[Federal Register Volume 85, Number 94 (Thursday, May 14, 2020)]
[Rules and Regulations]
[Pages 28883-28887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08646]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2018-0681; FRL-10007-39-Region 2]


Approval and Air Quality Implementation Plans; New Jersey; 
Infrastructure SIP for Interstate Transport Requirements for the 
Requirements for the 2006 PM10, 2008 Lead, 2010 Nitrogen Dioxide, and 
the 2011 Carbon Monoxide National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
portions of New Jersey's State Implementation Plan (SIP) revision 
submittal regarding infrastructure requirements for interstate 
transport of pollution with respect to the 2006 particulate matter of 
10 microns ([mu]m) or less (PM10), 2008 lead, 2010 nitrogen 
dioxide (NO2), and 2011 carbon monoxide (CO) National 
Ambient Air Quality Standards (NAAQS).

DATES: This final rule is effective June 15, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA-R02-OAR-2018-0681. All documents in the docket are 
listed on the http://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 electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-3702, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this action?
II. What comments were received in response to the EPA's proposed 
action?
III. What action is the EPA taking?
IV. Statutory and Executive Order Reviews

[[Page 28884]]

I. What is the background for this action?

    Under sections 110(a)(1) and (2) of the Clean Air Act (CAA), each 
state is required to submit a State Implementation Plan (SIP) that 
provides for the implementation, maintenance, and enforcement of a 
revised primary or secondary NAAQS or standard. CAA sections 110(a)(1) 
and (2) require each state to make a new SIP submission within three 
years after the EPA promulgates a new or revised NAAQS for approval 
into the existing federally approved SIP to assure that the SIP meets 
the applicable requirements for such new and revised NAAQS. This 
particular type of SIP submission is commonly referred to as an 
``infrastructure SIP.''
    Section 110(a)(2)(D)(i)(I) of the CAA requires a state's SIP to 
include adequate provisions prohibiting any emissions activity in one 
state that contributes significantly to nonattainment, or interferes 
with maintenance, of the NAAQS in any downwind state. The EPA sometimes 
refers to these requirements as prong 1 (significant contribution to 
nonattainment) and prong 2 (interference with maintenance), or jointly 
as the ``good neighbor'' provision of the CAA.
    On December 13, 2019 (84 FR 68097), the EPA published a Notice of 
Proposed Rulemaking (NPR) in the Federal Register for the State of New 
Jersey. The NPR proposed to approve elements of the State of New 
Jersey's Infrastructure SIP submission, dated October 17, 2014, which 
were submitted to address CAA section 110(a) infrastructure 
requirements for the following NAAQS: 2006 PM10, 2008 lead, 
2010 NO2, and 2011 CO. Specifically, the EPA proposed in the 
December 13, 2019 action to approve the portion of the submission 
addressing the good neighbor provision with respect to the 2006 
PM10, 2008 lead, 2010 NO2, and 2011 CO NAAQS 
under CAA section 110(a)(2)(D)(i)(I).
    Other detailed information relevant to this action on New Jersey's 
infrastructure SIP submission, including infrastructure requirements 
concerning the good neighbor provision, and the rationale for EPA's 
proposed action are explained in the NPR and the associated Technical 
Support Document (TSD) in the docket and are not restated here.

II. What comments were received in response to the EPA's proposed 
action?

    The EPA received three comments from two commenters in response to 
the December 13, 2019 NPR. The EPA has evaluated the comments, as 
discussed below, and has determined that New Jersey's SIP revision 
addressing the 2006 PM10, 2008 lead, 2010 NO2, 
and 2011 CO NAAQS is consistent with the CAA and, therefore, the EPA is 
approving New Jersey's SIP revision. Following is a summary of the 
comments and the EPA's response. The full text of the comments may also 
be viewed under Docket ID Number EPA-R02-OAR-2018-0681 on the http://www.regulations.gov website.
    Comment: The commenter states that the EPA should consider 
mandating the use of renewable energy as NO2, CO, 
CO2, and other gases are byproducts of fossil fuel 
combustion, and New Jersey uses mostly natural gas to generate 
electricity. The commenter asserts that a federal mandate similar to 
California's for renewable energy would better serve the EPA's long-
term goals for better air quality.
    Response: This comment is outside the scope of our proposed action 
and is not relevant to the approval of New Jersey's interstate 
transport provisions for the 2006 PM10, 2008 lead, 2010 
NO2, and 2011 CO NAAQS under CAA section 110(a)(2)(D)(i)(I). 
The EPA's review of New Jersey's SIP revision under CAA section 
110(k)(3) is limited to evaluating whether the submission meets the 
applicable requirements of CAA section 110(a)(2)(D)(i)(I), as detailed 
further in the NPR and associated TSD. The EPA is not authorized to 
issue any sort of federal mandate regarding renewable energy in 
reviewing a state's SIP revision under these provisions.\1\ As the 
commenter has not raised any issues regarding whether New Jersey's SIP 
revision meets the applicable requirements of section 
110(a)(2)(D)(i)(I), the comment is outside the scope of the EPA's 
proposed action.
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    \1\ Although EPA cannot impose renewable energy requirements in 
New Jersey in the context of reviewing a SIP revision under CAA 
section 110(k)(3), the EPA notes that the Governor of New Jersey 
approved, on May 23, 2018, a State Renewable Energy bill (A-3723), 
requiring 21 percent of the energy sold in the state to be from 
renewable energy sources by 2020; 35 percent by 2025, and 50 percent 
by 2030 (see https://www.nj.gov/governor/news/news/562018/approved/20180523a_cleanEnergy.shtml). On January 27, 2020 New Jersey 
released its Energy Master Plan. https://nj.gov/emp/docs/pdf/2020_NJBPU_EMP.pdf; https://www.nj.gov/governor/news/news/562020/approved/20200127a.shtml.
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    Comment: The commenter questioned how the EPA can rely on data for 
the PM10 NAAQS which uses monitors with incomplete or no air 
monitoring data for PM10 for almost 5 years. The commenter 
further stated that the data in Table 3 in the TSD is at best 
inconclusive, and the EPA should use only monitors that have complete 
quality assured data to show whether monitors are violating the NAAQS. 
The commenter indicates that the monitors with the incomplete data are 
closest to the state borders, Camden, New Jersey (NJ)--1 kilometer 
(km); New York, New York (NY)--3 km; Bronx, NY--6 km; and Queens, NY--
17 km. The commenter also states that with four out of the seven 
monitors closest to the New Jersey border showing incomplete data over 
the past five years (and a fifth monitor considering 2013-2015 data), 
the EPA must gather more data or show that this data is not needed 
before proceeding with approval.
    Response: In our evaluation of New Jersey's SIP revision, the EPA 
considered both recent PM10 design values (Table 3 of the 
TSD), as well as maximum annual 24-hour PM10 concentrations 
(Table 4 of the TSD) for active monitoring sites within 50 kilometers 
of New Jersey borders, as well as the absence of nearby nonattainment 
and maintenance areas for the 24-hour PM10 NAAQS and 
downward emission trends. The EPA finds this weight-of-evidence 
analysis is sufficient to conclude that New Jersey has met its 
interstate transport obligations pursuant to CAA section 
110(a)(2)(D)(i)(I), and that no additional air monitoring data is 
necessary as suggested by the commenter.
    The EPA agrees with the commenter that there are limited complete, 
quality assured PM10 design values shown in Table 3 of the 
TSD, PM10 Design Values Within 50 kilometers of New Jersey 
Borders. There are seven air monitoring sites located within 50 
kilometers of the State's borders. Four of the seven air monitoring 
locations (i.e., Camden, NJ; New York, NY; Bronx, NY and Queens, NY had 
incomplete design values as shown in Table 3 for the two most recent 
three-year periods available \2\ (2016-2018, and 2015-2017). 
Additionally, the New York, Bronx and Queens air monitoring sites began 
operation in January 2017 and, therefore, ``No data'' is shown in Table 
3 for the three-year monitoring periods in 2014-2016, and 2013-2015. 
The EPA, however, disagrees with the commenter that the design values 
listed are at best inconclusive. The design values shown in Table 3 
show the average number of exceedances at each air monitoring site,

[[Page 28885]]

deemed valid based on the completeness criteria found in 40 CFR part 
50, appendix K. PM10 design values, which are used by the 
EPA to determine attainment of the PM10 NAAQS, require three 
years of representative monitoring data that meets 75 percent data 
capture,\3\ if available.\4\ The design values in Table 3 are shown as 
incomplete if they do not meet minimum completeness criteria.
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    \2\ Design values are computed and published annually by the 
EPA's Office of Air Quality Planning and Standards and reviewed in 
conjunction with the EPA Regional Offices. At the time of the 
proposed rulemaking, the latest design values available from the EPA 
based on air quality data reported and certified by New Jersey was 
from 2016-2018. Design values are available at https://www.epa.gov/air-trends/air-quality-design-values.
    \3\ For PM10 a complete set of data includes a 
minimum of 75 percent of the scheduled PM10 samples per 
quarter. See 40 CFR part 50, appendix K, section 2.3(a).
    \4\ Data not meeting the criteria in 40 CFR part 50 may also 
suffice to show attainment; however such exceptions must be approved 
by the appropriate Regional Administrator in accordance with EPA 
guidance. See 40 CFR part 50, appendix K, section 2.3.
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    At air monitoring locations in Lehigh County, Pennsylvania (PA); 
Hudson County, NJ; and Essex County, NJ, there were zero exceedances 
for the three most recent three-year periods 2016-2018, 2015-2017, and 
2014-2016. These monitor locations are within 50 km of New Jersey's 
borders with other states: Hudson, NJ--2 km; Essex County, NJ--8 km and 
Lehigh, PA--20 km. When considered with other data included in the 
EPA's weight-of-evidence analysis, the absence of violating design 
values at those locations is an indication that New Jersey is not 
contributing significantly to nonattainment or interfering with 
maintenance in those areas since no violations or exceedances have 
occurred.
    The commenter indicated that the Agency should consider only 
quality assured air monitoring data to show violations of the 24-Hour 
PM10 NAAQS. The commenter further notes the significance of 
incomplete data from the Camden, NJ, New York, NY, Bronx, NY, and 
Queens, NY sites since they are closest (i.e., 1 to 17 km away) to 
State borders. The EPA agrees that the four locations would yield 
useful information regarding New Jersey's interstate transport 
contribution provisions based on their close proximity to New Jersey 
borders. However, the EPA does not conclude that only design values 
that meet completeness requirements may be considered as part of the 
weight of evidence analysis used to support approving New Jersey's SIP 
revision. When determining whether an area has met the NAAQS, the EPA 
relies only on complete quality assured monitoring data; however, in 
this rulemaking, the EPA is not making a determination of attainment. 
There is no regulation, statute, or other requirement that an 
interstate transport analysis rely only on complete data for 
determining whether a state has met its interstate transport 
obligations under 110(a)(2)(D)(i)(I). Rather, the EPA finds it is 
reasonable to consider any available and relevant data that assists 
with its consideration regarding whether there may be an air quality 
problem in downwind states that is impacted by emissions from an upwind 
state.
    Due to the limited number of ``valid'' design values available at 
active monitoring sites with incomplete data located within 50 
kilometers of New Jersey borders, the EPA also considered maximum 
annual 24-Hour PM10 concentrations (Table 4 of the TSD) at 
the same active monitoring locations for 2013 through 2018. Most of the 
data considered was well above 75 percent data capture, which means the 
data was above the level for completeness when considered on an annual 
basis.\5\ The air monitoring data considered was quality-assured and 
certified using the Federal Reference Method or equivalent data, and 
was reported by states, tribes or local agencies into EPA's Air Quality 
System (AQS).
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    \5\ The EPA has added to the docket of this rulemaking annual 
data completeness data for each of the air monitoring sites 
considered in our analysis. See AQS data completeness reports 
(AMP430), and AQS Quick Look Reports (AMP450). Data completeness for 
all sites in 2017 and 2018 were well above 75 percent data capture, 
except for the Camden site, which had 74 percent data capture in 
2018. The previous year (2017) at the Camden site had 92% data 
capture.
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    Maximum 24-Hour PM10 concentrations at all seven 
monitoring sites located within 50 kilometers of the State's borders 
continue to be well below the level of the 150 micrograms per cubic 
meter ([mu]g/m\3\) NAAQS. As shown in Table 4 of the TSD, the most 
recent data available (2017 through 2018) shows that maximum 
PM10 concentrations were 30 percent or less of the level of 
the 24-Hour PM10 NAAQS. In 2017, the highest maximum 24-Hour 
PM10 concentrations was 45 [mu]g/m\3\ (Camden County, NJ). 
In 2018, the highest maximum 24-Hour PM10 concentration was 
44 [mu]g/m\3\ (Hudson County, NJ).
    The EPA continues to determine, based on the information in the NPR 
and TSD, that there is sufficient PM10 air monitoring data, 
when considered with the other information evaluated as part of the 
EPA's weight-of evidence interstate transport analysis, to conclude 
that New Jersey has met its interstate transport obligations under 
110(a)(2)(D)(i)(I). For the 24-Hour PM10 NAAQS, there are no 
current or recent violating design values within 50 kilometers of New 
Jersey's borders. Further, our review of air monitoring data for New 
Jersey, and the neighboring states of Pennsylvania, New York, and 
Delaware, shows no violating design values in any of the air monitors 
located throughout all areas of those states for the most recently 
available period (2016-2018). Additionally, maximum 24-Hour 
PM10 concentrations are currently all well below the level 
of the 150 [mu]g/m\3\ NAAQS. The lack of exceedances or violations in 
any of the air quality monitoring data indicates that there are no 
areas located within 50 km of New Jersey's border that are likely to be 
in nonattainment of the PM10 NAAQS or to struggle to 
maintain the standards.
    Comment: The commenter asked what specific measures were adopted by 
the State that control NO2 and CO on a 1-hour and 8-hour 
basis. The commenter states that none of the measures listed in the 
EPA's NPR or TSD or New Jersey's submission discuss control measures 
which control NO2 or CO emissions on a short-term basis. The 
commenter indicates that the EPA should only approve transport elements 
for NO2 and CO if control measures control emissions on a 
short-term basis. The commenter claims that just because annual 
emissions have decreased as the EPA has shown in Table 7 and 9 (of the 
TSD) doesn't mean these measures are able to control NO2 at 
the 1-hour interval or CO at the 8-hour interval. The commenter further 
asks the EPA to explain how these control measures control 1-hour 
NO2 emissions or 8-hour CO emissions.
    Response: The EPA disagrees with the commenter that the EPA should 
only approve transport elements for NO2 and CO if New Jersey 
control measures control emissions on a short-term basis, such as on a 
1-hour or 8-hour basis. Additionally, because the EPA did not rely on 
New Jersey control methods to support approval of New Jersey's 
interstate transport SIP, these comments regarding whether or how New 
Jersey measures control NO2 or CO emissions on a short-term 
basis (or 1-hour and 8-hour basis or interval) are not relevant to this 
action.
    Although New Jersey included a list of relevant control measures in 
its October 2014 SIP submittal, the EPA did not rely on specific 
control measures to support the EPA's conclusion that New Jersey's SIP 
adequately addresses the good neighbor provision for the CO and 
NO2 NAAQS. In our evaluation of the New Jersey's interstate 
transport SIP, the EPA considered ambient air quality data, the lack of 
nearby nonattainment and maintenance areas, and downward emission 
trends to determine that New Jersey did not contribute significantly to

[[Page 28886]]

potential downwind nonattainment and maintenance in another state and, 
therefore, New Jersey has met its obligations pursuant to 
110(a)(2)(D)(i)(I) with respect to the 2010 NO2 and 2011 CO 
NAAQS.
    Because there are no indications that there are current or 
potential air quality problems in other states to which emissions from 
New Jersey would contribute, the EPA has concluded that New Jersey is 
not required to ``prohibit'' any particular amount of emissions. 
Rather, the EPA interprets the statute to only require a SIP to include 
enforceable control measures prohibiting emissions where the EPA has 
first concluded that emissions from the upwind state will significant 
contribute to downwind nonattainment or interfere with downwind 
maintenance of the NAAQS. See, e.g., 83 FR 65866-888; 84 FR 56077-078. 
Accordingly, the EPA does not agree with the commenter that New 
Jersey's SIP must include measures specifically designed to control any 
particular level of NO2 or CO emissions in order to satisfy 
the requirements of CAA section 110(a)(2)(D)(i)(I).
    The commenter has not raised any concerns with the adequacy of the 
EPA's analysis of potential downwind air quality problems in other 
states, nor has the commenter offered any data or evidence suggesting 
that New Jersey is contributing significantly to nonattainment or 
interfering with maintenance in another state, or that control of 
short-term emissions of NO2 or CO is necessary to address 
any alleged nonattainment or maintenance concerns in neighboring 
states.
    The EPA finds that the ambient air quality data, the lack of nearby 
nonattainment and maintenance areas, and emission trends are sufficient 
to conclude that there are no current or potential air quality problems 
in other states and, therefore, New Jersey's SIP is adequate to 
prohibit emissions that significantly contribute to nonattainment or 
interfere with maintenance of the 2010 NO2 and 2011 CO 
NAAQS.

III. What action is the EPA taking?

    The EPA is approving the portions of New Jersey's SIP revision 
submittal dated October 17, 2014, addressing interstate transport for 
the 2006 PM10, 2008 lead, 2010 NO2, and 2011 CO 
NAAQS as these portions meet the infrastructure SIP requirements in 
section 110(a)(2)(D)(i)(I) of the CAA.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the 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 Clean Air Act; 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 rulemaking action, pertaining to New Jersey's 
section 110(a)(2) infrastructure requirements for the 2006 
PM10, 2008 lead, 2010 NO2, and 2011 CO NAAQS 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 July 13, 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 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: April 19, 2020.
Peter Lopez,
Regional Administrator, Region 2.

    40 CFR part 52 is amended as follows:

[[Page 28887]]

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.  52.1570, the table in paragraph (e) is amended by adding 
the entry ``NJ Infrastructure SIP for the 2006 PM10, 2008 
Lead, 2010 Nitrogen Dioxide, and the 2011 Carbon Monoxide NAAQS; 
Interstate Transport Provisions'' at the end of the table to read as 
follows:


Sec.  52.1570  Identification of plan.

* * * * *
    (e) * * *

                      EPA-Approved New Jersey Nonregulatory and Quasi-Regulatory Provisions
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                                      Applicable
           SIP element               geographic or        New Jersey       EPA approval date      Explanation
                                  nonattainment area    submittal date
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                                                  * * * * * * *
NJ Infrastructure SIP for the     State-wide........  October 17, 2014..  May 14, 2020,       This action
 2006 PM10, 2008 Lead, 2010                                                [insert Federal     addresses the
 Nitrogen Dioxide, and the 2011                                            Register            following CAA
 Carbon Monoxide NAAQS;                                                    citation].          elements:
 Interstate Transport Provisions.                                                              110(a)(2)(D)(i)(I
                                                                                               ) prongs 1 and 2.
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0
3. In Sec.  52.1586, paragraph (b)(1) is amended by adding a sentence 
at the end of the paragraph to read as follows:


Sec.  52.1586  Section 110(a)(2) infrastructure requirements.

* * * * *
    (b) * * *
    (1) * * * Submittal from New Jersey dated October 17, 2014 to 
address the CAA infrastructure requirements of section 110(a)(2) for 
the 2006 PM10, 2008 Lead, 2010 Nitrogen Dioxide, and the 
2011 Carbon Monoxide NAAQS is approved for (D)(i)(I).
* * * * *
[FR Doc. 2020-08646 Filed 5-13-20; 8:45 am]
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