSD also requires preconstruction 
monitoring. Therefore, the State need not have a fully approved 
nonattainment NSR program prior to approval of the redesignation 
request.
    ADEQ has a PSD permitting program (A.A.C. R9-3-304 is the SIP-
approved rule) that was established to preserve the air quality in 
areas where ambient standards have been met. The State's PSD program 
for all criteria pollutants except PM-10 was approved into the SIP 
effective May 3, 1983 (48 FR 19878). The federal PSD program for PM-10 
was delegated to the State on March 12, 1999. The PSD program requires 
stationary sources to undergo preconstruction review before facilities 
are constructed, modified, or reconstructed and to apply Best Available 
Control Technology (BACT). These programs will apply to any major 
source wishing to locate in the Douglas area once the area is 
redesignated to attainment. The ADEQ commitment to treat any major 
source in or near Douglas as ``new'' under the PSD program satisfies 
the preconstruction permit provision of the Seitz memo as one of the 
prerequisites to redesignation.
    (4) Monitoring. ADEQ has confirmed on page 7.2 of the December 2001 
maintenance plan that the State commits to resume monitoring before any 
major source of SO2 commences to operate. Moreover, the PSD 
permit program requires that permit applicants conduct preconstruction 
monitoring to identify baseline concentrations. Together, these 
commitments address the monitoring provision of the Seitz Memo.
c. Has the State Met the Remaining Maintenance Plan Provisions?
    As discussed above, CAA Section 175A sets forth the statutory 
requirements for maintenance plans, and the Calcagni and Shaver memos 
cited above contain specific EPA guidance. The only maintenance plan 
element not covered by the Seitz Memo is the contingency provision. CAA 
Section 175A provides that maintenance plans ``contain such contingency 
provisions as the Administrator deems necessary to assure that the 
State will promptly correct any violation of the standard which occurs 
after the redesignation of the area as an attainment area''.
    The Douglas 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 most existing sources. Should 
an existing facility want to upgrade or increase SO2 
emissions, the facility would be subject to the PSD program, and 
required to undergo preconstruction review and to apply BACT. Should a 
new facility be constructed in the Douglas area, the facility would be 
subject to PSD as required in the Calcagni memo, as well as to A.A.C. 
R18-2-406, Permit Requirements for Sources Located in Attainment and 
Unclassifiable Areas, after redesignation.
    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 Douglas 
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. If the State identifies the potential for 
a NAAQS violation through the permitting process, the State would 
ascertain what measures would be needed to avoid a violation.

B. Has the State Met the Redesignation Provisions of CAA Section 
107(d)(3)(E)?

1. Has the Area Attained the 24-hour and Annual SO2 NAAQS?
    As discussed above, the normal prerequisite for redesignation is 
submittal of quality-assured ambient data with no violations of the 
SO2 NAAQS for the last eight consecutive quarters. However, 
the Seitz Memo recognizes that states should be provided an opportunity 
to request redesignation where there is no longer monitoring but where 
there is no reasonable basis for assuming that SO2 
violations persist after closure of the sources that were the primary 
or sole cause of these violations. Douglas is such an area, and the 
State has submitted convincing evidence that no major stationary 
sources of SO2 emissions remain in operation in or within 50 
kilometers of the area that might cause a violation of the 
SO2 NAAQS in this area.
2. Has the Area Met All Relevant Requirements Under Section 110 and 
Part D of the Act?
    CAA Section 110(a)(2) contains the general requirements for SIPs 
(enforceable emission limits, ambient monitoring, permitting of new 
sources, adequate funding, etc.) and Part D contains the general 
provisions applicable to SIPs for nonattainment areas (emissions 
inventories, reasonably available control measures, demonstrations of 
attainment, etc.). Over the years, we have approved Arizona's SIP as 
meeting the basic requirements of CAA Section 110(a)(2), and the CAA 
Part D requirements for Douglas were addressed primarily by the 
regulations applicable to the Phelps Dodge facility during the period 
of its operation. The State has thus met the basic SIP requirements of 
the CAA.
3. Does the Area Have a Fully Approved SIP Under Section 110(k) of the 
Act?
    We examined the applicable SIP, and also looked at the disapprovals 
listed in 40 CFR 52.125 and no disapprovals remain relevant to the 
applicable SIP. Arizona has a fully-approved SIP with respect to the 
Douglas area.
4. Has the State Shown That the Air Quality Improvement in the Area Is 
Permanent and Enforceable?
    Yes. The Maintenance Plan shows that the primary cause of past 
SO2 NAAQS violations (the Phelps Dodge copper smelter in 
Douglas) 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 Douglas Maintenance 
Plan in this action.

IV. Final Action

    We are approving the maintenance plan for the Douglas area under 
CAA Sections 110 and 175A. We are also approving the State's request to 
redesignate the Douglas area to attainment of the primary 
SO2 NAAQS.
    We are publishing this action without prior proposal because we do 
not view this as a controversial amendment and do not anticipate 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, we

[[Page 9946]]

are publishing a separate document that will serve as the proposal to 
approve the State plan and redesignate the area if relevant adverse 
comments are filed. This rule will be effective May 1, 2006 without 
further notice unless relevant adverse comments are received by March 
30, 2006. If we receive such comments, this action will be withdrawn 
before the effective date. All public comments received will then be 
addressed in a subsequent final rule based on the proposed action. We 
will not institute a second comment period. Any parties interested in 
commenting on this action should do so at this time. If no such 
comments are received, the public is advised that this action will be 
effective May 1, 2006.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 1, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements, Sulfur dioxide.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: December 27, 2005.
Jane Diamond,
Acting Regional Administrator, Region IX.

0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations 
are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart D--Arizona

0
2. Section 52.120 is amended by adding paragraphs (c)(126), (c)(127) 
and (c)(128) to read as follows:


Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (126) The following plan was submitted on December 14, 2001, by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Department of Environmental Quality.
    (1) Douglas Sulfur Dioxide Nonattainment Area State Implementation 
and Maintenance Plan, dated November 29, 2001, adopted by the Arizona 
Department of Environmental Quality on December 14, 2001.
    (127) The following plan was submitted on April 2, 2004, by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Department of Environmental Quality.
    (1) Modeling Supplement--Douglas Sulfur Dioxide (SO2) 
State Implementation and Maintenance Plan, adopted by the Arizona 
Department of Environmental Quality on April 2, 2004.
    (128) The following plan was submitted on September 16, 2005, by 
the Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Department of Environmental Quality.
    (1) Modeling and Emissions Inventory Supplement for the Douglas 
Sulfur

[[Page 9947]]

Dioxide Nonattainment Area State Implementation and Maintenance Plan 
and Redesignation Request, dated September 2005, adopted by the Arizona 
Department of Environmental Quality on September 16, 2005.

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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

0
2. In Sec.  81.303 the table entitled ``Arizona--SO2'' is 
amended by revising the entry for the Douglas area to read as follows:


Sec.  81.303  Arizona.

* * * * *

                                                  Arizona.--SO2
----------------------------------------------------------------------------------------------------------------
                                               Does not meet    Does not meet                      Better than
               Designated area                    primary         secondary        Cannot be         national
                                                 standards        standards        classified       standards
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Douglas:
    T23S, R27E..............................  ...............  ...............  ...............               x
    T24S, R27E..............................  ...............  ...............  ...............               x
    T24S, R28E..............................  ...............  ...............  ...............               x
    T23S, R26E..............................  ...............  ...............               x   ...............
    T23S, R28E..............................  ...............  ...............               x   ...............
    T24S, R26E..............................  ...............  ...............               x   ...............
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 06-1850 Filed 2-27-06; 8:45 am]
BILLING CODE 6560-50-P