[Federal Register Volume 60, Number 185 (Monday, September 25, 1995)]
[Rules and Regulations]
[Pages 49343-49347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23709]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FL-95-01; FRL-5302-5]
Clean Air Act Final Interim Approval of Operating Permit Program;
State of Florida
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: EPA is promulgating interim approval of the operating permit
program submitted by the Florida Department of Environmental Protection
for the purpose of complying with Federal requirements for an
approvable State program to issue operating permits to all major
stationary sources, and to certain other sources.
EFFECTIVE DATE: October 25, 1995.
ADDRESSES: Copies of Florida's submittal and the other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
U.S. Environmental Protection Agency, Region 4, 345 Courtland Street
NE., Atlanta, GA 30365. Interested persons wanting to examine these
documents, contained in EPA docket number FL-95-01, should make an
appointment at least 24 hours before the visiting day.
FOR FURTHER INFORMATION CONTACT: Kim Gates, Title V Program Development
Team, Air Programs Branch, Air Pesticides & Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 345 Courtland Street
NE., Atlanta, GA 30365, (404) 347-3555, Ext. 4146.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (the Act) and the implementing regulations at 40 Code
of Federal Regulations (CFR) part 70 require that States develop and
submit operating permits programs to EPA by November 15, 1993, and that
EPA act to approve or disapprove each program within one year after
receiving the submittal. If the State's submission is materially
changed during the one-year review period, 40 CFR 70.4(e)(2) allows EPA
to extend the review period for no more than one year following receipt
of the additional materials. EPA received Florida's title V operating
permit program submittal on November 16, 1993. The State provided EPA
with additional materials in supplemental submittals dated July 8,
1994, November 28, 1994, December 21, 1994, December 22, 1994, and
January 11, 1995. Because the supplements materially changed the
State's title V program submittal, EPA extended the one-year review
period.
EPA reviews state operating permit programs pursuant to section 502
of the Act and the part 70 regulations, which together outline criteria
for approval or disapproval. Where a program substantially, but not
fully, meets the requirements of part 70, EPA may grant the program
interim approval for a period of up to two years. If EPA has not fully
approved a program by November 15, 1995, or by the end of an interim
program, it must establish and implement a Federal operating permit
program for that state.
On June 21, 1995, EPA proposed interim approval of Florida's
operating permit program. See 60 FR 32292. The June 21, 1995 notice
also proposed approval of Florida's interim mechanism for implementing
section 112(g) and for delegation of section 112 standards and programs
that are unchanged from the Federal rules as promulgated. Public
comment was solicited on these proposed actions. In this notice, EPA is
responding to the comments received and taking final action to
promulgate interim approval of Florida's operating permit program.
II. Final Action and Implications
A. Analysis of State Submission and Response to Public Comments
On June 21, 1995, EPA proposed interim approval of Florida's title
V operating permit program. See 60 FR 32292. The program elements
discussed in the proposal notice are unchanged from the proposal notice
and continue to substantially meet the requirements of title V and part
70. For detailed information on EPA's analysis of Florida's program
submittal, please refer to the Technical Support Document (TSD)
contained in the docket at the address noted above.
EPA received three letters during the 30-day public comment period
held on the proposed interim approval of Florida's program. One
respondent requested a 90-day extension of the public comment period
based on the guidance memorandum entitled ``White Paper for Streamlined
Development of Part 70 Permit Applications'' issued by EPA on July 10,
1995. The respondent suggested that the White Paper memorandum provides
more flexibility for insignificant activities than allowed for in part
70 and in the proposal notice. EPA denied the extension request because
the policies set forth in the White Paper memorandum are intended
solely as guidance and do not change the current part 70 requirements.
EPA received two comment letters on the proposed interim approval
of Florida's program, one from an industry commenter and the other from
the State. In response to the comments, several of the conditions for
full program approval discussed in the proposal notice are being
revised. The changes are discussed below along with the conditions for
full approval that remain unchanged.
1. Definition of ``Major Source''
Florida's definition of ``major source'' in the original program
submittal (see Rule 62-213.200(19)(a), F.A.C.) implied that emissions
of criteria pollutants from any oil or gas exploration or production
well (with its associated equipment) and emissions from any pipeline
compressor or pump station would not be aggregated with emissions of
criteria pollutants from other similar units. Since Florida's
definition of ``major source'' conflicted with the part 70 definition,
revision of the State's definition was identified in the proposal
notice as a condition of full program approval.
In its comment letter, the State indicated that the definition of
``major source'' in Rule 62-213.200(19)(a), F.A.C., has been amended to
clarify that
[[Page 49344]]
the non-aggregation in the described situations applies only to
hazardous air pollutants (HAPs). Florida's amended rule became
effective on April 18, 1995, and was submitted to EPA as a formal
supplement to the title V operating permit program on August 4, 1995.
Therefore, Florida has satisfied this condition for full program
approval.
2. Timely Application for Permit Renewal
The State's original program, in Rule 62-4.090, F.A.C., required
renewal applications to be submitted 60 days prior to expiration of
existing operating permits. This requirement conflicted with the
requirement of 40 CFR 70.5(a)(1)(iii) and the State's timeframe did not
ensure that a permit would not expire prior to renewal. Revision of
Rule 62-4.090, F.A.C., to require submittal of permit renewal
applications six months prior to expiration of existing title V permits
was identified in the proposal notice as a condition of full program
approval.
In its comment letter, the State indicated that rulemaking has been
completed to address the requirement in 40 CFR 70.5(a)(1)(iii) for
submittal of renewal applications six months prior to the expiration of
existing operating permits. The State's amended Rule 62-4.090, F.A.C.,
became effective on April 18, 1995 and was submitted to EPA as a formal
supplement to the title V operating permit program on August 4, 1995.
Therefore, Florida has satisfied this condition for full program
approval.
3. Insignificant Activities Provisions
(a) Emissions Thresholds for Reporting
Rule 62-213.420(3)(c), F.A.C., contains reporting requirements for
the emissions of criteria pollutants at title V sources. The State has
indicated that the emissions thresholds in Rule 62-213.420(3)(c)2.,
F.A.C., which trigger the reporting requirements are based on the
presumption that the requirements need to be stringent enough to
identify applicable requirements and to suffice for inventorying
emissions to evaluate the impact on ambient air concentrations.
However, the aggregate threshold of 50 tons per year (tpy) for carbon
monoxide appears to be inconsistent with the State's objective. Since
the aggregate threshold of 50 tpy must be met prior to the reporting of
carbon monoxide in the permit application, the potential exists for
carbon monoxide to be inappropriately excluded due to miscalculations.
Therefore, as a condition of full program approval, the State must
provide EPA with an acceptable justification for establishing an
aggregate emissions threshold of 50 tpy for the triggering of the
carbon monoxide reporting requirements. Otherwise, Florida must
establish carbon monoxide emissions thresholds that are consistent with
the State's emissions thresholds for particulates (PM-10), sulfur
dioxide, nitrogen oxides, and volatile organic compounds.
Rule 62-213.420(3)(c)3.b., F.A.C., provides for the reporting of
HAPs when a title V source emits or has the potential to emit 8 tpy or
more of any single HAP, or 20 tpy or more of any combination of HAPs.
Once these thresholds have been met, emissions are identified and
reported for each emissions unit with the potential to emit 1 tpy of
any individual HAP. All fugitive emissions not associated with any
specific emissions units are also reportable when such emissions exceed
1 tpy of any individual HAP.
Since insignificant emissions levels are reviewed relative to
threshold levels for determining major source status, as well as levels
at which applicable requirements are triggered, EPA requested in the
proposal notice that Florida revise the reporting thresholds for HAPs
emissions as a condition of full program approval. EPA suggested HAPs
emissions thresholds of the lesser of 1000 lbs/year or section 112(g)
de minimis levels.
Two commenters responded to EPA's request for revision of the
State's HAPs reporting thresholds. The industry commenter stated that
the emissions thresholds requested by EPA contradict the White Paper
guidance memorandum because the more stringent thresholds would require
permit applicants to develop detailed tpy estimates when reporting HAP
emissions or when classifying insignificant activities, even for
sources identified as major and for emissions units that have no
applicable requirements. The industry commenter emphasized that
requiring detailed tpy emission estimates for emissions units that have
no applicable requirements is contrary to the reporting guidelines
presented in the White Paper memorandum. The State, in its comment
letter, also expressed concern that making the HAPs reporting
thresholds more stringent is contradictory to EPA's goal of
streamlining and simplifying the permit application process.
EPA would like to point out that, as a general matter, the
flexibility explained in the White Paper memorandum is in addition to,
and does not necessarily depend upon, a State's insignificant
activities provisions. However, in the case of Florida's program, the
State has established detailed reporting criteria which complicate this
interaction and give some validity to industry's comments. On further
reflection, EPA believes that it may have been overly prescriptive in
requiring the State to revise its levels for emissions reporting, which
appear to function separately from its insignificant activities
provisions, and that an alternative pathway exists in this case for
full program approval.
Accordingly, EPA is revising the condition for full approval to
require Florida to add language to the applicability provisions in Rule
62-213.400, F.A.C., to ensure that (1) Applications do not omit
information needed to determine or impose applicable requirements (as
defined in Rule 62-213.200(6), F.A.C.); (2) insignificant activities or
emissions units will not be exempted from the determination of whether
a source is major; and (3) emissions thresholds for individual
activities or units that are exempted will not exceed 5 tpy for
regulated air pollutants, and the lesser of 1000 pounds per year or
section 112(g) de minimis levels for HAPs or different thresholds that
the State demonstrates are insignificant.
(b) Specific Exemptions
Rule 62-210.300(3), F.A.C., exempts specific facilities, emissions
units, or pollutant-emitting activities from the title V permitting
process. As a condition of full approval, the State must revise Rule
62-210.300(3), F.A.C., to provide that (1) Applications do not omit
information needed to determine or impose applicable requirements (as
defined in Rule 62-213.200(6), F.A.C.); (2) insignificant activities or
emissions units will not be exempted from the determination of whether
a source is major; and (3) emissions thresholds for individual
activities or units that are exempted will not exceed 5 tpy for
regulated air pollutants, and the lesser of 1000 pounds per year or
section 112(g) de minimis levels for HAPs or different thresholds that
the State demonstrates are insignificant.
In addition, several of the specific exemptions in Rule 62-
210.300(3), F.A.C., must either be removed from the rule or revised as
a condition of full approval. Specifically, Rule 62-210.300(3)(a),
F.A.C., exempts ``(s)team and hot water generating units located within
a single facility and having a total heat input, individually or
collectively, equaling 50 million BTU/hr or less, and fired exclusively
by natural gas except for periods of natural gas curtailment during
which fuel oil
[[Page 49345]]
containing no more than one percent sulfur is fired * * * '' However,
during the periods fuel oil is fired, these sources could potentially
emit sulfur dioxide in excess of major source thresholds. Since the
potential emissions from these sources would not be ``insignificant,''
this exemption must be removed from Rule 62-210.300(3), F.A.C., as a
condition of full approval.
Rule 62-210.300(3)(r), F.A.C., exempts ``[p]erchloroethylene dry
cleaning facilities with a solvent consumption of less than 1,475
gallons per year.'' However, at the annual consumption rate of 1,475
gallons of perchloroethylene, these facilities could potentially emit
over 8 tpy of perchloroethylene. Since the potential HAPs emissions
from these sources is not ``insignificant,'' this exemption must be
removed from Rule 62-210.300(3), F.A.C., as a condition of full
approval.
Rule 62-210.300(3)(u), F.A.C., exempts ``[e]mergency electrical
generators, heating units, and general purpose diesel engines operating
no more than 400 hours per year . . .'' These sources could potentially
have emissions in excess of major source thresholds, depending on the
fuel used and the unit's size. Since the potential emissions from these
sources would not be ``insignificant,'' this exemption must be removed
from Rule 62-210.300(3), F.A.C., as a condition of full approval.
Rule 62-210.300(3)(x), F.A.C., exempts ``[p]hosphogypsum disposal
areas and cooling ponds.'' This exemption potentially includes
phosphogypsum stacks, which emit radon and are subject to the
radionuclide National Emissions Standards for Hazardous Air Pollutants
(NESHAPS) found in 40 CFR part 61, subpart R. Therefore, as a condition
of full approval, this exemption must be revised to exclude
phosphogypsum stacks.
(d) Case-by-Case Exemptions
Rule 62-4.040(1)(b), F.A.C., allows Florida to determine
insignificant activities on a case-by-case basis during the permitting
process. As a condition of full approval, the State must revise Rule
62-4.040(1)(b), F.A.C., to provide that (1) Applications do not omit
information needed to determine or impose applicable requirements (as
defined in Rule 62-213.200(6), F.A.C.); (2) insignificant activities or
emissions units will not be exempted from the determination of whether
a source is major; and (3) emissions thresholds for individual
activities or units that are exempted will not exceed 5 tpy for
regulated air pollutants, and the lesser of 1000 pounds per year or
section 112(g) de minimis levels for HAPs or different thresholds that
the State demonstrates are insignificant.
4. Permit Reopenings Provisions
The regulations in the State's program do not provide for permit
reopenings for cause consistent with 40 CFR 70.7(f)(1)(i), (iii), and
(iv). As a condition of full program approval, the State must provide
in its regulations that: (1) If a permit is reopened and revised
because additional applicable requirements become applicable to a major
source with a remaining permit term of 3 or more years, such a
reopening shall be completed within 18 months after promulgation of the
applicable requirement; (2) a permit shall be reopened and revised if
EPA or the State determines that the permit contains a material mistake
or that inaccurate statements were made in establishing the emissions
standards or other terms or conditions of the permit; and (3) a permit
shall be reopened if EPA or the State determine that the permit must be
revised or revoked to assure compliance with the applicable
requirements.
B. Final Action
1. Title V Operating Permit Program
EPA is promulgating interim approval of the operating permit
program submitted by the State of Florida on November 16, 1993, and
supplemented on July 8, 1994, November 28, 1994, December 21, 1994,
December 22, 1994, and January 11, 1995. The State must make the
following changes to receive full program approval:
(a) Provide EPA with an acceptable justification for establishing
an aggregate emissions threshold of 50 tpy for the triggering of the
carbon monoxide reporting requirements. Otherwise, Florida must
establish carbon monoxide emissions thresholds that are consistent with
the State's emissions thresholds for particulates (PM-10), sulfur
dioxide, nitrogen oxides, and volatile organic compounds.
(b) Revise Rules 62-4.040(1)(b), 62-210.300(3), and 62-213.400,
F.A.C., to provide that (1) Applications do not omit information needed
to determine or impose applicable requirements (as defined in Rule 62-
213.200(6), F.A.C.); (2) insignificant activities or emissions units
will not be exempted from the determination of whether a source is
major; and (3) emissions thresholds for individual activities or units
that are exempted will not exceed 5 tpy for regulated air pollutants,
and the lesser of 1000 pounds per year or section 112(g) de minimis
levels for HAPs or different thresholds that the State demonstrates are
insignificant. In addition, as discussed above, several specific
exemptions in Rule 62-210.300(3), F.A.C., must either be removed from
the rule or revised.
(c) Make regulatory provisions for permit reopenings for cause
consistent with 40 CFR 70.7(f)(1)(i), (iii), and (iv).
The scope of the State of Florida's part 70 program approved in
this notice applies to all part 70 sources (as defined in the approved
program) within the State, except any sources of air pollution over
which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-
18 (November 9, 1994). The term ``Indian Tribe'' is defined under the
Act as ``any Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village, which is Federally
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.''
See section 302(r) of the CAA; see also 59 FR 43956, 43962 (August 25,
1994); 58 FR 54364 (October 21, 1993).
This interim approval, which may not be renewed, extends until
October 25, 1997. During this interim approval period, the State of
Florida is protected from sanctions, and EPA is not obligated to
promulgate, administer, and enforce a Federal operating permits program
in the State. Permits issued under a program with interim approval have
full standing with respect to part 70, and the one-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this final interim approval, as does the three-year
time period for processing the initial permit applications.
If the State of Florida fails to submit a complete corrective
program for full approval by April 25, 1997, EPA will start an 18-month
clock for mandatory sanctions. If Florida then fails to submit a
corrective program that EPA finds complete before the expiration of
that 18-month period, EPA will be required to apply one of the
sanctions in section 179(b) of the Act, which will remain in effect
until EPA determines that Florida has corrected the deficiency by
submitting a complete corrective program. Moreover, if the
Administrator finds a lack of good faith on the part of Florida, both
sanctions under section 179(b) will apply after the expiration of the
18-month period until the Administrator determines that Florida has
come into compliance. In any case, if, six months after application of
the first sanction, Florida still has not submitted a corrective
program that EPA has found complete, a second sanction will be
required.
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If EPA disapproves Florida's complete corrective program, EPA will
be required to apply one of the section 179(b) sanctions on the date 18
months after the effective date of the disapproval, unless prior to
that date the State has submitted a revised program and EPA has
determined that it corrected the deficiencies that prompted the
disapproval. Moreover, if the Administrator finds a lack of good faith
on the part of the Florida, both sanctions under section 179(b) will
apply after the expiration of the 18-month period until the
Administrator determines that the State has come into compliance. In
all cases, if, six months after EPA applies the first sanction, Florida
has not submitted a revised program that EPA determines to have
corrected the deficiencies that prompted disapproval, a second sanction
will be required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if a state
has not timely submitted a complete corrective program or EPA has
disapproved a submitted corrective program. Moreover, if EPA has not
granted full approval to a state program by the expiration of an
interim approval and that expiration occurs after November 15, 1995,
EPA must promulgate, administer, and enforce a Federal operating permit
program for that state upon interim approval expiration.
2. Preconstruction Review Program Implementing Section 112(g)
EPA issued an interpretive notice on February 14, 1995 (60 FR
8333), which outlines EPA's revised interpretation of section 112(g)
applicability. The notice postpones the effective date of section
112(g) until after EPA has promulgated a rule addressing that
provision. The notice sets forth in detail the rationale for the
revised interpretation.
The section 112(g) interpretative notice explains that EPA is
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow states time to adopt rules implementing the Federal rule, and
that EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until EPA provides for such an
additional postponement of section 112(g), Florida must have a
Federally enforceable mechanism for implementing section 112(g) during
the period between promulgation of the Federal section 112(g) rule and
adoption of implementing State regulations.
EPA is aware that Florida lacks a program designed specifically to
implement section 112(g). However, Florida does have a preconstruction
review program that can serve as an adequate implementation vehicle
during the transition period because it would allow the State to select
control measures that would meet the maximum achievable control
technology (MACT), as defined in section 112, and incorporate these
measures into a Federally enforceable preconstruction permit.
For this reason, EPA is approving the use of Florida's
preconstruction review program found in Rule 62-212, F.A.C., under the
authority of title V and part 70, solely for the purpose of
implementing section 112(g) to the extent necessary during the
transition period between section 112(g) promulgation and adoption of a
State rule implementing EPA's section 112(g) regulations. Although
section 112(l) generally provides authority for approval of state air
programs to implement section 112(g), title V and section 112(g)
provide for this limited approval because of the direct linkage between
the implementation of section 112(g) and title V. The scope of this
approval is narrowly limited to section 112(g) and does not confer or
imply approval for purpose of any other provision under the Act (e.g.,
section 110). This approval will be without effect if EPA decides in
the final section 112(g) rule that sources are not subject to the
requirements of the rule until State regulations are adopted. The
duration of this approval is limited to 18 months following
promulgation by EPA of the section 112(g) rule to provide adequate time
for the State to adopt regulations consistent with the Federal
requirements.
3. Program for Delegation of Section 112 Standards as Promulgated
The requirements for part 70 program approval, specified in 40 CFR
70.4(b), encompass section 112(l)(5) requirements for approval of a
state program for delegation of section 112 standards promulgated by
EPA as they apply to title V sources. Section 112(l)(5) requires that
the State's program contain adequate authorities, adequate resources
for implementation, and an expeditious compliance schedule, which are
also requirements under part 70. Therefore, EPA is also approving,
under section 112(l)(5) and 40 CFR 63.91, Florida's program for
receiving delegation of section 112 standards and programs that are
unchanged from the Federal rules as promulgated. In addition, EPA is
delegating all existing standards and programs under 40 CFR parts 61
and 63. This program for delegations applies to part 70 sources and
non-part 70 sources.1
\1\ The radionuclide National Emission Standards for Hazardous
Air Pollutant (NESHAP) is a section 112 regulation and therefore,
also an applicable requirement under the State operating permits
program for part 70 sources. There is not yet a Federal definition
of ``major'' for radionuclide sources. Therefore, until a major
source definition for radionuclide is promulgated, no source would
be a major section 112 source solely due to its radionuclide
emissions. However, a radionuclide source may, in the interim, be a
major source under part 70 for another reason, thus requiring a part
70 permit. EPA will work with the State in the development of its
radionuclide program to ensure that permits are issued in a timely
manner.
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III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final interim approval, including the three comment letters
received and reviewed by EPA on the proposal notice, are contained in
docket number FL-95-01 maintained at the EPA Region 4 office. The
docket is an organized and complete file of all the information
submitted to, or otherwise considered by, EPA in the development of
this final interim approval. The docket is available for public
inspection at the location listed under the ADDRESSES section of this
document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permit programs submitted to
satisfy the requirements of 40 CFR part 70. Because this action does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
D. Unfunded Mandates Reform Act of 1995
Under section 202 of the Unfunded Mandates Reform Act of 1995,
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
[[Page 49347]]
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 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
and Reporting and recordkeeping requirements.
Dated: September 15, 1995.
John H. Hankinson, Jr.,
Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for the
State of Florida in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Florida
(a) Florida Department of Environmental Protection: submitted on
November 16, 1993, and supplemented on July 8, 1994, November 28,
1994, December 21, 1994, December 22, 1994, and January 11, 1995;
interim approval effective on October 25, 1995; interim approval
expires October 25, 1997.
(b) [Reserved]
* * * * *
[FR Doc. 95-23709 Filed 9-22-95; 8:45 am]
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