[Federal Register Volume 65, Number 222 (Thursday, November 16, 2000)]
[Proposed Rules]
[Pages 69275-69279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29360]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[Docket WA-00-01; FRL-6902-6]


Clean Air Act Reclassification; Wallula, Washington Particulate 
Matter (PM10) Nonattainment Area

AGENCY: EPA.

ACTION: Proposed rule.

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SUMMARY: EPA proposes to determine that the Wallula nonattainment area 
has not attained the National Ambient Air Quality Standards for 
particulate matter with an aerodynamic diameter of less than or equal 
to 10 microns (PM10) by the attainment date of December 31, 
1997, as required by the Clean Air Act. EPA's proposed finding is based 
on EPA's review of monitored air quality data reported for the years 
1995 through 1999. If EPA takes final action on this proposal, the 
Wallula PM10

[[Page 69276]]

nonattainment area will be reclassified by operation of law as a 
serious PM10 nonattainment area.

DATES: Comments on this proposal must be received in writing by 
December 1, 2000.

ADDRESSES: Submit written comments to Donna Deneen, EPA, Region 10, 
Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 
98101. You may view documents supporting this action during normal 
business hours at the following location: EPA, Office of Air Quality 
(OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101.

FOR FURTHER INFORMATION CONTACT: Donna Deneen, EPA Region 10, Office of 
Air Quality, at (206) 553-6706.

SUPPLEMENTARY INFORMATION: The supplementary information is organized 
as follows:

I. What action are we taking?
II. What is the background for this action?
III. How does EPA determine whether an area has attained the 
standard by the attainment date?
IV. What information supports EPA's finding that the Wallula area 
has not attained the PM10 standard by the attainment 
date?
V. Does the Wallula area qualify for a permanent waiver of the 
December 31, 1997 attainment date?
VI. What are the implications of this proposed finding?
VII. Administrative Requirements
A. Executive Order 12866
B. Executive Order 13045
C. Executive Order 13084
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132
G. National Technology Transfer and Advancement Act

I. What Action Are We Taking?

    In this action, we are proposing to find that the Wallula 
nonattainment area has not attained the National Ambient Air Quality 
Standards (NAAQS) for particulate matter with an aerodynamic diameter 
of less than or equal to 10 microns (PM10) by the attainment 
date of December 31, 1997, as required by the Clean Air Act. \1\ This 
proposed finding is based on EPA's review of monitored PM10 
air quality data reported for the years 1995 through 1999, inclusive. 
If EPA takes final action on this proposal, the Wallula PM10 
nonattainment area will be reclassified by operation of law as a 
serious PM10 nonattainment area.
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    \1\ On July 18, 1997, EPA promulgated revised and new standards 
for PM10 and PM2.5 (62 FR 38651). The U.S. 
Court of Appeals for the D.C. Circuit in American Trucking Assoc., 
Inc., et al. v. USEPA, 175 F.3d 1027 (D.C. Cir. 1999), issued an 
opinion that, among other things, vacated the new standards for 
PM10 that were published on July 18, 1997, and became 
effective September 16, 1997. However, the PM10 standards 
promulgated on July 1, 1987, were not an issue in this litigation, 
and the Court's decision does not affect the applicability of those 
standards in the Wallula area. Codification of those standards 
continue to be recorded at 40 CFR 50.6. Today's proposed action 
relates only to the CAA requirements concerning the PM10 
standards as originally promulgated in 1987.
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II. What is the Background for This Action?

    The Wallula area was designated nonattainment for PM10 
and classified as moderate under sections 107(d)(4)(B) and 188(a) of 
the Clean Air Act upon enactment of the Clean Air Act Amendments of 
1990 (Act or CAA). \2\ See 40 CFR 81.348 (PM10 Initial 
Nonattainment Areas); see also 56 FR 56694 (November 6, 1991). Under 
subsections 188(a) and (c)(1) of the Act, all initial moderate 
PM10 nonattainment areas had the same applicable attainment 
date of December 31, 1994.
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    \2\ The 1990 Amendments to the CAA made significant changes to 
the CAA. See Public Law No. 101-549, 104 Stat. 2399. References 
herein are to the CAA as amended in 1990. The Clean Air Act is 
codified, as amended, in the United States Code at 42 U.S.C. 7401, 
et seq.
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    States containing initial moderate PM10 nonattainment 
areas were required to develop and submit to EPA by November 15, 1991, 
a state implementation plan (SIP) revision providing for, among other 
things, implementation of reasonably available control measures (RACM), 
including reasonably available control technology (RACT), and a 
demonstration of attainment of the PM10 NAAQS by December 
31, 1994. See section 189(a) of the CAA. \3\ In response to this 
submission requirement, the Washington Department of Ecology (Ecology) 
submitted a SIP revision for Wallula on November 15, 1991. 
Subsequently, Ecology submitted additional information indicating that 
nonanthropogenic sources may be significant in the Wallula 
nonattainment area during windblown dust events. Based on our review of 
the State's submissions, we deferred action on several elements in the 
Wallula SIP, approved the control measures in the SIP as meeting RACM/
RACT, and, under section 188(f) of the CAA, granted a temporary waiver 
to extend the attainment date for Wallula to December 31, 1997. See 60 
FR 63109 (December 6, 1995)(proposed action); 62 FR 3800 (January 27, 
1997) (final action). The temporary waiver was intended to provide 
Ecology time to evaluate further the Wallula nonattainment area and to 
determine the significance of the anthropogenic and nonanthropogenic 
sources impacting the area. Once these activities were complete or the 
temporary waiver expired, EPA was to make a decision on whether the 
area was eligible for a permanent waiver under section 188(f) of the 
CAA or whether the area had attained the standard by the extended 
attainment date. See 62 FR 3802. Based on all the information currently 
available to EPA, we do not believe that nonanthropogenic sources of 
PM10 contribute significantly to violations of the 
PM10 standards in the Wallula nonattainment area. We 
therefore do not believe that the State has demonstrated that the area 
qualifies for a permanent waiver of the attainment date. Accordingly, 
in this action, we are proposing to find that the Wallula area has not 
attained the PM10 standards by the applicable attainment 
date of December 31, 1997.
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    \3\ The moderate area SIP requirements are set forth in section 
189(a) of the CAA.
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III. How does EPA Determine Whether an Area has Attained the 
Standard by the Attainment Date?

    EPA has the responsibility, pursuant to sections 179(c)(1) and 
188(b)(2) of the CAA, to determine within six months of the applicable 
attainment date, whether PM10 nonattainment areas attained 
the PM10 NAAQS by the attainment date. Determinations under 
section 179(c)(1) of the Act are to be based upon an area's ``air 
quality as of the attainment date.'' Section 188(b)(2) is consistent 
with this requirement. Generally, EPA will determine whether an area's 
air quality is meeting the PM10 NAAQS for purposes of 
sections 179(c)(1) and 188(b)(2) based upon data gathered at monitoring 
sites in the nonattainment area and entered into the Aerometric 
Information Retrieval System (AIRS). Data entered into the AIRS has 
been determined by EPA to meet federal monitoring requirements (see 40 
CFR 50.6 and appendix J, 40 CFR part 53, 40 CFR part 58, appendices A 
and B). The data are reviewed in accordance with 40 CFR part 50, 
appendix K, to determine the area's air quality status.
    Pursuant to appendix K, the annual PM10 standard is 
attained when the expected annual arithmetic average of the 24-hour 
samples for a period of one year does not exceed 50 micrograms per 
cubic meter (g/m\3\). The 24-hour PM10 standard is 
attained when the expected number of days in a year with 
PM10 concentrations greater than 150 g/m\3\, 
averaged over a three year period, is less than or equal to one. To 
calculate ``the expected number of days,'' we use the number of 
exceedances that are observed in a year, then adjust that number to 
account for the sampling schedule of the monitor and any

[[Page 69277]]

missing data. A total of three consecutive years of non-violating air 
quality data is generally necessary to show attainment of the 24-hour 
and annual standard for PM10. See 40 CFR 50.6 and 40 CFR 
part 50, appendix K.
    EPA is publishing this proposal pursuant to section 188(b)(2) of 
the Act. Under subpart (A) of that section, a moderate PM10 
nonattainment area is reclassified as serious by operation of law if 
EPA finds that the area is not in attainment by the applicable 
attainment date. Pursuant to section 188(b)(2)(B) of the Act, EPA must 
publish a Federal Register document within six months after the 
applicable attainment date identifying those areas that have failed to 
attain the standard and that have been reclassified to serious by 
operation of law. See section 188(b)(2); see also section 179(c)(1).

IV. What Information Supports EPA's Finding That the Wallula Area 
has not Attained the PM10 Standard by the Attainment 
Date?

    As explained above, attainment determinations are based upon an 
area's ``air quality as of the attainment date.'' Since Wallula's 
attainment date was extended to December 31, 1997, we first looked at 
the PM10 air quality data for 1995, 1996, and 1997. These 
data show that, for this three year period, there were no violations of 
the annual PM10 standard. For the 24-hour standard, however, 
there were two measured exceedances: 160 g/m\3\ on June 21, 
1997, and 210 g/m\3\ on July 3, 1997. After adjusting these 
two 24-hour exceedances to account for the sampling schedule \4\ and 
missing data, the expected number of days with PM10 
concentrations greater than 150 g/m\3\ was 4.1. Since this 
value is greater than one, these data show that Wallula was not in 
attainment of the 24-hour PM10 standard as of its December 
31, 1997, attainment date.
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    \4\ Because the Wallula monitor is scheduled to sample once 
every six days, each measured exceedance is generally counted as six 
expected exceedances. If there is missing data, the measured 
exceedance may count for more than that.
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    In addition to the 1995 through 1997 data, we also looked at the 
most recent data for Wallula. In 1998 and 1999 there were no violations 
of the annual standard. However, since January 1, 1998, there have been 
two additional exceedances of the 24-hour standard: 215 g/m\3\ 
on July 10, 1998, and 297 g/m\3\ on June 23, 1999. Using these 
values, along with the 1997 exceedances of 160 g/m\3\ and 210 
g/m\3\, we calculated the expected number of days with 
PM10 concentrations greater than 150 g/m\3\ for the 
1997 through 1999 period (i.e., the most recent three-year period). 
Accounting for the sampling schedule and missing data, the expected 
number of days for this period was 8.4. Because this value is greater 
than one, these data show that Wallula is still not in attainment of 
the 24-hour PM10 standard.
    In a May 30, 1996, Memorandum from EPA's Assistant Administrator 
for Air and Radiation to EPA Regional Air Directors entitled ``Areas 
Affected by Natural Events'' (EPA's Natural Events Policy), EPA has 
stated that in some circumstances it is appropriate to exclude 
PM10 air quality data that are attributable to 
uncontrollable natural events, such as unusually high winds, from 
decisions regarding an area's attainment status. Under the policy, 
where a State believes natural events have caused a violation of the 
NAAQS, the State enters the exceedance in the AIRS data base, flags the 
exceedance as being attributable to a natural event, documents a clear 
causal relationship between the measured exceedance and the natural 
event, and develops a natural events action plan (NEAP) to address 
future natural events. In the case of high-wind events where the 
sources of dust are anthropogenic, the State should also document that 
Best Available Control Measures (BACM) were required for those sources 
and the sources were in compliance with BACM at the time-of the high-
wind event. EPA's Natural Events Policy also contains guidance for 
notifying the public of the occurrence of natural events and the health 
effects of such events, as well as minimizing public exposure to high 
concentrations of PM10 due to natural events.
    Ecology has flagged certain exceedances of the PM10 
NAAQS in the Wallula area under EPA's Natural Events Policy and has 
also developed a Natural Events Action Plan for High Wind Events in the 
Columbia Plateau (March 1998), which includes the Wallula 
PM10 nonattainment area. Since January 1, 1995, the 
beginning of the time period for the data considered by EPA in this 
action, we are aware of one exceedance of the PM10 standard 
in the Wallula area--June 21, 1997-- that Ecology has flagged as 
attributable to high winds under EPA's Natural Events Policy.\5\ EPA 
has no information indicating Ecology has claimed any of the other 
exceedances of the 24-hour PM10 standard in the Wallula area 
since January 1, 1995, as attributable to natural events.\6\ Even if 
the June 21, 1997, exceedance is excluded from the attainment 
determination, the expected number of days during the 1995-1997 time 
period with PM10 concentrations greater than 150 g/
m\3\ is 2.0 and still demonstrates nonattainment of the 24-hour 
PM10 standard. Similarly, for the 1997-1999 time period, the 
expected number of days with PM10 concentrations greater 
than 150 g/m\3\ is 6.4 and demonstrates nonattainment of the 
24-hour standard even if the June 21, 1997, exceedance is excluded.
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    \5\ Ecology subsequently submitted documentation to EPA to 
support its claim that the June 21, 1997 exceedance was due to a 
``natural event,'' although it is unclear when EPA received this 
documentation. In addition, because the documentation from Ecology 
was marked ``draft,'' it was not clear to EPA that this was intended 
to be treated as the State's final submission and EPA has therefore 
not confirmed this flag. EPA now understands from Ecology that 
Ecology intended the submission marked ``draft'' to serve as its 
final submission, and EPA will therefore proceed with reviewing the 
documentation submitted by the State.
    \6\ Indeed, the State has specifically confirmed that it does 
not consider the July 10, 1998, exceedance to be due to high winds.
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V. Does the Wallula Area Qualify for a Permanent Waiver of the 
December 31, 1997, Attainment Date?

    Section 188(f) of the Act provides that EPA may, on a case-by-case 
basis, waive a specific date for attainment of the PM10 
standards where EPA determines that nonanthropogenic sources of 
PM10 contribute significantly to the violation of the 
PM10 standards in the nonattainment area. Based on the 
currently available information, we do not believe the Wallula area 
qualifies for a permanent waiver of the moderate area extended 
attainment date of December 31, 1997. EPA also has not received a 
request from Ecology for a permanent waiver of the attainment date 
under section 188(f). In addition, the information available to EPA 
does not establish that nonanthropogenic sources of PM10 
contribute significantly to the violations of the PM10 
standards in the Wallula PM10 nonattainment area. As 
discussed above, only one of the exceedances of the PM10 
standards since January 1, 1995, has been claimed by Ecology as 
attributable to a natural event. EPA therefore believes that the other 
exceedances were due to anthropogenic sources of PM10. 
Accordingly, in light of the data showing the Wallula area was in 
violation of the 24-hour PM10 standard as of the December 
31, 1997, attainment date, as well as the data showing the area 
continues to violate the 24-hour PM10 standard, we are 
proposing to find, in accordance with section 188(b)(2) of the Act, 
that the Wallula PM10 nonattainment area did not attain the

[[Page 69278]]

PM10 NAAQS by the applicable attainment date of December 31, 
1997.

VI. What are the implications of this proposed finding?

    If EPA takes final action on this proposed finding, the Wallula 
PM10 nonattainment area will be reclassified by operation of 
law as a serious PM10 nonattainment area under section 
188(b)(2)(A) of the Act. PM10 nonattainment areas 
reclassified as serious under section 188(b)(2) of the Act are required 
to submit, within 18 months of the area's reclassification, SIP 
provisions providing for, among other things, the adoption and 
implementation of best available control measures (BACM), including 
best available control technology (BACT), for PM10 no later 
than four years from the date of reclassification. The SIP also must 
contain, among other things, a demonstration that the implementation of 
BACM will provide for attainment of the PM10 NAAQS no later 
than December 31, 2001.\7\ In addition, the terms ``major source'' or 
``major stationary source'' include any stationary source or group of 
stationary sources located within a contiguous area and under common 
control that emits, or has the potential to emit, at least 70 tons per 
year of PM10. See sections 188(c)(2) and 189(b). These 
requirements are in addition to the moderate PM10 
nonattainment requirements of RACT/RACM, which, as discussed above, 
were approved for the Wallula nonattainment area on January 27, 1997. 
See 62 FR 3800.
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    \7\ If certain conditions are met, EPA may extend this 
attainment deadline to no later than December 31, 2006. CAA 188(e).
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VII. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA is 
required to determine whether regulatory actions are significant and 
therefore should be subject to Office of Management and Budget (OMB) 
review, economic analysis, and the requirements of the Executive Order. 
The Executive Order defines a ``significant regulatory action'' as one 
that is likely to result in a rule that may meet at least one of the 
four criteria identified in section 3(f), including, under paragraph 
(1), that the rule may ``have an annual effect on the economy of $100 
million or more or adversely affect, in a material way, the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local or tribal 
governments or communities.''
    The Agency has determined that the finding of failure to attain 
proposed today would result in none of the effects identified in 
section 3(f). Under section 188(b)(2) of the CAA, findings of failure 
to attain are based upon air quality considerations and the resulting 
reclassifications must occur by operation of law in light of certain 
air quality conditions. They do not, in and of themselves, impose any 
new requirements on any sectors of the economy. In addition, because 
the statutory requirements are clearly defined with respect to the 
differently classified areas, and because those requirements are 
automatically triggered by classifications that, in turn, are triggered 
by air quality values, findings of failure to attain and 
reclassification cannot be said to impose a materially adverse impact 
on State, local or tribal governments or communities.

B. Executive Order 13045

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) is determined to be economically significant as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have 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 
proposed action is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866.

C. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly 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, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide OMB, 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 develop an effective process permitting elected 
officials 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 proposed finding of failure to attain does not 
significantly or uniquely affect the communities of Indian tribal 
governments. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this proposed finding of failure to attain.

D. 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.
    Findings of failure to attain and the resulting reclassification of 
nonattainment areas by operation of law under section 188(b)(2) of the 
CAA do not in and of themselves create any new requirements. Instead, 
this rulemaking only proposes to make a factual determination, and does 
not propose to directly regulate any entities. Therefore, pursuant to 5 
U.S.C. 605(b), I certify that today's proposed action does not have a 
significant impact on a substantial number of small entities within the 
meaning of those terms for RFA purposes.

E. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``UMRA''), 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

[[Page 69279]]

significantly or uniquely impacted by the rule.
    EPA believes, as discussed above, that the proposed finding of 
failure to attain is a factual determination based upon air quality 
considerations and that the resulting reclassification of the area must 
occur by operation of law. Thus, the finding does not constitute a 
Federal mandate, as defined in section 101 of the UMRA, because it does 
not impose an enforceable duty on any entity.

F. Executive Order 13132

    Executive Order 13132, entitled 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 finding of failure to attain and reclassification of 
nonattainment area 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 these actions do not, in-and-of-
themselves, impose any new requirements on any sectors of the economy, 
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 these 
actions.

G. 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.
    The EPA believes that VCS are not relevant to this action because 
today's action does not involve the application of new technical 
standards.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter.

    Dated: November 6, 2000.
Charles E. Findley,
Acting Regional Administrator, Region 10.
[FR Doc. 00-29360 Filed 11-15-00; 8:45 am]
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