[Federal Register Volume 77, Number 192 (Wednesday, October 3, 2012)]
[Rules and Regulations]
[Pages 60307-60311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23988]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-1014; FRL-9734-4]


Approval and Promulgation of Implementation Plans; Kentucky 
110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006 
Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve in part, and 
conditionally approve in part, the State Implementation Plan (SIP) 
revisions, submitted by the Commonwealth of Kentucky through the 
Kentucky Energy and Environment Cabinet, Division for Air Quality 
(DAQ), as demonstrating that the Commonwealth meets certain 
requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or 
the Act) for the 1997 annual and 2006 24-hour fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS). 
Section 110(a) of the CAA requires that each state adopt and submit a 
SIP for the implementation, maintenance, and enforcement of each NAAQS 
promulgated by EPA, which is commonly referred to as an 
``infrastructure'' SIP. The Commonwealth certified that the Kentucky 
SIP contains provisions that ensure the 1997 annual and 2006 24-hour 
PM2.5 NAAQS are implemented, enforced, and maintained in the 
Commonwealth (hereafter referred to as ``infrastructure submission''). 
With the exception of elements 110(a)(2)(C), 110(a)(2)(D)(i), 
110(a)(2)(E)(ii) and 110(a)(2)(J), EPA is today finalizing its 
determination that Kentucky's infrastructure submissions, provided to 
EPA on August 26, 2008, and July 17, 2012, addressed all the required 
infrastructure elements for the 1997 annual and 2006 24-hour 
PM2 NAAQS. In addition, EPA is today taking final action to 
approve Kentucky's July 17, 2012, submittal addressing the requirements 
of section 128 of the CAA. Final approval of these substantive 
revisions to the Kentucky SIP also enables EPA to take final action 
today approving the Commonwealth's infrastructure SIP as meeting the 
state board requirements of section 110(a)(2)(E)(ii). Lastly, EPA is 
taking final action to conditionally approve elements 110(a)(2)(C) and 
(J) of Kentucky's 1997 annual and 2006 24-hour PM2.5 NAAQS 
infrastructure SIP.

DATES: This rule is effective November 2, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-1014. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information 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 through www.regulations.gov or in hard 
copy at the Regulatory Development Section, Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9043. Mr. Lakeman can be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. This Action
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and 
(2) of the CAA require states to address basic SIP requirements, 
including emissions inventories, monitoring, and modeling to assure 
attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 
38652), EPA promulgated a new annual PM2.5 NAAQS and on 
October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour NAAQS. On 
August 3, 2012, EPA proposed to approve in part, and conditionally 
approve in part, Kentucky's August 26, 2008, and July 17, 2012, 
infrastructure submissions for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS. See 77 FR 46352. A summary of the background 
for today's final action is provided below. See EPA's August 3, 2012, 
proposed rulemaking at 77 FR 46352 for more detail.
    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. The data and 
analytical tools available at the time the state develops and submits 
the SIP for a new or revised NAAQS affects the content of the 
submission. The contents

[[Page 60308]]

of such SIP submissions may also vary depending upon what provisions 
the state's existing SIP already contains. In the case of the 1997 
annual and 2006 24-hour PM2.5 NAAQS, states typically have 
met the basic program elements required in section 110(a)(2) through 
earlier SIP submissions in connection with previous PM NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As already mentioned, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this final rulemaking are listed below \1\ and in EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' and September 
25, 2009, memorandum entitled ``Guidance on SIP Elements Required Under 
Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather are due at the time the nonattainment 
area plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA, and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's final rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment plan requirements of section 
110(a)(2)(C).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's final rule does not address element 110(a)(2)(D)(i) 
(Interstate Transport) for the 1997 and 2006 PM2.5 NAAQS.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's final rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

II. This Action

    Section 110(a) of the CAA requires that each state adopt and submit 
a SIP for the implementation, maintenance, and enforcement of each 
NAAQS promulgated by the EPA, which is commonly referred to as an 
``infrastructure'' SIP. The Commonwealth certified that the Kentucky 
SIP contains provisions that ensure the 1997 annual and 2006 24-hour 
PM2.5 NAAQS are implemented, enforced, and maintained in the 
Commonwealth.
    Today, EPA is taking final action on three actions related to 
Kentucky's section 110(a) obligations associated with the 1997 annual 
and 2006 24-hour PM2.5 NAAQS. First, EPA has determined 
that, as described in its infrastructure submissions, Kentucky's SIP 
meets the section 110(a)(2) infrastructure requirements for both the 
1997 annual and 2006 24-hour PM2.5 NAAQS with the exception 
of elements 110(a)(2)(C) respecting prevention of significant 
deterioration (PSD) requirements, 110(a)(2)(D)(i) regarding interstate 
transport, and 110(a)(2)(J) respecting PSD requirements. Second, EPA is 
approving Kentucky's July 17, 2012, submission requesting approval of 
Kentucky Revised Statutes (KRS) Chapters 11A.020, 11A.030, 11A.040, 
224.10-020 and 224.10-100 into the SIP to address element 
110(a)(2)(E)(ii), related to state board requirements. Third, with 
respect to elements 110(a)(2)(C) and 110(a)(2)(J) as they both relate 
to PSD requirements, EPA is finalizing a conditional approval for these 
elements. On July 3, 2012, the Commonwealth submitted a commitment 
letter to EPA requesting conditional approval of outstanding 
requirements related to sections 110(a)(2)(C) and 110(a)(2)(J). In this 
letter, Kentucky provided a schedule on how the Commonwealth will 
address outstanding requirements promulgated in the New Source Review 
(NSR) PM2.5 Rule related to the PM2.5 standard 
for their PSD program and committing to providing the necessary SIP 
revision to address these NSR PM2.5 Rule requirements. This 
letter of commitment meets the requirements of section 110(k)(4) of the 
CAA. See EPA's August 3, 2012, proposed rulemaking at 77 FR 46352 for 
more detail. If the Commonwealth fails to submit these revisions by 
October 3, 2013, today's conditional approval will automatically become 
a disapproval on that date and EPA will issue a finding of disapproval. 
EPA is not required to propose the finding of disapproval. If the 
conditional approval is converted to a disapproval, the final 
disapproval triggers the Federal Implementation Plan requirement under 
section 110(c). However, if the State meets its commitment within the 
applicable timeframe, the conditionally approved submission will remain 
a part of the SIP until EPA takes final action approving or 
disapproving the new submittal.
    Kentucky's infrastructure submissions, provided to EPA on August 
26, 2008, and July 17, 2012, and the July 3, 2012, letter of commitment 
address all the required infrastructure elements for the 1997 annual 
and 2006 24-hour PM2.5 NAAQS with the exception of element 
110(a)(D)(i). For those infrastructure elements for which EPA is today 
finalize approval, the Agency has determined that the Commonwealth's 
August 26, 2008, and July 17, 2012, submissions are consistent with 
section 110 of the CAA.
    EPA received one off-topic comment on its August 3, 2012, proposed 
rulemaking to approve Kentucky's August 26, 2008, and July 17, 2012, 
infrastructure submissions as meeting the requirements of sections 
110(a)(1) and (2) of the CAA for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS.
    The comment was focused on the promulgation of the particulate 
matter NAAQS, and not the current rulemaking action. The Commenter 
stated that EPA PM2.5 standard forces expensive mandates on 
states and industry and the designation process places a strain on 
local resources and discourages economic growth and EPA should withdraw 
the PM2.5 standard. Also, the Commenter stated that EPA 
should consider public interest prior to entering into consent decrees.
    This comment does not appear to be related to the issues presented 
in the proposed rulemaking--and instead, related to a wholly separate 
topic, promulgation of the PM NAAQS. The Commenter did not provide 
comments

[[Page 60309]]

relevant to EPA's August 3, 2012, proposed approval of Kentucky's 
infrastructure submissions for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS. Instead, the Commenter appears to be providing 
comment on EPA's promulgation of PM NAAQS. Promulgations of NAAQS 
involve public comment opportunities and that would be the time to 
raise concerns specific to a particular NAAQS. Additionally, with 
regard to Commenter's general statement about consent decrees, although 
it is not clear to which specific consent decree commenter is 
referring, the CAA does provide for opportunities for public input 
regarding certain consent decrees.
    EPA does not interpret these comments as relevant to the topic of 
EPA's proposed action on August 3, 2012, which is proposed approval, in 
part, and conditional approval, in part, of Kentucky's infrastructure 
submissions for the existing 1997 annual and 2006 24-hour 
PM2.5 NAAQS. Instead, EPA interprets these comments to be 
off-topic and outside of the scope of today's final rulemaking.
    Kentucky's infrastructure submissions, provided to EPA on August 
26, 2008, and July 17, 2012, and the July 3, 2012, letter of commitment 
address all the required infrastructure elements for the 1997 annual 
and 2006 24-hour PM2.5 NAAQS with the exception of element 
110(a)(D)(i). For those infrastructure elements for which EPA is today 
finalize approval, the Agency has determined that the Commonwealth's 
August 26, 2008, and July 17, 2012, submissions are consistent with 
section 110 of the CAA.

III. Final Action

    As already described, Kentucky has addressed the elements of the 
CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 
2007, guidance to ensure that 1997 annual and 2006 24-hour 
PM2.5 NAAQS are implemented, enforced, and maintained in the 
Commonwealth with the exception of the elements noted above. EPA is 
taking final action to approve in part, and conditionally approve in 
part, Kentucky's August 26, 2008, and July 17, 2012, submissions for 
1997 annual and 2006 24-hour PM2.5 NAAQS because these 
submissions are consistent with section 110 of the CAA. These actions 
are not approving any specific rule, but rather making a determination 
that Kentucky's already approved SIP meets certain CAA requirements.
    In addition, EPA is also taking final action to approve KRS 
Chapters 11A.020, 11A.030, 11A.040, 224.020 and 224.10-100 in the SIP.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act 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 approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by 
Commonwealth law. For that reason, this action:
     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 rule 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, and EPA notes that it 
will not impose substantial direct costs on tribal governments or 
preempt tribal law.
    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 action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 3, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 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, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: September 13, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart S--Kentucky

0
2. Section 52.919 is revised to read as follows:


Sec.  52.919  Identification of plan-conditional approval.

    Kentucky submitted a letter to EPA on July 3, 2012, which includes 
a commitment to address the State Implementation Plan deficiencies

[[Page 60310]]

regarding requirements of Clean Air Act sections 110(a)(2)(C) and 
110(a)(2)(J) as they both relate to Prevention of Significant 
Deterioration (PSD) infrastructure requirements for the 1997 annual and 
2006 24-hour fine particulate matter (PM2.5) national 
ambient air quality standards. EPA is conditionally approving 
Kentucky's schedule to address outstanding requirements promulgated in 
the New Source Review (NSR) PM2.5 Rule related to the 
PM2.5 standard for their PSD program and committing to 
providing the necessary SIP revision to address these NSR 
PM2.5 Rule requirements. If the Commonwealth fails to submit 
these revisions by October 3, 2013, the conditional approval will 
automatically become a disapproval on that date and EPA will issue a 
finding of disapproval.

0
3. Section 52.920 is amended by:
0
a. In paragraph (c), adding in numerical order a new entry for 
``Kentucky Revised Statutes (KRS)'' at the end of the table 1 to read 
as follows:
0
b. In paragraph (e), adding two new entries for ``110(a)(1) and (2) 
Infrastructure Requirements for the 1997 Fine Particulate Matter 
National Ambient Air Quality Standards'' and ``110(a)(1) and (2) 
Infrastructure Requirements for the 2006 Fine Particulate Matter 
National Ambient Air Quality Standards'' at the end of the table to 
read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (c) * * *

                                   Table 1--EPA-Approved Kentucky Regulations
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                                                             State
          State citation              Title/subject     effective date   EPA approval date       Explanations
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                                                  * * * * * * *
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                                         Kentucky Revised Statutes (KRS)
----------------------------------------------------------------------------------------------------------------
KRS Chapter 11A.020..............  Public servant            7/15/1998  10/3/2012 [Insert
                                    prohibited from                      citation of
                                    certain conduct-                     publication].
                                    Exception-
                                    Disclosure of
                                    personal or
                                    private interest.
KRS Chapter 11A.030..............  Considerations in         7/14/1992  10/3/2012 [Insert
                                    determination to                     citation of
                                    abstain from                         publication].
                                    action on official
                                    decision-Advisory
                                    opinion.
KRS Chapter 11A.040..............  Acts prohibited for       7/16/2006  10/3/2012 [Insert
                                    public servant or                    citation of
                                    officer-exception.                   publication].
KRS Chapter 224.10-020...........  Department within         7/15/2010  10/3/2012 [Insert
                                    the cabinet-                         citation of
                                    Offices and                          publication].
                                    divisions within
                                    the departments-
                                    Appointments.
KRS Chapter 224.10-100...........  Powers and duties         8/30/2007  10/3/2012 [Insert
                                    of cabinet.                          citation of
                                                                         publication].
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* * * * *
    (e) * * *

                                 EPA-Approved Kentucky Non-regulatory Provisions
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                                        Applicable           State
    Name of non-regulatory SIP        geographic or     submittal date/  EPA approval date       Explanations
            provision               nonattainment area  effective date
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                                                  * * * * * * *
110(a)(1) and (2) Infrastructure   Kentucky...........       8/26/2008  10/3/2012 [Insert    With the exception
 Requirements for 1997 Fine                                              citation of          of section
 Particulate Matter National                                             publication].        110(a)(2)(D)(i),
 Ambient Air Quality Standards.                                                               With respect to
                                                                                              sections
                                                                                              110(a)(2)(C)
                                                                                              related to PSD
                                                                                              requirements and
                                                                                              110(a)(2)(J)
                                                                                              related to PSD
                                                                                              requirements, EPA
                                                                                              conditionally
                                                                                              approved these
                                                                                              requirements.
110(a)(1) and (2) Infrastructure   Kentucky...........       7/17/2012  10/3/2012 [Insert    With the exception
 Requirements for 2006 Fine                                              citation of          of section
 Particulate Matter National                                             publication].        110(a)(2)(D)(i),
 Ambient Air Quality Standards.                                                               With respect to
                                                                                              sections
                                                                                              110(a)(2)(C)
                                                                                              related to PSD
                                                                                              requirements and
                                                                                              110(a)(2)(J)
                                                                                              related to PSD
                                                                                              requirements, EPA
                                                                                              conditionally
                                                                                              approved these
                                                                                              requirements.
----------------------------------------------------------------------------------------------------------------


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[FR Doc. 2012-23988 Filed 10-2-12; 8:45 am]
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