[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

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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]
 BILLING CODE 6560-50-P