[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11560-11564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6778]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[OH78-2-7116; FRL-5440-4]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Ohio
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: The USEPA is approving the Ohio Environmental Protection
Agency's (OEPA) request for redesignation of Clinton County, Ohio from
transitional ozone nonattainment to attainment. The USEPA is also
approving the maintenance plan and emissions inventory for Clinton
County as a revision to Ohio's State Implementation Plan (SIP) for
ozone. Clinton County's monitoring data shows that it is already
meeting the ozone air quality standard. In addition, in order to meet
USEPA redesignation requirements the State must continue to maintain
the ozone National Ambient Air Quality Standards for at least ten years
after the redesignation, or the year 2006. Thus, the State has
developed a maintenance plan which includes specific contingency
measures to assure continued compliance with the ozone air quality
standard. Any monitored violation in Clinton County will trigger these
contingency measures to reduce ozone levels. In addition, an ambient
air monitor will remain in operation to verify future attainment status
of the area.
EFFECTIVE DATE: This final rule is effective on March 21, 1996.
ADDRESSES: Copies of the redesignation request, public comments on the
rulemaking, and other materials relating to this rulemaking are
available for inspection at the following address: (It is recommended
that you telephone Fayette Bright at (312) 886-6069, before visiting
the Region 5 Office.) United States Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard (AR-
18J), Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Fayette Bright, Air Programs Branch,
Regulation Development Section (AR-18J), United States Environmental
Protection Agency, Region 5, Chicago, Illinois 60604, (312) 886-6069.
SUPPLEMENTARY INFORMATION:
I. Background
On November 15, 1994, the OEPA submitted to the USEPA a request for
redesignation of Clinton County, Ohio from transitional nonattainment
1 to attainment for ozone, and a maintenance plan designed to
assure continued attainment of the national ambient air quality
standards for ozone in the Clinton County area. On February 24, 1995,
the OEPA submitted additional information to the USEPA regarding the
State public hearing and responses to public comments received
regarding the redesignation and the maintenance plan. The redesignation
request was supported by technical information demonstrating that the
requirements of Section 107(d)(3)(E) of the Clean Air Act (Act) were
met. On May 5, 1995, a document was published in the Federal Register
(60 FR 22337) which proposed approval of the redesignation request the
maintenance plan, and the emissions inventory.
\1\ As stated in the proposed rule, Clinton County did not
experience a violation during the three year period from January 1,
1987 through December 31, 1989. Therefore, pursuant to Section
185(A) of the Clean Air Act, it was designated a transitional
nonattainment area for ozone. Under this classification, the
requirements of Subpart 2 of Part D of Title 1 of the CAA for ozone
nonattainment areas were suspended for Clinton County until December
31, 1991. See 60 FR 22337 (May 5, 1995). After December 31, 1991,
the requirements were no longer suspended, however, Subpart 2 did
not contain any new requirements that would apply to a transitional
area that was not classified under Section 181(a) as marginal or
above.
[[Page 11561]]
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II. Summary of Proposed Rulemaking
The proposed rulemaking detailed how the State submittal fulfilled
the redesignation requirements of the Act. Specifically, Section
107(d)(3)(E) of the Act provides for redesignation if: (i) The
Administrator determines that the area has attained the National
Ambient Air Quality Standards (NAAQS); (ii) the Administrator has fully
approved the applicable implementation plan for the area under Section
110(k); (iii) the Administrator determines that the improvement in air
quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable implementation plan and
applicable Federal air pollutant control regulations and other
permanent and enforceable reductions; (iv) the Administrator has fully
approved a maintenance plan for the area as meeting the requirements of
Section 175(A); (v) the State containing such area has met all
requirements applicable to the area under Section 110 and Part D. The
USEPA also provided guidance on redesignation in the General Preamble
for the Implementation of Title I of the Clean Air Act Amendments of
1990, 57 FR 13498 (April 16, 1992), supplemented at 57 FR 18070 (April
28, 1992) and in three key memoranda which were cited in the May 5,
1995 Federal Register notice. See 60 FR 22337. The following discussion
expands and clarifies the analysis made in the proposed rule as to how
the State has fulfilled the Act's redesignation requirements for
Clinton County.
A. The Area Must Have Attained the Ozone NAAQS.
There is a 2-step process to determining whether an area has
violated the ozone NAAQS which both tallies the number of monitored
exceedances and accounts for any time the monitor was not operating or
operating improperly. The first step is to determine the number of
expected exceedances for each year of the last three years from each
monitoring site. The second step is to determine the area's average
expected exceedance rate over the most recent three year period.
Pursuant to 40 C.F.R. 50.9, this rate cannot exceed 1.0.
The OEPA submitted monitoring data for Clinton County for the years
1977 through 1994. The monitor recorded 5 exceedances of the ozone
NAAQS in 1983. This resulted in an average expectant exceedance rate of
greater than 1.0. Consequently, Clinton County was found to be in
violation of the NAAQS. On November 15, 1990, Clinton County retained
its nonattainment designation and was classified as a transitional area
based on monitoring data for 1987, 1988 and 1989. Clinton County
exceeded the NAAQS for ozone for the years 1988, 1989, and 1993, during
which there were only single exceedances during each of these years. In
addition, monitoring data shows that no exceedances were monitored
during 1995. Because Clinton County had only one exceedance during the
last three years of complete monitoring data (1993-1995), the average
expected exceedance rate is 0.33 per year, which falls below the
average expected exceedance rate of 1.0. Thus, Clinton County currently
meets the ozone NAAQS and has been in attainment since 1986.
B. The Area Must Have a Fully Approved State Implementation Plan (SIP)
Under Section 110(k)
Because Clinton County is classified as a transitional area for
ozone, it is only required to submit an emissions inventory as a SIP
revision.\2\ This final rulemaking also approves the emissions
inventory for the Clinton County area which has been included as part
of the maintenance plan.\3\ Consequently, the area has satisfied the
second requirement.
\2\ September 4, 1992 memorandum issued by John Calcagni,
Director, Air Quality Management Division, entitled ``Procedures for
Processing Requests to Attainment''.
\3\ The September 4, 1992 memorandum issued by John Calcagni,
Director, Air Quality Management Division, entitled, ``Procedures
for Processing Requests to Attainment,'' allows approval action on
the SIP elements and the redesignation request to occur
simultaneously.
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C. The Improvement in Air Quality Must Be Due to Permanent and
Enforceable Reductions in Emissions Resulting From Implementation of
the SIP and Applicable Federal Air Pollutant Control Regulations and
Other Permanent and Enforceable Reductions
The State of Ohio did not rely on new SIP measures to meet this
requirement because there were no new emission reduction programs
required by the CAA to be approved into the SIP. Instead, the State
demonstrated that the improvement in air quality was due to the Federal
Motor Vehicle Emissions Control Program (FMVCP) required at 40 Code of
Federal Regulations (CFR) Part 86 and the lower fuel volatility
requirements at 40 CFR Part 80. Both of these requirements are
permanent measures enforceable by the Federal government.
The State has also shown that in Clinton County, actual total VOC
emissions were reduced by approximately two (2) tons per day from 1990
to 1993. The State attributes these results exclusively to reductions
in mobile source emissions. The mobile source emission reductions were
the result of the lower fuel volatility program and the FMVCP.
Consequently, the third requirement has also been met.
D. The Area Must Have a Fully Approved Maintenance Plan Meeting the
Requirements of Section 175(A)
The OEPA has met the applicable requirements by submitting a
maintenance plan consisting of emission inventories for area, point,
and mobile sources of Volatile Organic Compounds (VOC), Nitrogen Oxides
(NOX), and Carbon Monoxide (CO) emissions. This maintenance plan
also includes a contingency plan with defined measures to be
implemented in accordance with a specified schedule, as presented in
Section II. D of the May 5, 1995 proposed rule. Additionally, any
monitored violation in Clinton County would also trigger contingency
measures in the counties comprising the Cincinnati moderate
nonattainment area. (The State has also developed rules and an
implementation plan to place a program in operation in the event a
violation in any of these areas occur).
The current RVP requirement in the State of Ohio is 9.0 pounds per
square inch (psi).\4\ There is a 1 psi waiver available for retailers
and blenders who use ethanol as an octane enhancer/additive. This
waiver would still be available with the State's low-RVP program in the
event it is implemented. The low-RVP program and other measures on
Ohio's list of contingency measures are new measures that are not
currently in place in the area.
\4\ Federal RVP requirements are found at 40 CFR Section 80.27.
As of the summer of 1992, gasoline RVP could not exceed 9.0 psi
during the months of May through September. There is a special
provision for fuels blended to a 10 volume percent ethanol. The
provision allows the RVP to exceed 9.0 psi up to 10.0 psi.
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E. The Area Must Have Met All Applicable Requirements Under Section 110
and Part D
Ohio has also met this requirement, as detailed in a discussion in
the May 5, 1995 Federal Register proposed approval of the redesignation
request at 60 FR 22343.
The proposed rulemaking also presented summary tables of VOC
emissions, CO emissions, and NOX emissions projections for Clinton
County. The tables for VOC and NOX are presented below.
[[Page 11562]]
Summary of VOC Emissions (tons/day)
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1990 base 1993 attain 1996 proj. 1999 proj. 2002 proj. 2006 proj.
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Point....................... 0.0 0.0 0.0 0.0 0.0 0.0
Area........................ 11.3 11.33 11.36 11.39 11.42 11.47
Mobile...................... 5.04 3.27 2.82 2.80 2.31 2.42
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Totals................ 16.34 14.60 14.18 14.19 13.73 13.89
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Summary of NOX Emissions (tons/day)
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1990 base 1993 attain 1996 proj. 1999 proj. 2002 proj. 2006 proj.
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Point....................... 0.0 0.0 0.0 0.0 0.0 0.0
Area........................ 1.62 1.63 1.64 1.64 1.65 1.66
Mobile...................... 4.80 4.19 3.69 3.65 3.13 3.25
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Totals................ 6.42 5.82 5.33 5.29 4.78 4.91
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The VOC and NOX emissions projected for the year 2006 in the
above tables are considered emission budgets for purposes of
transportation conformity. Section 176 of the CAA sets forth the
requirement that the federal government and metropolitan planning
organizations may not support transportation activities that do not
conform to the purpose of the SIP. This is generally known as
``transportation conformity.'' In the Maintenance Plan portion of the
SIP an emissions budget is established for certain areas. This budget
is the amount of emissions that the area must remain below in order to
maintain the ozone standard. Clinton County is designated as a
transitional nonattainment area that is generally downwind of the
Cincinnati Metropolitan area. The Clinton County area does not have any
major stationary sources of emissions and is considered a relatively
small source of emissions. In addition, the last violation of the ozone
NAAQS in Clinton County occurred in 1983.
Public Comment/USEPA Response
In response to USEPA's request for written comments on the proposed
rulemaking, USEPA received comments from the Miami Group of the Ohio
Chapter of the Sierra Club (the Miami Group). The Miami Group submitted
comments regarding the redesignation of both the Cincinnati and the
Clinton County areas.\5\ Because this final rulemaking only addresses
the redesignation of the Clinton County area, the following discussion
summarizes and responds only to the Miami Group's comments insofar as
they concerned the redesignation of the Clinton County area. USEPA will
respond to the Miami Group's comments regarding the redesignation of
the Cincinnati area in any final rulemaking regarding the redesignation
of the Cincinnati area.
\5\ USEPA's proposed rule in the May 5, 1995 Federal Register
notice at 60 FR 22343 addressed OEPA's request for both the
redesignation of the Ohio portion of the Cincinnati area and the
Clinton County area.
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Comment: The area has not yet proven that it has attained the
NAAQS. The NAAQS for ozone are not fully protective of the public
health and the environment. The area has reached attainment previously
only to be followed by violations. Additionally, the ozone monitoring
network may be insufficient and no consideration is given to downwind
areas.
Response: The current ozone standard was set to protect public
health. The OEPA has shown that the Clinton County area meets the
NAAQS, as described in both this final rulemaking and in the proposed
rulemaking published on May 5, 1995. In addition, the ozone monitoring
network has been determined by USEPA, to be representative of ambient
air concentrations of ozone in the Clinton County area. In addition,
the monitoring network will remain in operation after the redesignation
to attainment to verify the future attainment status of the area.
Finally, as stated in the proposed rule, the USEPA intends to
address the transport or downwind area issue through Section 110 of the
Act, based on a domain-wide modeling analysis. The domain-wide modeling
analysis involves modeling the eastern portion of the United States in
an effort to better understand what is needed in this region to reduce
the amount of transported ozone and ozone precursors such as volatile
organic compounds and oxides of nitrogen, so that the ozone NAAQS can
be achieved in all areas across the region. Section 110 of the CAA
requires that SIPs contain adequate provisions to prohibit sources or
emissions activities within the State from contributing to
nonattainment, or interfering with maintenance in any other state with
respect to the NAAQS. USEPA expects to use its authority under the CAA
to require states to revise their SIPs to meet this requirement.
Comment: The improvement in air quality is not due to permanent and
enforceable reductions in emissions. The lack of violations of the
ozone NAAQS may be due to voluntary controls. Increasing vehicle miles
travelled will result in increasing emissions, offsetting reductions
from the removal of older vehicles. There are inconsistencies in the
Vehicle Miles Traveled (VMT) and growth projections between the SIP,
the Transportation Improvement Program (TIP), and the redesignation
request.
Response: The State reasonably attributed improvement in air
quality to be primarily due to two Federal programs: the FMVCP and the
lower Reid Vapor Pressure (RVP) program, both of which are permanent
and Federally enforceable. The transportation projections were
calculated using methods consistent with USEPA guidance. The
differences in VMT growth projections are slight and do not affect the
approval of the redesignation package. The year 2006 total VOC emission
totals as detailed in this rulemaking set the budget for transportation
conformity purposes. While VMT is increasing in Clinton County, the
vehicles in the area are producing less pollution per vehicle due to
the FMVCP. This offsets the growth in VMT and results in less pollution
from the mobile sources sector. Emissions projections using USEPA's
mobile emissions model to estimate vehicle emissions combined with the
VMT projections for Clinton County confirm this conclusion.
Comment: The transportation modeling and emission analysis is
flawed and makes it impossible for the maintenance plan to succeed.
Changes in VMT brought about by changes in highway systems or land
development have not been adequately addressed.
Response: The approach used to estimate mobile source emissions is
reasonable and in accordance with USEPA guidance. The Mobile 5a model
[[Page 11563]]
is the appropriate model to use to predict emission factors which can
be applied to VMT to obtain emission projections. Additionally, mobile
source inventories will be updated at least once every three years to
incorporate new VMT estimates and revised USEPA mobile emission models.
Comment: If the area is redesignated to attainment, stationary
sources will be allowed to grow uncontrolled.
Response: Currently, no major sources are located in the Clinton
County area. Any major new sources located in this area would be
subject to Prevention of Significant Deterioration (PSD) requirements
at 40 C.F.R. Sec. 52.21. These regulations require major new sources
and major modifications of existing sources to use Best Available
Control Technology (BACT). In addition, any allowable emission
increases from such new construction could not cause or contribute to
air pollution in the area. The maintenance plan prepared for Clinton
County also relies on contingency measures to correct any future
violations. These contingency measures would be implemented in the
event the standard is violated.
Comment: The contingency plan is based on insufficient control
measures and the implementation schedule is too long.
Response: The contingency plan is adequate. It contains 12 possible
measures. Moreover, it is not limited to the list of 12 measures in the
submittal. For example, the State may select other control measures
based on cost-effectiveness, VOC reduction potential, economic and
social consideration, or other factors. The implementation schedule
calls for a VOC control program to be implemented as expeditiously as
possible and to be in place no later than 12 months from the
verification that a violation of the ozone National Ambient Air Quality
Standards (NAAQS) has occurred. USEPA believes that this schedule
satisfies the requirement of section 175A that contingency measures
promptly correct any violations and is consistent with schedules
contained in numerous other maintenance plans approved by USEPA.
Comment: The Long Range Plan contains emission projections which
are insupportable.
Response: Ohio demonstrated that by considering the growth in the
area (including VMT growth) and present controls on existing emission
sources, emissions will remain below the attainment year inventory
through the year 2006. In projecting mobile source emissions, Ohio
obtained VMT based on the TRANPLAN Model which uses traffic counting
data for the year 1990. To forecast VMT to the year 2006, Ohio used
growth parameters based on modeling of the Long Range Transportation
Plan (future highway network). This modeling process incorporated
population growth estimates from Ohio Data Users Center, employment
forecasts, and other forecasts regarding socio-economic data. USEPA
considers the methodology which was used to project emissions to be
reasonable.
III. Rulemaking Action
Clinton County, which is located to the northeast of the City of
Cincinnati, is being redesignated from transitional nonattainment to
attainment for ozone. In the proposed rulemaking published on May 5,
1995, USEPA detailed how the Clinton County portion of the submittal
met the redesignation requirements of Section 107(d)(3)(E). See 60 FR
22337.
USEPA received comments pertaining to the proposed rulemaking. The
comments were considered and responses were detailed in the above
section of this notice. The USEPA believes that the redesignation
requirements of Section 107(d) are satisfied and is taking final action
to approve the request for redesignation to attainment and to approve
the maintenance plan and emissions inventory for Clinton County, Ohio.
USEPA finds that there is good cause for this redesignation,
maintenance plan and emissions inventory to become effective
immediately upon publication because a delayed effective date is
unnecessary due to the nature of a redesignation to attainment, which
exempts the area from certain Act requirements that would otherwise
apply to it. The immediate effective date for this redesignation,
maintenance plan and emissions inventory is authorized under both 5
U.S.C. 553(d)(1), which provides that rulemaking actions may become
effective less than 30 days after publication if the rule ``grants or
recognizes an exemption or relieves a restriction'' and section
553(d)(3), which allows an effective date less than 30 days after
publication ``as otherwise provided by the agency for good cause found
and published with the rule.''
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. USEPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995
memorandum from Mary D. Nichols, Assistant Administrator for Air and
Radiation. The Office of Management and Budget has exempted this
regulatory action from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, USEPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000. Redesignation of an area to attainment under section
107(d)(3)(E) of the Act does not impose any new requirements on small
entities. Redesignation is an action that affects the status of a
geographical area and does not impose any regulatory requirements on
sources. The Administrator certifies that the approval of the
redesignation request will not affect a substantial number of small
entities. SIP approvals under section 110 and subchapter I, Part D of
the Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, the
Administrator certifies that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
federal-state relationship under the Act, preparation of a regulatory
flexibility analysis would constitute federal inquiry into the economic
reasonableness of state action. The Act forbids USEPA to base its
actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,
USEPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to State,
local, or tribal governments in the aggregate.
Through submission of the state implementation plan or plan
revisions approved in this action, the State and any affected local or
tribal governments have elected to adopt the program
[[Page 11564]]
provided for under section 175A of the Clean Air Act. The rules and
commitments being proposed for approval in this action may bind State,
local and tribal governments to perform certain actions and also may
ultimately lead to the private sector being required to perform certain
duties. To the extent that the rules and commitments being proposed for
approval by this action will impose or lead to the imposition of any
mandate upon the State, local or tribal governments either as the owner
or operator of a source or as a regulator, or would impose or lead to
the imposition of any mandate upon the private sector, USEPA's action
will impose no new requirements; such sources are already subject to
these requirements under State law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, will
result from this action. The USEPA has also determined that this action
does not include a mandate that may result in estimated costs of $100
million or more to State, local, or tribal governments in the aggregate
or to the private sector.
Under Section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 20, 1996. 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 may not be challenged later in proceedings to enforce its
requirements. (See Section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental Protection, Air pollution control, Ozone, Nitrogen
oxides, Volatile organic compounds.
40 CFR Part 81
Air pollution control.
Dated: March 1, 1996.
Valdas V. Adamkus,
Regional Administrator.
Chapter 1, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.1885 is amended by adding paragraphs (b)(9) and (y)
to read as follows:
Sec. 52.1885 Control Strategy: Ozone.
* * * * *
(b) * * *
(9) Clinton County
* * * * *
(y) Approval--The 1990 base-year ozone emissions inventory
requirement of Section 182(a)(1) of the Clean Air Act has been
satisfied for Clinton County.
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES-
OHIO
1. The authority citation for part 81 continues to read as follows:
Authority: 42. U.S.C. 7401-7671q.
2. In Sec. 81.336 the ozone table is amended by revising the entry
for the Clinton County Area to read as follows:
Sec. 81.336 Ohio
* * * * *
Ohio--Ozone
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Designation Classification
Designated area ----------------------------------------------------------------------------------------------------------------------
Date\1\ Type Date Type
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* * * * * * *
Clinton County Area, Clinton March 21, 1996................. Attainment...............
County.
* * * * * * *
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\1\ This date is November 15, 1990 unless otherwise noted.
[FR Doc. 96-6778 Filed 3-20-96; 8:45 am]
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