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[Federal Register Volume 78, Number 88 (Tuesday, May 7, 2013)]
[Proposed Rules]
[Pages 26568-26572]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10689]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0633; FRL-9809-5]

Approval and Promulgation of Implementation Plans; Arkansas; 
Interstate Transport of Fine Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve portions of State Implementation 
Plan (SIP) submittals from the State of Arkansas to address Clean Air 
Act (CAA or Act) requirements that prohibit air

[[Page 26569]]

emissions which will contribute significantly to nonattainment or 
interfere with maintenance in any other state for the 1997 and 2006 
fine particulate matter (PM2.5) national ambient air quality 
standards (NAAQS). EPA proposes to determine that the existing SIP for 
Arkansas contains adequate provisions to prohibit air emissions from 
significantly contributing to nonattainment or interfering with 
maintenance of the 1997 annual and 24-hour PM2.5 NAAQS (1997 
PM2.5 NAAQS) and the 2006 revised 24-hour PM2.5 
NAAQS (2006 PM2.5 NAAQS) in any other state as required by 
section 110(a)(2)(D)(i)(I) of the Act.

DATES: Written comments must be received on or before June 6, 2013.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2008-0633, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Email: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please 
also send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not 
on legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket No. EPA-R06-OAR-2008-
0633. 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 docket are listed in the 
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 www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a 15 cent per page 
fee for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.
    The State submittals related to this SIP revision, and which are 
part of the EPA docket, are also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment: Arkansas Department of Environmental Quality, 5301 
Northshore Drive, North Little Rock, Arkansas, 72118-5317.

FOR FURTHER INFORMATION CONTACT: Carl Young, Air Planning Section (6PD-
L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 
700, Dallas, Texas 75202-2733, telephone (214) 665-6645; email address 
young.carl@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. Background
II. EPA's Evaluation
III. Proposed Action
IV. Statutory and Executive Order Reviews

I. Background

A. Interstate Transport and the PM2.5 NAAQS

    In 1997, we established new annual and 24-hour NAAQS for 
PM2.5 of 15 micrograms per cubic meter ([mu]g/m\3\) and 65 
[mu]g/m\3\, respectively (July 18, 1997, 62 FR 38652). In 2006, we 
revised the 24-hour PM2.5 NAAQS to 35 [mu]g/m\3\ (October 
17, 2006, 71 FR 6114). Section 110(a)(2)(D)(i) of the CAA identifies 
four distinct elements related to the evaluation of impacts of 
interstate transport of air pollutants with respect to a new or revised 
NAAQS. In this action for the state of Arkansas, we are addressing the 
first two elements of section 110(a)(2)(D)(i)(I) with respect to the 
1997 and 2006 PM2.5 NAAQS.\1\ The first element of section 
110(a)(2)(D)(i)(I) requires that each SIP for a new or revised NAAQS 
contain adequate measures to prohibit any source or other type of 
emissions activity within the state from emitting air pollutants that 
will ``contribute significantly to nonattainment'' of the NAAQS in 
another state. The second element of CAA section 110(a)(2)(D)(i)(I) 
requires that each SIP for a new or revised NAAQS prohibit any source 
or other type of emissions activity in the state from emitting 
pollutants that will ``interfere with maintenance'' of the applicable 
NAAQS in any other state.
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    \1\ This proposed action does not address the two elements of 
the transport SIP provision (in CAA section 110(a)(2)(D)(i)(II)) 
regarding interference with measures required to prevent significant 
deterioration of air quality or to protect visibility in another 
state. Previously we: (1) Partially approved and partially 
disapproved the portion of the December 17, 2007 Arkansas submittal 
demonstrating that Arkansas emissions do not interfere with measures 
required to protect visibility in any other state for the 1997 
PM2.5 NAAQS (March 12, 2012, 77 FR 14604) and (2) 
disapproved the portion of the September 16, 2009 Arkansas submittal 
demonstrating that Arkansas emissions do not interfere with measures 
required to prevent significant deterioration in any other state for 
the 2006 PM2.5 NAAQS (August 20, 2012, 77 FR 50033).

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[[Page 26570]]

B. EPA Rules Addressing Interstate Transport for the 1997 and 2006 
PM2.5 NAAQS

    EPA has addressed the requirements of section 110(a)(2)(D)(i)(I) in 
past regulatory actions.\2\ The final Cross-State Air Pollution Rule 
(Transport Rule) addressed the first two elements of CAA section 
110(a)(2)(D)(i)(I) in the eastern United States with respect to the 
2006 24-hour PM2.5 NAAQS, the 1997 annual PM2.5 
NAAQS, and the 1997 8-hour ozone NAAQS (August 8, 2011, 76 FR 48208). 
The Transport Rule was intended to replace the earlier Clean Air 
Interstate Rule (CAIR) which was judicially remanded.\3\ See North 
Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). On August 21, 2012, the 
U.S. Court of Appeals for the DC Circuit issued a decision to vacate 
the Transport Rule. See EME Homer City Generation, L.P. v. E.P.A., 696 
F.3d 7 (DC Cir. 2012). The court also ordered EPA to continue 
implementing CAIR in the interim. On January 24, 2013, the DC Circuit 
issued an order denying all petitions for rehearing. On March 29, 2013, 
the United States asked the Supreme Court to review the EME Homer City 
decision. In the meantime, and unless the EME Homer City decision is 
reversed or otherwise modified, EPA intends to act in accordance with 
the opinion in EME Homer City.
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    \2\ See NOx SIP Call, 63 FR 57371 (October 27, 1998); 
Clean Air Interstate Rule (CAIR), 70 FR 25172 (May 12, 2005); and 
Transport Rule or Cross-State Air Pollution Rule, 76 FR 48208 
(August 8, 2011).
    \3\ CAIR addressed the 1997 annual and 24-hour PM2.5 
NAAQS, and the 1997 8-hour ozone NAAQS. It did not address the 2006 
24-hour PM2.5 NAAQS.
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C. Arkansas' Submittals

    On December 17, 2007, Arkansas submitted a SIP revision to address 
the requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 
PM2.5 NAAQS. The submittal stated that the State met the 
requirements relating to significant contribution to nonattainment or 
interference with maintenance in another state for the 1997 
PM2.5 NAAQS based on CAIR and associated air quality 
modeling performed by EPA. The submittal also noted that Arkansas was 
not included in CAIR to address PM2.5. A September 16, 2009, 
submission stated that the SIP meets the requirements of CAA section 
110(a)(2), including 110(a)(2)(D)(i)(I) for the 2006 PM2.5 
NAAQS. On March 20, 2013, the State submitted a letter to EPA serving 
as a technical supplement for the 2006 PM2.5 NAAQS. The 
letter stated that because the more recent and improved air quality 
modeling evaluating interstate transport for the 2006 PM2.5 
NAAQS conducted by EPA for the Transport Rule is now available and 
supports the conclusion that emissions in Arkansas do not significantly 
contribute to nonattainment or interfere with maintenance of the 2006 
PM2.5 NAAQS in any other State, it was being submitted as 
the basis for the conclusions in lieu of the previous technical 
information provided in the September 16, 2009 submission. The 
submittals and technical supplement document the State's assessments 
that Arkansas emissions will not contribute significantly to 
nonattainment, or interfere with maintenance, in any other state for 
the 1997 and 2006 PM2.5 NAAQS. The submittals and technical 
supplement are available electronically through the www.regulations.gov 
Web site (Docket No. EPA-R06-OAR-2008-0633).

II. EPA's Evaluation

A. EPA's Approach for Evaluating Interstate Transport of Air Pollution

    To determine whether the CAA section 110(a)(2)(D)(i)(I) requirement 
is satisfied, EPA must determine whether a state's emissions contribute 
significantly to nonattainment or interfere with maintenance in 
downwind areas. If this factual finding is in the negative, then 
section 110(a)(2)(D)(i)(I) does not require any changes to a state's 
SIP. EPA is proposing to determine that the existing SIP for Arkansas 
is adequate to satisfy the requirements of 110(a)(2)(D)(i)(I) of the 
CAA to address interstate transport requirements with regard to the 
1997 and 2006 PM2.5 NAAQS. This proposed conclusion is based 
on air quality modeling originally conducted by EPA to quantify each 
individual eastern state's (including Arkansas') contributions to 
downwind nonattainment and maintenance areas during the rulemaking 
process for the Transport Rule.
    In the Transport Rule rulemaking (proposal and final) process, EPA 
explained how nonattainment and maintenance receptors would be defined 
such that contribution to nonattainment and maintenance receptors could 
be evaluated.\4\ EPA first identified nonattainment receptors and 
maintenance receptors, which are all monitoring sites that had 
PM2.5 design values above the level of the 1997 annual 
PM2.5 NAAQS (15 [mu]g/m\3\) and 2006 24-hour 
PM2.5 NAAQS (35 [mu]g/m\3\) for certain analytic years. Then 
EPA prepared a 2005 emissions inventory which was the most recent year 
that EPA had a complete national inventory at that time. In the 
Transport Rule analysis, EPA also projected the inventory for the 
future year analysis for evaluating the culpability of interstate 
transport impacts.\5\ The air quality modeling conducted for the 
Transport Rule then evaluated interstate contributions from emissions 
in upwind states to downwind nonattainment and maintenance receptors 
for the 1997 annual and 2006 24-hour PM2.5 NAAQS. Please see 
the Air Quality Modeling Final Rule Technical Support Document, June 
2011(Air Quality Modeling TSD) for the Transport Rule. Appendix D of 
this TSD details Arkansas' contribution data for the 1997 annual and 
2006 24-hour PM2.5 NAAQS for all downwind receptors.
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    \4\ For our definition of both nonattainment and maintenance 
receptors see the Technical Support Documents for the final 
Transport Rule, including the ``Technical Support Document (TSD) for 
the Transport Rule--Air Quality Modeling'', (the proposal TSD) June 
2010, and the ``Air Quality Modeling Final Rule Technical Support 
Document'', (Air Quality Modeling TSD) June 2011 (Docket No. EPA-HQ-
OAR-2009-0491, Document Nos. EPA-HQ-OAR-2009-0491-0047 and EPA-HQ-
OAR-2009-0491-4140).
    \5\ See Id.; Emissions Inventory Final Rule TSD, June 28, 2011. 
(Docket ID No. EPA-HQ-OAR-2009-0491, Document No. EPA-HQ-OAR-2009-
0491-4522).
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    EPA then used air quality thresholds to identify linkages between 
upwind states and downwind nonattainment and maintenance receptors. As 
detailed in EPA's Air Quality Modeling TSDs, EPA used a threshold of 1% 
of the NAAQS to identify these linkages. Our analysis for the Transport 
Rule found that the 1 percent threshold captures a high percentage of 
the total pollution transport affecting downwind states for 
PM2.5.\6\ The air quality thresholds were therefore 
calculated as 1 percent of the NAAQS, which is 0.15 [mu]g/m\3\ for 1997 
annual PM2.5 NAAQS and 0.35 [mu]g/m\3\ for 2006 24-hour 
PM2.5. EPA found states projected to exceed this air quality 
threshold at one or more downwind nonattainment receptors emissions to 
be linked to all such receptors, and therefore subject to further 
evaluation. EPA did not conduct further evaluation of emissions from 
states that were not linked to any downwind receptors.
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    \6\ See section IV.F (Analysis of Contributions Captured by 
Various Thresholds) of the Air Quality Modeling TSD.
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    The methodology and modeling used to analyze the impact of 
emissions from Arkansas and to identify potential linkages between 
Arkansas and downwind nonattainment and maintenance receptors with 
respect to

[[Page 26571]]

the 1997 and 2006 PM2.5 NAAQS is described in further detail 
in the Air Quality Modeling TSDs. These documents can be found both in 
the electronic docket for the Transport Rule and the electronic docket 
for this action, and is available through the www.regulations.gov Web 
site.

B. Evaluation of the State's Submittals

    EPA's evaluation confirms Arkansas' analysis provided in portions 
of the SIP submittals for the State of Arkansas submitted on December 
17, 2007, and September 16, 2009, and the technical supplement 
submitted on March 20, 2013. The air quality modeling performed for the 
Transport Rule found that the impact from Arkansas emissions on both 
downwind nonattainment and maintenance receptors was less than the 1 
percent threshold for both the 1997 and the 2006 PM2.5 
NAAQS. EPA therefore did not find emissions from Arkansas linked to any 
downwind nonattainment or maintenance receptors for the 1997 annual and 
2006 24-hour PM2.5 NAAQS. EPA incorporates by reference into 
the docket for this action all of the technical information in the 
record for the proposed and final Transport Rule regarding the impact 
of emissions from Arkansas on both downwind nonattainment and 
maintenance receptors.
    Below is a summary of the air quality modeling results for Arkansas 
from Tables IV-8 and IV-9 of EPA's Air Quality Modeling TSD regarding 
Arkansas's largest contribution to both downwind PM2.5 
nonattainment and maintenance areas.

              Arkansas' Largest Contribution to Downwind PM2.5 Nonattainment and Maintenance Areas
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                                                                                      Largest
                                                                                     downwind         Largest
                                                                    Air quality    contribution      downwind
                              NAAQS                                  threshold          to         contribution
                                                                   ([mu]g/m\3\)    nonattainment  to maintenance
                                                                                   ([mu]g/m\3\)    ([mu]g/m\3\)
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1997 annual PM2.5 NAAQS (15 [mu]g/m\3\).........................            0.15            0.10            0.04
2006 24-hour PM2.5 NAAQS (35 [mu]g/m\3\)........................            0.35            0.24            0.23
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    Based on this analysis, we propose to approve the portions of the 
December 17, 2007 and September 16, 2009 Arkansas SIP submittals, and 
the technical supplement submitted on March 20, 2013, determining that 
the existing SIP for Arkansas contains adequate provisions to prohibit 
air emissions from contributing significantly to nonattainment or 
interfering with maintenance of the 1997 and 2006 PM2.5 
NAAQS in any other state as required by CAA section 
110(a)(2)(D)(i)(I).\7\
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    \7\ The form of the 1997 24-hour and the 2006 24-hour 
PM2.5 NAAQS utilize the same methodology in determining 
the design value. Because the 2006 24-hour PM2.5 NAAQS is 
lower and more protective than the 1997 24-hour PM2.5 
NAAQS, (35 [mu]g/m\3\ compared with 65 [mu]g/m\3\), addressing the 
more stringent 2006 24-hour PM2.5 NAAQS ensures that the 
1997 24-hour NAAQS is also protected. Thus, we can rely upon the 1 
percent threshold analysis used for the Transport Rule to evaluate 
both the 1997 and 2006 24-hour NAAQS.
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    We believe it is appropriate to rely on the Transport Rule modeling 
even with the EME Homer City opinion vacating the rule. EME Homer City 
Generation L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012).\8\ Nothing in the 
EME Homer City opinion suggests that the air quality modeling on which 
our proposal relies is flawed or invalid for any reason. In addition, 
nothing in that opinion undermines or calls into question our proposed 
conclusion that, because emissions from Arkansas do not contribute more 
than one percent of the 1997 and 2006 PM2.5 NAAQS to any 
downwind area with nonattainment or maintenance problems, Arkansas does 
not contribute significantly to nonattainment or interfere with 
maintenance in another state for these NAAQS. Further, EPA is not 
proposing to rely on any requirements of the Transport Rule or emission 
reductions associated with that rule to support its conclusion that 
Arkansas has met its 110(a)(2)(D)(i)(I) obligations with respect to the 
1997 and 2006 PM2.5 NAAQS.
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    \8\ On March 29, 2013, EPA filed a petition asking the Supreme 
Court to review the EME Homer City decision.
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C. Section 110(l) of the Act

    Section 110(l) of the Act prohibits EPA from approving any SIP 
revision that would interfere with any applicable requirement 
concerning attainment and reasonable further progress or any other 
applicable requirement of the Act. The SIP submittals from the State of 
Arkansas contain no new regulatory provisions and do not affect any 
requirement in Arkansas' applicable implementation plan. Therefore, the 
submissions do not interfere with any applicable requirement concerning 
attainment and reasonable further progress or any other applicable 
requirement of the Act. EPA has concluded, based on Arkansas' and EPA's 
technical analysis, that the existing Arkansas SIP is sufficient to 
meet the requirements of 110(a)(2)(D)(i)(I) with respect to the 1997 
and 2006 PM2.5 NAAQS.

III. Proposed Action

    We are proposing to approve portions of SIP submittals for the 
State of Arkansas submitted on December 17, 2007, and September 16, 
2009, and the technical supplement submitted on March 20, 2013, to 
address interstate transport for the 1997 and 2006 PM2.5 
NAAQS. Based on our evaluation we propose to approve the portions of 
the SIP submittals determining the existing SIP for Arkansas contains 
adequate provisions to prohibit air emissions from contributing 
significantly to nonattainment or interfering with maintenance of the 
1997 and 2006 PM2.5 NAAQS in any other state as required by 
CAA section 110(a)(2)(D)(i)(I). This action is being taken under 
section 110 of the Act.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act 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 Clean Air Act. 
Accordingly, this action merely proposes to approve state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. 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.);

[[Page 26572]]

     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 Clean Air Act; 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 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, Nitrogen dioxide, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

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

    Dated: April 24, 2013.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2013-10689 Filed 5-6-13; 8:45 am]
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