[Federal Register Volume 84, Number 181 (Wednesday, September 18, 2019)]
[Rules and Regulations]
[Pages 49062-49066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19670]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2019-0036; FRL-9999-67-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Infrastructure Requirements for the 2015 Ozone National
Ambient Air Quality Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the State of Maryland
for the 2015 ozone national ambient air quality standard (NAAQS or
standard). Whenever EPA promulgates a new or revised NAAQS, states are
required to make a SIP submission showing how the existing approved SIP
has all the provisions necessary to meet certain SIP requirements for
the new or revised NAAQS, or to add any needed provisions necessary to
meet these requirements. The SIP revision is required to address basic
program elements, including, but not limited to, regulatory structure,
monitoring, modeling, legal authority, and adequate resources necessary
to assure attainment and maintenance of the standards. These elements
are referred to as infrastructure requirements. Maryland has made a
submittal addressing the infrastructure requirements for the 2015 ozone
NAAQS. EPA is approving Maryland's SIP revision addressing the
infrastructure requirements for the 2015 ozone NAAQS in accordance with
the requirements of section 110(a) of the Clean Air Act (CAA).
DATES: This final rule is effective on October 18, 2019.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2019-0036. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) 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
https://www.regulations.gov, or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. The telephone number is (215)
[[Page 49063]]
814-5787. Ms. Schmitt can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On October 26, 2015, EPA issued a final rule revising both the
primary and secondary NAAQS for ozone to 0.070 parts per million (ppm)
based on 8-hour average concentrations. Pursuant to section 110(a)(1)
of the CAA, states are required to make SIP submissions to meet the
applicable requirements of section 110(a)(2) within three years after
EPA promulgates a new or revised NAAQS, or within a shorter period as
EPA may prescribe. Section 110(a)(2) requires states to address basic
SIP elements such as requirements for monitoring, basic program
requirements and legal authority that are designed to assure
implementation, maintenance, and enforcement of the new or revised
NAAQS. EPA refers to this type of SIP submission as an ``infrastructure
SIP submission'' because it focuses on the basic requirements that a
state must have to provide for implementation, maintenance, and
enforcement of the NAAQS at issue in the submission.
II. Summary of SIP Revision and EPA Analysis
On October 11, 2018, EPA received from the State of Maryland,
through the Maryland Department of the Environment (MDE), a formal SIP
submission (#18-06) to satisfy the requirements of section 110(a) of
the CAA for the 2015 ozone NAAQS. EPA reviewed Maryland's submittal
and, subsequently on April 24, 2019, published a notice of proposed
rulemaking (NPRM) regarding this submittal. See 84 FR 17125. The SIP
submission addressed the following infrastructure elements, or portions
thereof, for the 2015 ozone NAAQS: CAA section 110(a)(2)(A), (B), (C),
(D)(i)(II), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M).
The rationale supporting EPA's proposed rulemaking action,
including the scope of infrastructure SIP submissions in general, is
explained in the published NPRM and the technical support document
(TSD) and will not be restated here. The NPRM and TSD are available in
the docket for this rulemaking at https://www.regulations.gov, Docket
ID Number EPA-R03-OAR-2019-0036.
III. Public Comment and EPA's Response
EPA received comments from one commenter in response to the April
24, 2019 proposed approval of Maryland's 2015 ozone NAAQS
infrastructure SIP. The commenter did not provide any personal
information, such as a name or group affiliation, and therefore is
considered anonymous. The commenter opposed EPA's proposed approval of
the SIP submission on several grounds. The full text of the comment is
in the docket for this rulemaking action.
Comment 1: The commenter claims that EPA was incorrect in proposing
to find that Maryland's 2015 ozone NAAQS infrastructure SIP submittal
met the requirements of section 110(a)(2)(A) of the CAA, because
Maryland is not attaining the 2015 ozone NAAQS of 70 parts per billion
(ppb).\1\ The commenter cites and includes data from MDE's website
showing 16 days when monitor data showed exceedances of the NAAQS in
2018, and notes that the number of exceedances increased from 11 in
2014.
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\1\ 70 ppb converts to 0.070 ppm.
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EPA Response: EPA disagrees with the commenter regarding the
approvability of Maryland's infrastructure SIP submittal with respect
to the requirements of CAA section 110(a)(2)(A) for the 2015 ozone
NAAQS. First, in this action, EPA is evaluating the State's
infrastructure SIP submission. In this context, EPA is not determining
whether or not Maryland has met all of the potential emissions control
requirements that may or may not ultimately be necessary in order to
comply with CAA section 110(a)(2)(I), and part D, subpart 2 SIP
requirements for nonattainment areas. In the context of evaluating an
infrastructure SIP submission, EPA interprets section 110(a)(2)(A) of
the CAA at this early stage of planning for a new or revised NAAQS only
to require a state to identify the existing control measures already in
the existing SIP that provide for implementation, maintenance, and
enforcement of the 2015 ozone NAAQS. Section 110(a)(2) requires that
each SIP ``include enforceable emission limitations and other control
measures, means, or techniques . . . as well as schedules and
timetables for compliance, as may be necessary or appropriate to meet
the applicable requirements of [the CAA],'' which in this case is the
2015 ozone standard. In later phases of SIP planning, in particular to
meet requirements for nonattainment plan SIP submissions in designated
nonattainment areas, states are required to adopt additional measures
to provide for attainment of the NAAQS, as applicable. EPA has provided
guidance explaining that nonattainment plan SIP submission requirements
are separate from infrastructure SIP submission requirements.\2\
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\2\ See, Memorandum dated September 13, 2013, entitled
``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
from Stephen D. Page, Director, Office of Air Quality Planning and
Standards, to Regional Air Directors, Regions 1--10. A copy of this
guidance is in the docket for this action.
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Second, to the extent that Maryland needs to adopt and submit any
additional emission controls in nonattainment areas in order to attain
the 2015 ozone NAAQS, the State will need to do so in a different type
of SIP submission that it must submit later. EPA reviews an
infrastructure SIP submittal to verify that the state's SIP provides
for the implementation, maintenance, and enforcement of the NAAQS and
that any additional requirements for a new NAAQS is met, but not to
evaluate whether the state has met any potential nonattainment area
plan requirements that apply separately and later. Under subpart 2 of
part D of title I of the CAA, state planning and emissions control
requirements in a nonattainment area for ozone are determined, in part,
by the area's classification. Under subpart 2, EPA initially classified
ozone nonattainment areas based on the severity of their ozone levels,
as determined by the area's design value relative to the lower and
upper design value thresholds for each classification. Nonattainment
areas with a lower classification, such as ``marginal,'' have ozone
levels at the time of designation that are closer to the standard than
areas with a higher classification. Ozone nonattainment areas in the
lower classification levels have fewer initial mandatory air quality
planning and control requirements than those in higher classifications.
EPA designated several areas within Maryland as marginal nonattainment
areas for the 2015 ozone NAAQS. 83 FR 25776, 25812 (June 4, 2018); 40
CFR 81.321. Section 182 of the CAA requires states with ozone
nonattainment areas to submit various SIP elements within specified
time frames. States with areas designated as marginal nonattainment
have two years from the effective date of designation to submit SIP
revisions addressing emissions inventories (required by CAA section
182(a)(1)), reasonably available control technology (CAA section
182(b)(2)) and certain emissions statement regulations.\3\ Maryland's
effective date for the initial nonattainment designation for the 2015
ozone NAAQS was August 3, 2018, so
[[Page 49064]]
the nonattainment SIP elements for Maryland for the 2015 ozone NAAQS
are not due until August 3, 2020. CAA section 181 provides an
increasing amount of maximum time from the date of designation to
attain the standards for the progressively higher classifications:
Marginal--3 years, moderate--6 years, serious--9 years, severe--15 or
17 years, and extreme--20 years. Under EPA's interpretation of section
181 of the CAA, marginal nonattainment areas have up to three years
after the effective date of the nonattainment designation to attain the
2015 ozone NAAQS. 40 CFR 51.1302. Thus, Maryland's marginal
nonattainment areas for the 2015 ozone NAAQS have until June 4, 2021 to
come into attainment. EPA's review of Maryland's infrastructure SIP
submittal indicated that the State has numerous SIP approved
regulations in place to control and reduce emissions of the ozone
precursors nitrogen oxides (NOX) and volatile organic
compounds (VOCs).
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\3\ Implementation of the 2015 National Ambient Air Quality
Standards for Ozone: Nonattainment Area State Implementation Plan
Requirements. 83 FR 62998 (December 6, 2018).
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Third, regarding the ambient ozone measurements referenced by the
commenter, EPA agrees that some of these preliminary 8-hour
concentrations exceed the 0.070 ppm numerical level of the 2015 ozone
NAAQS. However, an individual 8-hour average measurement at an
individual monitor is not indicative of whether the 2015 ozone NAAQS
has been violated in an area. The standard is met at an air quality
monitor when the 3-year average of the annual fourth-highest daily
maximum 8-hour average ozone concentration is less than or equal to the
2015 ozone NAAQS (0.070 ppm). 40 CFR 50.19(b). Thus, three full years
of data for each monitor is required, and more specifically, it is the
3-year average of the annual fourth-highest daily maximum 8-hour
average ozone concentration that is needed to ascertain if a monitor is
attaining or not. None of the numerical values cited by the commenter,
by themselves, can be used to determine if the monitor or area is
violating the NAAQS. The commenter referred several times to
preliminary daily ozone values and seemed to infer that these daily
values could be compared to the 2015 ozone standard. This is misleading
as the 2015 ozone standard is not measured by a singular day's reading.
Therefore, the daily monitor readings are not comparable. Finally, EPA
disagrees with the commenter that the Agency stated in the proposed
approval notice that Maryland is currently attaining the 2015 ozone
NAAQS. However, as mentioned previously, the State has until 2021 to
attain.
Comment 2: The commenter questioned EPA's proposed finding that
Maryland has the necessary funding and personnel to implement the SIP,
as required by CAA section 110(a)(2)(E)(i), and EPA's proposed finding
that the SIP required major stationary sources to pay adequate permit
fees to cover the cost of reviewing and acting upon a permit
application, and that it was adequate to cover the cost of ensuring the
permits are followed, as required by CAA section 110(a)(2)(L). The
commenter questioned whether EPA has a formula for making these
determinations, or hired a qualified forensic accountant to comb
through MDE's finances to determine the financial stability of MDE. The
commenter questions EPA's methods for evaluating the adequacy of
Maryland's staffing and budget levels.
EPA Response: As stated in the proposed approval for this action,
EPA's evaluation indicates that the State of Maryland has the staffing
and funding resources to meet SIP obligations in accordance with
section 110(a)(2)(E) of the CAA. Maryland's infrastructure SIP
submission for the 2015 ozone NAAQS (SIP submittal) indicated that
MDE's Air and Radiation Division has a budget of $19.5 million for
fiscal year 2019, which is on par with its budgets in 2017 and 2018,
and currently has 167 personnel in the Air and Radiation Division. SIP
submittal, pp. 7-8. These budget and staff levels have been consistent
over the past number of years and over these years Maryland has been
able to meet its statutory commitments, including submitting the
required air quality data, attainment plans, and monitoring network
plans.
In addition, the SIP submittal cited the state law allowing MDE to
seek funding, as well as the various funding sources for its programs,
including CAA section 103 and 105 grants, the Maryland Clean Air Fund,
permit fees, fees from vehicle emission inspections, and funds received
from the Maryland Department of Transportation to help fund
transportation-related air pollution programs. SIP submittal, pp. 7-8.
Maryland also has an EPA-approved fee program under CAA title V which
is used to support title V program elements such as permitting,
monitoring, testing, inspections, and enforcement. EPA conducts
periodic title V fee and program audits in accordance with generally
accepted government auditing standards. Maryland regulation COMAR
26.11.02.19 provides fee schedules and other relevant fee information
regarding title V permits and state permits to operate. Regarding
Maryland's CAA section 105 funding, Maryland's use of the funds is
evaluated through the evaluation process requirements of 40 CFR part
35, subpart A, which call for the State and EPA to jointly evaluate and
report progress and accomplishments under the work plan.\4\ Maryland
also has various permit programs that are self-funded as they apply
fees for permit applications. Most of these permit program fees can be
adjusted if the State determines that the fee does not cover the
reasonable costs of reviewing and acting upon the permit applications.
Based on EPA's various reviews of these existing resources, EPA
reasonably concluded that Maryland has adequate funding and personnel
to implement its SIP.
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\4\ A programmatic joint evaluation review of Maryland's Air
Pollution Control Section 105 Grant work plan was conducted most
recently between MDE and EPA on April 17, 2019.
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Comment 3: The commenter asserts that EPA cannot find this
infrastructure SIP meets CAA section 110(a)(2)(B) because EPA had to
issue a Data Requirements Rule (DRR) for sulfur dioxide
(SO2) because Maryland did not have enough SO2
monitors to adequately measure SO2.
EPA Response: EPA disagrees with the commenter's assertion that the
SO2 Data Requirements Rule is proof that Maryland currently
does not have an adequate monitoring network for SO2, and
therefore cannot meet the section 110(a)(2)(B) requirements. EPA
disagrees with the commenter for three reasons.
First, in this action, EPA is evaluating the state's infrastructure
SIP submission for the 2015 ozone NAAQS. Accordingly, for purposes of
section 110(a)(2)(B), EPA is evaluating whether Maryland has SIP
provisions that provide for things such as required air quality
monitoring and submission of required data with respect to the ozone
NAAQS, not the SO2 NAAQS. The scope of EPA's evaluation of
section 110(a)(2)(B) is described in the agency's guidance for
infrastructure SIP submissions.\5\
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\5\ Implementation of the 2015 National Ambient Air Quality
Standards for Ozone: Nonattainment Area State Implementation Plan
Requirements. 83 FR 62998 (December 6, 2018).
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Second, EPA has determined that Maryland has met the requirements
of section 110(a)(2)(B) for the 2015 ozone NAAQS. Section 110(a)(2)(B)
of the CAA requires that each plan shall provide for the establishment
and operation of appropriate devices, methods, systems, and procedures
necessary to monitor, compile, and analyze data on ambient air quality,
and upon request, make such data available to EPA. As part of its
determination, EPA verified the scope and continuing validity of the
State law authority cited in Maryland's October 11, 2018
[[Page 49065]]
infrastructure SIP submission. Additionally, Maryland has SIP approved
regulations located under COMAR 26.11.04.02 specifying that methods of
measuring ambient air quality levels shall be aligned with those
specified in 40 CFR parts 50, 51, 53 and 58, as amended. In addition,
the State has submitted, and EPA has approved, annual network
monitoring plans that specifically address the monitoring network
requirements for the ozone NAAQS throughout Maryland. Most recently,
EPA approved the 2018 annual network monitoring plan and concluded that
Maryland's network of monitors meets regulatory requirements and is
consistent with applicable guidance.\6\
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\6\ A copy of EPA's approval letter is in the docket for this
action.
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Finally, the commenter is also incorrect with respect to the
current status of SO2 monitoring in Maryland. Although not
relevant in the context of this action on an infrastructure SIP
submission for the 2015 ozone NAAQS, EPA notes that the DRR cited by
the commenter did not specifically find that Maryland lacked sufficient
SO2 monitors to monitor adequately for purposes of the
SO2 NAAQS. Instead, the DRR required that states identify to
EPA by January 15, 2016, those sources of SO2 within their
jurisdiction emitting more than 2,000 tons per year (tpy) of
SO2, or other SO2 sources or clusters of
SO2 sources warranting evaluation. The DRR then gave states
three options for characterizing SO2 concentrations around
these sources: (1) By installing and using SO2 monitors; (2)
by modelling SO2 concentrations; or (3) by adopting
SO2 limits for the source to keep it below the 2,000 tpy
threshold. States were required to choose an option for each source by
July 1, 2016. For installation of a new SO2 monitor(s),
states were to include information about the new monitor in the annual
network monitoring plan by July 1, 2016. Maryland's 2016 annual
monitoring plan identified any new SO2 monitors to be
installed, and EPA's approval of that plan confirmed that the placement
of any new SO2 monitors was acceptable.\7\ More importantly,
Maryland was not even required to install monitors if it chose to do
SO2 modeling instead, so any perceived lack of
SO2 monitors could be remedied by modeling. EPA has no
information that Maryland is not at this time meeting its obligations
under the DRR, even if that were relevant in the context of EPA's
evaluation of the State's compliance with section 110(a)(2)(B) in the
context of an infrastructure SIP submission for the 2015 ozone NAAQS,
which it is not.
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\7\ MDE included its DRR monitoring information in an addendum
to the State's 2016 annual monitoring network plan. Maryland's 2016
annual monitoring network plan was approved by EPA on November 10,
2016. For reference, a copy of MDE's DRR addendum to their 2016
annual monitoring network plan can be located in the docket for this
rulemaking action at https://www.regulations.gov, Docket ID Number
EPA-R03-OAR-2019-0036.
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III. Final Action
EPA is approving Maryland's October 11, 2018 infrastructure SIP
submission which addresses the basic program elements, or portions
thereof, specified in sections 110(a)(2)(A), (B), (C), (D)(i)(II),
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA,
necessary to implement, maintain, and enforce the 2015 ozone NAAQS.
This rulemaking does not address section 110(a)(2)(I), or the NNSR
permitting program requirements of section 110(a)(2)(C), which pertain
to the nonattainment planning requirements of part D of the CAA. States
are required to make other SIP submissions to meet those nonattainment
area requirements later, after completion of designations, and, if
required, would be due to EPA by the dates statutorily prescribed in
CAA part D, subpart 2. Because the CAA directs states to make SIP
submissions to address nonattainment plan requirements on a separate
schedule, EPA does not interpret the CAA to require states to address
these requirements in the infrastructure SIP submission due three years
after adoption of a new or revised NAAQS.
Additionally, this rulemaking does not address CAA section
110(a)(2)(D)(i)(I) (significant contribution to nonattainment or
interference of maintenance through interstate transport of air
emissions) for the 2015 ozone NAAQS because Maryland's infrastructure
SIP submission did not include these elements. EPA will take later,
separate action on these requirements once they have been submitted.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. 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 SIP approvals are exempted 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
19885, 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 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, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
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
[[Page 49066]]
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).
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 November 18, 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 pertaining to Maryland's section 110(a)(2)
infrastructure elements for the 2015 ozone NAAQS 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: August 29, 2019.
Cosmo Servidio,
Regional Administrator, Region III.
40 CFR part 52 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 V--Maryland
0
2. In Sec. 52.1070, the table in paragraph (e) is amended by adding
the entry ``Section 110(a)(2) Infrastructure Requirements for the 2015
ozone NAAQS'' at the end of the tableto read as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(e) * * *
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Name of non-regulatory SIP Applicable State
revision geographic area submittal date EPA approval date Additional explanation
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* * * * * * *
Section 110(a)(2) Statewide......... 10/10/2018 9/18/2019, [Insert Part 52.1070 is
Infrastructure Requirements Federal Register amended. This action
for the 2015 ozone NAAQS. citation]. addresses the
following CAA
elements:
110(a)(2)(A), (B),
(C), (D)(i)(II),
D(ii), (E), (F), (G),
(H), (J), (K), (L),
and (M). This action
does not address CAA
sections
110(a)(D)(i)(I) and
110(a)(2)(I), nor does
it address the portion
of section
110(a)(2)(C) related
to NNSR.
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[FR Doc. 2019-19670 Filed 9-17-19; 8:45 am]
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