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[Federal Register: August 3, 2010 (Volume 75, Number 148)]
[Rules and Regulations]               
[Page 45485-45489]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au10-6]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2010-0590; FRL-9184-6]

 
Determination of Attainment for PM10 for the Las Vegas Valley 
Nonattainment Area, NV

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA has determined that the Las Vegas Valley nonattainment 
area in Nevada attained the National Ambient Air Quality Standard 
(NAAQS) for particulate matter with an aerodynamic diameter of less 
than or equal to a nominal ten micrometers (PM10) by the 
applicable attainment date (December 31, 2006), and that the Las Vegas 
Valley nonattainment area is currently attaining the standard.

DATES: This action is effective on October 4, 2010 without further 
notice,

[[Page 45486]]

unless EPA receives adverse comment by September 2, 2010. If EPA 
receives adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0590, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions.
    2. E-mail: tax.wienke@epa.gov.
    3. Mail or Deliver: Wienke Tax, Air Planning Office, EPA Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an 
``anonymous access'' system, and 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 directly to EPA, your e-mail address will be 
automatically captured and included as part of the public comment. 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: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Wienke Tax at telephone number: (415) 
947-4192, e-mail address: tax.wienke@epa.gov, or the above EPA, Region 
IX address.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we'', 
``us'' or ``our'' are used, we mean EPA. Information is organized as 
follows:

Table of Contents

I. Background
    A. PM10 NAAQS
    B. Designation and Classification of PM10 
Nonattainment Areas
    C. How does EPA make attainment determinations?
    D. What is the attainment date for the Las Vegas Valley 
PM10 nonattainment area?
    E. What PM10 planning has occurred for the Las Vegas 
Valley PM10 nonattainment area?
II. EPA's Analysis
    A. What does the air quality data show as of the December 31, 
2006 attainment date?
    B. Does more recent air quality data also show attainment?
III. EPA's Final Action
IV. Statutory and Executive Order Reviews

I. Background

A. PM10 NAAQS

    The NAAQS are levels for certain ambient air pollutants set by EPA 
to protect public health and welfare. PM10, or particulate 
matter with an aerodynamic diameter less than or equal to a nominal 10 
micrometers, is among the ambient air pollutants for which EPA has 
established health-based standards. On July 1, 1987 (52 FR 24634), EPA 
promulgated two primary standards for PM10: A 24-hour 
standard of 150 micrograms per cubic meter ([mu]g/m\3\) and an annual 
PM10 standard of 50 [mu]g/m\3\. EPA also promulgated 
secondary PM10 standards that were identical to the primary 
standards.
    Effective December 18, 2006, EPA revoked the annual PM10 
standard but retained the 24-hour PM10 standard. 71 FR 61144 
(October 17, 2006). The 24-hour PM10 standard is attained 
when the expected number of days per calendar year with a 24-hour 
concentration in excess of the standard (referred to herein as 
``exceedance''), as determined in accordance with 40 CFR part 50, 
appendix K, is equal to or less than one.\1\ 40 CFR 50.6 and 40 CFR 
part 50, appendix K.
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    \1\ An exceedance is defined as a daily value that is above the 
level of the 24-hour standard (150 [mu]g/m\3\) after rounding to the 
nearest 10 [mu]g/m\3\ (i.e., values ending in 5 or greater are to be 
rounded up). Thus, a recorded value of 154 [mu]g/m\3\ would not be 
an exceedance since it would be rounded to 150 [mu]g/m\3\ whereas a 
recorded value of 155 [mu]g/m\3\ would be an exceedance since it 
would be rounded to 160 [mu]g/m\3\. See 40 CFR part 50, appendix K, 
section 1.0.
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B. Designation and Classification of PM10 Nonattainment Areas

    Areas meeting the requirements of section 107(d)(4)(B) of the Clean 
Air Act (CAA or the Act) were designated nonattainment for 
PM10 by operation of law and classified ``moderate'' upon 
enactment of the 1990 Clean Air Act Amendments. See generally 42 U.S.C. 
7407(d)(4)(B). These areas included all former Group I PM10 
planning areas identified in 52 FR 29383 (August 7, 1987), as further 
clarified in 55 FR 45799 (October 31, 1990), and any other areas 
violating the NAAQS for PM10 prior to January 1, 1989. A 
Federal Register notice announcing the areas designated nonattainment 
for PM10 upon enactment of the 1990 Amendments, known as 
``initial'' PM10 nonattainment areas, was published on March 
15, 1991 (56 FR 11101) and a subsequent Federal Register document 
correcting the description of some of these areas was published on 
August 8, 1991 (56 FR 37654). The Las Vegas Valley \2\ was one of these 
initial moderate PM10 nonattainment areas.
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    \2\ Specifically, the Las Vegas Valley PM10 
nonattainment area is defined by reference to State hydrographic 
area 212. See 40 CFR 81.329. The Las Vegas Valley 
encompasses roughly 1,500 square miles within Clark County and 
includes the cities of Las Vegas, North Las Vegas, and Henderson. 
Roughly two million people reside in Clark County, mostly within Las 
Vegas Valley. NDEP is the state agency under state law that is 
responsible for SIP matters for the State of Nevada. Within Clark 
County, the Clark County Board of Commissioners, acting through the 
Department of Air Quality and Environmental Management (DAQEM), is 
empowered under state law to develop air quality plans and to 
regulate stationary sources within the county with the exception of 
certain types of power plants, which lie exclusively within the 
jurisdiction of NDEP.
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    All initial moderate PM10 nonattainment areas had the 
same applicable attainment date of December 31, 1994. States containing 
initial moderate PM10 nonattainment areas were required to 
develop and submit to EPA by November 15, 1991, a state implementation 
plan (SIP) revision providing for implementation of reasonably 
available control measures (RACM) for the control of PM10, 
and either a demonstration that the plan would provide for attainment 
by the applicable attainment date (December 31, 1994) or a 
demonstration that attainment by such date was impracticable. See CAA 
section 189(a).
    A moderate PM10 area could subsequently be reclassified 
as ``serious'' either before the applicable moderate area attainment 
date if EPA determines the area cannot ``practicably'' attain the 
PM10 NAAQS by this attainment date, or

[[Page 45487]]

following the passage of the applicable moderate area attainment date 
if EPA determines that the area has failed to attain the standard. 
Effective February 8, 1993, EPA determined that Las Vegas Valley could 
not ``practicably'' attain the PM10 NAAQS by December 31, 
1994 (i.e., the applicable attainment date for initial moderate 
PM10 nonattainment areas), and reclassified the area as 
``serious.'' See 58 FR 3334 (January 8, 1993). Reclassification of Las 
Vegas Valley to ``serious'' triggered deadlines for additional SIP 
revisions and established a new applicable attainment date of (no later 
than) December 31, 2001. See CAA section 188(c)(2).
    Section 188(e) of the Act authorizes EPA to extend the applicable 
attainment date for serious PM10 nonattainment areas under 
certain circumstances. In 2004, EPA approved the PM10 
attainment plan for Las Vegas Valley and granted the State of Nevada's 
request to extend the applicable attainment date from December 31, 2001 
to December 31, 2006. See 69 FR 32273 (June 9, 2004).

C. How does EPA make attainment determinations?

    Section 188(b)(2) of the Act requires EPA to determine within six 
months of the applicable attainment date whether, based on air quality 
data, PM10 nonattainment areas attained the PM10 
NAAQS by that date. Generally, EPA determines whether an area's air 
quality is meeting the PM10 NAAQS based upon complete 
(minimum of 75 percent of scheduled PM10 samples recorded), 
quality-assured data gathered at established state and local air 
monitoring stations (SLAMS) and national air monitoring stations (NAMS) 
in the nonattainment area and entered into the EPA Air Quality System 
(AQS) database. Data from air monitors operated by State/local/tribal 
agencies in compliance with EPA monitoring requirements must be 
submitted to AQS. EPA relies primarily on data in AQS when determining 
the attainment status of an area. See 40 CFR 50.6; 40 CFR part 50, 
appendix J; 40 CFR part 53; 40 CFR part 58, appendix A. EPA will also 
consider air quality data from other air monitoring stations in the 
nonattainment area provided that the stations meet the Federal 
monitoring requirements for SLAMS, including the quality assurance and 
quality control criteria in 40 CFR part 58, appendix A. 40 CFR 58.14 
(2006) and 58.20 (2007); \3\ 71 FR 61236, 61242 (October 17, 2006). All 
valid data are reviewed to determine the area's air quality status in 
accordance with 40 CFR part 50, appendix K.
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    \3\ EPA promulgated amendments to the ambient air monitoring 
regulations in 40 CFR parts 53 and 58 on October 17, 2006. See 71 FR 
61236. The requirements for Special Purpose Monitors were revised 
and moved from 40 CFR 58.14 to 40 CFR 58.20.
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    Attainment of the 24-hour PM10 standard is determined by 
calculating the expected number of exceedances of the standard in a 
year. The 24-hour standard is attained when the expected number of 
exceedances averaged over a three-year period is less than or equal to 
one at each monitoring site within the nonattainment area. Generally, 
three consecutive years of air quality data are required to show 
attainment of the 24-hour PM10 standard. See 40 CFR part 50 
and appendix K.\4\
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    \4\ Because the annual PM10 standard was revoked 
effective December 18, 2006, see 71 FR 61144 (October 17, 2006), 
this document discusses only attainment of the 24-hour 
PM10 standard.
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D. What is the attainment date for the Las Vegas Valley PM10 
nonattainment area?

    As noted above, the original attainment date for the Las Vegas 
Valley PM10 nonattainment area was December 31, 1994, but 
was later extended, first to December 31, 2001, and later, to December 
31, 2006. See 58 FR 3334 (January 8, 1993) and 69 FR 32273 (June 9, 
2004).

E. What PM10 planning has occurred for the Las Vegas Valley PM10 
nonattainment area?

    After Las Vegas Valley was designated nonattainment for 
PM10, Clark County and NDEP began in the early 1990s to 
prepare the technical elements needed to bring the area into attainment 
and meet the planning requirements of title I of the CAA. NDEP 
submitted a moderate area PM10 plan for the Las Vegas Valley 
on December 6, 1991. Based on this submittal, EPA determined on January 
8, 1993, that the Las Vegas Valley could not practicably attain the 
PM10 NAAQS by the applicable attainment deadline for 
moderate areas (December 31, 1994, per section 188(c)(1) of the Act), 
and reclassified the Las Vegas Valley as serious (58 FR 3334).
    In response to the area's reclassification as a ``serious'' 
PM10 nonattainment area, Clark County prepared and, and NDEP 
submitted, a serious area PM10 plan in 1997 that EPA 
subsequently proposed to disapprove, along with the previously 
submitted plan. See 65 FR 37324 (June 14, 2000). However, NDEP 
submitted a revised serious area PM10 plan in July 2001, 
which EPA later approved. 69 FR 32273 (June 9, 2004). Among the various 
serious area SIP elements approved by EPA in 2004 are the best 
available control measures (BACM) demonstration under CAA section 
189(b)(1)(B), the most stringent measures (MSM) demonstration under CAA 
section 188(e), and various Clark County air pollution control rules 
regulating such fugitive dust sources as open areas, unpaved roads, and 
construction activities.

II. EPA's Analysis

A. What does the air quality data show as of the December 31, 2006 
attainment date?

    Clark County DAQEM is responsible for monitoring ambient air 
quality within Clark County. DAQEM submits monitoring network plan 
reports to EPA on an annual basis. These reports discuss the status of 
the air monitoring network, as required under 40 CFR part 58. Beginning 
in 2007, EPA reviews these annual plans for compliance with the 
applicable reporting requirements in 40 CFR 58.10. With respect to 
PM10, we have found DAQEM's annual network plans to meet the 
applicable requirements under 40 CFR part 58. See EPA letters to DAQEM 
concerning DAQEM's annual network plan reports for years 2007, 2008, 
and 2009. Furthermore, we concluded in our Technical System Audit 
Report (February 2010) that Clark County DAQEM's ambient air monitoring 
network currently meets or exceeds the requirements for the minimum 
number of monitoring sites designated as SLAMS for all of the criteria 
pollutants, and that all of the monitoring sites are properly located 
with respect to monitoring objectives, spatial scales and other site 
criteria.
    Clark County DAQEM currently operates nine PM10 SLAMS 
monitoring sites within Las Vegas Valley: Craig Road (North Las Vegas), 
Green Valley (Henderson), J.D. Smith School (North Las Vegas), Joe Neal 
(northwest Las Vegas), Lone Mountain (northwest Las Vegas), Orr School 
(central-southeast Las Vegas), Paul Meyer Park (southwest Las Vegas), 
Palo Verde School (west Las Vegas), Sunrise Acres School (central Las 
Vegas), and Walter Johnson (west Las Vegas). All nine sites monitor 
PM10 concentrations on a continuous basis using Beta 
Attenuation Monitors (BAMs). See Clark County DAQEM's Annual Network 
Plan Report (June 2010). Most of the sites are sited to provide 
PM10 concentration data at a

[[Page 45488]]

neighborhood scale \5\ for the purpose of determining population 
exposure. The Craig Road site, however, is intended to capture the 
highest PM10 concentrations in Las Vegas Valley (i.e., at 
the neighborhood scale), and Green Valley and Palo Verde are intended 
to represent middle scale \6\ conditions.
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    \5\ In this context, ``neighborhood scale'' refers to conditions 
throughout some reasonably homogeneous urban sub-region with 
dimensions of a few kilometers. See 40 CFR part 58, appendix D, 
section 4.6.
    \6\ In this context, ``middle scale'' refers to conditions 
characteristic of areas from 100 meters to several kilometers.
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    In Table 1, below, we present a summary of AQS data collected at 
the nine PM10 sites currently in operation, as well as two 
sites (City Center in Las Vegas and Southeast Valley in Henderson), 
which have closed since 2006, and two sites (East Sahara in central Las 
Vegas and Walter Johnson in west Las Vegas), which no longer monitor 
PM10. As shown in Table 1, only one PM10 
exceedance was measured at any of the monitoring sites over the 2004-
2006 period.

                      Table 1--Summary of Las Vegas Valley PM10 Monitoring Data, 2004-2006
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                                            Highest 24-hour PM10 concentration ([mu]g/m \3\)        Expected
                                         ------------------------------------------------------  exceedances per
             Monitoring site                                                                          year
                                                2004              2005              2006       -----------------
                                                                                                    2004-2006
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City Center \*\.........................                84                70                95               0.0
Craig Road..............................               151               149               157               0.4
East Sahara \*\.........................                89                99                93               0.0
Green Valley............................                84                79                97               0.0
J.D. Smith..............................               122               144               136               0.0
Joe Neal................................               135               124               122               0.0
Lone Mountain...........................                58                55                82               0.0
Orr.....................................                88                75                94               0.0
Paul Meyer..............................                86                70               100               0.0
Palo Verde..............................                65                46                69               0.0
Southeast Valley \*\....................               119                84                77               0.0
Sunrise Acres...........................                72               120               113               0.0
Walter Johnson \*\......................                64                56               106               0.0
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PM10NAAQS = 150 [mu]g/m\3\. Exceedances shown in bold type.
\*\ Site is no longer in operation or is no longer monitoring PM10

    Based on a review of air quality data during the three-year period 
ending with the December 31, 2006 attainment date (and summarized above 
in table 1), we find that the expected number of exceedances per year 
for Las Vegas Valley for 2004-2006 is 0.4 days per year (based on the 
Craig Road monitoring site, the only one measuring an exceedance). This 
is less than an annual expected exceedance rate for the 24-hour 
PM10 NAAQS of 1.0 and represents attainment of the standard. 
EPA has therefore determined that the Las Vegas Valley PM10 
nonattainment area attained the PM10 NAAQS by the applicable 
attainment date of December 31, 2006.

B. Does more recent air quality data also show attainment?

    Although the attainment date for the Las Vegas Valley 
PM10 nonattainment area is December 31, 2006, EPA has also 
reviewed the air quality data collected at Clark County DAQEM's 
PM10 monitoring sites in Las Vegas Valley from January 2007 
through the first quarter of 2010. During this period, the only 
exceedances of the 150 [mu]g/m\3\ 24-hour standard occurred at the 
Craig Road site, which monitored 24-hour concentrations of 203 and 168 
[mu]g/m\3\ in 2008, but given the continuous nature of PM10 
monitoring at the site, the annual expected exceedance rate, averaged 
over three years, has not exceeded 1.0. Thus, the data continue to show 
attainment of the 24-hour PM10 NAAQS in Las Vegas Valley 
since the end of 2006.

III. EPA's Final Action

    Under section 188(b)(2) of the Clean Air Act, and based on 
complete, quality-assured data, we find that the Las Vegas Valley 
PM10 nonattainment area attained the 24-hour PM10 
NAAQS by the applicable attainment date (December 31, 2006). We also 
find that the Las Vegas Valley nonattainment area is currently 
attaining the PM10 standard. This action is not a 
redesignation to attainment under CAA section 107(d)(3) because we have 
not yet approved a maintenance plan as meeting the requirements of 
section 175A of the CAA or determined that the area has met the other 
CAA requirements for redesignation. The PM10 classification 
and designation status in 40 CFR part 81 will remain serious 
nonattainment for Las Vegas Valley until such time as the State of 
Nevada meets the CAA requirements for redesignation of the valley to 
attainment.
    We are publishing this rule without prior proposal because the 
Agency views this as a noncontroversial action and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal should adverse comments be filed. This 
action will be effective October 4, 2010, without further notice unless 
the EPA receives relevant adverse comments by September 2, 2010.
    If we receive such comments, then we will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. We will not 
institute a second comment period. Parties interested in commenting 
should so at this time. If no such comments are received, the public is 
advised that this rule will be effective on October 4, 2010 and no 
further action will be taken on the proposed rule.

IV. Statutory and Executive Order Reviews

    This action merely makes a determination based on air quality data 
and does not impose any additional

[[Page 45489]]

Federal requirements. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997); is not a significant regulatory action subject 
to Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because 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 October 4, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking. 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 81

    Environmental protection, Air pollution control, National parks, 
Particulate matter, Wilderness areas.

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

    Dated: July 21, 2010.
Keith Takata,
Acting Regional Administrator, EPA Region IX.
[FR Doc. 2010-19061 Filed 8-2-10; 8:45 am]
BILLING CODE 6560-50-P
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