[Federal Register Volume 84, Number 162 (Wednesday, August 21, 2019)]
[Rules and Regulations]
[Pages 43504-43508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17834]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2019-0164; FRL-9998-58-Region 2]
Approval of Air Quality Implementation Plans; New Jersey;
Determination of Attainment for the 1971 Sulfur Dioxide National
Ambient Air Quality Standard; Warren County Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a
determination that the New Jersey portion of the Northeast
Pennsylvania-Upper Delaware Valley Interstate Air Quality Control
Region (Warren County) Sulfur Dioxide (SO2) Nonattainment
Area has attained the 1971 SO2 primary and secondary
National Ambient Air Quality Standards (NAAQS). This action does not
constitute a redesignation to attainment. The Warren County
Nonattainment Area will remain nonattainment for the 1971 primary and
secondary NAAQS until the EPA determines that the Area meets the Clean
Air Act (CAA) requirements for redesignation to attainment, including
an approved maintenance plan. This action is being taken under the CAA.
DATES: This final rule is effective on September 20, 2019.
ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-R02-OAR-2019-0164. All documents in the docket are
listed on the www.regulations.gov website. Although listed in the
index, some information is not publicly available, e.g., confidential
business information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available through www.regulations.gov, or please contact the person
identified in the For Further Information Contact section for
additional availability information.
FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, (212) 637-3702, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The EPA designated all of Warren County, New Jersey as attainment
for the 1971 SO2 primary and secondary NAAQS on March 3,
1978 (43 FR 8962). On December 31, 1987 (52 FR 49408), the EPA
redesignated portions of Warren County as nonattainment for both the
primary and secondary 1971 SO2 NAAQS at the request of the
State of New Jersey (the State) to revise the air quality designation
for the area. EPA issued a minor correction to the redesignation on
March 14, 1988 (53 FR 8182).
The 1971 SO2 NAAQS consisted of two primary standards
for the protection of public health and one secondary standard for the
protection of public welfare. The primary SO2 NAAQS
addressed 24-hour average and annual average ambient SO2
concentrations. The secondary standard addressed 3-hour average ambient
SO2 concentrations. The level of the annual SO2
standard was 0.03 parts per million (ppm) (or 80 micrograms per cubic
meter ([mu]g/m\3\)) not to be exceeded in a calendar year. See 40 CFR
50.4(a). The level of the 24-hour standard was 0.14 ppm (or 365 [mu]g/
m\3\), not to be exceeded more than once per calendar year. See 40 CFR
50.4(b). The level of the secondary SO2 standard is a 3-hour
standard of 0.5 ppm (or 1300 [mu]g/m\3\), not to be exceeded more than
once per calendar year. See 40 CFR 50.5(a).
The EPA initially designated all of Warren County, which is part of
the Northeast Pennsylvania-Upper Delaware Valley Interstate Air Quality
Control Region (AQCR), as ``better than national standards'' (otherwise
known as ``attainment'') for the 1971 primary and
[[Page 43505]]
secondary SO2 NAAQS on March 3, 1978 (43 FR 8962). On April
30, 1986 and June 26, 1986, the New Jersey Department of Environmental
Protection (NJDEP) submitted a request to EPA to revise the air quality
designation for parts of Warren County from ``attainment'' to
``nonattainment'' with respect to the 1971 primary and secondary
SO2 NAAQS. The EPA revised the designations for those parts
of Warren County to ``does not meet standards'' (otherwise known as
``nonattainment'') based on the State's request under section 107 of
the CAA and the EPA's assessment of air dispersion screening modeling
performed by the NJDEP and others that showed portions of Warren County
were in violation of the SO2 NAAQS.
The December 31, 1987 nonattainment redesignation for Warren County
included the entire Townships of Harmony, Oxford, White, and Belvidere,
and portions of Liberty \1\ and Mansfield \2\ Townships. See 52 FR at
49411, 53 FR 8182, and 40 CFR 81.331. The remaining portion of Warren
County remained designated as attainment.
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\1\ Portions of Liberty south of UTM coordinate N4522 and West
of UTM E505 (See 53 FR 8182, March 14, 1988).
\2\ Portions of Mansfield west of UTM E505 (See 53 FR 8182,
March 14, 1988).
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New Jersey was required to submit an attainment SIP to the EPA by
May 15, 1992, i.e., within 18 months \3\ of November 15, 1990. The
Warren County Nonattainment Area was required to attain the
SO2 NAAQS within five years \4\ after November 15, 1990.
Therefore, the Warren County SO2 Nonattainment Area's
attainment date was November 15, 1995.
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\3\ CAA Sec. 191(b).
\4\ CAA Sec. 192(b).
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On June 14, 2018, the Center for Biological Diversity, Center for
Environmental Health, and Sierra Club (CBD) filed suit against the EPA
in the U.S. District Court for the Northern District of California
seeking to compel the EPA to, among other things, determine that New
Jersey had failed to submit a required SIP for the New Jersey portion
of the Northeast Pennsylvania-Upper Delaware Valley Interstate Air
Quality Control Region (part) nonattainment area, and amended that
complaint on December 17, 2018. See Center for Biological Diversity, et
al., v. Wheeler, Civ. No. 18-cv-3544-YGR (N.D. Cal.). This case is
still pending.
The NJDEP submitted a request on August 17, 2018 for the EPA to
make a determination that the Warren County SO2
Nonattainment Area had attained the 1971 primary and secondary
SO2 NAAQS (Warren County SO2 Clean Data Request).
On May 20, 2019 (84 FR 22768) the EPA proposed to make the
determination that the Warren County Nonattainment Area attained the 3-
hour, 24-hour, and annual 1971 SO2 NAAQS. The details of the
NJDEP submittal and the rationale for EPA's proposed action are
explained in the Notice of Proposed Rulemaking (NPR) and will not be
restated here.
On July 23, 2019 NJDEP submitted a supplement to the Warren County
SO2 Clean Data Request to provide clarification that New
Jersey has met its obligation to satisfy Nonattainment New Source
Review (NNSR) and the Emission Inventory (EI) SIP requirements for the
1971 SO2 NAAQS through previous SIP submittals to the EPA on
February 19, 1993 \5\ (for NNSR) and June 11, 2015 \6\ (for EI).
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\5\ EPA approval at 61 FR 38591 (July 25, 1996).
\6\ EPA approval at 82 FR 44099 (September 21, 2017).
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EPA's final determination that the area has attained the 3-hour,
24-hour, and annual 1971 SO2 NAAQS, suspends the
requirements for the State to submit a reasonable further progress
plan, attainment demonstration, contingency measures and any other
planning SIP relating to attainment of the 3-hour, 24-hour, and annual
1971 SO2 NAAQS for so long as the Warren County
Nonattainment Area continues to meet each NAAQS. Although these
requirements will be suspended, the EPA would not be precluded from
acting upon these elements at any time if submitted to the EPA for
review and approval.
II. What comments did the EPA receive on the proposal and what are the
EPA's responses?
The public comment period on EPA's proposed determination opened
May 20, 2019, the date of its publication in the Federal Register, and
closed on June 19, 2019. During this period, the EPA received one set
of public comments that were submitted anonymously in response to the
NPR. A summary of the comments, and the EPA's response, is provided
below.
Comment: The commenter asserts that the EPA incorrectly used annual
emissions to predict maintenance of a 3-hour and 24-hour standard, and
therefore cannot approve a clean data determination as the annual data
does not predict maximum potential emissions from sources in the
nonattainment area in such a way that will affect the short-term
standards. Annual emission reductions do not solve nonattainment
problems, the commenter claims, and the EPA must stop relying on annual
emissions, for short-term standards. The commenter further argues that
the EPA should be using potential emissions rather than actual
emissions as sources in the nonattainment area are not required to keep
their actual emissions as low. The commenter also asserts that the EPA
should reanalyze potential emissions from the Portland Generation
Station since the facility is subject to the BAT (or Best Available
Technology) emission limits of 2,287.2 pounds (lbs.)/day and 39.67
tons/year of SO2 from No. 2 oil instead of Title 25
Pennsylvania Code [Pa. Code] Section 123.22 since no such citation
exists in Portland's current Title V permit.
EPA Response: The commenter's assertion that the EPA is evaluating
maintenance of the NAAQS in the NPR (i.e., using annual emissions to
predict maintenance for the 3-hour and 24-hour standard) is incorrect.
In this rulemaking, EPA is determining that current air quality meets
these air quality standards, an action known as a Clean Data
Determination (CDD), not whether the area will maintain the standard.
In a Clean Data Determination, it is appropriate to use actual
emissions in the state's air quality modeling or other assessments
because such emissions inform actual conditions, i.e., whether the
current air quality in the area is attaining the standards. This action
does not require a demonstration of maintenance. By contrast, in an
action for redesignation under CAA section 107(d)(3),which is not the
case here, the State would need to submit, and the EPA would be
required to approve, a maintenance plan that provides for a
demonstration of attainment and maintenance of the NAAQS. The NPR
published on May 20, 2019 (84 FR 22768), was limited to a CDD for the
Warren County Nonattainment Area for the 3-hour, 24-hour, and annual
1971 SO2 NAAQS--and not redesignation to attainment. The EPA
has not received a request from the State for redesignation of the
Warren County Nonattainment Area to attainment. At the time the State
chooses to make such a redesignation request, it must still meet the
statutory requirements for a redesignation, which includes submission
of a maintenance plan, to be redesignated to attainment. Nevertheless,
in response to this comment, the EPA examined relevant reductions in
allowable emissions and, as discussed below, concluded that potential
emissions are below levels needed to assure continued attainment.
EPA also believes that the commenter understates the utility of
annual
[[Page 43506]]
emissions data. EPA recognizes that air quality on a 3-hour or 24-hour
average basis is a function of the magnitude of emissions during
periods when the meteorology is conducive to poor air quality. At the
same time, if annual emissions are low, particularly in cases like this
where average emissions are about two orders of magnitude lower than
the levels shown to yield attainment, the annual emissions data create
a high likelihood that emissions during critical periods will be low
enough not to cause violations of the applicable air quality standard.
As noted in the NPR and the EPA's Technical Support Document (TSD),
actual SO2 emissions from the Martins Creek Generating
Station (Martins Creek), located in Northampton, Pennsylvania (PA), and
the Portland Generating Station (Portland) also located in Northampton,
PA, have declined substantially since the EPA's SO2
nonattainment designation (December 31, 1987, 52 FR 49408). Actual
annual SO2 emissions from those sources declined 99.8
percent, from 58,721 tons per year in 1990 to an average of 129 tons
per year in 2015-2017. Martin's Creek, which in 1990 emitted 33,300
tons of SO2 per year, has shut down its coal-fired boilers,
and the remaining oil-fired boilers are currently emitting an average
of 88 tons of SO2 per year. Portland, which in 1990 emitted
25,400 tons of SO2 per year, has shut down its coal units,
and is currently emitting less than 0.5 tons of SO2 per
year. No other source in the area emits more than 15 tons of
SO2 per year.
In any case, EPA has conducted a further examination of short-term
emissions data from significant sources in the Warren County area.
Modeling discussed in the notice of proposed rulemaking demonstrated
that the pertinent SO2 standards would be attained with
Martins Creek emitting at approximately 32,000 pounds per hour and
Portland emitting approximately 15,000 pounds per hour.\7\ The highest
hourly emission rate from the remaining emission points at Martins
Creek (Units 3 and 4) in the last three years was about 1,300 pounds
per hour.\8\ Most of Portland has been shut down, and the remaining
unit (Unit 5), which mostly fires natural gas, had maximum emissions in
the last three years of about 30 pounds per hour.\9\ Thus, short term
emissions data clearly support EPA's conclusion that the Warren County
area is attaining the 1971 SO2 standards.
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\7\ See Table 2-1 Sulfur Dioxide Emissions for the Sources
Modeled in the Martins Creek modeling report (ID: EPA-R02-OAR-2019-
0164-0003) included in the docket of the rulemaking.
\8\ Current and historical data collected as part of EPA's
emissions trading program is available at https://ampd.epa.gov/ampd/
.
\9\ Current and historical data collected as part of EPA's
emissions trading program is available at https://ampd.epa.gov/ampd/
.
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Although this action is focused on current actual air quality, EPA
also considered potential (or allowable) SO2 emissions in
its analysis of the State's CDD request. As the EPA noted in the TSD,
the allowable SO2 emissions from the principal contributing
sources at Martin's Creek and Portland as well as sources located in
the Warren County nonattainment area decreased 81 percent, from 208,186
tons per year in 1987 to 38,747 tons per year in 2018, i.e., a
reduction from 47,531 pounds per hour to 8,846 pounds per hour.
The air dispersion modeling conducted in June 1999 (the 1999 study)
showed that attainment could be assured for the 3-hour, 24-hour, and
annual 1971 SO2 NAAQS with only slight reductions in the
emissions that were ``allowable'' (what the commenter would call the
potential emissions) at that time. The facilities were modeled at their
maximum, short-term emission rate limits. Specifically, this modeling
showed (as noted earlier in this section) that the area would attain
the 1971 SO2 standards with allowable emissions of
approximately 32,000 pounds per hour from Martins Creek, and
approximately 15,000 pounds per hour from Portland emitting. Since the
1999 study, Martins Creek and Portland have had dramatic decreases in
allowable emissions as a result of unit shutdowns, more stringent
operating permits, and a more stringent SIP-approved Sulfur in Fuels
regulation under Title 25 Pa. Code Chapter 123, section 123.22 \10\
that would reduce the predicted SO2 concentrations.
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\10\ On July 10, 2014, the EPA approved 25 Pa. Code Chapter 123,
section 123.22 into the PA SIP (79 FR 39330).
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Both the Martins Creek and Portland facilities have shut down and/
or dismantled several emissions units. At Martins Creek, coal-fired
Units 1 and 2 have been shut down and dismantled since September 2007.
Martins Creek Auxiliary boiler 4B has also shut down. Similarly,
Portland has permanently shut down its Coal-fired Units 1 & 2 in
compliance with a Consent Decree. Martins Creek currently limits its
No. 6 Oil-fired Units 3 and 4 to burning only No. 6 oil at no more than
0.5 percent sulfur to comply with the revised 25 Pa. Code Chapter 123,
section 123.22, even though these equipment's emissions were modeled at
a sulfur content of 1 percent.
Further, both the Martins Creek and Portland facilities' operating
permits contain more stringent operating conditions. Martins Creek
Units 3 and 4's allowable emissions were reduced from 77,109 tons per
year in 1999 to 38,544 tons per year in 2018, corresponding to hourly
emission rates declining from 17,605 pounds per hour to 8,800 pounds
per hour. Further, Martins Creek combustion turbines are currently
permitted to use only natural gas. Portland's combustion turbines Units
3, 4 and 5 are limited to burning No. 2 oil at no more than 0.05
percent sulfur under 25 Pa. Code Chapter 123, section 123.22. Portland
Unit 1 ceased burning coal in May 2014, and Unit 2 did so in June 2013.
Current allowable emission rates are substantially below the levels
found in 1999 to provide for attainment. As noted earlier in this
section, the allowable SO2 emissions from the principal
contributing sources at Martin's Creek and Portland as well as sources
located in the Warren County nonattainment area decreased from 47,531
pounds per hour in 1987 to 8,846 pounds per hour in 2018. Consequently,
this evidence provides further support for the conclusion that the
Warren County nonattainment area is now attaining and will continue to
attain the SO2 NAAQS.
The EPA disagrees with the commenter's suggestion that the EPA
should reanalyze potential emissions from the Portland facility since
it is subject to BAT limits (which is 2,287.2 lbs./day and 39.67 tons/
year of SO2 from No. 2 oil) instead of the No. 2 fuel oil
limits in 25 Pa Code Chapter 123, section123, because the PA regulatory
provision is not listed in Portland's current Title V permit.
25 Pa Code Chapter 123, section123.22 is a SIP-approved regulation
that includes maximum allowable sulfur content limits of 0.05 percent
sulfur by weight for No. 2 and lighter distillate oil for combustion
all units. The rule is federally enforceable, and the sulfur fuel
limits currently apply to the Portland facility.
The EPA notes that Portland combustion turbines Units 3 and 4 were
modeled in June 1999 at a much higher (and more conservative) emission
rate than the BAT limit of 2,287 lbs./day cited by the commenter. Unit
3 was modeled at 16.51 grams per second (equivalent to 3,145 lbs./day),
and Unit 4 was modeled at 22.36 grams per sec (equivalent to 4,259
lbs./day). See Table 2-1 Sulfur Dioxide Emissions for the Sources
Modeled in the Martins Creek modeling report (ID: EPA-R02-OAR-2019-
0164-0003) included in the docket of the rulemaking. Because the
[[Page 43507]]
June 1999 modeling was based on more conservative emissions estimates,
any additional modeling using the suggested BAT limit would also
support that the limits that the Warren County Nonattainment Area
sources are meeting limits are resulting in attainment, and the
conclusions of the CDD would not change.
III. Final Action
The EPA is finalizing a determination that the Warren County
Nonattainment Area has attained the 3-hour, 24-hour, and annual 1971
SO2 NAAQS. This ``Clean Data Determination'' is based on air
quality monitoring data, air quality dispersion modeling information,
as well as other supporting information indicated in this final rule.
EPA's determination that the area has attained the 3-hour, 24-hour, and
annual 1971 SO2 NAAQS, suspends the requirements for the
State to submit a reasonable further progress plan, attainment
demonstration, contingency measures and any other planning SIP relating
to attainment of the 3-hour, 24-hour, and annual 1971 SO2
NAAQS for so long as the Warren County Nonattainment Area continues to
meet each NAAQS. Although these requirements are suspended, the EPA
would not be precluded from acting upon these elements at any time if
submitted to the EPA for review and approval.
Issuance of a CDD does not constitute a redesignation of the Warren
County Nonattainment Area to attainment for the 3-hour, 24-hour, and
annual 1971 SO2 NAAQS under CAA section 107(d)(3). The CDD
does not involve approving any maintenance plan for the Warren County
Nonattainment Area, nor does it serve as a determination that the
Warren County Nonattainment Area has met all the requirements for
redesignation under the CAA; any such redesignation would require,
among other things, that the attainment is attributable to permanent
and enforceable measures. Therefore, the designation status of the
Warren County Nonattainment Area will remain nonattainment for the 3-
hour, 24-hour, and annual 1971 SO2 NAAQS until the EPA takes
final rulemaking action to determine that the Warren County
Nonattainment Area meets the CAA requirements for redesignation to
attainment.
IV. Statutory and Executive Order Reviews
This action finalizes a determination of attainment for the 1971
SO2 NAAS based on air quality and other information that
results in the suspension of certain Federal requirements and would not
impose any additional requirements. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because it is not a significant regulatory
action under Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR 1985,
April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide the 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, the attainment determination is not approved to apply
on any Indian reservation land or in any other area where the EPA or an
Indian tribe has demonstrated that a tribe has jurisdiction. In those
areas of Indian country, the rule does not have tribal implications and
will not impose substantial direct costs on tribal governments or
preempt tribal law as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 21, 2019. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Sulfur oxides, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 8, 2019.
Peter D. Lopez,
Regional Administrator, Region 2.
Part 52 chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart FF--New Jersey
0
2. In Sec. 52.1576, paragraph (e) is added to read as follows:
Sec. 52.1576 Determinations of attainment.
* * * * *
(e) EPA has determined, as of August 21, 2019, that the Warren
County Nonattainment Area has attained the 3-hour, 24-hour, and annual
1971 sulfur dioxide national ambient air quality standard (NAAQS). This
determination (informally known as a Clean Data
[[Page 43508]]
Determination) is based on air quality monitoring data, air quality
dispersion modeling information, and other supporting information. This
determination suspends the requirements for the State to submit a
reasonable further progress plan, attainment demonstration, contingency
measures and any other plan elements relating to attainment of the 3-
hour, 24-hour, and annual 1971 SO2 NAAQS for as long as the
area continues to meet each NAAQS.
[FR Doc. 2019-17834 Filed 8-20-19; 8:45 am]
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