[Federal Register Volume 67, Number 63 (Tuesday, April 2, 2002)]
[Rules and Regulations]
[Pages 15486-15489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7939]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[WV001-1000a; FRL-7166-6]


Approval of Section 112(l) Authority for Hazardous Air 
Pollutants; State of West Virginia; Department of Environmental 
Protection

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule and delegation.

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SUMMARY: EPA is taking direct final action to approve West Virginia 
Department of Environmental Protection's (WVDEP's) request for 
delegation of authority to implement and enforce its hazardous air 
pollutant regulations for perchloroethylene drycleaning facilities, 
hard and decorative chromium electroplating and chromium anodizing 
tanks, ethylene oxide sterilization facilities, halogenated solvent 
cleaning, and secondary lead smelting which have been adopted by 
reference from the Federal requirements set forth in the Code of 
Federal Regulations. This approval will automatically delegate future 
amendments to these regulations once WVDEP incorporates these 
amendments into its regulations. In addition, EPA is taking direct 
final action to approve of WVDEP's mechanism for receiving delegation 
of future hazardous air pollutant regulations. This mechanism entails 
WVDEP's incorporation by reference of the unchanged Federal standard 
into its hazardous air pollutant regulation and WVDEP's notification to 
EPA of such incorporation. EPA is not waiving its notification and 
reporting requirements under this approval; therefore, sources will 
need to send notifications and reports to both WVDEP and EPA. This 
action pertains only to affected sources, as defined by the Clean Air 
Act's (CAA's or the Act's) hazardous air pollutant program, which are 
not located at major sources, as defined by the Act's operating permit 
program. The WVDEP's request for delegation of authority to implement 
and enforce its hazardous air pollutant regulations at affected sources 
which are located at major sources, as defined by the Act's operating 
permit program, was initially approved on March 19, 2001. EPA is taking 
this action in accordance with the CAA.

DATES: This direct final rule will be effective June 3, 2002, unless 
EPA receives adverse or critical comments by May 2, 2002. If adverse 
comment is received, EPA will publish a timely withdrawal of the rule 
in the Federal Register and inform the public that the rule will not 
take effect.

ADDRESSES: Written comments on this action should be sent concurrently 
to: Makeba A. Morris, Chief, Permits and Technical Assessment Branch, 
Mail Code 3AP11, Air Protection Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, and 
John A. Benedict, West Virginia Department of Environmental Protection, 
Division of Air Quality, 7012 MacCorkle Avenue, SE, Charleston, WV 
25304-2943. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103 and the West 
Virginia Department of Environmental Protection, Division of Air 
Quality, 7012 MacCorkle Avenue, SE, Charleston, WV 25304-2943.

FOR FURTHER INFORMATION CONTACT: Dianne J. McNally, U.S. Environmental 
Protection Agency, Region 3, 1650 Arch Street (3AP11), Philadelphia, PA 
19103-2029, [email protected] (telephone 215-814-3297). Please 
note that any formal comments must be submitted, in writing, as 
provided in the ADDRESSES section of this document.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 112(l) of the Act and 40 Code of Federal Regulations (CFR) 
part 63, subpart E authorize EPA to approve of State rules and programs 
to be implemented and enforced in place of certain CAA requirements, 
including the National Emission Standards for Hazardous Air Pollutants 
set forth at 40 CFR part 63. EPA promulgated the program approval 
regulations on November 26, 1993 (58 FR 62262) and subsequently amended 
these regulations on September 14, 2000 (65 FR 55810). An approvable 
State program must contain, among other criteria, the following 
elements:
    (a) A demonstration of the state's authority and resources to 
implement and enforce regulations that are at least as stringent as the 
NESHAP requirements;
    (b) a schedule demonstrating expeditious implementation of the 
regulation; and
    (c) a plan that assures expeditious compliance by all sources 
subject to the regulation.
    On November 18, 1999, WVDEP submitted to EPA a request to receive 
delegation of authority to implement and enforce the hazardous air 
pollutant regulations for the affected sources defined in 40 CFR part 
63. On March 19, 2001, WVDEP received delegation of authority to 
implement all emission standards promulgated in 40 CFR part 63, as they 
apply to major sources, as defined by 40 CFR part 70. On June 15, 2001, 
WVDEP supplemented their November 18, 1999 request with information 
necessary to address delegation of the hazardous air pollutant 
regulations for affected sources which are not located at major 
sources, as defined by 40 CFR part 70. At the present time, the 
delegation request pertaining to affected sources which are not located 
at major sources, as defined by 40 CFR part 70, includes the 
regulations for perchloroethylene drycleaning facilities, hard and 
decorative chromium electroplating and chromium anodizing tanks, 
ethylene oxide sterilization facilities, halogenated solvent cleaning, 
and secondary lead smelting which have been adopted by reference from 
the Federal requirements set forth in 40 CFR part 63, subparts M, N, O, 
T, and X, respectively. The WVDEP also requested that EPA automatically 
delegate future amendments to these regulations and approve WVDEP's 
mechanism for receiving delegation of future hazardous air pollutant 
regulations which it adopts unchanged from the Federal requirements. 
This mechanism entails WVDEP's incorporation by reference of the 
unchanged Federal standard into its regulation for hazardous air 
pollutant sources at 45CSR34 and WVDEP's notification to EPA of such 
incorporation.

II. EPA's Analysis of WVDEP's Submittal

    Based on WVDEP's program approval request and its pertinent laws 
and regulations, EPA has determined that

[[Page 15487]]

such an approval is appropriate in that WVDEP has satisfied the 
criteria of 40 CFR 63.91. In accordance with 40 CFR 63.91(d)(3)(i), 
WVDEP submitted a written finding by the State Attorney General which 
demonstrates that the State has the necessary legal authority to 
implement and enforce its regulations, including the enforcement 
authorities which meet 40 CFR 70.11, the authority to request 
information from regulated sources and the authority to inspect sources 
and records to determine compliance status. In accordance with 40 CFR 
63.91(d)(3)(ii), West Virginia submitted copies of its statutes, 
regulations and requirements that grant authority to WVDEP to implement 
and enforce the regulations. In accordance with 40 CFR 
63.91(d)(3)(iii)-(v), WVDEP submitted documentation of adequate 
resources and a schedule and plan to assure expeditious State 
implementation and compliance by all sources. Therefore, the WVDEP 
program has adequate and effective authorities, resources, and 
procedures in place for implementation and enforcement of sources 
subject to the requirements of 40 CFR part 63, subparts M, N, O, T, and 
X, as well as any future emission standards, should WVDEP seek 
delegation for these standards. The WVDEP adopts the emission standards 
promulgated in 40 CFR part 63 into the State regulation for hazardous 
air pollutant sources found at 45CSR34. The WVDEP has the primary 
authority and responsibility to carry out all elements of these 
programs for all sources covered in West Virginia, including on-site 
inspections, record keeping reviews, and enforcement.

III. Terms of Program Approval and Delegation of Authority

    In order for WVDEP to receive automatic delegation of future 
amendments to the perchloroethylene drycleaning facilities, hard and 
decorative chromium electroplating and chromium anodizing tanks, 
ethylene oxide sterilization facilities, halogenated solvent cleaning, 
and secondary lead smelting regulations, as they apply to facilities 
that are not located at major sources, as defined by 40 CFR part 70, 
each amendment must be legally adopted by the State of West Virginia. 
As stated earlier, these amendments are adopted into West Virginia's 
regulation for hazardous air pollutant sources at 45CSR34. The 
delegation of amendments to these rules will be finalized on the 
effective date of the legal adoption. The WVDEP will notify EPA of its 
adoption of the Federal regulation amendments.
    EPA has also determined that WVDEP's mechanism for receiving 
delegation of future hazardous air pollutant regulations which it 
adopts unchanged from the Federal requirements, as they apply to 
facilities that are not located at major sources, as defined by 40 CFR 
part 70, is approvable. This mechanism requires WVDEP to adopt the 
Federal regulation into its regulation for hazardous air pollutant 
sources at 45CSR34. The delegation will be finalized on the effective 
date of the legal adoption. The WVDEP is also required to notify EPA of 
its adoption of the Federal regulation. The official notice of 
delegation of additional emission standards will be published in the 
Federal Register. As noted earlier, WVDEP's program to implement and 
enforce all emission standards promulgated under 40 CFR part 63, as 
they apply to major sources, as defined by 40 CFR part 70, was 
previously approved on March 19, 2001.
    The notification and reporting provisions in 40 CFR part 63 
requiring the owners or operators of affected sources to make 
submissions to the Administrator shall be met by sending such 
submissions to WVDEP and EPA Region III.
    If at any time there is a conflict between a WVDEP regulation and a 
Federal regulation, the Federal regulation must be applied if it is 
more stringent than that of WVDEP. EPA is responsible for determining 
stringency between conflicting regulations. If WVDEP does not have the 
authority to enforce the more stringent Federal regulation, it shall 
notify EPA Region III in writing as soon as possible, so that this 
portion of the delegation may be revoked.
    If EPA determines that WVDEP's procedure for enforcing or 
implementing the 40 CFR part 63 requirements is inadequate, or is not 
being effectively carried out, this delegation may be revoked in whole 
or in part in accordance with the procedures set out in 40 CFR 
63.96(b).
    Certain provisions of 40 CFR part 63 allow only the Administrator 
of EPA to take further standard setting actions. In addition to the 
specific authorities retained by the Administrator in 40 CFR 63.90(d) 
and the ``Delegation of Authorities'' section for specific standards, 
EPA Region III is retaining the following authorities, in accordance 
with 40 CFR 63.91(g)(2)(ii):
    (1) Approval of alternative non-opacity emission standards, e.g., 
40 CFR 63.6(g) and applicable sections of relevant standards;
    (2) Approval of alternative opacity standards, e.g., 40 CFR 
63.9(h)(9) and applicable sections of relevant standards;
    (3) Approval of major alternatives to test methods, as defined in 
40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(ii) and (f) and applicable 
sections of relevant standards;
    (4) Approval of major alternatives to monitoring, as defined in 40 
CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable sections of relevant 
standards; and
    (5) Approval of major alternatives to recordkeeping and reporting, 
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.10(f) and applicable 
sections of relevant standards.
    The following provisions are included in this delegation, in 
accordance with 40 CFR 63.91(g)(1)(i), and can only be exercised on a 
case-by-case basis. When any of these authorities are exercised, WVDEP 
must notify EPA Region III in writing:
    (1) Applicability determinations for sources during the title V 
permitting process and as sought by an owner/operator of an affected 
source through a formal, written request, e.g., 40 CFR 63.1 and 
applicable sections of relevant standards \1\;
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    \1\ Applicability determinations are considered to be nationally 
significant when they: (i) Are unusually complex or controversial; 
(ii) have bearing on more than one state or are multi-Regional; 
(iii) appear to create a conflict with previous policy or 
determinations; (iv) are a legal issue which has not been previously 
considered; or (v) raise new policy questions and shall be forwarded 
to EPA Region III prior to finalization. Detailed information on the 
applicability determination process may be found in EPA document 
305-B-99-004 How to Review and Issue Clean Air Act Applicability 
Determinations and Alternative Monitoring, dated February 1999. The 
WVDEP may also refer to the Compendium of Applicability 
Determinations issued by the EPA and may contact EPA Region III for 
guidance.
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    (2) Responsibility for determining compliance with operation and 
maintenance requirements, e.g., 40 CFR 63.6(e) and applicable sections 
of relevant standards;
    (3) Responsibility for determining compliance with non-opacity 
standards, e.g., 40 CFR 63.6(f) and applicable sections of relevant 
standards;
    (4) Responsibility for determining compliance with opacity and 
visible emission standards, e.g., 40 CFR 63.6(h) and applicable 
sections of relevant standards;
    (5) Approval of site-specific test plans \2\, e.g., 40 CFR 
63.7(c)(2)(i) and (d)

[[Page 15488]]

and applicable sections of relevant standards;
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    \2\ The WVDEP will notify EPA of these approvals on a quarterly 
basis by submitting a copy of the test plan approval letter. Any 
plans which propose major alternative test methods or major 
alternative monitoring methods shall be referred to EPA for 
approval.
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    (6) Approval of minor alternatives to test methods, as defined in 
40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(i) and applicable sections of 
relevant standards;
    (7) Approval of intermediate alternatives to test methods, as 
defined in 40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(ii) and (f) and 
applicable sections of relevant standards;
    (8) Approval of shorter sampling times/volumes when necessitated by 
process variables and other factors, e.g., 40 CFR 63.7(e)(2)(iii) and 
applicable sections of relevant standards;
    (9) Waiver of performance testing, e.g., 40 CFR 63.7 (e)(2)(iv), 
(h)(2), and (h)(3) and applicable sections of relevant standards;
    (10) Approval of site-specific performance evaluation (monitoring) 
plans \3\, e.g., 40 CFR 63.8(c)(1) and (e)(1) and applicable sections 
of relevant standards;
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    \3\ The WVDEP will notify EPA of these approvals on a quarterly 
basis by submitting a copy of the performance evaluation plan 
approval letter. Any plans which propose major alternative test 
methods or major alternative monitoring methods shall be referred to 
EPA for approval.
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    (11) Approval of minor alternatives to monitoring methods, as 
defined in 40 CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable 
sections of relevant standards;
    (12) Approval of intermediate alternatives to monitoring methods, 
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable 
sections of relevant standards;
    (13) Approval of adjustments to time periods for submitting 
reports, e.g., 40 CFR 63.9 and 63.10 and applicable sections of 
relevant standards; and
    (14) Approval of minor alternatives to recordkeeping and reporting, 
as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.10(f) and applicable 
sections of relevant standards.
    As required, WVDEP and EPA Region III will provide the necessary 
written, verbal and/or electronic notification to ensure that each 
agency is fully informed regarding the interpretation of applicable 
regulations in 40 CFR part 63. In instances where there is a conflict 
between a WVDEP interpretation and a Federal interpretation of 
applicable regulations in 40 CFR part 63, the Federal interpretation 
must be applied if it is more stringent than that of WVDEP. Written, 
verbal and/or electronic notification will also be used to ensure that 
each agency is informed of the compliance status of affected sources in 
West Virginia. The WVDEP will comply with all of the requirements of 40 
CFR 63.91(g)(1)(ii). Quarterly reports will be submitted to EPA by 
WVDEP to identify sources determined to be applicable during that 
quarter.
    Although WVDEP has primary authority and responsibility to 
implement and enforce the hazardous air pollutant general provisions 
and hazardous air pollutant emission standards for perchloroethylene 
drycleaning facilities, hard and decorative chromium electroplating and 
chromium anodizing tanks, ethylene oxide sterilization facilities, 
halogenated solvent cleaning, and secondary lead smelting, nothing 
shall preclude, limit, or interfere with the authority of EPA to 
exercise its enforcement, investigatory, and information gathering 
authorities concerning this part of the Act.

IV. Final Action

    EPA is approving WVDEP's request for delegation of authority to 
implement and enforce its hazardous air pollutant regulations for 
perchloroethylene drycleaning facilities, hard and decorative chromium 
electroplating and chromium anodizing tanks, ethylene oxide 
sterilization facilities, halogenated solvent cleaning, and secondary 
lead smelting which have been adopted by reference from 40 CFR part 63, 
subparts M, N, O, T, and X, respectively. This approval will 
automatically delegate future amendments to these regulations. In 
addition, EPA is approving of WVDEP's mechanism for receiving 
delegation of future hazardous air pollutant regulations which it 
adopts unchanged from the Federal requirements. This mechanism entails 
legal adoption by the State of West Virginia of the amendments or rules 
into WVDEP's regulation for hazardous air pollutant sources at 45CSR34 
and notification to EPA of such adoption. This action pertains only to 
affected sources, as defined by 40 CFR part 63, which are not located 
at major sources, as defined by 40 CFR part 70. The delegation of 
authority shall be administered in accordance with the terms outlined 
in section IV., above. This delegation of authority is codified in 40 
CFR 63.99. In addition, WVDEP's delegation of authority to implement 
and enforce 40 CFR part 63 emission standards at major sources, as 
defined by 40 CFR part 70, approved by EPA Region III on March 19, 
2001, is codified in 40 CFR 63.99.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial rule and anticipates no adverse 
comment because WVDEP's request for delegation of the hazardous air 
pollutant regulations pertaining to perchloroethylene drycleaning 
facilities, hard and decorative chromium electroplating and chromium 
anodizing tanks, ethylene oxide sterilization facilities, halogenated 
solvent cleaning, and secondary lead smelting and its request for 
automatic delegation of future amendments to these rules and future 
standards, when specifically identified, does not alter the stringency 
of these regulations and is in accordance with all program approval 
regulations. However, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve of WVDEP's request for delegation if adverse 
comments are filed. This rule will be effective on June 3, 2002, 
without further notice unless EPA receives adverse comment by May 2, 
2002. If EPA receives adverse comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

V. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this 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 approves 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

[[Page 15489]]

Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This 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 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 action also does not have Federalism 
implications because it does not 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 approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This 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 requests for rule approval under CAA section 112, EPA's role 
is to approve state choices, provided that they meet the criteria of 
the CAA. 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 requests for rule approval under CAA 
section 112 for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews a request for rule approval 
under CAA section 112, to use VCS in place of a request for rule 
approval under CAA section 112 that otherwise satisfies the provisions 
of the CAA. 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 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.).

B. Submission to Congress and the Comptroller General

    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 rule 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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 3, 2002. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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. 
This action, pertaining to the approval of WVDEP's delegation of 
authority for the hazardous air pollutant emission standards for 
perchloroethylene dry cleaning facilities, hard and decorative chromium 
electroplating and chromium anodizing tanks, ethylene oxide 
sterilizers, halogenated solvent cleaning, and secondary lead smelting 
(CAA section 112), may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Intergovernmental 
relations.

    Dated: March 21, 2002.
Judith M. Katz,
Director, Air Protection Division, Region III.

    40 CFR part 63 is amended as follows:

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

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

Subpart E--Approval of State Programs and Delegation of Federal 
Authorities

    2. Section 63.99 is amended by adding paragraph (a)(48) to read as 
follows:


Sec. 63.99  Delegated Federal authorities

    (a) * * *
    (48) West Virginia. (i) West Virginia is delegated the authority to 
implement and enforce all existing and future unchanged 40 CFR part 63 
standards at major sources, as defined in 40 CFR part 70, in accordance 
with the delegation agreement between EPA Region III and the West 
Virginia Department of Environmental Protection, dated March 19, 2001, 
and any mutually acceptable amendments to that agreement.
    (ii) West Virginia is delegated the authority to implement and 
enforce all existing 40 CFR part 63 standards and all future unchanged 
40 CFR part 63 standards, if delegation is sought by the West Virginia 
Department of Environmental Protection and approved by EPA Region III, 
at affected sources which are not located at major sources, as defined 
in 40 CFR part 70, in accordance with the final rule, dated April 2, 
2002, effective June 3, 2002, and any mutually acceptable amendments to 
the terms described in the direct final rule.

[FR Doc. 02-7939 Filed 4-1-02; 8:45 am]
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