[Federal Register Volume 80, Number 24 (Thursday, February 5, 2015)]
[Proposed Rules]
[Pages 6491-6495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-02304]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0792; FRL-9922-51-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Permits for Construction and Major Modification of Major 
Stationary Sources Which Cause or Contribute to Nonattainment Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
grant approval to four State Implementation Plan (SIP) revisions 
submitted by the West Virginia Department of Environmental Protection 
for the State of West Virginia on June 29, 2010, July 8, 2011, July 6, 
2012, and July 1, 2014 with the exception of certain revisions related 
to ethanol production facilities on which EPA is taking no action at 
this time. These revisions proposed for approval pertain to West 
Virginia's nonattainment New Source Review (NSR) program, notably 
provisions for preconstruction permitting requirements for major 
sources of fine particulate matter (PM2.5) and NSR reform. 
This action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before March 9, 2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0792 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2014-0792, Andrew Kreider, Acting 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.

[[Page 6492]]

    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2014-0792. 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 West Virginia Department of Environmental 
Protection, Division of Air Quality, 601 57th Street SE., Charleston, 
West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: Mr. Mike Gordon, (215) 814-2039, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The WVDEP submitted four SIP revisions to EPA on June 29, 2010 (the 
2010 submittal), July 8, 2011 (the 2011 submittal), July 6, 2012 (the 
2012 submittal) and July 1, 2014 (the 2014 submittal). While each of 
the SIP revisions was submitted individually, EPA is acting on these 
submittals as a whole. There are some instances where specific language 
was added in a West Virginia regulation included in one of the earlier 
SIP submittals but the language was subsequently removed from that same 
regulation included in a later SIP submittal such that EPA therefore 
only assessed the approvability of that portion of the regulation 
included in the later SIP submittal. It should be noted that the most 
recent version of West Virginia's nonattainment NSR regulations is the 
version included for SIP approval in the 2014 submittal, and this 
submittal reflects the sum of the changes made from the 2010, 2011, and 
2012 submittals as well.\1\ A summary of the changes made in each of 
the four submittals has been included in the docket for this action 
under ``Summary of West Virginia NSR Changes.'' These SIP revision 
requests, if approved, would revise West Virginia's currently approved 
nonattainment NSR program by amending Series 19 under Title 45 of West 
Virginia Code of State Rules (45CSR19). Generally, the revisions 
incorporate provisions related to the 2008 ``Implementation of the New 
Source Review (NSR) Program for Particulate Matter Less than 2.5 
Micrometers (PM2.5)'' (2008 NSR PM2.5 Rule; 73 FR 
28321), the 2007 ``Prevention of Significant Deterioration, 
Nonattainment New Source Review, and Title V: Treatment of Certain 
Ethanol Production Facilities Under the `Major Emitting Facility' 
Definition'' (2007 Ethanol Rule; 72 FR 24060), as well as updates as a 
result of the 2002 rule ``Prevention of Significant Deterioration (PSD) 
and Nonattainment NSR (NSR): Baseline Emissions Determination, Actual-
to-Future-Actual Methodology, Plantwide Applicability Limitations, 
Clean Units, Pollution Control Projects'' (2002 NSR Reform Rules; 67 FR 
80186).
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    \1\ EPA, however, is proposing to act on all four SIP submittals 
in this document because each submittal contains necessary 
procedural information related to West Virginia's revisions to its 
nonattainment NSR regulations and development of its SIP submittals, 
which are required for SIP revisions by 40 CFR parts 51 and 52.
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    The 2002 NSR Reform Rules made changes to five areas of the NSR 
programs. In summary, the 2002 Rules: (1) Provided a new method for 
determining baseline actual emissions; (2) adopted an actual-to-
projected-actual methodology for determining whether a major 
modification has occurred; (3) allowed major stationary sources to 
comply with a Plantwide Applicability Limit (PAL) to avoid having a 
significant emissions increase that triggers the requirements of the 
major NSR program; (4) provided a new applicability provision for 
emissions units that are designated clean units; and (5) excluded 
pollution control projects (PCPs) from the definition of ``physical 
change or change in the method of operation.'' On November 7, 2003, EPA 
published a notice of final action on its reconsideration of the 2002 
NSR Reform Rules,\2\ which added a definition for ``replacement unit'' 
and clarified an issue regarding PALs. For additional information on 
the 2002 NSR Reform Rules, see EPA's December 31, 2002 final rulemaking 
action entitled: ``Prevention of Significant Deterioration (PSD) and 
Nonattainment NSR (NSR): Baseline Emissions Determination, Actual-to-
Future-Actual Methodology, Plantwide Applicability Limitations, Clean 
Units, Pollution Control Projects'' (67 FR 80186), the 2003 final 
reconsideration: ``Prevention of Significant Deterioration (PSD) and 
Non-Attainment New Source Review (NSR): Reconsideration'' (68 FR 
63021), and http://www.epa.gov/nsr.
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    \2\ See ``Prevention of Significant Deterioration (PSD) and Non-
Attainment New Source Review (NSR): Reconsideration.'' 68 FR 63021.
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    After the 2002 NSR Reform Rules were finalized, industry, state, 
and environmental petitioners challenged numerous aspects of the 2002 
NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45 FR 
52676, August 7, 1980). On June 24, 2005, the United States Court of 
Appeals for the District of Columbia (D.C. Circuit) issued a decision 
on the challenges to the 2002 NSR Reform Rules. New York v. United 
States, 413 F.3d 3 (D.C. Cir. 2005) (New York I).
    In summary, the D.C. Circuit vacated portions of the rules 
pertaining to clean units and PCPs, remanded a portion of the rules 
regarding recordkeeping and the term ``reasonable possibility'' found 
in 40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and either upheld or did 
not comment on the other provisions included as part of the 2002 NSR 
Reform Rules. On June 13, 2007 (72 FR 32526), EPA took final action to 
revise the 2002 NSR Reform Rules to remove from federal law all 
provisions pertaining to clean units and the PCP exemption that were 
vacated by the D.C. Circuit.

[[Page 6493]]

    The 2008 NSR PM2.5 Rule (as well as the 2007 ``Final 
Clean Air Fine Particle Implementation Rule'' (2007 PM2.5 
Implementation Rule) \3\), was also the subject of litigation before 
the D.C. Circuit in Natural Resources Defense Council v. EPA.\4\ On 
January 4, 2013, the court remanded to EPA both the 2007 
PM2.5 Implementation Rule and the 2008 NSR PM2.5 
Rule. The court found that in both rules EPA erred in implementing the 
1997 PM2.5 NAAQS solely pursuant to the general 
implementation provisions of subpart 1 of part D of title I of the CAA 
(subpart 1), rather than pursuant to the additional implementation 
provisions specific to particulate matter in subpart 4 of part D of 
title I (subpart 4).\5\ As a result, the court remanded both rules and 
instructed EPA ``to re-promulgate these rules pursuant to subpart 4 
consistent with this opinion.'' \6\ Although the D.C. Circuit declined 
to establish a deadline for EPA's response, EPA intends to respond 
promptly to the court's remand and to promulgate new generally 
applicable implementation regulations for the PM2.5 NAAQS in 
accordance with the requirements of subpart 4. In the interim, however, 
states and EPA still need to proceed with implementation of the 1997 
PM2.5 NAAQS in a timely and effective fashion in order to 
meet statutory obligations under the CAA and to assure the protection 
of public health intended by those NAAQS.
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    \3\ 72 FR 20586 (April 25, 2007).
    \4\ 706 F.3d 428 (D.C. Cir. 2013).
    \5\ The court's opinion did not specifically address the point 
that implementation under subpart 4 requirements would still require 
consideration of subpart 1 requirements, to the extent that subpart 
4 did not override subpart 1.
    \6\ Id. at 437.
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    On April 25, 2014, the Administrator signed a final rulemaking that 
begins to address the remand (see http://www.epa.gov/airquality/particlepollution/actions.html). Upon its effective date, the final 
rule classifies all existing PM2.5 nonattainment areas as 
``Moderate'' nonattainment areas and sets a deadline of December 31, 
2014, for states to submit any SIP submissions, including nonattainment 
NSR SIPs, that may be necessary to satisfy the requirements of subpart 
4 with respect to PM2.5 nonattainment areas.
    In a separate rulemaking process that will follow the April 2014 
rule, EPA is evaluating the requirements of subpart 4 as they pertain 
to, among other things, nonattainment NSR for PM2.5 
emissions. With respect to nonattainment NSR in particular, subpart 4 
includes section 189(e) of the CAA, which requires the control of major 
stationary sources of coarse particulate matter (PM10) 
precursors ``except where the Administrator determines that such 
sources do not contribute significantly to PM10 levels which 
exceed the standard in the area.'' Under the D.C. Circuit's decision in 
NRDC, section 189(e) of the CAA also applies to PM2.5.
    Additionally, the 2008 NSR PM2.5 Rule authorized states 
to adopt provisions in their nonattainment NSR rules that would allow 
major stationary sources and major modifications locating 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 NSR PM2.5 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 
nonattainment 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 EPA 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 NSR 
PM2.5 Rule 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.

II. Summary of SIP Revision

    Specifically, the revisions submitted by WVDEP involve amendments 
to 45CSR19 (Permits for Construction and Major Modification of Major 
Stationary Sources Which Cause or Contribute to Nonattainment Areas) as 
a result of Federal regulatory actions previously discussed. A summary 
of the changes made in the 2010, 2011, 2012, and 2014 submittals are 
available in the docket under ``Summary of West Virginia NSR Changes.'' 
Additionally, several non-substantive, clarifying and organizational 
revisions were submitted. WVDEP has included redline/strikeout versions 
of the submittals so that all revisions to 45CSR19 can be seen. 
Following is EPA's rationale for the proposed approval.

A. NSR Reform

    EPA finds West Virginia's regulations dealing with NSR reform 
closely mirror the Federal counterpart regulations in 40 CFR parts 51 
and 52. Several aspects of NSR reform, including a new method for 
determining baseline actual emissions, adoption of actual-to-projected-
actual methodology for determining whether a major modification has 
occurred, and the allowance of PALs were submitted to EPA by WVDEP in 
prior SIP submissions and subsequently approved by EPA on November 2, 
2006 (71 FR 64468). However, in this prior submission, WVDEP 
specifically requested that EPA exclude from its SIP approval the 
provisions of 45CSR19 pertaining to ``Clean Units'' and ``Pollution 
Control Project'' in order to ensure that their Federally-approved 
regulations are consistent with the D.C. Circuit's June 24, 2005 ruling 
in New York I. West Virginia subsequently removed provisions relating 
to ``pollution control projects'' and ``clean unit'' from 45CSR19 at 
the state level and updated language relating to ``reasonable 
possibility'' provisions, as is reflected in the 2010 submittal. Thus, 
EPA finds the SIP revisions including the revised 45CSR19 meet 
requirements of NSR Reform for a nonattainment NSR permitting program 
in 40 CFR parts 51 and 52, and is proposing to fully approve revisions 
relating to NSR reform.

B. Ethanol Rule

    West Virginia's proposed SIP revisions include provisions that 
exclude facilities that produce ethanol through a natural fermentation 
process from the definition of ``chemical process plants'' in the major 
NSR source permitting program as amended in the

[[Page 6494]]

2007 Ethanol Rule. The 2010 submittal added provisions at 45CSR19-
2.35.e.20 and 3.7.a.20 that remove certain ethanol production 
facilities from the definition of ``chemical process plants.'' These 
provisions are also included in the subsequent 2011, 2012, and 2014 
submittals. In this rulemaking, we are not at this time proposing to 
take action on any of the SIP submittals concerning West Virginia's 
submitted regulation revisions at 45CSR19-2.35.e.20 and 3.7.a.20 
addressing the 2007 Ethanol Rule.

C. PM2.5

    EPA finds the revisions to 45CSR19 submitted by WVDEP for approval 
that relate to PM2.5 mirror the 2008 NSR PM2.5 
Rule, which: (1) Required NSR permits to address directly emitted 
PM2.5 and precursor pollutants; (2) established significant 
emission rates for direct PM2.5 and precursor pollutants 
(including sulfur dioxide (SO2) and oxides of nitrogen 
(NOX)); (3) established PM2.5 emission offsets; 
and (4) required states to account for gases that condense to form 
particles (condensables) in PM2.5 emission limits.
    Additionally, WVDEP's 2010 submittal includes provisions allowing 
sources 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, including the default interpollutant 
trading ratios that were included in EPA's 2008 NSR PM2.5 
Rule. EPA continues to support the policy of allowing an interpollutant 
offset program, provided that a state develops a technical 
demonstration justifying the ratios to be used, and showing the net air 
quality benefits of such ratios for the PM2.5 nonattainment 
area in which it will be applied. WVDEP did not provide a technical 
justification or describe a net air quality benefit of the 
interpollutant trading ratios in its 2010 submittal. However, in the 
subsequent 2014 submittal, WVDEP removed the provisions that would have 
allowed interpollutant trading for PM2.5. As previously 
stated, inclusion of interpollutant trading ratios is discretionary on 
the part of the states, and only permitted upon approval by EPA. West 
Virginia's inclusion of these interpollutant trading ratios in the 2010 
SIP without proper justification has no bearing on EPA's action in this 
proposed rule, since the most recent SIP submitted and current 
regulations in effect in West Virginia (i.e. the NSR regulations at 
45CSR19 included in the 2014 submittal) do not include these 
provisions.
    In light of the D.C. Circuit's remand of the 2008 NSR 
PM2.5 Rule, EPA is in the process of evaluating the 
requirements of subpart 4 as they pertain to nonattainment NSR. In 
particular, subpart 4 includes section 189(e) of the CAA, which 
requires the control of major stationary sources of PM10 
precursors (and hence under the court decision, PM2.5 
precursors) ``except where the Administrator determines that such 
sources do not contribute significantly to PM10 levels which 
exceed the standard in the area.'' The evaluation of which precursors 
need to be controlled to achieve the standard in a particular area is 
typically conducted in the context of the state's preparing and the 
EPA's reviewing an area's attainment plan SIP.
    West Virginia's nonattainment NSR regulations at 45CSR19 do not 
fully address all potential precursors to PM2.5. The West 
Virginia SIP submissions included revisions to the definition of 
``regulated NSR pollutant'' at 45CSR19-2.61.c which identifies 
precursors to both ozone and PM2.5 in nonattainment areas. 
With respect to PM2.5, the revised definition of ``regulated 
NSR pollutant'' at 45CSR19-2.61.c identifies SO2 and 
NOX as regulated PM2.5 precursors while volatile 
organic compounds (VOCs) and ammonia are not identified as regulated 
PM2.5 precursors in PM2.5 nonattainment areas in 
the State. These revisions, although consistent with the 2008 NSR 
PM2.5 Rule as developed consistent with subpart 1, may not 
contain the elements necessary to satisfy the CAA requirements when 
evaluated under the subpart 4 CAA statutory requirements. In 
particular, West Virginia's submission does not include regulation of 
VOCs and ammonia as PM2.5 precursors, nor does it include a 
demonstration consistent with section 189(e) showing that major sources 
of those precursor pollutants would not contribute significantly to 
PM2.5 levels exceeding the standard in the area.
    However, while West Virginia's submittals do not yet contain all of 
the elements necessary to satisfy the CAA requirements when evaluated 
under subpart 4, there are currently no designated PM2.5 
nonattainment areas in West Virginia for any PM2.5 NAAQS 
since the Martinsburg-Hagerstown nonattainment area in West Virginia 
was redesignated to attainment on November 25, 2014 (79 FR 70099). As a 
result, West Virginia is no longer obligated to submit an NNSR SIP 
revision under section 189 of the CAA addressing PM2.5 NNSR 
permitting requirements, which include the subpart 4 requirements.\7\ 
Therefore, EPA is proposing to grant approval to the nonattainment NSR 
provisions in West Virginia's 2010, 2011, 2012, and 2014 SIP submittals 
for revisions to 45CSR19 for nonattainment NSR requirements for 
PM2.5.
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    \7\ To the extent that any area is designated nonattainment for 
PM2.5 in the future in West Virginia, the State will have 
to make a submission within the timeframe provided by section 
189(a)(2) of the CAA addressing how its NNSR permitting program 
satisfies the CAA statutory requirements as to PM2.5, 
including subpart 4 and any applicable PM2.5 federal 
implementation rules.
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III. Proposed Action

    EPA's review of this material indicates that the 2010, 2011, 2012 
and 2014 SIP submittals collectively meet the federal counterpart 
requirements in 40 CFR parts 51 and 52 for a nonattainment NSR 
permitting program. For the reasons stated previously, EPA is proposing 
to grant approval to these WV SIP submissions with the exception of the 
revisions to 45CSR19-2.35.e.20 and 3.7.a.20. EPA is taking no action on 
45CSR19 regulations relating to the definition of ``chemical process 
plants'' which are at 45CSR19-2.35.e.20 and 3.7.a.20. EPA is soliciting 
public comments on the issues discussed in this document. These 
comments will be considered before taking final action.

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 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 approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed 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

[[Page 6495]]

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, relating to West Virginia's 
nonattainment NSR program, 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: January 23, 2015.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2015-02304 Filed 2-4-15; 8:45 am]
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