[Federal Register Volume 78, Number 236 (Monday, December 9, 2013)]
[Rules and Regulations]
[Pages 73698-73702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29196]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2006-0605; FRL-9903-84-OAR]
RIN 2060-AR99


Prevention of Significant Deterioration for Particulate Matter 
Less Than 2.5 Micrometers--Significant Impact Levels and Significant 
Monitoring Concentration: Removal of Vacated Elements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On January 22, 2013, the United States Court of Appeals for 
the District of Columbia Circuit (the Court) granted a request from the 
EPA to vacate and remand to the EPA portions of two Prevention of 
Significant Deterioration (PSD) regulations, promulgated in 2010 under 
the authority of the Clean Air Act (CAA), regarding the Significant 
Impact Levels (SILs) for particulate matter less than 2.5 micrometers 
(PM2.5). The Court further vacated the portions of the PSD 
regulations establishing a PM2.5 Significant Monitoring 
Concentration (SMC). The EPA is amending its regulations to remove the 
vacated PM2.5 SILs and SMC provisions from the PSD 
regulations in the Code of Federal Regulations (CFR). This action is 
exempt from notice-and-comment rulemaking because it is ministerial in 
nature. The EPA will initiate a separate rulemaking in the future 
regarding the PM2.5 SILs that will address the Court's 
remand.

DATES: This final rule is effective December 9, 2013.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2006-0605. All documents in the docket are 
listed on the www.regulations.gov Web site. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the EPA Docket Center (Air 
Docket), EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., 
Washington, DC The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Mr. Ben Garwood, Office of Air Quality 
Planning and Standards (C504-03), U.S. EPA, Research Triangle Park, 
North Carolina 27709, telephone number (919) 541-1358, facsimile number 
(919) 541-5509, email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Does this regulation apply to me?

    The entities potentially affected by this rule include new and 
modified major stationary sources in all industry groups. To determine 
whether your facility would be affected by this action, you should 
carefully examine the applicability criteria in 40 CFR 51.166 and 
52.21. Entities potentially affected by this final action also include 
state, local and tribal governments that issue PSD permits.

II. Background and Rationale for This Final Action

    The PSD permit program applies to any new major stationary source 
or major modification at a stationary source located in a designated 
attainment or unclassifiable area for any regulated NSR pollutant.\1\ 
The PSD

[[Page 73699]]

regulations require, among other things, compliance with emission 
limitations achievable through installation of best achievable control 
technology (BACT); an air quality analysis to show that the newly 
constructed source or modification will not cause or contribute to a 
violation of any National Ambient Air Quality Standard (NAAQS) or 
applicable PSD increment,\2\ including analysis of air quality 
monitoring data; an assessment of impacts on visibility and other 
conditions in national parks and similar federal lands in certain 
areas; an additional impacts analysis as defined by 40 CFR 51.166(o) 
and 40 CFR 52.21(o); and an opportunity for public involvement. The EPA 
regulations for the PSD program are contained in 40 CFR 51.166 
(applicable to air agencies that issue permits under EPA-approved state 
implementation plans (SIPs)) and 40 CFR 52.21 (the federal PSD program 
applicable to permits issued by the EPA or by delegated air agencies).
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    \1\ The PSD program stems from part C of title I of the CAA.
    \2\ An ``increment'' is the mechanism used in the PSD program to 
define significant deterioration of ambient air quality for a 
criteria pollutant. An increment is the maximum allowable increase 
in ambient concentrations of a pollutant in an area relative to a 
specified baseline concentration. In general, a change in ambient 
pollutant concentrations greater than the amount defined by an 
increment is thus considered to significantly deteriorate air 
quality and cannot be allowed.
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    In 1997, the EPA revised its NAAQS for particulate matter to 
include standards for a new indicator, PM2.5, 62 FR 38652 
(July 18, 1997). The EPA revised the PM2.5 NAAQS in 2006, 71 
FR 61144 (October 17, 2006), and also in 2013, 78 FR 103086 (January 
15, 2013). On October 20, 2010, the EPA published a final rule 
establishing PSD provisions to implement increments, SILs and an SMC 
for PM2.5. 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), 75 FR 64864 (Oct. 20, 2010). The SILs are 
screening tools that have been applied in PSD permitting to demonstrate 
that the proposed source's allowable emissions will not cause or 
contribute to a violation of the NAAQS or increment (such demonstration 
is required to obtain a permit). The SMC has been used to exempt 
sources from a requirement in the CAA to collect preconstruction 
monitoring data for up to 1 year before submitting a permit application 
in order to help determine existing ambient air quality.
    On December 17, 2010, the Sierra Club petitioned the Court to 
review the 2010 PM2.5 SILs and SMC final rule. On January 
22, 2013, the Court granted a request from the EPA to vacate and remand 
to the EPA portions of the PSD regulations (40 CFR 51.166(k)(2) and 
52.21(k)(2)) establishing the SILs for PM2.5 so that the EPA 
could reconcile the inconsistency between the regulatory text and 
certain statements in the preamble to the 2010 final rule. Sierra Club 
v. EPA, 705 F.3d 458, 463-64 (D.C. Cir. 2013). The Court further 
vacated the portions of the PSD regulations (40 CFR 51.166(i)(5)(i)(c) 
and 52.21(i)(5)(i)(c)) establishing a PM2.5 SMC, finding 
that the EPA lacked legal authority to adopt and use the 
PM2.5 SMC to exempt permit applicants from the statutory 
requirement to compile and submit ambient monitoring data. Id. at 468-
69.

III. Final Action

    This final action removes from the CFR the affected 
PM2.5 SILs and SMC provisions vacated by the Court's 
decision. Because the Court specifically vacated and remanded the 
PM2.5 SILs in sections 51.166(k)(2) and 52.21(k)(2), the EPA 
is removing the text and reserving the paragraphs in sections 
51.166(k)(2) and 52.21(k)(2). The Court explicitly declined to vacate 
the PM2.5 ``significance levels'' at section 51.165(b)(2), 
and accordingly we are not taking any final action to make any change 
to that section. The EPA will initiate a separate rulemaking in the 
future regarding the PM2.5 SILs that will address the 
remand.
    Moreover, because the Court vacated the SMC provisions in 40 CFR 
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), the EPA is revising the 
existing concentration for the PM2.5 SMC listed in sections 
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero micrograms per cubic 
meter (0 [mu]g/m\3\). The EPA is not entirely removing PM2.5 
as a listed pollutant in the SMC provisions because to do so might lead 
to the issuance of permits that contradict the holding of the Court as 
to the statutory monitoring requirements. Both sections 
51.166(i)(5)(iii) and 52.21(i)(5)(iii) permit the reviewing authority 
to exempt a permit applicant from the monitoring requirements if 
``[t]he pollutant is not listed in paragraph (i)(5)(i) of this 
section.'' Were EPA to completely remove PM2.5 from the list 
of pollutants in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) of 
the PSD regulations, PM2.5 would no longer be a listed 
pollutant and the paragraph (iii) provision could be interpreted as 
giving reviewing authorities the discretion to exempt permit applicants 
from the requirement to conduct monitoring for PM2.5, in 
contravention of the Court's decision and the CAA. Instead, the EPA is 
revising the concentration listed in sections 51.166(i)(5)(i)(c) and 
52.21(i)(5)(i)(c) to 0 [mu]g/m\3\. This means that there is no air 
quality impact level below which a reviewing authority has the 
discretion to exempt a source from the PM2.5 monitoring 
requirements. By continuing to include PM2.5 as a pollutant 
in the list contained in sections 51.166(i)(5)(i) and 52.21(i)(5)(i), 
with the numerical value replaced with 0 [mu]g/m\3\, we avoid any 
concern that paragraph (iii) of the two affected sections could be 
applied to excuse permit applicants from adequately addressing the 
monitoring requirement for PM2.5.
    The EPA is taking this action as a final rule without providing an 
opportunity for public comment or a public hearing because the EPA 
finds that the Administrative Procedure Act (APA) good cause exemption 
applies here. In general, the APA requires that general notice of 
proposed rulemaking shall be published in the Federal Register. Such 
notice must provide an opportunity for public participation in the 
rulemaking process. However, the APA does provide an avenue for an 
agency to directly issue a final rulemaking in certain specific 
instances. This may occur, in particular, when an agency for good cause 
finds (and incorporates the finding and a brief statement of reasons in 
the rule issued) that notice and public procedure thereon are 
impracticable, unnecessary or contrary to the public interest. See 5 
USC 553(b)(3)(B). The EPA has determined that it is not necessary to 
provide a public hearing or an opportunity for public comment on this 
action because the amendment of the regulations to remove the affected 
provisions for the PM2.5 SILs and SMC is a necessary 
ministerial act. As the Court vacated the PM2.5 SILs and SMC 
provisions, the EPA no longer has the authority to allow the use of the 
affected provisions after the Court's final decision. Therefore, in as 
much as this action to remove the affected regulatory text simply 
implements the decision of the Court, it would serve no useful purpose 
to provide an opportunity for public comment or a public hearing on 
this issue.
    In addition, notice and comment would be contrary to the public 
interest because it would unnecessarily delay the removal of the 
unlawful PM2.5 SIL and SMC provisions from the CFR, which 
could result in confusion on the part of the regulated industry and 
state, local and tribal air agencies about how the Court's decision 
affects the PSD regulations and PSD permitting. Promulgation of this 
rule soon after the Court's decision serves to clarify that

[[Page 73700]]

sources cannot continue to rely on the PSD PM2.5 SILs and 
SMC as was previously allowed. Given the substantial costs to the 
owner/operator of projects associated with delays and uncertainty, it 
is in the public interest for the EPA to amend the CFR without delay.
    For these reasons, the EPA finds good cause to issue a final 
rulemaking pursuant to section 553 of the APA, 5 U.S.C. 553(b)(B). 
Therefore, the requirements of CAA section 307(d), including the 
requirement for public comment and hearing on proposed rulemakings, do 
not apply to this action.

IV. Implementation

    The Court's vacatur of the PM2.5 SILs in 40 CFR 
51.166(k)(2) and 52.21(k)(2) and the SMC provisions in sections 
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) means that these provisions 
can no longer be relied upon by either permit applicants or permitting 
authorities. The EPA has already stopped relying on sections 
52.21(k)(2) and 52.21(i)(5)(i)(c) of the federal PSD regulations when 
we issue PSD permits. We have also advised state and local air agencies 
to which we have delegated our authority to issue permits under the 
federal PSD program (codified at section 52.21) not to rely on these 
provisions. Permitting authorities with EPA-approved SIPs containing 
any or all of the affected PM2.5 SIL and SMC provisions 
previously allowed by sections 51.166(k)(2) and 51.166(i)(5)(i)(c) 
should remove their corresponding SILs provisions and revise the 
numerical value of the PM2.5 SMC to 0 [mu]g/m\3\ (or make 
equivalent changes) as soon as feasible, which may be in conjunction 
with the next otherwise planned SIP revision. Furthermore, the EPA 
advises that these provisions as reflected in the existing state and 
local EPA-approved SIPs are unlawful and may not be applied even prior 
to their removal from the SIPs.
    The Agency has provided a question and answer document regarding 
the implications of the Court's decision in various contexts (Guidance 
on the Applicability of the January 22, 2013 Circuit Court Decision on 
PM2.5 Significant Impact Levels and Significant Monitoring 
Concentration). This document is available on the agency's Web site 
located at http://www.epa.gov/nsr/guidance.html.

V. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory Planning and Executive Order 
13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action under the terms 
of Executive Order 12866 (58 FR 51735, October 4, 1993), and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has previously approved 
the information collection requirements for the PSD program, including 
the requirements addressed by this rule, under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB 
control number 2060-0003.
    Pursuant to title I, part C, of the Act, the PSD program requires 
the owner or operator to obtain a permit prior to either constructing a 
new major stationary source or making a major modification to an 
existing major stationary source. The information collection for 
sources under PSD results from the requirement for owners or operators 
to submit applications for NSR permits. For reviewing authorities, the 
information collection results from the requirement to process permit 
applications and issue permits, and to transmit associated information 
to the EPA. The EPA oversees the PSD program, and the information 
collected by sources and reviewing authorities is used to ensure that 
the program is properly implemented.
    We anticipate that some sources currently in the permitting process 
will no longer be able to apply the PM2.5 SMC to assert an 
exemption from the statutory requirement to submit air quality 
monitoring data as defined by CAA section 165(e)(2). The air quality 
monitoring data required to be submitted by permit applicants is often 
readily available as part of existing representative ambient air 
quality data available for public review. We also anticipate that some 
sources currently in the permitting process will no longer be able to 
apply the PM2.5 SIL as an automatic ``safe harbor'' to 
satisfy the statutory requirement to show that the proposed source will 
not cause or contribute to a violation of the NAAQS or increment under 
CAA section 165(a)(3). Some sources may be required to conduct a more 
comprehensive air quality analysis in order to make the demonstration 
required by the statute where, for example, background air quality is 
close to the level of the NAAQS.
    Any burden anticipated as a result of this rule has already been 
addressed in the analysis conducted for the final rule establishing PSD 
provisions to implement increments, SILs and a SMC for 
PM2.5. 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), 75 FR 64864 (Oct. 20, 2010). In that rule, over 
the 3-year period covered by the ICR,\3\ we estimated an average annual 
burden totaling about 29,000 hours and $2.8 million for all industry 
entities that would be affected by the final rule. In addition, burden 
was calculated for state and local agencies to revise their SIPs to 
incorporate the changes. Over the 3-year period covered by the ICR for 
the 2010 rule, we estimated that the average annual burden for all 
State and local reviewing authorities will total about 7,500 hours and 
$581,000. Burden is defined at 5 CFR 1320.3(b). The burden calculated 
in the 2010 rule was a conservative estimate as the analysis assumed 
that the same number of sources would collect and submit air quality 
monitoring data and conduct a comprehensive air quality analysis 
despite the promulgation of the PM2.5 SMC and SILs in that 
rule. Therefore, the current rule does not add any further burden that 
was not already anticipated and addressed by the previous 2010 rule and 
ICR.
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    \3\ Information Collection Required for Changes to 40 CFR parts 
51 and 52: 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) June 2010.
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    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    Today's good cause final rule is not subject to the Regulatory 
Flexibility Act (RFA), which generally requires an agency to prepare a 
regulatory flexibility analysis for any rule that will have a 
significant economic impact on a substantial number of small entities. 
The RFA applies only to rules subject to notice-and-comment rulemaking 
requirements under the APA or any other statute. This rule is not 
subject to notice-and-comment requirements under the APA or any other 
statute

[[Page 73701]]

because although the rule is subject to the APA, the agency has invoked 
the ``good cause'' exemption under 5 USC 553(b), and therefore it is 
not subject to the notice-and-comment requirement.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local or tribal governments or the private sector. 
The action imposes no enforceable duty on any state, local or tribal 
governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This good cause 
final action addresses the Court's vacatur of certain PSD regulations.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It 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. This good cause final action 
addresses the Court's vacatur of certain PSD regulations. Thus, 
Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have 
substantial direct effects on tribal governments, on the relationship 
between the federal government and Indian tribes or on the distribution 
of power and responsibilities between the federal government and Indian 
tribes, as specified in Executive Order 13175. This good cause final 
action addresses the Court's vacatur of certain PSD regulations. Thus, 
Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as 
applying only to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the EO 
has the potential to influence the regulation. This action is not 
subject to EO 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs the EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, the 
EPA did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined that this good cause final rule will not 
have disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment.

K. Congressional Review Act

    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 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. 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). This rule will be effective on December 9, 2013.

VI. Statutory Authority

    The statutory authority for this action is provided by sections 
165-169 and 301 of the Act as amended (42 U.S.C. 7475-7479 and 7601).

VII. Judicial Review

    Under section 307(b)(1) of the Act, judicial review of this final 
rule is available only by the filing of a petition for review in the 
U.S. Court of Appeals for the District of Columbia Circuit by February 
7, 2014. Under section 307(b)(2) of the CAA, the requirements that are 
the subject of this final rule may not be challenged later in civil or 
criminal proceedings brought by us to enforce these requirements.

List of Subjects

40 CFR Part 51

    Administrative practices and procedures, Air pollution control, 
Environmental protection, Intergovernmental relations.

40 CFR Part 52

    Administrative practices and procedures, Air pollution control, 
Environmental protection, Incorporation by reference, Intergovernmental 
relations.

    Dated: November 26, 2013.
Gina McCarthy,
Administrator.
    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows.

[[Page 73702]]

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

0
2. Section 51.166 is amended as follows:
0
a. By removing the words ``4 [mu]g/m\3\, 24-hour average,'' and adding 
in their place ''0 [mu]g/m\3\'' in paragraph (i)(5)(i)(c).
0
b. By adding a note to paragraph (i)(5)(i)(c).
0
c. By removing and reserving paragraph (k)(2).
    The addition reads as follows:


Sec.  51.166  Prevention of significant deterioration of air quality.

* * * * *
    (i) * * *
    (5) * * *
    (i) * * *
    (c) Note to paragraph (i)(5)(i)(c): In accordance with Sierra Club 
v. EPA, 706 F.3d 428 (D.C. Cir. 2013), no exemption is available with 
regard to PM2.5.
* * * * *

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

0
4. Section 52.21 is amended as follows:
0
a. By removing the words ``4 [mu]g/m\3\, 24-hour average,'' and adding 
in their place ''0 [mu]g/m\3\'' in paragraph (i)(5)(i)(c).
0
b. By adding a note to paragraph (i)(5)(i)(c).
0
c. By removing and reserving paragraph (k)(2).
    The addition reads as follows:


Sec.  52.21  Prevention of significant deterioration of air quality.

* * * * *
    (i) * * *
    (5) * * *
    (i) * * *
    (c) Note to paragraph (i)(5)(i)(c): In accordance with Sierra Club 
v. EPA, 706 F.3d 428 (DC Cir. 2013), no exemption is available with 
regard to PM2.5.
* * * * *
[FR Doc. 2013-29196 Filed 12-6-13; 8:45 am]
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