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[Federal Register Volume 77, Number 250 (Monday, December 31, 2012)]
[Rules and Regulations]
[Pages 76867-76871]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31214]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Docket No. EPA-R02-OAR-2012-0504; FRL-9763-6]

Approval and Promulgation of Air Quality Implementation Plans; 
New York, New Jersey, and Connecticut; Determination of Attainment of 
the 2006 Fine Particle Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is determining that 
the New York-N. New Jersey-Long Island, NY-NJ-CT fine particle 
(PM2.5) nonattainment area for the 2006 24-hour 
PM2.5 National Ambient Air Quality Standard (NAAQS) has 
attained the 2006 24-hour PM2.5 NAAQS. The determination of 
attainment will suspend the requirements for the New York-N. New 
Jersey-Long Island, NY-NJ-CT PM2.5 nonattainment area to 
submit an attainment demonstration, associated reasonably available 
control measures, reasonable further progress, contingency measures, 
and other planning state implementation plans (SIPs) related to 
attainment of the 2006 24-hour PM2.5 NAAQS for so long as 
the area continues to attain the 2006 24-hour PM2.5 NAAQS.

DATES: Effective Date: This rule is effective on December 31, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R02-OAR-2012-0504. All documents in the docket are listed in 
the http://www.regulations.gov web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (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 through http://www.regulations.gov or in hard copy for public inspection during normal 
business hours at the Air Programs Branch, U.S. Environmental 
Protection Agency, Region II, 290 Broadway, New York, New York 10007.

FOR FURTHER INFORMATION CONTACT: Gavin Lau, (212) 637-3708, or by email 
at lau.gavin@epa.gov if you have questions related to New York or New 
Jersey. If you have questions related to Connecticut, please contact 
Alison C.

[[Page 76868]]

Simcox, (617) 918-1684, or by email at simcox.alison@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    The SUPPLEMENTARY INFORMATION section is arranged as follows:
I. What action Is EPA taking?
II. What is the background for EPA's action?
III. What comments did EPA receive on its proposal and what is EPA's 
response?
IV. What Is the effect of this action?
V. What is EPA's final action?
VI. Statutory and executive order reviews

I. What action Is EPA taking?

    EPA is determining that the New York-N. New Jersey-Long Island, NY-
NJ-CT fine particle (PM2.5) nonattainment area for the 2006 
24-hour PM2.5 NAAQS, referred to from this point forward as 
the NY-NJ-CT PM2.5 nonattainment area, has attained the 2006 
24-hour PM2.5 NAAQS. This determination is based upon 
quality-assured, quality-controlled and certified ambient air 
monitoring data that show the area has monitored attainment of the 2006 
24-hour PM2.5 NAAQS for the 2007-2009, 2008-2010, and 2009-
2011 monitoring periods. Specific details regarding the determination 
and the rationale for EPA's action are explained in the proposed 
rulemaking published in the Federal Register (FR) on August 30, 2012 
(77 FR 52626).

II. What is the background for EPA's action?

    EPA's determination is being made in accordance with its 
longstanding interpretation under the Clean Data Policy, and with 
previously issued rules and determinations of attainment. A brief 
description of the Clean Data Policy with respect to the 2006 
PM2.5 standard is set forth below. In addition, the docket 
for this rulemaking includes documentation providing more detail 
regarding the application of EPA's Clean Data Policy to determinations 
of attainment for the 2006 PM2.5 NAAQS.
    In April 2007, EPA issued its PM2.5 Implementation Rule 
for the 1997 PM2.5 standard. 72 FR 20586; (April 25, 2007). 
In March, 2012, EPA published implementation guidance for the 2006 
PM2.5 standard. See Memorandum from Stephen D. Page, 
Director, Office of Air Quality Planning and Standards, 
``Implementation Guidance for the 2006 24-Hour Final Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS)'' 
(March 2, 2012). In that guidance, EPA stated its view ``that the 
overall framework and policy approach of the 2007 PM2.5 
Implementation Rule continues to provide effective and appropriate 
guidance on the EPA's interpretation of the general statutory 
requirements that states should address in their SIPs. In general, the 
EPA believes that the interpretations of the statute in the framework 
of the 2007 PM2.5 Implementation Rule are relevant to the 
statutory requirements for the 2006 24-hour PM2.5 NAAQS * * 
*'' Id., page 1. With respect to the statutory provisions applicable to 
2006 PM2.5 implementation, the guidance emphasized that 
``EPA outlined its interpretation of many of these provisions in the 
2007 PM2.5 Implementation Rule. In addition to regulatory 
provisions, the EPA provided substantial general guidance for 
attainment plans for PM2.5 in the preamble to the final the 
[sic] 2007 PM2.5 Implementation Rule.'' Id., page 2. In 
keeping with the principles set forth in the guidance, and with respect 
to the effect of a determination of attainment for the 2006 
PM2.5 standard, EPA is applying the same interpretation here 
with respect to the implications of clean data determinations that it 
set forth in the preamble to the 1997 PM2.5 standard and in 
the regulation that embodies this interpretation. 40 CFR 51.1004(c).\1\ 
EPA has long applied this interpretation in regulations and individual 
rulemakings for the 1-hour ozone and 1997 8-hour ozone standards, the 
PM-10 standard, and the lead standard.
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    \1\ While EPA recognizes that 40 CFR 51.1004(c) does not itself 
expressly apply to the 2006 PM2.5 standard, the statutory 
interpretation that it embodies is identical and is applicable to 
both the 1997 and 2006 PM2.5 standards.
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    In 1995, based on the interpretation of Clean Air Act (CAA) 
sections 171 and 172, and section 182 in the General Preamble, EPA set 
forth what has become known as its ``Clean Data Policy'' for the 1-hour 
ozone NAAQS. See Memorandum from John S. Seitz, Director, Office of Air 
Quality Planning and Standards, ``Reasonable Further Progress, 
Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard'' (May 10, 1995). In 2004, EPA indicated its intention to 
extend the Clean Data Policy to the PM2.5 NAAQS. See 
Memorandum from Steve Page, Director, EPA Office of Air Quality 
Planning and Standards, ``Clean Data Policy for the Fine Particle 
National Ambient Air Quality Standards'' (December 14, 2004).
    The Clean Data Policy represents EPA's interpretation that certain 
requirements of subpart 1 of part D of the Act are by their terms not 
applicable to areas that are currently attaining the NAAQS.\2\ The 
specific requirements that are inapplicable to an area attaining the 
standard are the requirements to submit a SIP that provides for: 
attainment of the NAAQS; implementation of all reasonably available 
control measures; reasonable further progress (RFP); and implementation 
of contingency measures for failure to meet deadlines for RFP and 
attainment.
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    \2\ This discussion refers to subpart 1 because subpart 1 
contains the requirements relating to attainment of the 2006 
PM2.5 NAAQS.
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    It is important to note that the obligation of a State with respect 
to an area which attains the 2006 PM2.5 standard based on 
three years of data, to submit an attainment demonstration and related 
planning submissions is suspended only for so long as the area 
continues to attain the standard. If EPA subsequently determines, after 
notice-and-comment rulemaking, that the area has violated the NAAQS, 
the requirements for the State to submit a SIP to meet the previously 
suspended requirements would be reinstated. It is likewise important to 
note that the area remains designated nonattainment pending a further 
redesignation action.

III. What comments did EPA receive on its proposal and what is EPA's 
response?

    EPA received one adverse comment on the proposal, from a 
pseudonymous commenter. A summary of the comment submitted and EPA's 
response is provided below.
    Comment: The commenter alleges that the determination of attainment 
for the NY-NJ-CT PM2.5 nonattainment area is inappropriate 
due to particulate matter released from burning and allegedly 
inadequate air quality monitoring. The commenter also questioned the 
interaction between the New Jersey Department of Environmental 
Protection and EPA.
    Response: In this rulemaking, EPA is making the determination that 
the NY-NJ-CT PM2.5 nonattainment area has attained the 2006 
PM2.5 NAAQS. EPA is finalizing its determination only after 
conducting notice and comment rulemaking, through a transparent process 
in which the information on which the determination is based has been 
made available in the docket and also placed in the Technical Support 
Document for this rulemaking. EPA's determination of attainment is 
based on quality-assured, quality-controlled, and certified ambient air 
monitoring data. These data establish that, for 2007-2009, 2008-2010, 
and 2009-2011 the NY-NJ-CT PM2.5 nonattainment area

[[Page 76869]]

meets the 2006 24-hour PM2.5 NAAQS. Air monitoring data 
available for 2012 also indicate that the NY-NJ-CT PM2.5 
nonattainment area is continuing to meet the 2006 24-hour 
PM2.5 NAAQS. Contrary to the commenter's contention, the air 
monitoring networks for Connecticut, New Jersey, and New York are 
adequate, and meet the requirements for monitoring as specified in 40 
CFR Part 58. EPA meets annually with the states to determine the 
adequateness of the monitoring networks. Air monitoring network 
approval letters are included in the Technical Support Document and 
docket for the proposed rule. In conclusion, the determination of 
attainment is being made based on quality-assured air quality data from 
approved monitoring networks. The suspension of requirements for this 
area to submit attainment-related planning SIP submission requirements 
lasts only as long as the area continues to meet that standard. No 
other requirements are suspended and no control measures in the SIP are 
being relaxed. This action does not change the implementation of 
control measures, or air quality, in the area.
    Table 1 shows the design values by county (i.e., the 3-year average 
of 98th percentile 24-hour PM2.5 concentrations) for the 
2006 24-hour PM2.5 NAAQS for the NY-NJ-CT PM2.5 
nonattainment area monitors for the years 2007 through 2011 based on 
complete (except where otherwise noted), quality-assured and certified 
air quality monitoring data. As shown in Table 1, none of the design 
values for the periods of 2007-2009, 2008-2010, and 2009-2011 in the 
NY-NJ-CT PM2.5 nonattainment area exceeds the 2006 24-hour 
PM2.5 NAAQS of 35.0 micrograms per cubic meter ([mu]g/m\3\).
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    \3\ PM2.5 Design Values can be found at: http://www.epa.gov/airtrends/values.html.
    \4\ The monitor located in Nassau County had incomplete data for 
2007 which led to inability to calculate design values for the 
period of 2007-2009. The monitor did not show previous violations 
and therefore it was deemed that determining the design values 
though alternative procedures was not necessary.
    \5\ The monitor in New York County located at Public School 59 
was the highest reading monitor in the County at the time EPA made 
designations for the 2006 PM2.5 NAAQS. Midway through 
2008, the monitor at PS 59 was shut down due to the demolition of 
the building site. Since missing 2008 data affected calculation of 
the design value for the 24-hour standard, EPA used an alternative 
procedure to determine the design value for the 24-hour standard. 
Detailed information on this alternative procedure can be found in 
the Technical Support Document for this rulemaking.
    \6\ Design Value was calculated using the alternative procedure 
described in the Technical Support Document for this rulemaking.
    \7\ 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. EPA used an alternative procedure to determine the design 
value for the 24-hour standard for 2007-2009 and 2008-2010. The 
monitor did not show any violations in 2009 and 2010, therefore it 
was deemed that determining the design value for 2009-2011 through 
alternative procedures was not necessary. For 2009 and 2010, the 
98th percentile value for the new monitor was 24 [micro]g/m\3\. 
Detailed information on this alternative procedure can be found in 
the Technical Support Document for this rulemaking.

  Table 1--Design Values \3\ by County for the 2006 24-Hour PM2.5 NAAQS for the NY-NJ-CT Monitors in Micrograms
        per Cubic Meter ([mu]g/m \3\). The Standard for the 2006 24-Hour PM2.5 NAAQS Is 35.0 [mu]g/m \3\
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                                                             2007-2009 PM2.5   2008-2010 PM2.5   2009-2011 PM2.5
                          County                             Design  Values    Design  Values    Design  Values
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                                                    New York
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Bronx.....................................................                33                29                28
Kings.....................................................                30                27                25
Nassau \4\................................................               INC                25                23
New York \5\..............................................            \6\ 33            \6\ 31                28
Orange....................................................                26                24                23
Queens....................................................                30                28                26
Richmond..................................................                29                26                24
Rockland..................................................                NM                NM                NM
Suffolk...................................................                26                25                23
Westchester...............................................                29                28                25
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                                                       NJ
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Bergen....................................................                31                28                25
Essex \7\.................................................            \6\ 30            \6\ 26               INC
Hudson....................................................                32                29                28
Mercer....................................................                29                27                26
Middlesex.................................................                27                23                20
Monmouth..................................................                NM                NM                NM
Morris....................................................                26                23                23
Passaic...................................................                30               INC                25
Somerset..................................................                NM                NM                NM
Union.....................................................            \6\ 32                30                30
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                                                   Connecticut
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Fairfield.................................................                31                28                26
New Haven.................................................                31                29                28
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NM--No monitor located in county.
INC--Counties listed as INC did not meet 75 percent data completeness requirement for the relevant time period.

[[Page 76870]]

IV. What is the effect of this action?

    This final action, in accordance with the Clean Data Policy, which 
is reflected in 40 CFR 51.1004(c), suspends the requirements for the 
States of Connecticut, New Jersey, and New York, to submit an 
attainment demonstration, associated reasonably available control 
measures, RFP, contingency measures, and other planning SIPs related to 
attainment of the 2006 24-hour PM2.5 NAAQS for the NY-NJ-CT 
PM2.5 nonattainment area for so long as the area continues 
to attain the 2006 PM2.5 NAAQS.
    This action does not constitute a redesignation to attainment under 
section 107(d)(3) of the CAA, because the area does not have an 
approved maintenance plan as required under section 175A of the CAA. 
Nor is it a determination that the area has met the other requirements 
for redesignation. The designation status of the area remains 
nonattainment for the 2006 24-hour PM2.5 NAAQS until such 
time as EPA determines that the area, and/or a State portion thereof, 
meets the CAA requirements for redesignation to attainment.

V. What is EPA's final action?

    EPA is determining that the NY-NJ-CT PM2.5 nonattainment 
area for the 2006 24-hour PM2.5 NAAQS has attained the 2006 
24-hour PM2.5 NAAQS. This determination is based upon 
quality-assured, quality-controlled, and certified ambient air 
monitoring data that show that the area has monitored attainment of the 
2006 24-hour PM2.5 NAAQS for the 2007-2009 and 2008-2010 and 
2009-2011 monitoring periods. Preliminary air monitoring data available 
for 2012 are consistent with the determination that the NY-NJ-CT 
PM2.5 nonattainment area is continuing to meet the 2006 24-
hour PM2.5 NAAQS. This final action, in accordance with the 
Clean Data Policy, suspends the requirements for the States of New 
York, New Jersey and Connecticut to submit, for the NY-NJ-CT 
PM2.5 nonattainment area, an attainment demonstration, 
associated reasonably available control measures, RFP, contingency 
measures, and other planning SIPs related to attainment of the 2006 24-
hour PM2.5 NAAQS in the area for so long as the area 
continues to attain the 2006 24-hour PM2.5 NAAQS. If EPA 
subsequently determines, after notice-and-comment rulemaking in the 
Federal Register, that the NY-NJ-CT PM2.5 nonattainment area 
has violated the 2006 24-hour PM2.5 NAAQS, the basis for the 
suspension of the specific requirements would no longer exist for the 
area, and the affected States would thereafter have to address the 
applicable requirements for the 2006 24-hour PM2.5 NAAQS.
    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause 
for this action to become effective immediately upon publication. A 
delayed effective date is unnecessary due to the nature of a 
determination of attainment, which suspends the obligation to submit 
certain attainment-related CAA planning requirements that would 
otherwise apply. The immediate effective date for this action is 
authorized under both 5 U.S.C. 553(d)(1), which provides that 
rulemaking actions may become effective less than 30 days after 
publication if the rule ``grants or recognizes an exemption or relieves 
a restriction,'' and section 553(d)(3), which allows an effective date 
less than 30 days after publication ``as otherwise provided by the 
agency for good cause found and published with the rule.'' The purpose 
of the 30-day waiting period prescribed in section 553(d) is to give 
affected parties a reasonable time to adjust their behavior and prepare 
before the final rule takes effect. Today's rule, however, does not 
create any new regulatory requirements such that affected parties would 
need time to prepare before the rule takes effect. Rather, today's rule 
relieves the affected States of the obligation to submit certain 
attainment-related planning requirements for this PM2.5 
nonattainment area. For these reasons, EPA finds good cause under 5 
U.S.C. 553(d)(3) for this action to become effective on the date of 
publication of this notice.

VI. Statutory and Executive Order Reviews

    This action makes an attainment determination based on air quality 
and results in the suspension of certain Federal requirements, and it 
does not impose additional requirements beyond those imposed by state 
law.
    For these reasons, 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 located in 
the state, 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 1, 2013. 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,

[[Page 76871]]

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, Particulate matter.

    Dated: November 28, 2012.
Judith A. Enck,
Regional Administrator, Region II.

    Dated: December 11, 2012.
H. Curtis Spalding,
Regional Administrator, Region I.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart H--Connecticut

0
2. Section 52.379 is amended by adding paragraph (g) to read as 
follows:

Sec.  52.379  Control strategy: PM2.5.

* * * * *
    (g) Determination of Attainment. EPA has determined, as of December 
31, 2012, that the New York-N. New Jersey-Long Island, NY-NJ-CT fine 
particle (PM2.5) nonattainment area has attained the 2006 
PM2.5 National Ambient Air Quality Standard. This 
determination suspends the requirements for this area to submit an 
attainment demonstration, associated reasonably available control 
measures, a reasonable further progress plan, contingency measures, and 
other planning SIPs related to attainment of the standard for as long 
as the area continues to attain the 2006 PM2.5 NAAQS.

Subpart FF--New Jersey

0
3. Section 52.1602 is amended by adding paragraph (e) to read as 
follows:

Sec.  52.1602  Control strategy and regulations: PM2.5.

* * * * *
    (e) Determination of Attainment. EPA has determined, as of December 
31, 2012, that the New York-N. New Jersey-Long Island, NY-NJ-CT fine 
particle (PM2.5) nonattainment area has attained the 2006 
PM2.5 National Ambient Air Quality Standard. This 
determination suspends the requirements for this area to submit an 
attainment demonstration, associated reasonably available control 
measures, a reasonable further progress plan, contingency measures, and 
other planning SIPs related to attainment of the standard for as long 
as the area continues to attain the 2006 PM2.5 NAAQS.

Subpart HH--New York

0
4. Section 52.1678 is amended by adding paragraph (f) to read as 
follows:

Sec.  52.1678  Control strategy and regulations: Particulate matter.

* * * * *
0
(f) Determination of Attainment. EPA has determined, as of December 31, 
2012, that the New York-N. New Jersey-Long Island, NY-NJ-CT fine 
particle (PM2.5) nonattainment area has attained the 2006 
PM2.5 National Ambient Air Quality Standard. This 
determination suspends the requirements for this area to submit an 
attainment demonstration, associated reasonably control available 
measures, a reasonable further progress plan, contingency measures, and 
other planning SIPs related to attainment of the standard for as long 
as the area continues to attain the 2006 PM2.5 NAAQS.
[FR Doc. 2012-31214 Filed 12-28-12; 8:45 am]
BILLING CODE 6560-50-P
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