[Federal Register Volume 75, Number 147 (Monday, August 2, 2010)]
[Proposed Rules]
[Pages 45076-45080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18885]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Docket No. EPA-R02-OAR-2009-0659; FRL-9183-4]
Approval and Promulgation of Air Quality Implementation Plans;
New York, New Jersey, and Connecticut; Determination of Attainment of
the 1997 Fine Particle Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
determine that the New York-N. New Jersey-Long Island, NY-NJ-CT fine
particle (PM2.5) nonattainment area has attained the 1997
annual fine particle National Ambient Air Quality Standard (NAAQS).
This proposed determination is based upon quality assured, quality
controlled, and certified ambient air monitoring data that shows the
area has monitored attainment of the 1997 annual PM2.5 NAAQS
for the 2007-2009 monitoring period. If this proposed determination is
made final, the requirements for this area to submit an attainment
demonstration, reasonably available control measures, reasonable
further progress plan, and contingency measures related to attainment
of the 1997 PM2.5 NAAQS shall be suspended for so long as
the area continues to attain the 1997 annual PM2.5 NAAQS.
DATES: Comments must be received on or before September 1, 2010.
ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2009-0659, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: 212-637-3901.
Mail: Raymond Werner, Chief, Air Programs Branch,
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866.
Hand Delivery: Raymond Werner, Chief, Air Programs Branch,
[[Page 45077]]
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866. Such deliveries are only accepted
during the Regional Office's normal hours of operation. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30 excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2009-0659. 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 e-mail.
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 e-
mail comment directly to EPA without going through www.regulations.gov
your e-mail 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. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, Region II Office, Air Programs Branch, 290 Broadway,
25th Floor, New York, New York 10007-1866. EPA requests, if at all
possible, that you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4
p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions concerning
today's proposed action related to New York or New Jersey, please
contact Henry Feingersh, Air Programs Branch, Environmental Protection
Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866,
telephone number (212)637-3382, fax number (212) 637-3901, e-mail
[email protected].
If you have questions concerning today's proposed action related to
Connecticut, please contact Alison C. Simcox, Air Quality Planning
Unit, Environmental Protection Agency, EPA New England Regional Office,
5 Post Office Square-Suite 100, Mail Code OEP05-02, Boston, MA 02109-
3912, telephone number (617) 918-1684, fax number (617) 918-0684, e-
mail [email protected].
SUPPLEMENTARY INFORMATION: For detailed information regarding this
proposal, EPA prepared a Technical Support Document (TSD). The TSD can
be viewed at http://www.regulations.gov gov.
The following table of contents describes the format of this
notice:
I. What Action Is EPA Proposing?
II. What Is the Effect of This Action?
III. What Is the Background for This Action?
IV. What Is EPA's Analysis of the Relevant Air Quality Data?
V. How Did EPA Address Missing Data?
VI. Proposed Action
VII. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing?
EPA is proposing to determine that the New York-N. New Jersey-Long
Island, NY[dash]NJ[dash]CT PM2.5 nonattainment area,
referred to from this point forward as the NY[dash]NJ[dash]CT
PM2.5 nonattainment area, has attained the 1997 annual
PM2.5 NAAQS. This proposed determination is based upon
quality-assured, quality-controlled, and certified ambient air
monitoring data that show that the area has monitored attainment of the
1997 annual PM2.5 NAAQS for the 2007-2009 monitoring period.
The New York portion of the NY[dash]NJ[dash]CT PM2.5
nonattainment area contains the counties of Bronx, Kings, Nassau, New
York, Orange, Queens, Richmond, Rockland,\1\ Suffolk, and Westchester.
The New Jersey portion of the NY[dash]NJ[dash]CT PM2.5
nonattainment area contains the counties of Bergen, Essex, Hudson,
Mercer, Middlesex, Monmouth, Morris, Passaic, Somerset, and Union. The
Connecticut portion of the NY[dash]NJ[dash]CT PM2.5
nonattainment area includes the counties of Fairfield and New Haven.
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\1\ On July 7, 2009, the United States Court of Appeals for the
DC Circuit rendered its decisions in the PM2.5
Designations Litigation, Catawba County, NC v. EPA, 571 F.3d 20 (DC
Cir. 2009). The Court denied all of the petitions for review except
Rockland County, New York and remanded the designation of Rockland
County to EPA for further explanation of its designation.
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II. What Is the Effect of This Action?
If this determination is made final, under the provisions of EPA's
PM2.5 implementation rule (see 40 CFR 51.1004(c)), the
requirements for the NY[dash]NJ[dash]CT PM2.5 nonattainment
area to submit an attainment demonstration, reasonably available
control measures, reasonable further progress plan, and contingency
measures related to attainment of the 1997 annual PM2.5
NAAQS will be suspended for so long as the area continues to attain the
1997 annual PM2.5 NAAQS.\2\
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\2\ New York, New Jersey, and Connecticut submitted their
attainment demonstrations, reasonably available control measures,
reasonable further progress plan and contingency measures SIP for
this area on October 27, 2009, April 1, 2009, and November 18, 2008,
respectively. EPA has not yet taken action on these submittals.
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As further discussed below, the proposed determination, if
finalized, would: (1) Suspend the requirements for the
NY[dash]NJ[dash]CT PM2.5 nonattainment area to submit an
attainment demonstration, reasonably available control measures,
reasonable further progress plan, and contingency measures related to
attainment of the 1997 PM2.5 NAAQS; (2) continue until such
time, if any, that EPA subsequently determines that the area has
violated the 1997 annual PM2.5 NAAQS; (3) be separate from
the designation determination or requirements for the
NY[dash]NJ[dash]CT PM2.5 nonattainment area based on the
2006 PM2.5 NAAQS; and (4) remain in effect regardless of
EPA's designation of this area as a nonattainment area for purposes of
the 2006 PM2.5 NAAQS. Furthermore, as described below, any
such final determination would not be equivalent to the redesignation
of the area to attainment based on the 1997 PM2.5 NAAQS.
If this rulemaking is finalized and EPA subsequently determines,
after notice-and-comment rulemaking in the Federal Register, that the
area has violated the 1997 annual PM2.5 NAAQS, the basis for
the suspension of the specific requirements, set forth at 40 CFR
51.1004(c), would no longer exist, and the area would thereafter have
to address the pertinent requirements.
[[Page 45078]]
The determination that EPA proposes with this Federal Register
action, that the air quality data shows attainment of the 1997 annual
PM2.5 NAAQS, is not equivalent to the redesignation of the
area to attainment. This proposed action, if finalized, would not
constitute a redesignation to attainment under section 107(d)(3) of the
Clean Air Act (CAA), because we would not yet have approved a
maintenance plan for the area as required under section 175A of the
CAA, nor a determination that the area has met the other requirements
for redesignation. The designation status of the area would remain
nonattainment for the 1997 annual PM2.5 NAAQS until such
time as EPA determines that it meets the CAA requirements for
redesignation to attainment.
This proposed action, if finalized, is limited to a determination
that the NY-NJ-CT PM2.5 nonattainment area has attained the
1997 annual PM2.5 NAAQS. The 1997 PM2.5 NAAQS
became effective on September 16, 1997 (62 FR 38652, July 18, 1997) and
are set forth at 40 CFR 50.7. The 2006 PM2.5 NAAQS became
effective on December 18, 2006 (71 FR 61144, Oct. 17, 2006) and are set
forth at 40 CFR 50.13.\3\ Effective December 14, 2009, EPA made
designation determinations, as required by CAA section 107(d)(1), for
the 2006 PM2.5 NAAQS (74 FR 58688, Nov. 13, 2009). Of
relevance to the proposed rulemaking herein, in 74 FR 58688 EPA
clarified the designations for the 1997 PM2.5 NAAQS by
relabeling the existing designation tables to identify designations for
the annual 1997 PM2.5 NAAQS (i.e., 15.0 [micro]g/m\3\) and
the 1997 24-hour PM2.5 NAAQS (i.e., 65 [micro]g/m\3\).
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\3\ In response to legal challenges against the annual standard
promulgated in 2006, the U.S. Court of Appeals for the District of
Columbia remanded this standard to EPA for further consideration.
(See American Farm Bureau Federation and National Pork Producers
Council, et al. v. EPA, 559 F.3d 512 (DC. Cir. 2009).) However,
given that the 1997 and 2006 annual standards are essentially
identical, attainment of the 1997 annual standard would also signify
attainment of the remanded 2006 annual standard.
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This proposed determination that the NY-NJ-CT PM2.5
nonattainment area has attained the annual 1997 PM2.5 NAAQS,
and any final determination, will have no effect on, and is not related
to, the designation determination that EPA has made based on the 2006
PM2.5 NAAQS. Conversely, the designation based on the 2006
PM2.5 NAAQS, will not have any effect on the determination
proposed by this action.
If this proposed determination is made final and the NY-NJ-CT
PM2.5 nonattainment area continues to monitor attainment of
the 1997 annual PM2.5 NAAQS, the requirements for the area
to submit attainment demonstrations, reasonably available control
measures, reasonable further progress plans, and contingency measures
related to attainment of the 1997 PM2.5 NAAQS would remain
suspended, even though EPA designated this area as a nonattainment area
for purposes of the 2006 PM2.5 NAAQS. Areas designated for
the 2006 NAAQS will have to meet all applicable requirements for that
designation.
III. What Is the Background for This Action?
On July 18, 1997 (62 FR 38652), EPA established a health-based
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\)
based on a 3-year average of annual mean PM2.5
concentrations, and a 24-hour standard of 65 [mu]g/m\3\ based on a 3-
year average of the 98th percentile of 24-hour concentrations. EPA
established the standards based on significant evidence and numerous
health studies demonstrating that serious health effects are associated
with exposures to particulate matter. The process for designating areas
following promulgation of a new or revised NAAQS is contained in
section 107(d)(1) of the CAA. EPA and state air quality agencies
initiated the monitoring process for the 1997 PM2.5 NAAQS in
1999, and developed all air quality monitors by January 2001. On
January 5, 2005, (70 FR 944), EPA published its air quality
designations and classifications for the 1997 PM2.5 NAAQS
based upon air quality monitoring data from those monitors for calendar
years 2001-2003. These designations became effective on April 5, 2005.
On November 13, 2009, EPA clarified the designations for the 1997
PM2.5 NAAQS (74 FR 58688), stating that the NY-NJ-CT
PM2.5 nonattainment area is designated nonattainment for the
1997 annual PM2.5 NAAQS, and attainment/unclassifiable for
the 1997 24-hour PM2.5 NAAQS (see 40 CFR part 81.333). This
proposed determination addresses the 1997 annual standard only. On
April 25, 2007 (72 FR 20664), EPA promulgated its PM2.5
implementation rule, codified at 40 CFR part 51, subpart Z, in which
the Agency provided guidance for state and tribal plans to implement
the 1997 PM2.5 standard. This rule, at 40 CFR 51.1004(c),
specifies some of the regulatory consequences of a determination of
attainment of the standard.
IV. What Is EPA's Analysis of the Relevant Air Quality Data?
EPA has reviewed the ambient air monitoring data for
PM2.5, consistent with the requirements contained in 40 CFR
part 50 and recorded in the EPA Air Quality System database for the NY-
NJ-CT PM2.5 nonattainment area from 2001 through the present
time.
On the basis of that review, EPA has concluded that this area has
attained the 1997 annual PM2.5 NAAQS based on data for the
2007-2009 monitoring period.
Under EPA regulations at 40 CFR 50.7: The annual primary and
secondary PM2.5 standards are met when the annual arithmetic
mean concentration, as determined in accordance with 40 CFR part 50,
Appendix N, is less than or equal to 15.0 [mu]g/m\3\.
Table 1 shows the design values by county (i.e., the 3-year average
of annual mean PM2.5 concentrations) for the 1997 annual
PM2.5 NAAQS for the NY-NJ-CT PM2.5 nonattainment
area monitors for the years 2001 through 2009.
Table 1--Design Values by County for the 1997 Annual PM2.5 NAAQS for the NY-NJ-CT Monitors in Micrograms per
Cubic Meter ([mu]g/m\3\). The Standard for the 1997 Annual PM2.5 NAAQS is 15.0 [mu]g/m\3\
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County 01-03 DV 02-04 DV 03-05 DV 04-06 DV 05-07 DV 06-08 DV 07-09 DV
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Bronx..................................... 15.7 15.2 15.7 15.1 15.5 14.3 13.9
Kings..................................... 14.7 14.2 14.6 14.0 14.0 12.9 12.2
Nassau.................................... 12.2 11.7 12.1 11.5 11.4 10.9 10.3
New York \4\.............................. 17.5 16.7 17.0 15.7 15.9 14.9 14.0
Orange.................................... 11.5 11.1 11.4 10.8 10.8 10.0 9.3
Queens.................................... INC 12.8 12.7 12.1 11.8 11.3 10.6
Richmond.................................. 12.0 11.5 11.8 13.4 13.2 12.4 11.6
Rockland.................................. NM NM NM NM NM NM NM
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Suffolk................................... 12.1 11.3 11.5 INC INC 10.5 9.7
Westchester............................... 12.3 11.7 11.9 11.6 11.7 11.2 10.6
Bergen.................................... INC 12.8 13.3 12.8 13.2 12.2 11.3
Essex \5\................................. INC 13.5 INC 13.2 13.3 INC INC
Hudson.................................... 14.7 14.3 14.7 14.1 14.0 14.1 13.1
Mercer.................................... 13.8 13.0 13.0 12.7 12.5 11.9 10.8
Middlesex................................. 12.4 11.8 12.5 11.8 12.1 11.3 10.4
Monmouth.................................. NM NM NM NM NM NM NM
Morris.................................... INC 11.6 11.9 11.2 11.3 10.3 9.6
Passaic................................... INC 12.9 13.1 12.6 12.9 12.3 11.3
Somerset.................................. NM NM NM NM NM NM NM
Union..................................... 15.5 15.3 15.5 14.8 14.4 13.6 12.6
Fairfield................................. 13.1 12.7 13.3 13.2 13.2 12.4 11.3
New Haven................................. 13.9 13.4 13.5 13.0 12.8 12.2 11.4
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NM--No monitor located in county.
INC--All counties listed as INC for time period did not meet 75 percent data completeness requirement, and had
not previously shown violations of the NAAQS from years 2001-2003 to present.
EPA's review of these data indicates that the NY-NJ-CT
PM2.5 nonattainment area has met and continues to meet the
1997 annual PM2.5 NAAQS. EPA is soliciting public comments
on the issues discussed in this document. These comments will be
considered before taking final action.
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\4\ The monitor in New York County located at Public School 59
(PS 59) was the highest reading monitor at the time EPA made
designations for the 1997 PM2.5 NAAQS on January 5, 2005.
Midway through 2008, the monitor at PS 59 was shut down due to the
demolition of the building site. Therefore, the data up until 2008
was from PS 59. Missing 2008 data had an effect on calculating the
design value for the annual standard. EPA developed an alternative
procedure to determine the design value for the annual standard.
This procedure used data representative of PS 59 based on EPA's
statistical analysis. A description of the alternate procedure can
be found in Section V. Detailed information on this alternative
procedure can be found in the Technical Support Document.
\5\ The air monitor at the Newark Willis Center station in Essex
County was discontinued on July 24, 2008 due to an unexpected loss
of access, and replaced with a new monitor at the Newark Firehouse.
PM2.5 monitoring was established at the firehouse on May
13, 2009. Since three years of data was not collected at either
monitoring site for 2006-08, and 2007-09, Essex County is listed as
INC for the most recent three year periods.
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V. How did EPA address missing data?
Data handling conventions and computations necessary for
determining whether areas have met the PM2.5 NAAQS,
including requirements for data completeness, are listed in Appendix N
of 40 CFR part 50. A year meets data completeness requirements when at
least 75 percent of the scheduled sampling days for each quarter have
valid data. The use of less than complete data is subject to the
approval of EPA, which may consider factors such as monitoring site
closures/moves, monitoring diligence, and nearby concentrations in
determining whether to use such data as set forth at 40 CFR part 50,
Appendix N, section 4.1(c).
The building on which the design value monitor (PS 59) for the NY-
NJ-CT PM2.5 nonattainment area was located was demolished
midway through 2008. This was a planned shutdown and although New York
could have shut it down at the beginning of the year, the state chose
to continue it as long as possible to collect data. Unfortunately, the
monitor at this location can not be replaced, because the roof of the
new building is too far above sidewalk level to serve as a valid
monitoring site under 40 CFR part 86 appendix E. NY and EPA tried but
could not locate a suitable replacement monitoring site in the
immediate vicinity of PS 59 that would also meet siting criteria.
A method was developed, therefore, to use less than complete data
to determine if the design value monitor would be in attainment if it
had continued to operate. The approach summarized in this section, and
further described in the TSD, may or may not be appropriate for other
areas with less than complete data. EPA will evaluate the
appropriateness of this analytical approach for each area with less
than complete data on a case-by-case basis.
Monitoring Network
EPA has determined that the PM2.5 monitoring network for
the NY-NJ-CT PM2.5 nonattainment area is adequate. First,
the number of monitors in the area far exceeds the minimum regulatory
requirements. While three monitors are required in the nonattainment
area, the area currently has 39 monitoring locations. The States of New
York, New Jersey, and Connecticut have been very diligent in the number
and placement of PM2.5 monitors in the nonattainment area.
Secondly, EPA meets annually with each state to discuss any problems or
issues concerning the State's air monitoring data and/or network. In
addition, EPA and the States communicate many times during the year so
that issues can be addressed as they show up. Thirdly, EPA regulations
require states to submit annual network plans to their respective
Regions. These plans outline the current networks and any proposed
changes in the upcoming 18 months. Regions 1 and 2 have always been
able to approve these plans due to the high quality of the New York,
New Jersey and Connecticut monitoring networks. Copies of the approved
annual network review letters can be seen in the TSD.
Methodology
The method used to determine the design value for PS 59 involves
establishing a linear relationship between PS 59 and another site in
the NY-NJ-CT PM2.5 nonattainment area that has more complete
data for the missing period and has a substantial number of samples in
common over the period of interest. The monitor in the nonattainment
area that had the highest correlation with PS 59 was used to develop a
regression equation. The regression equation was used to estimate
values for the missing quarters of data for PS 59. The design value for
PS 59 was then calculated using the estimated values to fill in for the
missing quarters. The estimated design
[[Page 45080]]
value was then analyzed using a bootstrapping statistical method.
Bootstrapping involves the use of regression residuals and repeating
the regression analysis 1,000 times. There were no exceedances of the
NAAQS as a result of the bootstrapping analysis. The result of the
analysis determined that the 2007-2009 design value for the NY-NJ-CT
PM2.5 nonattainment area would be 14.0 [micro]g/m\3\.
VI. Proposed Action
EPA is proposing to determine that the NY-NJ-CT PM2.5
nonattainment area for the 1997 annual PM2.5 NAAQS has
attained the 1997 PM2.5 NAAQS and continues to attain the
standard based on data through 2009. As provided in 40 CFR 51.1004(c),
if EPA finalizes this determination, it would suspend the requirements
for this area to submit attainment demonstrations, reasonably available
control measures, reasonable further progress plans, and contingency
measures related to attainment of the 1997 annual PM2.5
NAAQS so long as the area continues to attain the 1997 annual
PM2.5 NAAQS.
VII. Statutory and Executive Order Reviews
This action proposes to make a determination based on air quality
data, and would, if finalized, result in the suspension of certain
Federal requirements. 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 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 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, Particulate
matter, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 22, 2010.
H. Curtis Spalding,
Regional Administrator, Region 1.
Dated: June 28, 2010.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2010-18885 Filed 7-30-10; 8:45 am]
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