[Federal Register Volume 77, Number 148 (Wednesday, August 1, 2012)]
[Proposed Rules]
[Pages 45523-45527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18800]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0927; FRL-9709-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Prevention of Significant Deterioration and Nonattainment New 
Source Review; Fine Particulate Matter (PM2.5)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Virginia State 
Implementation Plan (SIP), submitted by the Virginia Department of 
Environmental Quality (VADEQ) on August 25, 2011. These revisions 
pertaining to Virginia's Prevention of Significant Deterioration (PSD) 
and nonattainment New Source Review (NSR) programs incorporate 
preconstruction permitting regulations for fine particulate matter 
(PM2.5) into the Virginia SIP. A previous PSD program 
approval of Virginia's Chapter 80, Article 8 regulations was provided 
to the Commonwealth as a ``limited approval'' for reasons that will not 
deny this action as being fully approved. In addition, EPA is proposing 
to approve these revisions and portions of other related submissions 
for the purpose of determining that Virginia has met its statutory 
obligations with respect to the infrastructure requirements of the 
Clean Air Act (CAA) which relate to Virginia's PSD permitting program 
and are necessary to implement, maintain, and enforce the 1997 8-hour 
ozone and PM2.5 National Ambient Air Quality Standards 
(NAAQS), the 2006 PM2.5 NAAQS, and the 2008 lead NAAQS. EPA 
is proposing to approve these revisions in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: Written comments must be received on or before August 31, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2011-0927 by one of the following methods:

[[Page 45524]]

    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2011-0927, Ms. Kathleen Cox, Associate 
Director, Office of Permits and Air Toxics, Mailcode 3AP10, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2011-0927. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the Virginia Department of Environmental Quality, 629 
East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Mr. David Talley, (215) 814-2117, or 
by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On August 25, 2011, VADEQ submitted a formal 
revision to its State Implementation Plan (SIP) (the August 2011 SIP 
submission). The SIP revision consists of amendments to major NSR 
permitting regulations under the Virginia Administrative Code (VAC), 
specifically Articles 8 and 9 of 9VAC5 Chapter 80. This SIP revision 
generally pertains to two federal rulemaking actions regarding 
PM2.5. The first is the ``Implementation of the New Source 
Review (NSR) Program for Particulate Matter less than 2.5 Micrometers 
(PM2.5)'' (NSR PM2.5 Rule), which was promulgated 
on May 16, 2008 (73 FR 28321). The second is the ``Prevention of 
Significant Deterioration (PSD) for Particulate Matter less than 2.5 
Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC)'' (PSD 
PM2.5 Rule), which was promulgated on October 20, 2010 (75 
FR 64864).
    Whenever a new or revised NAAQS is promulgated, section 110(a) of 
the CAA imposes obligations upon states to submit SIP revisions that 
provide for the implementation, maintenance, and enforcement of the new 
or revised NAAQS within three years following the promulgation of such 
NAAQS--the so called infrastructure SIP revisions. Although states 
typically have met many of the basic program elements required in 
section 110(a)(2) through earlier SIP submissions in connection with 
previous PM standards, states (including all the EPA Region III states) 
were still required to submit SIP revisions that address section 
110(a)(2) for the 1997 and 2006 PM2.5 NAAQS. In addition to 
the August 2011 SIP submission, Virginia has previously submitted SIP 
revisions addressing requirements set forth in CAA Section 110(a)(2) 
for the 1997 and 2006 PM2.5 NAAQS, as well as the 1997 ozone 
and 2008 lead NAAQS. Because these SIP submissions addressed Virginia's 
compliance with CAA section 110(a)(2), these SIP submissions are 
referred to as infrastructure SIP submissions. These previous 
submittals, as well as a technical support document (TSD), are included 
in the docket for today's action. The TSD contains a detailed 
discussion of these submittals and their relationship to the 
requirements of CAA section 110(a)(2).

A. Fine Particulate Matter and the NAAQS

    On July 18, 1997, EPA revised the NAAQS for particulate matter (PM) 
to add new standards for fine particles, using PM2.5 as the 
indicator. Previously, EPA used PM10 (inhalable particles 
smaller than or equal to 10 micrometers in diameter) as the indicator 
for the PM NAAQS. EPA established health-based (primary) annual and 24-
hour standards for PM2.5, setting an annual standard at a 
level of 15 micrograms per cubic meter ([mu]g/m\3\) and a 24-hour 
standard at a level of 65 [mu]g/m\3\ (62 FR 38652). At the time the 
1997 primary standards were established, EPA also established welfare-
based (secondary) standards identical to the primary standards. The 
secondary standards are designed to protect against major environmental 
effects of PM2.5, such as visibility impairment, soiling, 
and materials damage. On October 17, 2006, EPA revised the primary and 
secondary NAAQS for PM2.5. In that rulemaking, EPA reduced 
the 24-hour NAAQS for PM2.5 to 35 [mu]g/m\3\ and retained 
the existing annual PM2.5 NAAQS of 15 [mu]g/m\3\ (71 FR 
61236).

B. Implementation of NSR Requirements for PM2.5--the NSR PM2.5 Rule

    On May 16, 2008, EPA finalized a rule (the NSR PM2.5 
Rule) to implement the 1997 p.m.2.5 NAAQS, including changes 
to the NSR program (73 FR 28321). The 2008 NSR PM2.5 Rule 
revised the NSR program requirements to establish the framework for 
implementing preconstruction permit review for the PM2.5 
NAAQS in both attainment and nonattainment areas. The 2008 NSR 
PM2.5 Rule also established the following NSR requirements 
to implement the PM2.5 NAAQS: (1) Require NSR permits to 
address directly emitted PM2.5 and precursor pollutants; (2) 
establish significant emission rates for direct PM2.5 and 
precursor pollutants (including sulfur dioxide (SO2) and 
oxides of nitrogen (NOX); (3) establish PM2.5 
emission offsets; and (4) require states to account for gases that 
condense to form particles (condensables) in PM2.5 emission 
limits.

[[Page 45525]]

    Additionally, the 2008 final rule authorized states to adopt 
provisions in their nonattainment NSR rules that would allow major 
stationary sources and major modifications which will be located, or 
take place in, areas designated nonattainment for PM2.5 to 
offset emissions increases of direct PM2.5 emissions or 
PM2.5 precursors with reductions of either direct 
PM2.5 emissions or PM2.5 precursors in accordance 
with offset ratios contained in the approved SIP for the applicable 
nonattainment area. The inclusion, in whole or in part, of the 
interpollutant offset provisions for PM2.5 is discretionary 
on the part of the states. In the preamble to the 2008 final rule, EPA 
included preferred or presumptive offset ratios, applicable to specific 
PM2.5 precursors that states may adopt in conjunction with 
the new interpollutant offset provisions for PM2.5, and for 
which the state could rely on the EPA's technical work to demonstrate 
the adequacy of the ratios for use in any PM2.5 non 
attainment area. Alternatively, the preamble indicated that states may 
adopt their own ratios, subject to the EPA's approval, that would have 
to be substantiated by modeling or other technical demonstrations of 
the net air quality benefit for ambient PM2.5 
concentrations. The preferred ratios were subsequently the subject of a 
petition for reconsideration, which the Administrator granted. EPA 
continues to support the basic policy that sources may offset increases 
in emissions of direct PM2.5 or of any PM2.5 
precursor in a PM2.5 nonattainment area with actual 
emissions reductions in direct PM2.5 or PM2.5 
precursors in accordance with offset ratios as approved in the SIP for 
the applicable nonattainment area. However, we no longer consider the 
preferred ratios set forth in the preamble to the 2008 final rule for 
PM2.5 NSR implementation to be presumptively approvable. 
Instead, any ratio involving PM2.5 precursors adopted by the 
state for use in the interpollutant offset program for PM2.5 
nonattainment areas must be accompanied by a technical demonstration 
that shows the net air quality benefits of such ratio for the 
PM2.5 nonattainment area in which it will be applied.

C. PSD PM2.5 Rule

    On October 20, 2010 (75 FR 64865), EPA promulgated the final 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
less than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' 
(PSD PM2.5 Rule). That rulemaking finalized certain program 
provisions under the regulations to prevent significant deterioration 
of air quality due to emissions of PM2.5 (i.e., under the 
PM2.5 PSD regulations). This final rule supplemented the 
final implementation rule for PM2.5, known as the Clean Air 
Fine Particle Implementation Rule (CAFPIR) that we promulgated on April 
25, 2007 (72 FR 20586), and the PM2.5 NSR Implementation 
Rule that we promulgated on May 16, 2008 (73 FR28321). Together, these 
three rules established a regulatory framework for implementation of a 
PM2.5 program in any area. This final rule established 
increments, SILs, and an SMC for PM2.5 to facilitate ambient 
air quality monitoring and modeling under the PSD regulations for areas 
designated attainment or unclassifiable for PM2.5.

D. Infrastructure Requirements Relating to Virginia's PSD Permit 
Program

    As stated earlier, Virginia's PSD and nonattainment programs are 
currently operating under a limited SIP approval. However, EPA has 
previously determined that this limited approval will not impair 
Virginia's ability to enforce its PSD and nonattainment NSR provisions 
in a manner consistent with federal requirements (See Section III, 
below). With the addition of the PM2.5 requirements 
described above, Virginia's nonattainment NSR and PSD programs contain 
all of the emission limitations and control measures and other program 
elements required by 40 CFR 51.165 and 40 CFR 51.166 related to the 
PM2.5 NAAQS. Therefore, we are also proposing to approve the 
August 25, 2011 SIP submittal and the relevant portions of Virginia's 
infrastructure SIP submittals relating to the PSD permit program under 
CAA sections 110(a)(2)(C), (D)(i)(II), and (J) for the 1997 
p.m.2.5, 2006 p.m.2.5, and 2008 lead NAAQS. EPA 
is also proposing to approve the relevant portion of Virginia's 
infrastructure submittal relating to the PSD permit program pursuant to 
CAA section 110(a)(2)(D)(i)(II) for the 1997 ozone NAAQS. Additionally, 
Virginia has met its obligations with respect to the visibility 
requirements of section 110(a)(2)(D)(i)(II) by virtue of its Regional 
Haze SIP, which EPA took final action to approve on March 23, 2012 (77 
FR 16397). Therefore, EPA is also proposing to approve the portions of 
Virginia's infrastructure submittals related to the visibility 
requirements of section 110(a)(2)(D)(i)(II) for the 1997 ozone, 1997 
p.m.2.5, 2006 p.m.2.5, and 2008 lead NAAQS. As 
already noted, the TSD for this action contains a detailed discussion 
of the relevant submissions and EPA's rationale for making this 
determination.

II. Summary of SIP Revision

    The SIP revision submitted by VADEQ consists of amendments to the 
major NSR permitting regulations of Articles 8 and 9 of 9VAC5 Chapter 
80. The revision fulfills the federal program requirements established 
by the EPA rulemaking actions discussed above. The amendments establish 
the major source threshold, significant emission rate and offset ratios 
for PM2.5, and establish an allowance for interpollutant 
trading for offsets and NSR applicability to PM2.5 precursor 
pollutants, pursuant to the May 2008 NSR PM2.5 Rule. In 
addition, the amendments add maximum allowable increases in ambient 
pollutant concentrations (increments) pursuant to the October 2010 PSD 
PM2.5 Rule. Several minor administrative revisions were made 
as well.
    The amendments submitted by VADEQ for approval into the SIP were 
adopted by the State Air Pollution Control Board on June 10, 2011, and 
effective on August 17, 2011. They include revisions to the general 
definitions under Chapter 10 of 9VAC5 (specifically 9VAC5-10-30), as 
well as to Articles 8 (PSD) and 9 (nonattainment NSR) under Chapter 80 
of 9VAC5. The following regulations under Article 8 are revised: 9VAC5-
80-1615 (Definitions), 9VAC5-80-1635 (Ambient Air Increments), and 
9VAC5-80-1765 (Sources Affecting Federal Class I Areas--Additional 
Requirements). Under Article 9, the regulations at 9VAC5-80-2010 
(Definitions) and 9VAC5-80-2120 (Offsets) have been amended. Based upon 
EPA's review of the revisions submitted by Virginia for approval into 
the SIP, we find these revisions consistent with their federal 
counterparts.
    The revisions submitted by the State of Virginia to address the new 
PSD requirements for PM2.5 pursuant to the EPA's October 20, 
2010 final rule include the regulatory text at 40 CFR 51.166(k)(2), 
concerning the implementation of SILs for PM2.5. (See, 
9VAC5-80-1715 (Source Impact Analysis)). We stated in the preamble to 
the 2010 final rule that we do not consider the SILs to be a mandatory 
SIP element, but regard them as discretionary on the part of permitting 
authority for use in the PSD permitting process. Nevertheless, the 
PM2.5 SILs are currently the subject of litigation before 
the U.S. Court of Appeals (DC Circuit). In response to that litigation, 
the EPA has requested that the Court remand and

[[Page 45526]]

vacate the regulatory text in the EPA's PSD regulations at paragraph 
(k)(2) of section 51.166 so that the EPA can make necessary rulemaking 
revisions to that text.
    In light of EPA's request for remand and vacatur and our 
acknowledgement of the need to revise the regulatory text presently 
contained at paragraph (k)(2) of sections 51.166 and 52.21, we do not 
believe that it is appropriate at this time to approve that portion of 
the State's SIP revision that contains the affected regulatory text in 
the State's PSD regulations, specifically new paragraph A.2 of 9VAC5-
80-1715. Instead, we are taking no action at this time with regard to 
that specific provision contained in the SIP revision.

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information that (1) generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege Law, Va. Code Sec.  10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. * * *'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.'' Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides 
that ``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
PSD and nonattainment NSR programs consistent with the Federal 
requirements. In any event, because EPA has also determined that a 
state audit privilege and immunity law can affect only state 
enforcement and cannot have any impact on Federal enforcement 
authorities, EPA may at any time invoke its authority under the CAA, 
including, for example, sections 113, 167, 205, 211 or 213, to enforce 
the requirements or prohibitions of the state plan, independently of 
any state enforcement effort. In addition, citizen enforcement under 
section 304 of the CAA is likewise unaffected by this, or any, state 
audit privilege or immunity law.

IV. Proposed Action

    Based upon EPA's review of the August 25, 2011 submittal, we find 
the regulations consistent with their Federal counterparts. Only the 
increment portion of the October 20, 2010 p.m.2.5 rule is a 
required PSD program element. Therefore, EPA is proposing to approve 
Virginia's SIP revision, with the exception of the portion of the 
revision which relates to the SILs, upon which we are taking no action. 
Additionally, in light of this SIP revision, EPA is proposing to 
approve the portions of Virginia's prior infrastructure submittals 
related to the PSD program which were not approved as part of our 
October 11, 2011 action (See, 76 FR 62635) as follows: (1) We are 
proposing to approve the portions of the December 13, 2007 submittal 
which address the section 110(a)(2)(D)(i)(II) requirements related to 
Virginia's PSD program for the 1997 ozone NAAQS; (2) We are proposing 
to approve the portions of the July 10, 2008 and September 2, 2008 
submittals which address the requirements of sections 110(a)(2)(C), 
(D)(i)(II), and (J) which relate to Virginia's PSD program for the 1997 
p.m.2.5 NAAQS; (3) We are proposing to approve the portions 
of the April 1, 2011 submittal which address the requirements of 
sections 110(a)(2)(C), (D)(i)(II), and (J) which relate to Virginia's 
PSD program for the 2006 p.m.2.5 NAAQS; (4) We are proposing 
to approve the portions of the March 9, 2012 submittal which address 
the requirements of sections 110(a)(2)(C), (D)(i)(II), and (J) which 
relate to Virginia's PSD program for the 2008 lead NAAQS; 5) We are 
proposing to approve the portions of the November 13, 2007 submittal 
which address the requirements of sections 110(a)(2)(D)(i) which relate 
to Virginia's PSD program for the 1997 ozone and 1997 
p.m.2.5 NAAQS; and 6) Because Virginia has met its 
obligations with respect to the visibility requirements of section 
110(a)(2)(D)(i)(II) by virtue of its Regional Haze SIP, which EPA took 
final action to approve on March 23, 2012 (77 FR 16397), EPA is also 
proposing to approve the portions of Virginia's previous infrastructure 
submittals related to the visibility requirements of section 
110(a)(2)(D)(i)(II) for the 1997 ozone, 1997 p.m.2.5, 2006 
p.m.2.5, and 2008 lead NAAQS.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:

[[Page 45527]]

     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule pertaining to NSR requirements for 
PM2.5 does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
is not approved to apply in Indian country located in the state, and 
EPA notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: July 23, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2012-18800 Filed 7-31-12; 8:45 am]
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