[Federal Register Volume 65, Number 9 (Thursday, January 13, 2000)]
[Rules and Regulations]
[Pages 2042-2046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-490]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV026-6012; FRL-6505-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Approval Under Section 112(l) of the Clean Air Act; West Virginia; 
Permits for Construction, Modification, Relocation and Operation of 
Stationary Sources of Air Pollutants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving in part, and disapproving in part, a State 
Implementation Plan (SIP) revision submitted by the State of West 
Virginia. This SIP revision changes portions of West Virginia's minor 
new source review permit program and establishes new provisions for 
permitting existing stationary sources. Specifically, this action 
approves in part, and disapproves in part, changes to West Virginia's 
minor new source review permit program; and approves West Virginia's 
minor new source review and existing stationary source operating permit 
program as meeting federal criteria for permit programs that can limit 
a source's potential to emit criteria pollutants and hazardous air 
pollutants (HAPs).

EFFECTIVE DATE: This final rule is effective on February 14, 2000.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460; and West Virginia 
Department of Environmental Protection, Office of Air Quality, 1558 
Washington Street, East, Charleston, West Virginia, 2531.

FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson, (215) 814-2066 
or by e-mail at Abramson.J[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On February 3, 1998 (63 FR 5484), EPA published a notice of 
proposed rulemaking (NPR) regarding West Virginia's minor new source 
review and existing stationary source operating permit program. The NPR 
proposed approval in part, and disapproval in part, of changes to West 
Virginia's minor new source review permit program. Specifically, the 
NPR proposed to disapprove a new exemption from minor new source review 
for sources that have been issued permits under the State's federally 
approved major source operating permit program (developed pursuant to 
Title V of the Clean Air Act) as such exemption does not comport with 
the federal requirements for scope of 40 CFR 51.160. The NPR also 
proposed to disapprove new provisions governing the issuance of 
temporary construction or modification permits with only a fifteen day 
public comment period as such provisions do not satisfy the federal 
requirements for public participation of 40 CFR 51.161(b). The NPR 
proposed to approve all other provisions of West Virginia's minor new 
source review program under section 110 of the Clean Air Act (the Act) 
as a revision to the West Virginia SIP. The formal SIP revision, 
submitted by West Virginia on August 26, 1994 applies statewide.
    The NPR also proposed to approve West Virginia's minor new source 
review and existing stationary source operating permit program under 
section 110 of the Act as meeting the criteria set forth in a June 28, 
1989 Federal Register document (54 FR 27274) for state permit programs 
that can limit a source's potential to emit criteria pollutants. The 
NPR also proposed to approve West Virginia's minor new source review 
and stationary existing source operating permit program under section 
112(l) of the Act as meeting the statutory criteria

[[Page 2043]]

for state permit programs that can limit a source's potential to 
emissions HAPs.
    Other specific requirements of West Virginia's SIP submittal and 
the rationale for EPA's proposed action are explained in the NPR and 
will not be restated here.

II. Public Comments Received and EPA's Responses

    EPA received comments on the NPR from the West Virginia Office of 
Air Quality (WVOAQ) and from the National Environmental Development 
Association's Clean Air Regulatory Project (NEDA/CARP), an industry 
coalition. These comments and EPA's responses are discussed below. All 
comments are contained in the docket at the ADDRESSES section above.
    Comment: West Virginia's minor new source review provisions 
authorize discretionary issuance by the WVOAQ Chief of temporary 
permits for experimental production test runs under an expedited review 
and public participation process (a fifteen (15) day public comment 
period). WVOAQ believes that such a fast-track process may be 
appropriate where a company's vital business interests warrant such an 
approval process and where only small emissions increases or very small 
emissions of new substances for limited periods of time are involved. 
WVOAQ recognizes, however, that some clear, restrictive boundaries and 
safeguards need to be adhered to in establishing eligibility and 
conditions for such permits and intends to set forth such boundaries 
and safeguards via written policy or interpretive rule at some point in 
the near future.
    EPA Response: EPA agrees that a 30-day public comment period for 
some minor new source review permitting actions may be impracticable 
and/or unnecessarily burdensome.1 However, as discussed in 
the NPR, limitations on the full public participation requirements of 
40 CFR 51.161 should be applied consistent with the environmental 
significance of the activity. WVOAQ's plan to define restrictive 
boundaries and safeguards so that only less environmentally significant 
changes are eligible for fast-track processing is one way to link 
permit process levels with environmental significance. However, such 
criteria must be submitted and approved as a revision to the West 
Virginia SIP before the fast-track procedure can be recognized as an 
enforceable part of West Virginia's SIP approved minor new source 
review program. The WVOAQ has not submitted any such criteria to EPA 
for consideration to date. Without a correlation to the environmental 
significance of the activity, EPA cannot consider the minimum public 
process afforded, fifteen (15) days, to be adequate in all instances.
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    \1\ In the past, EPA has explained that section 51.160(e) allows 
state programs to vary procedures for, and timing of, public review 
in light of the environmental significance of the activity. See 60 
FR 45564 (August 31, 1995).
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    Comment: NEDA/CARP commented that it is inappropriate and legally 
objectionable for EPA to take action on any SIP revision or Clean Air 
Act section 112(l) submission on the basis that limits on a source's 
potential to emit (PTE) must be federally enforceable. NEDA/CARP 
commented that the United States Court of Appeals for the District of 
Columbia Circuit vacated the requirement of federal enforceability as 
part of the PTE definition for both the new source review rules and the 
federal operating permit rules, 40 CFR parts 51, 52, and 70. See 
Chemical Manufacturers Association v. EPA, No. 89-1514 (Sept 15, 1995) 
(``CMA'') and Clean Air Implementation Project, et. al v. Browner, Civ. 
No. 92-1303 (June 28, 1996) (``CAIP''). While the definition was not 
vacated as it pertains to sources of hazardous air pollutants (40 CFR 
63.2), it nonetheless was remanded to the Environmental Protection 
Agency for further rulemaking consistent with the court's directives. 
See National Mining Association, et al. v. EPA, 59 F.3d 1351 (D.C. Cir. 
1995). As of this date, EPA has not proposed further rulemaking on the 
PTE definition for any Clean Air Act programs. NEDA/CARP also believes 
that reliance on EPA's June 28, 1989 guidance (54 FR 27274) is 
inappropriate after the D.C. Circuit decisions cited above. NEDA/CARP 
also commented that it is not clear whether EPA's proposed approval of 
West Virginia's submission under section 112(l) of the Act is part of 
the SIP action. NEDA/CARP commented that such an action would be 
inappropriate.
    EPA response: EPA need not interpret the definition of ``potential 
to emit'' as requiring federal enforceability in order to approve West 
Virginia's minor new source review and existing stationary source 
operating permit program under sections 110 and 112(l) of the Act. EPA 
recognizes that there may be instances where PTE limits need not be 
federally enforceable under federal new source review and federal 
operating permit rules in light of the court decisions cited above. 
Moreover, although the NMA decision did not vacate the federal 
enforceability requirement of the PTE definition under part 63, even 
prior to NMA, EPA had indicated in guidance that certain state-
enforceable PTE limits on HAPs may be recognized.2 
Nevertheless, EPA policy encourages States to use federally enforceable 
mechanisms, such as SIP-approved minor NSR programs, federally 
enforceable state operating permit programs (FESOPs) meeting the 
requirements of the June 28, 1989 guidance (54 FR 27274), and programs 
approved under section 112(l) for the purpose of establishing PTE 
limits.3 Accordingly, West Virginia requested EPA approval 
of its minor new source review and existing stationary source operating 
permit program under sections 110 and 112 of the Act in order to be 
able to establish federally enforceable limits on a source's potential 
to emit criteria pollutants and HAPs.4 For the reasons 
discussed in the NPR, EPA has found that West Virginia's program meets 
federal requirements and is now making such approvals.
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    \2\ See Memorandum from John Seitz re Options for Limiting the 
Potential to Emit (PTE) of a Stationary Source under section 112 and 
Title V of the Clean Air Act (January 25, 1995); Memorandum from 
John Seitz re Release of Interim Policy on Federal Enforceability of 
Limitations on Potential to Emit (January 22, 1996); Memorandum from 
John Seitz re Second Extension of January 25, 1995 Potential to Emit 
Transition Policy and Clarification of Interim Policy (July 10, 
1998).
    \3\ See Memorandum from John Seitz re Release of Interim Policy 
on Federal Enforceability of Limitations on Potential to Emit 
(January 22, 1996).
    \4\ West Virginia already had a minor new source review 
permitting program approved into its SIP. While permits issued 
pursuant to such program are federally enforceable, they are not 
specifically recognized as being federally enforceable for purposes 
of limiting a source's potential to emit.
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    Until EPA promulgates rules establishing otherwise, states may be 
able to establish permit programs or other mechanisms that limit 
potential to emit and thereby avoid applicability of certain 
requirements even if such limits are not federally enforceable, if 
those limits are shown to be effective. See NMA, 59 F.3d at 1363. Given 
the uncertainty of the final outcome of the requirement for federal 
enforceability, however, EPA does not recommend that states postpone 
submitting state permit programs for section 110 or 112(l) approval, or 
withdraw programs previously approved under such authorities. Sources 
with federally enforceable limits on potential emissions will be less 
likely to have to apply for revised permits or be subject to major 
source requirements should the requirement for federal enforceability 
be reinstated or the section 112 transition policy be revoked.
    Moreover, it is important to recognize that West Virginia's 
regulated

[[Page 2044]]

community may benefit from being able to take limits on potential to 
emit that are federally enforceable. Currently, West Virginia's SIP-
approved major non-attainment new source review program requires that 
limitations on potential to emit be federally enforceable. Approval of 
West Virginia's minor new source review and existing stationary source 
operating permit program into the SIP under 110 will allow sources to 
continue to rely on minor new source review permits to ``net out'' of 
major nonattainment new source review requirements.
    With respect to NEDA/CARP's comment that it would be inappropriate 
for EPA to approve West Virginia's 112(l) program into the SIP, EPA 
wishes to make clear that its approval of West Virginia's submission 
under section 112(l) of the Act is separate from EPA's concurrent 
approval of the submission under section 110 of the Act as a SIP 
revision. The Agency is not approving the 112(l) program into the SIP.

III. Final Action

    EPA is approving in part, and disapproving in part, changes to West 
Virginia's minor new source review program as a revision to the West 
Virginia SIP under section 110 of the Act. EPA is disapproving West 
Virginia's exemption of sources with Title V permits from minor new 
source review. EPA is also disapproving West Virginia's temporary 
permitting procedure. Such provisions do not comport with federal 
requirements for state minor new source review programs. At the same 
time, EPA is approving all other portions of West Virginia's minor new 
source review program as a revision to the West Virginia SIP. This 
action approves and makes federally enforceable many of the updates and 
improvements from the SIP approved version of West Virginia's minor new 
source review program, and at the same time prevents serious 
relaxations related to the program's scope and public participation 
requirements.
    EPA is also approving West Virginia's minor new source review and 
existing stationary source operating permit program under sections 110 
and 112(l) as meeting federal requirements for limiting a source's 
potential to emit criteria pollutants and HAPs. Approval under sections 
110 and 112(l) of the Clean Air Act will recognize West Virginia's 
minor new source review and existing stationary source operating permit 
program as capable of establishing federally enforceable limitations on 
criteria pollutants and hazardous air pollutants, respectively. Such 
approval will confer federal enforceability status to PTE limitations 
in permits issued pursuant to West Virginia's minor new source review 
and existing stationary source operating permit program which meet 
applicable June 28, 1989 and section 112(l) criteria, including permits 
which have been issued prior to EPA's final action.
    Accordingly, EPA is revising 40 CFR 52.2520 (Identification of 
plan) to reflect EPA's approval action. At the same time, EPA is 
revising 40 CFR 52.2522 (Approval status) to announce EPA's disapproval 
of the provisions which exempt sources with Title V permits from minor 
new source review and which govern the issuance of temporary 
construction and modification permits as revisions to the West Virginia 
SIP.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under Executive Order 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule will 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), because it 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.'' Thus, the requirements of section 6 of the Executive Order 
do not apply to this rule.

C. Executive Order 13045

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that the EPA determines: (1) Is 
``economically significant,'' as defined under Executive Order 12866, 
and (2) the environmental health or safety risk addressed by the rule 
has a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to Executive Order 13045 because it 
is not an economically significant regulatory action as defined by 
Executive Order 12866, and it does not address an environmental health 
or safety risk that would have a disproportionate effect on children.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If EPA complies by 
consulting, Executive Order 13084 requires EPA to provide to the Office 
of Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to

[[Page 2045]]

develop an effective process permitting elected and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.'' Today's rule 
does not significantly or uniquely affect the communities of Indian 
tribal governments. This action does not involve or impose any 
requirements that affect Indian Tribes. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of a flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).
    This final rule will not have a significant impact on a substantial 
number of small entities because EPA's disapproval of the State request 
under section 110 and subchapter I, part D of the CAA does not affect 
any existing requirements applicable to small entities. Any pre-
existing federal requirements remain in place after this disapproval. 
Federal disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, I certify that this 
disapproval action does not have a significant impact on a substantial 
number of small entities because it does not remove existing 
requirements and impose any new Federal requirements.

F. Unfunded Mandates

    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 
annual costs to State, local, or tribal governments in the aggregate; 
or to 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 does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either 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 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action. 
This Federal disapproval action maintains pre-existing Federal 
requirements that have been in effect since November 10, 1975. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector result from this action.

G. Submission to Congress and the Comptroller General

    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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical. EPA believes that VCS are inapplicable to this action. 
Today's action does not require the public to perform activities 
conducive to the use of VCS.

I. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action on West Virginia's minor new source 
review and existing stationary source operating permit program must be 
filed in the United States Court of Appeals for the appropriate circuit 
by March 13, 2000. 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 approving in part and disapproving in part revisions to 
West Virginia's changes to West Virginia's minor new source review 
program under section 110, and approving West Virginia's minor new 
source review and existing stationary source operating permit program 
under sections 110 and 112(l) of the Clean Air Act for purposes of 
limiting potential to emit may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations.

    Dated: November 30, 1999.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart XX--West Virginia

    2. Section 52.2520 is amended by adding paragraph (c)(43) to read 
as follows:


Sec. 52.2520  Identification of plan.

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[[Page 2046]]

    (c) * * *
    (43) Revisions to West Virginia Regulation 45 CSR 13 submitted on 
August 26, 1994 by the West Virginia Department of Environmental 
Protection.
    (I) Incorporation by reference.
    (A) Letter of August 26, 1994 from the West Virginia Department of 
Environmental Protection transmitting 45 CSR 13 ``Permits for 
Construction, Modification, Relocation and Operation of Stationary 
Sources of Air Pollutants, Notification Requirements, Temporary 
Permits, General Permits, and Procedures for Evaluation''.
    (B) Revised version of 45 CSR 13 ``Permits for Construction, 
Modification, Relocation and Operation of Stationary Sources of Air 
Pollutants, Notification Requirements, Temporary Permits, General 
Permits, and Procedures for Evaluation'', sections: 1 except for the 
reference in subsection 1.1 to major stationary sources which have not 
been issued a permit pursuant to 45 CSR 30, 2-8, 10, 11 except for 
subsection 11.2, and Tables 45-13A and 45-13B, effective April 27, 
1994.
    (ii) Additional Material.
    (A) Remainder of August 26, 1994 State submittal pertaining to 45 
CSR 13, ``Permits for Construction, Modification, Relocation and 
Operation of Stationary Sources of Air Pollutants, Notification 
Requirements, Temporary Permits, General Permits, and Procedures for 
Evaluation''.
    (B) Letter of September 5, 1996 from the West Virginia Office of 
Air Quality requesting EPA approval of 45 CSR 13 under 112(l) of the 
Clean Air Act, and clarifying that the definition of ``major stationary 
source'' in 45 CSR 13 will be interpreted consistently with the 45 CSR 
14 and 45 CSR 19 programs as to the types of source categories which 
need to include fugitive emissions.
    3. Section 52.2522 is amended by adding paragraph (h) to read as 
follows:


Sec. 52.2522  Approval status.

* * * * *
    (h) EPA disapproves the portion of 45 CSR 13 subsection 1 
referencing major stationary sources which have not been issued a 
permit pursuant to 45 CSR 30 and section 11.2, submitted by the West 
Virginia Department of Environmental Protection on August 26, 1994, as 
revisions to the West Virginia SIP. These provisions do not meet the 
requirements of 40 CFR 51.160 for scope. EPA also disapproves 45 CSR 13 
section 9, submitted by the West Virginia Department of Environmental 
Protection on August 26, 1994, as a revision to the West Virginia SIP. 
These provisions do not meet the requirements of 40 CFR 51.161 for 
public participation.

[FR Doc. 00-490 Filed 1-12-00; 8:45 am]
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