

[Federal Register: March 12, 2007 (Volume 72, Number 47)]
[Proposed Rules]               
[Page 10960-10964]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr07-24]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2006-0635; FRL-8286-6]

 
Approval and Promulgation of Implementation Plans; Revisions to 
the Nevada State Implementation Plan; Visible Emissions and Particulate 
Matter Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Nevada Department 
of Conservation and Natural Resources portion of the Nevada State 
Implementation Plan. These revisions concern visible emissions and 
particulate matter regulations. EPA is proposing this action under the 
Clean Air Act obligation to take action on State submittals of 
revisions to state implementation plans. The intended effect is to 
approve updated visible emissions and particulate matter rules in the 
Nevada State Implementation Plan because doing so will not interfere 
with attainment or maintenance of the national ambient air quality 
standards or any other requirement of the Clean Air Act. EPA is taking 
comments on this proposal and plans to follow with a final action.

DATES: Any comments must arrive by April 11, 2007.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0635, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 

the on-line instructions.
    2. E-mail: steckel.andrew@epa.gov.
    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental 
Protection Agency 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 e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. 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.
    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

[[Page 10961]]

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: Julie A. Rose, EPA Region IX, (415) 
947-4126.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What regulations did the State submit?
    B. What is the regulatory history of the Nevada SIP?
    C. What is the purpose of this proposed rule?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the regulations?
    B. Do the regulations meet the evaluation criteria?
    C. EPA recommendations to further improve the regulations
    D. Proposed action and public comment
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What regulations did the State submit?

    The State of Nevada's Department of Conservation and Natural 
Resources, Division of Environmental Protection (NDEP) submitted a 
large revision to the applicable Nevada State Implementation Plan (SIP) 
on January 12, 2006. The January 12, 2006 SIP revision submittal 
includes new and amended statutes and rules as well as requests for 
rescission of certain rules in the existing SIP. The January 12, 2006 
SIP revision submittal supersedes the regulatory portion of an earlier 
submittal dated February 16, 2005.\1\ On March 26, 2006, we found that 
the Nevada SIP submittal dated January 12, 2006 satisfied the 
completeness criteria in 40 CFR part 51, appendix V, which must be met 
before formal EPA review.
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    \1\ The February 16, 2005 SIP submittal also includes 
documentation of public notice and hearing for certain new or 
amended rules for which EPA is proposing approval. The January 12, 
2006 SIP submittal was not a complete re-submittal of the earlier 
submittal in that it did not include this documentation. Our 
consideration of the rules submitted on January 12, 2006 and 
evaluated herein takes into account the public participation 
documentation contained in the earlier submittal. Public 
participation documentation for the rescission of NAC 445.535, also 
evaluated herein, was also included in the February 16, 2005 SIP 
submittal and is taken into account in this proposed action. NAC 
445.535 (which had been recodified as NAC 445B.089) was repealed for 
the purposes of State law by the Nevada State Environmental 
Commission effective March 5, 1998. NDEP has also provided 
documentation of public process for rescission of NAQR article 
16.3.3.1 (re-codified as NAC 445.828), which was repealed by the 
commission for purposes of State law effective October 15, 1985. CAA 
section 110(l) requires reasonable notice and public hearing prior 
to adoption of SIP revisions by States for subsequent submittal to 
EPA for approval or disapproval under CAA section 110(k)(3).
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    The primary purpose of this SIP revision is to clarify and 
harmonize the provisions approved by EPA into the applicable SIP with 
the current provisions adopted by the State. Because this revision 
incorporates so many changes from the 1970s and 1980s vintage SIP 
regulations, EPA has decided to review and act on the submittal in a 
series of separate actions. The first such action, related to various 
definitions, sulfur emission rules, and restrictions on open burning 
and use of incinerators, was proposed in the Federal Register on 
September 13, 2005 (70 FR 53975) and finalized on March 27, 2006 (71 FR 
15040). The second such action, related to statutory authority, was 
proposed in the Federal Register on June 9, 2006 (71 FR 33413) and 
finalized on August 31, 2006 (71 FR 51766). A third action, related to 
most of the State's requests for rescission, and fourth action, related 
to monitoring and VOC rules, were proposed on August 28, 2006 (71 FR 
50875) and August 31, 2006 (71 FR 51793), respectively, and finalized 
on January 3, 2007 (72 FR 11) and December 11, 2006 (71 FR 71486), 
respectively.
    In today's notice, we are taking another step in the process of 
acting on the State's January 12, 2006 SIP revision submittal by 
proposing action on the State's request for approval of six amended 
rules related to visible emissions and particulate matter and for 
rescission of two related rules. The remaining portions of the 
submittal will be acted on in future Federal Register actions.
    The following two tables list the provisions of the Nevada Air 
Quality Regulations (NAQR) or Nevada Administrative Code (NAC) 
addressed by this proposal. Table 1 list the amended rules submitted by 
NDEP for approval into the SIP and addressed herein. If approved, the 
submitted rules in table 1 would replace existing rules in the 
applicable SIP.

       Table 1.--Amended Rules Submitted for Approval Into the SIP
------------------------------------------------------------------------
        NAC No.                NAC Title          Adopted     Submitted
------------------------------------------------------------------------
445B.22017............  Visible emissions:         10/04/05     01/12/06
                         Maximum opacity;
                         determination.
                         (Effective April 1,
                         2006.).
445B.2202.............  Visible emissions:         10/04/05     01/12/06
                         Exceptions for
                         stationary sources.
                         (Effective April 1,
                         2006.).
445B.22027............  Emissions of               01/22/98     01/12/06
                         particulate matter:
                         Maximum allowable
                         throughput for
                         calculating emissions
                         rates.
445B.2203.............  Emissions of               09/09/99     01/12/06
                         particulate matter:
                         Fuel-burning
                         equipment.
445B.22033............  Emissions of               01/22/98     01/12/06
                         particulate matter:
                         Sources not otherwise
                         limited.
445B.22037............  Emissions of               10/03/95     01/12/06
                         particulate matter:
                         Fugitive dust..
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    Table 2 lists two related rules in the existing SIP for which NDEP 
has requested rescission. If we approve the rescission requests, the 
two rules listed in table 2 would be deleted from the applicable SIP.

Table 2.--Related SIP Rules for Which the State Has Requested Rescission
------------------------------------------------------------------------
                                                 Submittal     Approval
        SIP provision               Title           date         date
------------------------------------------------------------------------
NAQR Article 16.3.3.1........  Opacity from        12/29/78     06/18/82
                                kilns.
NAC 445.535..................  Kilogram-           10/26/82     03/27/84
                                calorie.
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[[Page 10962]]

B. What is the regulatory history of the Nevada SIP?

    In January 1972, pursuant to the Clean Air Amendments of 1970, the 
Governor of Nevada submitted the original Nevada SIP to EPA. EPA 
approved certain portions of the original SIP and disapproved other 
portions under section 110(a) of the Clean Air Act (Act or CAA). See 37 
FR 10842 (May 31, 1972). For some of the disapproved portions of the 
original SIP, EPA promulgated substitute provisions under CAA section 
110(c).\2\ This original SIP included various rules, codified as 
articles within the Nevada Air Quality Regulations (NAQR), and various 
statutory provisions codified in chapter 445 of the Nevada Revised 
Statutes (NRS). In the early 1980's, Nevada reorganized and re-codified 
its air quality rules into sections within chapter 445 of the Nevada 
Administrative Code (NAC). Today, Nevada codifies its air quality 
regulations in chapter 445B of the NAC and codifies air quality 
statutes in chapter 445B (``Air Pollution'') of title 40 (``Public 
Health and Safety'') of the NRS.
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    \2\ Provisions that EPA promulgates under CAA section 110(c) in 
substitution of disapproved State provisions are referred to as 
Federal Implementation Plans.
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    Nevada adopted and submitted many revisions to the original set of 
regulations and statutes in the SIP, some of which EPA approved on 
February 6, 1975 at 40 FR 5508; on March 26, 1975 at 40 FR 13306; on 
January 9, 1978 at 43 FR 1341; on January 24, 1978 at 43 FR 3278; on 
August 21, 1978 at 43 FR 36932; on July 10, 1980 at 45 FR 46384; on 
April 14, 1981 at 46 FR 21758; on August 27, 1981 at 46 FR 43141; on 
March 8, 1982 at 47 FR 9833; on April 13, 1982 at 47 FR 15790; on June 
18, 1982 at 47 FR 26386; on June 23, 1982 at 47 FR 27070; on March 27, 
1984 at 49 FR 11626. Since 1984, EPA has approved very few revisions to 
Nevada's applicable SIP despite numerous changes that have been adopted 
by the State Environmental Commission. As a result, the version of the 
rules enforceable by NDEP is often quite different from the SIP version 
enforceable by EPA.

C. What is the purpose of this proposed rule?

    The purpose of this proposal is to present EPA's conclusions and 
rationale with respect to the State's January 12, 2006 submittal of 
amended visible emissions and particulate matter rules and requests for 
rescission of two related rules from the applicable SIP. The technical 
support document (TSD) that we prepared for this proposed rulemaking 
provides additional detail concerning these amended rules and 
rescission requests and our evaluation of them.

II. EPA's Evaluation and Action

A. How is EPA evaluating the regulations?

    Under CAA section 110(k)(2), EPA is obligated to take action on 
submittals by States of SIPs and SIP revisions. CAA section 110(k)(3) 
authorizes EPA to approve or disapprove, in whole or in severable part, 
such submittals.
    EPA has reviewed the visible emissions and particulate matter rules 
and related rescission requests submitted on January 12, 2006 by NDEP 
for compliance with the CAA requirements for SIPs in general set forth 
in CAA section 110(a)(2) and 40 CFR part 51 and also for compliance 
with CAA requirements for SIP revisions in CAA sections 110(l) and 
193.\3\ Relevant EPA guidance and policy documents that we used to help 
evaluate enforceability include ``Review of State Implementation Plans 
and Revisions for Enforceability and Legal Sufficiency,'' dated 
September 23, 1987, from J. Craig Potter, Assistant Administrator for 
Air and Radiation, et al. As described below, EPA is proposing approval 
of the submitted visible emissions and particulate matter rules and 
related rescission requests.
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    \3\ CAA section 110(l) 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 CAA. CAA section 193 prohibits 
modifications in control requirements that were in effect before the 
Clean Air Act Amendments of 1990 in any nonattainment area unless 
the modification insures equivalent or greater emission reductions 
of the nonattainment pollutant.
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B. Do the regulations meet the evaluation criteria?

    We believe that all six of the submitted rules evaluated herein 
(see table 1, above) are consistent with the relevant statutory and 
regulatory provisions, as well as policy and guidance regarding 
enforceability and SIP relaxations and that proposed approval of the 
six submitted rules provides the basis to approve the rescission 
requests for the two related rules in the applicable SIP (see table 2, 
above). A short discussion of our rationale is provided in the 
following paragraphs.
    1. NAC 445B.22017 (Visible emissions: Maximum opacity; 
determination), NAC 445B.2202 (Visible emissions: Exceptions for 
stationary sources), NAC 445B.22027 (Emissions of particulate matter: 
Maximum allowable throughput for calculating emissions rates), and NAC 
445B.22037 (Emissions of particulate matter: Fugitive dust). Generally, 
these submitted rules retain or enhance the requirements set forth in 
the corresponding rules in the current applicable SIP. Compared to the 
current applicable SIP rules, the amended rules include a different, 
but acceptable, formulation defining the basic 20% opacity standard and 
a lower (i.e., more stringent) project-size exemption threshold (from 
20 acres to 5 acres) for the requirement to implement a dust control 
program and obtain a surface area disturbance permit from NDEP.
    The January 12, 2006 SIP submittal contained multiple versions of 
the two visible emissions rules, NAC 445B.22017 and 445B.2202, 
reflecting the contingent effective dates adopted by the State 
Environmental Commission for amendments to these rules. The amendments 
adopted by the commission (but made effective at an indefinite future 
date) removed an exemption to the application of the opacity limit that 
we otherwise would have found unapprovable. In adopting the amendments 
to the rules (and associated contingent effective dates), the State 
Environmental Commission committed to publishing a notice when the 
amendments (removing the unapprovable exemption) become effective. On 
April 1, 2006, the State Environmental Commission issued such a notice 
and thus the unobjectionable (and approvable) versions of the two 
visible emissions rules are now in effect and form the basis for our 
proposed action on these rules herein.
    2. NAQR Article 16.3.3.1 (Opacity from kilns). Based on our 
findings above concerning the two visible emissions rules, i.e., NAC 
445B.22017 and NAC 445B.2202, we find retention of NAQR Article 
16.3.3.1 (Opacity from kilns) in the SIP to be unnecessary and thus we 
propose to approve NDEP's request for rescission of that rule.
    3. NAC 445B.2203 (Emissions of particulate matter: Fuel-burning 
equipment) and NAC 445B.22033 (Emissions of particulate matter: Sources 
not otherwise limited). These submitted rules contain the same basic 
emissions limits and exemptions as the corresponding current applicable 
SIP rules, but the limits in the submitted rules apply to 
``PM10'' as opposed to ``particulate matter.'' 
``PM10'' refers to particles with diameters equal to or less 
than a nominal 10 microns and is the basis for a NAAQS, while 
``particulate matter'' (PM) refers more inclusively to

[[Page 10963]]

any material (except uncombined water) that exists in a finely divided 
form as a liquid or solid at reference conditions. Thus, except for 
sources whose ``PM'' consists only of particles of a size that are 
``PM10'', simple replacement of ``PM'' with 
``PM10'' without any downward adjustment in the formula that 
establishes the allowable emission limit represents a relaxation in the 
limit with respect to PM10 emissions.
    Given the hypothetical nature of this relaxation, we reviewed in 
detail the permit conditions for four major sources to determine 
whether the change from PM to PM10 in the allowable limit 
would in effect result in an increase in PM10 emissions. Based on this 
review and for a variety or reasons, we have determined that no such 
increase would occur. For certain emission units at these sources, the 
PM emissions subject to NAC 445.731 and/or 445.732 are comprised 
entirely of particles that are also PM10. For certain other 
emissions units, the potentials to emit are less than the allowable 
limits under either the existing SIP rules NAC 445.731 and 445.732 or 
the submitted rules NAC 445B.2203 or 445B.22033. Lastly, other 
emissions sources are subject to other federally enforceable emission 
limits (e.g., limits established under PSD requirements or NSPS) that 
would be unaffected by our action proposed herein and that are more 
stringent, in some cases by an order of magnitude, than the allowable 
limits under either the existing SIP rules or submitted rules. 
Therefore, we have determined that replacement of the existing SIP 
rules NAC 445.731 and NAC 445.732 with submitted rules NAC 445B.2203 
and NAC 445B.22033 would not interfere with attainment or maintenance 
of the NAAQS for the purposes of CAA section 110(l).
    Because submitted rules NAC 445B.2203 and 445B.22033 would apply to 
a major stationary source (Sunrise power plant) in the Las Vegas 
PM10 nonattainment area, we reviewed these two submitted 
rules for compliance with applicable nonattainment area requirements in 
part D of title I of the Act. Based on review of the EPA-approved 
PM10 attainment plan for Las Vegas Valley, we have concluded 
that neither NAC 445B.2203 nor 445B.22033 need be made more stringent 
at this time to meet nonattainment planning requirements although the 
rules may need to be revised if we determined that Las Vegas Valley has 
failed to meet the 2006 attainment date for the PM10 NAAQS. 
We also have concluded that approval of NAC 445B.2203 and 445B.22033 
would be consistent with CAA section 193 because the Sunrise power 
plant normally runs on natural gas and all of the PM generated using 
natural gas is also PM10. The same is true for the cooling 
tower at the Sunrise power plant. Thus, approval of NAC 445B.2203 and 
445B.22033 would not result in an increase in PM10 emissions 
which otherwise would have been required to be offset by equivalent 
emissions reductions to satisfy CAA section 193.
    4. NAC 445.535, Kilogram-calorie. This rule is one of the current 
applicable SIP rules for which NDEP requested rescission in its January 
12, 2006 SIP revision submittal. NAC 445.535 defines a measurement unit 
used in current applicable SIP rule NAC 445.731, which would be 
superseded in the applicable SIP if we finalize our proposed approval 
of submitted rule NAC 445B.2203. As such, we find that retention of NAC 
445.535 in the applicable SIP is unnecessary, and as such, we propose 
to approve NDEP's request for rescission of NAC 445.535 from the 
applicable SIP.

C. EPA Recommendations To Further Improve the Regulations

    In connection with NAC 445B.22017, an amended rule for which we are 
proposing approval herein, we note that the term ``6-minute period'' is 
used [see NAC 445B.22017(3)] and that the term ``six-minute period'' is 
specifically defined in NAC 445B.172, a provision that has not been 
submitted to EPA for approval. Assuming that ``6-minute period'' is 
intended to be the same as ``six-minute period'' as defined in NAC 
445B.172, NDEP should submit NAC 445B.172 to EPA for approval into the 
applicable SIP to assure correct and consistent interpretation of NAC 
445B.22017(3).

D. Proposed Action and Public Comment

    Pursuant to section 110(k)(3) of the Act and for the reasons set 
forth above, EPA is proposing approval of the following provisions 
submitted to EPA on January 12, 2006:
     NAC 445B.22017 (Visible emissions: Maximum opacity; 
determination) (effective April 1, 2006),
     NAC 445B.2202 (Visible emissions: Exceptions for 
stationary sources) (effective April 1, 2006),
     NAC 445B.22027 (Emissions of particulate matter: Maximum 
allowable throughput for calculating emissions rates),
     NAC 445B.2203 (Emissions of particulate matter: Fuel-
burning equipment),
     NAC 445B.22033 (Emissions of particulate matter: Sources 
not otherwise limited), and
     NAC 445B.22037 (Emissions of particulate matter: Fugitive 
dust).
    Based on our proposed approval of these submitted rules, we are 
also proposing to approve the State's request to rescind NAQR Article 
16.3.3.1 (Opacity from kilns) and NAC 445.535 (Kilogram-calorie). If 
finalized as proposed, this action would incorporate the six submitted 
rules into the federally-enforceable SIP \4\ and rescind NAQR Article 
16.3.3.1 and NAC 445.535 therefrom.
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    \4\ Final approval of these rules would supersede the following 
rules in the applicable SIP (superseding rule shown in parentheses) 
when sources come into compliance with the new rule: NAC 445.721 
(NAC 445B.22017); NAQR Article 4.3, 4.3.1, 4.3.2, 4.3.3 and 4.3.5 
(NAC 445B.2202); NAC 445.731 (NAC 445B.2203), NAC 445.732 (NAC 
445B.22033), and NAC 445.734 (NAC 445B.22037). NAC 445.729 would not 
be superseded by the corresponding submitted rule NAC 445B.22027 
because the former is relied upon by certain SIP rules (e.g., NAC 
445.730) that are being retained in the SIP.
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    We will accept comments from the public on this proposed approval 
for the next 30 days.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
action merely proposes to approve state rules as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by State law, it 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).
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and

[[Page 10964]]

Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed 
action also does not have Federalism implications because it does not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely proposes to approve state rules implementing a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. This proposed rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does 
not impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

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

    Dated: February 15, 2007.
Wayne Nastri,
Regional Administrator, Region IX.
 [FR Doc. E7-4428 Filed 3-9-07; 8:45 am]

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