[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38707-38710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18525]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[NC-062-1-6430a; NC-068-1-6632a; NC-067-1-6633a; FRL-5254-6]


Approval and Promulgation of Implementation Plans; State: 
Approval of Revisions to the State of North Carolina's State 
Implementation Plan (SIP)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the North Carolina State 
Implementation Plan (SIP) to allow the State and two local air 
pollution control agencies to issue Federally enforceable state 
operating permits (FESOP) and Federally enforceable local operating 
permits (FELOP). On May 31, 1994, the State of North Carolina through 
the Department of Environment, Health, and Natural Resources (DEHNR) 
submitted a SIP revision fulfilling the requirements necessary to issue 
FESOP. On June 1, 1994, the Forsyth County Department of Environmental 
Affairs (FCDEA) through the DEHNR submitted a SIP revision fulfilling 
the requirements necessary to allow Forsyth County to issue FELOP. On 
September 15, 1994, the Western North Carolina Regional Air Pollution 
Control Branch (WNCRAPCB) through the DEHNR submitted a SIP revision 
fulfilling the requirements necessary to allow the Western Carolina to 
issue FELOP. These submittals conform with the requirements necessary 
for a state or local agency's minor source operating permit program to 
become Federally enforceable. In order to extend the Federal 
enforceability of state and local operating permits to hazardous air 
pollutants (HAP), EPA is also proposing approval of the North Carolina, 
Forsyth County, and Western Carolina FESOP and FELOP regulations 
pursuant to section 112 of the Act.

DATES: This action will be effective by September 26, 1995 unless 
notice is received by August 28, 1995 that someone wishes to submit 
adverse or critical comments. If the effective date is delayed, timely 
notice will be published in the Federal Register.

ADDRESSES:
    Written comments should be addressed to Scott Miller at the EPA 
Regional office listed below.
    Copies of the material submitted by North Carolina may be examined 
during normal business hours at the following locations:

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345 
Courtland Street, NE, Atlanta, Georgia 30365.
North Carolina Department of Health, Environment, and Natural 
Resources, Air Quality Section, P.O. Box 29535, Raleigh, North Carolina 
27626.
Forsyth County Environmental Affairs Department, Air Quality Section, 
537 North Spruce Street, Winston-Salem, North Carolina 27101.
Western North Carolina Regional Air Pollution Control Agency, Buncombe 
County Courthouse, 60 Court Plaza, Asheville, North Carolina 28801.

FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch, 
Air, Pesticides & Toxics Management Division, Region 4 Environmental 
Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365.The 
telephone number is 404/347-3555 extension 4153. Reference file numbers 
NC-068-1-6632; NC-067-1-6633; NC-062-1-6430.

SUPPLEMENTARY INFORMATION: On May 31, 1994, June 1, 1994, and September 
15, 1994, the State of North Carolina, the FCDEA, and the WNCRAPCB, 
respectively, through the DEHNR submitted SIP revisions designed to 
allow the three agencies to issue operating permits which are Federally 
enforceable pursuant to EPA requirements as specified in a Federal 
Register notice, ``Requirements for the preparation, adoption, and 
submittal of implementation plans; air quality, new source review; 
final rules.'' (See 54 FR 22274, June 28, 1989). These voluntary SIP 
revisions allow EPA and citizens to enforce terms and conditions of 
state-issued and local-issued minor source operating permits. In 
addition, operating permits that are issued under a state or local 
agency's minor source operating permit program that is approved into 
the SIP may provide Federally enforceable limits to an air pollution 
source's potential to emit. Limiting of a source's potential to emit 
through Federally enforceable operating permits can affect a source's 
applicability to Federal regulations such as title V operating permits, 
New Source Review (NSR) preconstruction permits, Prevention of 
Significant Deterioration (PSD) preconstruction permits for criteria 
pollutants and Federal air toxics requirements mandated under section 
112 of the Clean Air Act as amended in 1990 (CAA).
    In the aforementioned June 28, 1989, Federal Register document, EPA 
listed five criteria necessary to allow a state or local agency's 
operating permit program to become Federally enforceable and, 
therefore, approvable into the SIP.
    The first criteria for a state or local agency's operating permit 
program to become Federally enforceable is that the FESOP or FELOP 
program must be approved into the SIP. On May 31, 1994, June 1, 1994, 
and September 15, 1994, the State of North Carolina, the FCDEA, and the 
WNCRAPCB, respectively, through the DEHNR submitted SIP revisions 
designed to meet the five criteria for Federal enforceability. This 
action will approve these regulations into the North Carolina SIP, 
thereby, meeting the first criteria for Federal enforceability.
    The second criteria for a state's operating permit program to 
become Federally enforceable is that the regulations approved into the 
SIP impose a legal obligation that operating permit holders adhere to 
the terms and limitations of such permits. North Carolina Regulation 
15A NCAC 2Q.0306(b) addresses this requirement by outlining specific 
measures that the State may take in the event of the ``failure of the 
owner or operator of a source permitted pursuant to this Rule to adhere 
to the terms and limitations of the permit.'' These measures include an 
enforcement action, permit termination, revocation, and reissuance as 
well as a denial of permit renewal application. Both the FCDEA and the 
WNCRAPCB operating permit programs meet this requirement by a verbatim 
incorporation of the State's Regulation 15A NCAC 2Q.0306(b) into their 
regulations.
    The third criteria necessary for a state or local agency's 
operating permit program to be Federally enforceable is that the 
operating permit program require that all emissions limitations, 
controls, and other requirements imposed by such permits will be at 
least 

[[Page 38708]]
as stringent as any other applicable limitations and requirements 
contained in the SIP or enforceable under the SIP, and that the program 
may not issue permits that waive, or make less stringent, any 
limitations or requirements contained in or issued pursuant to the SIP, 
or that are otherwise ``Federally enforceable'' (e.g. standards 
established under sections 111 and 112 of the Act). North Carolina 
Regulation 15A NCAC 2Q.0306(c) requires that all emissions limitations, 
controls, and other requirements imposed by a permit issued pursuant to 
this Rule shall be at least as stringent as any other applicable 
requirement as defined under Rule .0103 (effective date of July 1, 
1994). The definition of applicable requirement found in 15A NCAC 
2Q.0103 includes among other things requirements in the North Carolina 
SIP. In addition, Regulation 15A NCAC 2Q.0306(c) requires that the 
permit shall not waive or make less stringent any limitation or 
requirement contained in applicable requirement. Both the FCDEA and the 
WNCRAPCB operating permit programs meet this requirement by a verbatim 
incorporation of the State's Regulation 15A NCAC 2Q.0306(b) into their 
regulations. Therefore, the third criteria for Federal enforceability 
is met.
    The fourth criteria for a state or local agency to be able to issue 
FESOP or FELOP is that limitations, controls, and requirements in the 
operating permits are quantifiable, and otherwise enforceable as a 
practical matter. While a determination of what is practically 
enforceable will generally differ based on process type and emissions, 
North Carolina Regulation 15A NCAC 2Q.0306(d) requires that ``Emissions 
limitations, controls, and requirements contained in permits issued 
pursuant to the Rule shall be permanent, quantifiable, and otherwise 
enforceable as a practical matter.'' Both the FCDEA and the WNCRAPCB 
operating permit programs meet this requirement by a verbatim 
incorporation of the State's Regulation 15A NCAC 2Q.0306(b) into their 
regulations. Therefore, the fourth criteria for Federal enforceability 
is met.
    The fifth criteria for a state or local agency to be able to issue 
FESOP or FELOP is to provide EPA and the public with timely notice of 
the proposal and issuance of such permits, and to provide EPA, on a 
timely basis, with a copy of each proposed (or draft) and final permit 
intended to be Federally enforceable. This process also must provide 
for an opportunity for public comment on the permit applications prior 
to issuance of the final permit. North Carolina Regulation 15A NCAC 
2Q.0306(a)(5) requires that any source which wishes to limit its 
potential to emit via a permit for PSD/NSR or title V purposes must go 
through an opportunity for public comment as well as public hearing. In 
addition, Regulation 15A NCAC 2Q.0306(a)(12) allows any owner or 
operator who requests that a draft permit go to public notice with an 
opportunity to request a public hearing to do so. EPA notes that any 
permit which has not gone through an opportunity for public comment and 
EPA review in the North Carolina, the FCDEA and the WNCRAPCB FESOP or 
FELOP programs will not be Federally enforceable. North Carolina 
Regulation 15A NCAC 2Q.0307(d) requires that there will be at least a 
30 day public and EPA comment period prior to permit issuance. North 
Carolina Regulation 15A NCAC 2Q.0307(g) provides that the Director will 
send a copy of each draft permit when it sends EPA the notice of 
request for public comment for that permit. Finally, Regulation 15A 
NCAC 2Q.0307(g) provides that the State will send a copy of each final 
permit after the permit is issued. Both the FCDEA and the WNCRAPCB 
operating permit programs meet this requirement by a verbatim 
incorporation of the State's Regulations 15A NCAC 2Q.0306(a)(5), 15A 
NCAC 2Q.0306(a)(12), 15A NCAC 2Q.0307(d), 15A NCAC 2Q.0307(g) into 
their regulations. Therefore, the fifth criteria for Federal 
enforceability is met.
    On June 28, 1989 (54 FR 27274), EPA published criteria for 
approving and incorporating into the SIP regulatory programs for the 
issuance of FESOP and FELOP. Permits issued pursuant to an operating 
permit program approved into the SIP as meeting these criteria may be 
considered Federally enforceable. EPA has encouraged states and local 
agencies to develop such FESOP and FELOP programs in conjunction with 
title V operating permits programs to enable sources to limit their 
potential to emit to below the title V applicability thresholds. (See 
the guidance document entitled, ``Limitation of Potential to Emit with 
Respect to Title V Applicability Thresholds,'' dated September 18, 
1992, from John Calcagni, Director, Air Quality Management Division, 
Office of Air Quality Planning and Standards (OAQPS), Office of Air and 
Radiation, U.S. EPA.) On November 3, 1993, the EPA announced in a 
guidance document entitled, ``Approaches to Creating Federally 
Enforceable Emissions Limits,'' signed by John S. Seitz, Director, 
OAQPS, that this mechanism could be extended to create Federally 
enforceable limits for emissions of HAP if the program were approved 
pursuant to section 112(l) of the Act.
    In addition to requesting approval into the SIP, North Carolina, 
the FCDEA and the WNCRAPCB have also requested approval of their FESOP 
and FELOP programs under section 112(l) of the Act for the purpose of 
creating Federally enforceable limitations on the potential to emit of 
HAP. Approval under section 112(l) is necessary because the proposed 
SIP approval discussed above only extends to the control of criteria 
pollutants. Federally enforceable limits on criteria pollutants (i.e., 
VOC's or PM-10) may have the incidental effect of limiting certain HAP 
listed pursuant to section 112(b).1 However, section 112 of the 
Act provides the underlying authority for controlling all HAP 
emissions.

    \1\ The EPA intends to issue guidance addressing the technical 
aspects of how these criteria pollutant limits may be recognized for 
purposes of limiting a source's potential to emit of HAP to below 
section 112 major source levels.
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    EPA believes that the five approval criteria for approving FESOP 
programs into the SIP, as specified in the June 28, 1989, Federal 
Register document, are also appropriate for evaluating and approving 
the programs under section 112(l). The June 28, 1989, document does not 
address HAP because it was written prior to the 1990 amendments to 
section 112 not because it establishes requirements unique to criteria 
pollutants. Hence, the following five criteria are applicable to FESOP 
and FELOP approvals under section 112(l): (1) The program must be 
submitted to and approved by the EPA; (2) the program must impose a 
legal obligation on the operating permit holders to comply with the 
terms and conditions of the permit, and permits that do not conform 
with the June 28, 1989, criteria or the EPA's underlying regulations 
shall be deemed not Federally enforceable; (3) the program must contain 
terms and conditions that are at least as stringent as any requirements 
contained in the SIP, enforceable under the SIP, or any section 112 or 
other CAA requirement, and may not allow for the waiver of any CAA 
requirement; (4) permits issued under the program must contain 
conditions that are permanent, quantifiable, and enforceable as a 
practical matter; and (5) permits that are intended to be Federally 
enforceable must be issued subject to public participation and must be 
provided to the EPA in proposed form on a timely basis.
    In addition to meeting the criteria in the June 28, 1989, document, 
a FESOP or FELOP program that addresses HAP must meet the statutory 
criteria for 

[[Page 38709]]
approval under section 112(l)(5). Section 112(l) allows EPA to approve 
a program only if it: (1) Contains adequate authority to assure 
compliance with any section 112 standards or requirements; (2) provides 
for adequate resources; (3) provides for an expeditious schedule for 
assuring compliance with section 112 requirements; and (4) is otherwise 
likely to satisfy the objectives of the Act.
    EPA plans to codify the approval criteria for programs limiting 
potential to emit of HAP, such as FESOP programs, through amendments to 
Subpart E of Part 63, the regulations promulgated to implement section 
112(l) of the Act. (See 58 FR 62262, November 26, 1993.) EPA also 
anticipates given that these regulatory criteria, as they apply to 
FESOP programs, will mirror those set forth in the June 28, 1989, 
document. EPA currently anticipates that since FESOP programs approved 
pursuant to section 112(l) prior to the planned Subpart E revisions 
will have been approved as meeting these criteria, further approval 
actions for those programs will not be necessary.
    EPA has authority under section 112(l) to approve programs to limit 
potential to emit of HAP directly under section 112(l) prior to this 
revision to Subpart E. Section 112(l)(5) requires EPA to disapprove 
programs that are inconsistent with guidance required to be issued 
under section 112(l)(2). This could be read to suggest that the 
``guidance'' referred to in section 112(l)(2) was intended to be a 
binding rule. Even under this interpretation, EPA does not believe that 
section 112(l) requires this rulemaking to be comprehensive. That is, 
it need not address every possible instance of approval under section 
112(l). EPA has already issued regulations under section 112(l) that 
would satisfy any section 112(l)(2) requirement for rulemaking. Given 
the severe timing problems posed by impending deadlines set forth in 
``maximum achievable control technology'' (MACT) emission standards 
under section 112 and for submittal of title V permit applications, it 
is reasonable to read section 112(l) to allow for approval of programs 
to limit potential to emit prior to promulgation of a rule specifically 
addressing this issue.
    Therefore, EPA is approving the North Carolina, Forsyth County, and 
the Western North Carolina minor source operating permit program now to 
allow these agencies to begin issuing FESOP and FELOP as soon as 
possible.
    EPA believes that the North Carolina, Forsyth County, and the 
Western North Carolina FESOP and FELOP programs meet the approval 
criteria specified in the June 28, 1989, Federal Register document and 
in section 112(l)(5) of the Act. As discussed previously in this 
notice, the North Carolina, Forsyth County, and Western Carolina minor 
source operating permit programs meet the five criteria necessary for 
Federal enforceability.
    Regarding the statutory criteria of section 112(l)(5) referred to 
above, EPA believes that the North Carolina, Forsyth County, and 
Western Carolina minor source operating permit programs contain 
adequate authority to assure compliance with section 112 requirements 
because the third criterion of the June 28, 1989, document is met, that 
is, because the program does not allow for the waiver of any section 
112 requirement. Sources that become minor through a permit issued 
pursuant to this program would still be required to meet section 112 
requirements applicable to non-major sources.
    Regarding the requirement for adequate resources, EPA believes that 
North Carolina, Forsyth County, and Western Carolina have demonstrated 
that each agency can provide for adequate resources to support the 
FESOP and FELOP program. EPA expects that since North Carolina, Forsyth 
County, and Western Carolina have administered a minor source operating 
permit program for several years resources will continue to be adequate 
to administer the FESOP or FELOP program. EPA will monitor the 
implementation of each Agency's FESOP or FELOP to ensure that adequate 
resources are in fact available. EPA also believes that the North 
Carolina, Forsyth County, and Western Carolina FESOP or FELOP provide 
for an expeditious schedule for assuring compliance with section 112 
requirements. This program will be used to allow a source to establish 
a voluntary limit on potential to emit to avoid being subject to a CAA 
requirement applicable on a particular date. Nothing in any of these 
programs would allow a source to avoid or delay compliance with a CAA 
requirement if it fails to obtain an appropriate Federally enforceable 
limit by the relevant deadline. Finally, EPA believes it is consistent 
with the intent of section 112 and the Act for states to provide a 
mechanism through which sources may avoid classification as a major 
source by obtaining a Federally enforceable limit on potential to emit.
    With the addition of these provisions, the North Carolina, Forsyth 
County, and Western Carolina minor source operating permit program 
satisfies all the requirements listed in the June 28, 1989, Federal 
Register document. Therefore, EPA is approving this revision to the 
State of North Carolina's SIP allowing the State and local agency to 
issue FESOP and FELOP.

Final Action

    In this action, EPA is approving the North Carolina, Western 
Carolina, and Forsyth County minor source operating permit program into 
the North Carolina SIP to allow the State and local agencies to issue 
FESOP and FELOP. EPA is publishing this action without prior proposal 
because the EPA views this as a noncontroversial amendment and 
anticipates no adverse comments. However, in a separate document in 
this Federal Register publication, EPA is proposing to approve the SIP 
revision should adverse or critical comments be filed. This action will 
be effective September 26, 1995 unless by August 28, 1995, adverse or 
critical comments are received. If EPA receives such comments, this 
action will be withdrawn before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on this action serving as a proposed rule. EPA will not institute 
a second comment period on this action. 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 September 26, 1995.
    EPA has reviewed this request for revision of the Federally-
approved SIP for conformance with the provisions of the 1990 Amendments 
enacted on November 15, 1990. EPA has determined that this action 
conforms with those requirements.
    Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1), 
petitions for judicial review of this action must be filed in the 
United States Court of Appeals for the appropriate circuit by September 
26, 1995. Filing a petition for reconsideration by the Administrator of 
this final rule does not affect the finality of this rule for 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) of the CAA, 42 U.S.C. 7607 (b)(2).)
    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.
    Nothing in this action shall be construed as permitting or allowing 
or 

[[Page 38710]]
establishing a precedent for any future request for a revision to any 
state implementation plan. Each request for revision to the SIP shall 
be considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated today does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600, EPA must 
prepare a regulatory flexibility analysis assessing the impact of any 
proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-state relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 
42 U.S.C. Section 7410(a)(2).

D. Unfunded Mandates Reform Act of 1995

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the proposed interim approval action 
promulgated today does not include a Federal mandate that may result in 
estimated costs of $100 million or more to State, local, or tribal 
governments in the aggregate, or to the private sector. This Federal 
action approves pre-existing requirements under State or local law, and 
imposes no new Federal requirements. Accordingly, no additional costs 
to State, local, or tribal governments, or to the private sector, 
result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides.

    Dated: June 23, 1995.
William A. Waldrop,
Acting Regional Administrator.

    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. 7401-7671q.

    2. Section 52.1770 is amended by adding paragraph (c)(74) to read 
as follows:


Sec. 52.1770  Identification of plan.

* * * * *
    (c) * * *
    (74) The minor source operating permit programs for the State of 
North Carolina, Western North Carolina Regional Air Pollution Control 
Board, and Forsyth County Department of Environmental Affairs submitted 
by the North Carolina Department of Environment, Health, and Natural 
Resources on May 31, 1994, June 1, 1994, and September 15, 1994, as 
part of the North Carolina SIP.
    (i) Incorporation by reference.
    (A) Regulations 15A NCAC 2Q.0103, 15A NCAC 2Q.0301, 15A NCAC 
2Q.0303 through 15A NCAC 2Q.0311 of the North Carolina SIP as adopted 
by the North Carolina Environmental Management Commission on May 12, 
1994 and which became effective on July 1, 1994.
    (B) Regulations 15A NCAC 2Q.0103, 15A NCAC 2Q.0301, 15A NCAC 
2Q.0303 through 15A NCAC 2Q.0311 of the North Carolina SIP as adopted 
by reference by the Western North Carolina Regional Air Pollution 
Control Board (WNCRAPCB) on September 12, 1994 and which were made 
effective September 12, 1994.
    (C) Regulations Subchapter 3Q.0103, Subchapter 3Q.0301, Subchapter 
3Q.0303 through Subchapter 3Q.0311 of the Forsyth County portion of the 
North Carolina SIP as adopted and made effective by the Forsyth County 
Board of Commissioners on May 23, 1994.
    (ii) Other material. None.

[FR Doc. 95-18525 Filed 7-27-95; 8:45 am]
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