[Federal Register Volume 85, Number 85 (Friday, May 1, 2020)]
[Rules and Regulations]
[Pages 25307-25311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08241]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2019-0663; FRL-10007-98-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Infrastructure Requirements for the 2015 Ozone Standard and
Revisions to Modeling Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving two
state implementation plan (SIP) submissions submitted by the State of
Delaware. The first submission addresses the 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 National Ambient Air Quality
Standards (NAAQS). This type of SIP submission is referred to as an
infrastructure SIP submission. Delaware made this submission in order
to address the infrastructure requirements for the 2015 ozone NAAQS.
EPA is approving Delaware's infrastructure SIP submission in accordance
with the requirements of Clean Air Act (CAA) section 110(a). EPA is
also approving a second submission from Delaware which updates a
reference to the current version of EPA's modeling guidance.
DATES: This final rule is effective on June 1, 2020.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2019-0663. 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: Joseph Schulingkamp, 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) 814-
2021. Mr. Schulingkamp can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On February 10, 2020 (85 FR 7494), EPA published a notice of
proposed rulemaking (NPRM) for the State of Delaware. In the NPRM, EPA
proposed approval of two SIP submissions submitted on behalf of the
State of Delaware by the Delaware Department of Natural Resources
(DNREC).
DRNEC submitted the first SIP submission on October 11, 2018 to
address the infrastructure SIP requirements of CAA section 110(a)(2)
for the 2015 ozone NAAQS. This submission addressed the following
elements of CAA section 110(a)(2): (A), (B), (C), (D)(i)(I),
(D)(i)(II), (E), (F), (G), (H), (J), (K), (L), and (M). On November 4,
2019, DNREC submitted a letter identifying outdated references in its
October 11, 2018 submission and committing to submit a future SIP
revision in order to address the deficiency. With this letter, Delaware
requested that EPA conditionally approve the State's submission with
respect to CAA section 110(a)(2)(K), based on the commitment to submit
a future SIP revision to update a State regulation to reflect current
requirements with respect to modeling.
On December 16, 2019, however, DNREC submitted a second SIP
submission to amend Title 7 of the Delaware Administrative Code (DE
Admin. Code), Regulation 1125, Requirements for Preconstruction Review
in the current EPA-approved SIP for Delaware. The State intended this
submission to meet the commitment described in the State's November 4,
2019 letter as previously described. This second submission revises a
section of Regulation 1125 to incorporate by reference the most recent
revision to
[[Page 25308]]
EPA's Guideline on Air Quality Models into State regulation.
Specifically, the revision changes Delaware's regulation that
references the ``Guideline on Air Quality Models'' as published by
EPA's Office of Air Quality Planning and Standards in July 1986 and
supplemented in July 1987 to the ``Guideline on Air Quality Models (40
CFR part 51, Appendix W, July 1, 2019 ed.).'' Because Delaware has
submitted the intended SIP revision outlined in the State's November 4,
2019 letter, EPA considered CAA section 110(a)(2)(K) of Delaware's
October 11, 2018 SIP submission for full approval instead of the
November 4, 2019 request for conditional approval.
II. EPA Analysis
EPA has analyzed Delaware's October 11, 2018 infrastructure SIP
submission for the 2015 ozone NAAQS and has determined that it meets
the applicable requirements of CAA section 110(a)(2). EPA also reviewed
Delaware's revisions to 7 DE Admin. Code 1125 and concludes that the
revised references to 40 CFR part 51, Appendix W, as published in the
July 2019 edition of the CFR, are the correct modeling guidelines to
use for implementation of CAA programs. A detailed summary of EPA's
review and rationale for approving Delaware's submissions may be found
in the technical support document (TSD) for the proposed rulemaking
action which is available online at www.regulations.gov, docket number
EPA-R03-OAR-2019-0663. Other specific requirements and background
information, as well as the rationale for EPA's proposed action, are
explained in the NPRM and will not be restated here.
III. Response to Comments
EPA received four sets of comments in response to the NPRM that are
available in the docket for this action. Summaries of the significant
adverse comments and EPA's responses are provided below.
Comment 1: The first commenter stated that EPA should disapprove
Delaware's infrastructure SIP submission because, ``it is substantially
higher than the 2012 federal levels EPA established for that smog-
forming pollutant.'' The commenter continued by mentioning a ``1,000-
pound-per-square-mile rule'' which, the commenter stated, Delaware and
New Jersey have already implemented while other states have not but are
now in the process of complying.
Response 1: EPA disagrees with the comment. The commenter did not
provide any additional information beyond general assertions; the
commenter did not identify any specific infrastructure element. The
commenter suggests Delaware has substantially higher smog-forming
pollutants than ``2012 federal levels,'' but EPA notes that the Agency
did not set any ``federal levels'' in the 2012 calendar year for any
smog-forming pollutants such as oxides of nitrogen (NOX) or
volatile organic compounds (VOCs). Furthermore, EPA notes the purpose
of an infrastructure SIP is to ensure the state has addressed the 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 NAAQS; an infrastructure
SIP submission is not required to address the nonattainment plan SIP
submission requirements of section 110(a)(2)(I) for attainment of the
NAAQS in question.\1\ To the extent that Delaware has designated
nonattainment areas for this NAAQS, the State will address and EPA will
evaluate those requirements in a separate action. With respect to a
``1,000-pound-per-square-mile rule,'' EPA is unaware of any such rule
implemented by any of the states named by the commenter, nor was EPA
able to identify the commenter's concerns with EPA's proposed approval
of Delaware's infrastructure submission as it relates to any such rule.
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\1\ See Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clear Air Act Section 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
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Comment 2: The second commenter suggested that EPA should
disapprove Delaware's infrastructure SIP submission, ``because of its
findings that either EPA hasn't considered this issue fully or that it
is not sufficiently vigilant in its enforcement of its regulations.''
The commenter also stated that EPA should disapprove the infrastructure
SIP submission out of concern that the State will not be able to
sustain its planned measures to reduce ozone during the next two
decades. The commenter also referenced four reasonably available
control technology (RACT) programs in the states of Delaware, New
Jersey, New York, and the Commonwealth of Pennsylvania, and suggested
that EPA should disapprove Delaware's infrastructure SIP submission,
``until all four states have RACT programs that are approved.''
Response 2: EPA disagrees with the commenter's statement that,
``EPA hasn't considered this issue fully or that it is not sufficiently
vigilant in its enforcement of its regulations.'' In the TSD for this
rulemaking action, EPA determined that the State of Delaware is
currently operating a program to provide for the enforcement of
emission limits and other control measures, means, or techniques as may
be necessary or appropriate to meet the applicable requirements of the
CAA. Delaware's SIP submission references several State laws and
regulations which allow the State to exercise its programmatic
authority to utilize enforcement powers, and to impose criminal, civil,
and administrative penalties to sources in the State that violate
applicable SIP emission limits or control measures.
EPA further disagrees that the Agency should disapprove Delaware's
submission based on the assertion that the State may not be able to
sustain its ozone reductions for the next two decades. In terms of the
SIP submissions before EPA in this rulemaking action, the commenter did
not identify any specific infrastructure SIP deficiencies which would
prevent the State from meeting its obligations. Although the commenter
does not identify any specific CAA requirements, EPA believes the
commenter is referring to the maintenance plan requirements under CAA
section 175A which is analogous to the commenter's phrasing ``. . . to
sustain ozone reductions for the next two decades.'' CAA section 175A
requires any state requesting a redesignation of a nonattainment area
to submit a revision to provide for the maintenance of the NAAQS for at
least 10 years. A state is also required under CAA section 175A(b) to
submit a second revision to provide for the maintenance of the NAAQS
for an additional 10 years after the expiration of the first 10-year
period; thus, ensuring maintenance of the NAAQS for a total of 20
years. The latter maintenance plan requirements under section 175A are
not applicable in the context of an infrastructure SIP submission.
EPA also disagrees that it should disapprove Delaware's
infrastructure submission because it has not yet approved RACT
submissions for the 2015 ozone NAAQS for the States of Delaware, New
Jersey, New York, and the Commonwealth of Pennsylvania. These RACT
requirements are not relevant to the applicable infrastructure SIP
submission requirements of CAA section 110(a)(1) and 110(a)(2), but
rather to the requirements in CAA sections 110(a)(2)(I), 182 and 184.
These sections establish requirements for nonattainment area SIP
submission and the states included in the Ozone Transport Region (OTR).
As explained in the response to Comment 1 of this preamble, the
[[Page 25309]]
purpose of an infrastructure SIP is not to meet nonattainment plan
requirements for the NAAQS, but to ensure that a state's SIP includes
basic program elements necessary to assure attainment, maintenance, and
enforcement of the NAAQS. The requirements of CAA sections
110(a)(2)(I), 175A, 182, and 184 all relate to states' attainment
planning requirements if they have designated nonattainment areas for
the NAAQS in question. SIP submissions to meet these requirements are
due by different statutorily prescribed deadlines under subparts 2
through 5 under part D. Because the CAA directs states to submit these
nonattainment plan SIP submissions 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 promulgation or
revision of a NAAQS.
Comment 3: The third commenter questioned EPA's proposed approval
of Delaware's infrastructure SIP submission with respect to section
110(a)(2)(K) pertaining to modeling requirements, including the
revision to Regulation 1125. The commenter asserted EPA has already
approved an infrastructure SIP submission from the State of New Mexico
in which that State had language similar to that of the State of
Delaware, and thus suggested that EPA is being inconsistent in its
approach to this infrastructure SIP element. The comment further
asserted that EPA must explain why Delaware's pre-existing regulation
was different from the New Mexico regulation, or else ``recall the
approval of New Mexico's SIP action and force the state to fix the
problem.'' The comment also suggested that EPA cannot require Delaware
to revise its regulations with respect to modeling authority and
requirements to meet CAA section 110(a)(2)(K) ``while allowing New
Mexico to skirt federal regulations.''
Response 3: EPA disagrees with the commenter. First, as EPA stated
in the NPRM and the TSD for this rulemaking action, Delaware is
correctly addressing the requirements of section 110(a)(2)(K) in this
action. The State correctly addressed the deficiency initially
identified by EPA and submitted a separate SIP revision to change the
reference in Regulation 1125 to refer clearly to the Guideline on Air
Quality Models in 40 CFR part 51, appendix W. Delaware initially
identified an existing state regulation to meet the requirements of
110(a)(2)(K) that explicitly referenced an outdated version of EPA's
Guideline on Air Quality Models. Upon further investigation, EPA
determined, and Delaware agreed, that the State regulation did not
authorize the State to use the most recent version of EPA's Guideline
on Air Quality Models. Delaware made the necessary changes to the State
regulation. EPA proposed approval of Delaware's revision to Regulation
1125 because the revision is consistent with CAA section 110(a)(2)(K)
and allows the State to comply and use the correct modeling guidelines
found in 40 CFR part 51, appendix W.
Second, EPA disagrees with the commenter's assertion that the
Agency is allowing states to ``skirt federal regulations'' or that the
Agency must ``recall the approval of New Mexico's SIP action and force
the state to fix the problem.'' EPA assumes the commenter is referring
to the final rulemaking notice (FRN) published on September 18, 2019,
relating to New Mexico's 2015 ozone NAAQS infrastructure SIP.\2\ In the
New Mexico FRN, EPA responded to similar comments regarding the
appropriateness of the Agency's proposed approval of CAA section
110(a)(2)(K) and explained why the Agency believed the wording of the
New Mexico regulation was sufficient in the response to comments
section. In that action, upon evaluation of the authority provided by
the regulation in question, EPA and the State agreed that New Mexico's
regulations submitted to meet the relevant CAA requirements provide the
State with the authority and the requirement to use the latest version
of EPA's Guideline on Air Quality Models, also known as Appendix W, and
is not restricting the State to use the version referenced in the
State's regulation.
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\2\ See 84 FR 49057, September 18, 2019; ``Air Plan Approval;
New Mexico; Infrastructure for the 2015 Ozone National Ambient Air
Quality Standards and Repeal of State Regulations for Total
Suspended Particulate''.
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Finally, EPA is not acting on any New Mexico SIP submission in this
action, thus how New Mexico's SIP meets CAA section 110(a)(2)(K) is not
relevant to the approval of Delaware's Regulation 1125 or the Delaware
infrastructure SIP submission for the 2015 ozone NAAQS with respect to
CAA section 110(a)(2)(K). Further, the New Mexico action's public
comment period closed on May 20, 2019 and the FRN was published on
September 18, 2019 (84 FR 49057, September 18, 2019); there is no basis
to reopen that action at this time, nor does the commenter provide any
such basis.
Comment 4: The fourth commenter asked why EPA was approving
Delaware's modeling regulation change. The commenter claimed Delaware's
ozone air quality has remained substantially unchanged from 2005
through 2012 even though ozone levels fell in other states. The comment
referenced an ``Ozone Science Program's (OSP) review of the Virginia
program and other states' EPA-issued Ground Level Ozone Standards
(GLOS),'' but did not elaborate this review's conclusions. The comment
claims that EPA approved Delaware's proposed rule change based on
flawed science and because of political and regulatory considerations.
The comment concludes by claiming, ``As a result of EPA's disregard for
its own standards, Delaware's ozone standards remain virtually
unchanged from 2012 until 2022.''
Response 4: EPA disagrees with the comment. EPA proposed approval
of Delaware's Regulation 1125 because the revision corrects a
deficiency where the State regulation referenced a specific document
authored and published by EPA in 1986 and supplemented in 1987. This
document was replaced by 40 CFR part 51, appendix W and was most
recently updated in the Federal Register on January 17, 2017 at, 82 FR
5203. Based on this information, DNREC correctly revised Regulation
1125 and submitted it to EPA for approval into the SIP, which EPA
subsequently proposed approval in the NPRM. The commenter's assertions
that the proposed approval of this regulation is ``based on flawed
science and because of political and regulatory considerations'' is
incorrect and the commenter did not provide any additional information
to support these claims.
As a factual matter, EPA also disagrees with the assertions that
Delaware's air quality has remained unchanged for 10 years. Since 2007,
design values \3\ in Delaware have consistently trended downward and
the most recent data shows only three out of the seven State monitors
are showing violations of the 2015 ozone NAAQS based on 2018 design
values.\4\ EPA reiterates that the purpose of an infrastructure SIP is
not to demonstrate attainment of the NAAQS, but to ensure that a
state's SIP has addressed basic program elements necessary to assure
attainment, maintenance, and enforcement of the NAAQS. Therefore, the
status of Delaware's air quality is not relevant to whether EPA should
approve
[[Page 25310]]
the revisions to Regulation 1125 or the State's infrastructure SIP
submission.
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\3\ A ``design value'' is a statistical metric that describes
the air quality status of a given location relative to the level of
the NAAQS.
\4\ See https://www.epa.gov/air-trends/air-quality-design-values#report.
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IV. Final Action
EPA is approving Delaware's October 11, 2018 infrastructure SIP
submission for the 2015 ozone NAAQS because it provides the basic
program elements specified in CAA section 110(a)(2)(A), (B), (C), (D),
(E), (F), (G), (H), (J), (K), (L), and (M) necessary to implement,
maintain, and enforce the 2015 ozone NAAQS. This rulemaking action does
not include action on CAA section 110(a)(2)(I) which pertains to the
nonattainment planning requirements of part D, title I of the CAA,
because this element is not required to be submitted by the 3-year
submission deadline of section 110(a)(1) of the CAA and will be
addressed in a separate process. EPA is also approving Delaware's
December 16, 2019 SIP submission which updates 7 DE Admin. Code 1125 in
order to incorporate by reference the correct modeling guidelines
contained in 40 CFR part 51, appendix W. EPA's approval of the
infrastructure SIP submission with respect to section 110(a)(2)(K) is
based on this revision to Delaware's SIP.
V. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of section 3.10
of 7 DE Admin. Code, Regulation 1125, effective January 11, 2020. EPA
has made, and will continue to make, these materials generally
available through https://www.regulations.gov and at the EPA Region III
Office (please contact the person identified in the For Further
Information Contact section of this preamble for more information).
Therefore, these materials have been approved by EPA for inclusion in
the SIP, have been incorporated by reference by EPA into that plan, are
fully federally enforceable under sections 110 and 113 of the CAA as of
the effective date of the final rulemaking of EPA's approval, and will
be incorporated by reference in the next update to the SIP
compilation.\5\
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\5\ 62 FR 27968 (May 22, 1997).
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VI. 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 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 June 30, 2020. 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 Delaware's section 110(a)(2)
infrastructure requirements for the 2015 ozone NAAQS and revisions to
Regulation 1125, 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, Volatile organic compounds.
Dated: April 13, 2020.
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 I--Delaware
0
2. Amend Sec. 52.420:
0
a. In the table in paragraph (c), under ``1125 Requirements for
Preconstruction
[[Page 25311]]
Review'' by revising the entry for ``Section 3.0''; and
0
b. In the table in paragraph (e) by adding the entry ``Section
110(a)(2) Infrastructure Requirements for the 2015 Ozone NAAQS'' at the
end of the table.
The revision and addition read as follows:
Sec. 52.420 Identification of plan.
* * * * *
(c) * * *
Epa-Approved Regulations and Statutes in the Delaware Sip
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State
State regulation (7 DNREC 1100) Title/subject effective EPA approval date Additional
date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
1125 Requirements for Preconstruction Review
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* * * * * * *
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Section 3.0...................... Prevention of 1/11/20 5/1/2020, [insert Docket #: 2019-
Significant Federal Register 0663. Revised
Deterioration of citation]. 3.10.1 and 3.10.2.
Air Quality. Note: Previous
Section 3.0
approval October
2, 2012.
* * * * * * *
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* * * * *
(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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* * * * * * *
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Section 110(a)(2) Statewide......... 10/11/18 5/1/2020, [insert Docket #: 2019-0663.
Infrastructure Requirements Federal Register This action addresses
for the 2015 Ozone NAAQS. citation]. CAA section
110(a)(2)(A), (B),
(C), (D), (E), (F),
(G), (H), (J), (K),
(L), and (M).
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[FR Doc. 2020-08241 Filed 4-30-20; 8:45 am]
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