[Federal Register Volume 85, Number 118 (Thursday, June 18, 2020)]
[Rules and Regulations]
[Pages 36748-36752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11712]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2019-0399; FRL-10009-52-Region 2]


Approval of Air Quality Implementation Plans; New Jersey; 
Gasoline Vapor Recovery Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to the New Jersey State Implementation Plan (SIP) for the 
ozone National Ambient Air Quality Standards which includes regulatory 
amendment revisions relevant to the New Jersey Department of 
Environmental Protection's requirements for Stage I and Stage II vapor 
recovery systems at gasoline dispensing facilities. New Jersey's 
comprehensive submittal also included changes in amendments for its air 
permitting program and t-butyl acetate emission reporting requirements, 
however, the EPA will be acting on these amendments under a separate 
action.

DATES: The final rule is effective on July 20, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA-R02-OAR-2019-0399. 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 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: Linda Longo, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-3565, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. The EPA's Evaluation of New Jersey's Submittals
III. Comments Received in Response to the EPA's Proposed Action
IV. Summary of the EPA Final Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background

    The EPA is approving a revision to the State of New Jersey's (the 
State) SIP for attainment and maintenance of the ozone National Ambient 
Air Quality Standards (NAAQS). On November 26, 2019 (84 FR 65063), the 
EPA proposed to approve the State's November 29, 2017, SIP revision, 
which consists of amendments to the New Jersey Administrative Code 
(N.J.A.C.) 7:27-16.3, ``Gasoline Transfer Operations'' (the Rule). 
Under these amendments, certain gasoline dispensing facilities (GDFs) 
must make upgrades to Stage I gasoline vapor controls and decommission 
Stage II gasoline vapor systems. Under the Rule, Stage I controls are 
required for tank breathing and refueling systems, with some exceptions 
for single-point vapor balance systems and rotatable adapters. The Rule 
allows GDFs with Stage I controls one year to install a California Air 
Resources Board-certified Stage I enhanced vapor recovery pressure/
vacuum relief vent valve and seven years to comply with the remaining 
equipment requirements. The Rule requires GDFs with existing Stage II 
systems that are incompatible with onboard refueling vapor recovery 
(ORVR) systems to be decommissioned on or before December 23, 2020, 
with a demonstration that such removal is consistent with the Clean Air 
Act and the EPA Guidance.
    Under Clean Air Act (CAA) section 202(a)(6), Congress provided 
authority to the EPA to allow states to remove (e.g., decommission) 
Stage II vapor recovery programs from their SIPs, through a SIP 
revision, after the EPA finds that ORVR systems are in widespread use 
throughout the motor vehicle fleet nationwide. On May 16, 2012, the EPA 
determined that ORVR systems are in widespread use nationwide for 
control of gasoline emissions during refueling of vehicles at GDFs. See 
77 FR 28772 (May 16, 2012) (Widespread Use Rule). On August 7, 2012, 
EPA issued policy and technical guidance, Guidance on Removing Stage II 
Gasoline Refueling Vapor Recovery from State Implementation Plans and 
Assessing Comparable Measures, to provide information and tools for 
states to use to develop Stage II program phase-out plans and to 
address the separate ``comparable measures'' requirement in CAA section 
184(b)(2) that applies to states located in the Ozone Transport Region 
(OTR), such as New Jersey (EPA Guidance).\1\
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    \1\ EPA. 2012. ``Guidance on Removing Stage II Gasoline 
Refueling Vapor Recovery Programs from State Implementation Plans 
and Assessing Comparable Measures,'' (``EPA Guidance''). See https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20120807_page_stage2_removal_guidance.pdf.
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    The Widespread Use Rule allowed, but did not require, states to 
discontinue Stage II vapor recovery programs. States are free to allow 
GDFs to continue to use existing ORVR-compatible Stage II systems and 
encouraged to ensure that facilities maintain the Stage II systems, 
including compliance with required testing, to ensure proper working 
order. New Jersey's Rule implements this recommendation and requires 
the installation of enhanced conventional dripless nozzles and low 
permeation

[[Page 36749]]

hoses as part of decommissioning or as maintenance of existing Stage II 
systems.

II. The EPA's Evaluation of New Jersey's Submittals

    The EPA's approval is based on the conclusion that the State's 
November 29, 2017, SIP revision conforms with the EPA Guidance by 
demonstrating widespread use of the ORVR-equipped vehicles in the 
State's vehicle fleet and that the Rule would reduce emissions of 
gasoline vapors thereby reducing emissions of volatile organic 
compounds (VOC). The EPA has determined the following: (1) The State 
has demonstrated that decommissioning Stage II systems would not lead 
to an increase in vehicle refueling emissions and would be consistent 
with non-interference requirements under CAA section 110(l); (2) any 
temporary emissions increase that may result from phasing out Stage II 
controls during the years 2017 to 2021 would be de minimis thus, the 
Rule satisfies the ``comparable measures'' requirement under CAA 
section 184(b)(2); and (3) the compliance date for the requirement to 
decommission Stage II Systems and remove the Stage II program from the 
SIP is well within the de minimis crossover period, satisfying the 
anti-backsliding requirements under CAA section 193. In this case, the 
State's analysis showed that the widespread use crossover period is the 
period between mid-2017 and mid-2021; this timeframe coincides with the 
Rule's compliance date for decommissioning Stage II systems of ``on or 
about December 23, 2020.'' For a detailed explanation and evaluation of 
the SIP revision, refer to the proposed rulemaking. See 84 FR 65063, 
November 26, 2019.

III. Comments Received in Response to the EPA's Proposed Action

    In response to the EPA's November 26, 2019, proposed approval of 
the revisions to the New Jersey SIP for the ozone NAAQS, which consists 
of amendments to N.J.A.C. 7:27-16.3, ``Gasoline Transfer Operations,'' 
the EPA received two public comments from two anonymous commenters 
during the 30-day public comment period. The EPA has evaluated the 
comments, as discussed below, and has determined that New Jersey's SIP 
revision addressing the ozone 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-2019-
0399 on the http://www.regulations.gov website.
    Comment: Although I agree with the action the EPA is taking here 
more should be done to explain why New Jersey only evaluated five of 
the 21 counties in the state. If New Jersey were to evaluate all 21 
counties what changes would occur to the cross-over period? EPA should 
evaluate all counties not just a small sample of the state. This is 
especially important because the entire state of New Jersey is one 
giant non-attainment area and has been for decades. Knowing when 
exactly the cross-over period happens in the entire state would 
maximize the benefits of the remaining stage II GDFs while allowing the 
state to remove the program responsibly.
    Response: The EPA appreciates that the commenter does not object to 
the EPA's proposed action to approve New Jersey's SIP. By approving the 
current SIP revision, the EPA concludes that the State's use of a 
representative sample of five counties (i.e., Essex, Middlesex, Camden, 
Ocean, and Salem), instead of the total twenty-one counties that make 
up the State of New Jersey, in its widespread use analysis is 
consistent with the EPA Guidance which did not specify the quantity of 
state-wide data needed to determine widespread use. The EPA believes 
the State's estimate of the cross-over period (i.e., the time period 
over which the benefits of the Stage II controls are outweighed by its 
incompatibility with ORVR systems) would not meaningfully change if New 
Jersey included any additional counties or all of the State's 21 
counties in the analysis. For the reasons outlined below, the State's 
selection of the five counties used in the analysis sufficiently 
supports the State's proposed revisions to remove Stage II control 
requirements from the State Implementation Plan.
    As discussed in the proposed rulemaking, New Jersey's selection is 
partially based on the results of the State-administered statewide 
survey of GDF in 2014 that found the five counties to be representative 
and cover a wide geographic cross-section of the State. The New Jersey 
Department of Environmental Protection (NJDEP) analyzed vehicle 
refueling data ``for the years 2014 and 2018, for the five counties, 
which represent urban and rural areas of NJ, in both of New Jersey's 
ozone nonattainment areas. The various vehicle mixes in these counties 
cover the range of ORVR-equipped vehicle fractions in the New Jersey 
fleet.'' \2\ The State deemed the five counties used in the analysis to 
cover vehicle use patterns for restricted and unrestricted access road 
types (e.g., express roadways and side roads) within the State. They 
also span rural, suburban, and urban ozone non-attainment areas; 
coastal and inland areas; and the major directional regions of the 
State.
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    \2\ Email correspondence from NJDEP dated Jan. 8, 2020, on file 
with EPA.
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    The NJDEP found that ``. . . in Appendix A, the variation in the 
crossover dates between the five counties is only 8-10 months, while 
the variation in the crossover dates between the range of percentage of 
vacuum assist throughput is over 3 years. Therefore, the variation due 
to differences between counties is small compared to the variation due 
to percentage of gasoline dispensed via vacuum assist versus balanced 
systems. Extension of the analysis to additional counties would not 
increase overall accuracy of the crossover date estimates because 
crossover date accuracy is being driven by other inputs such as the 
percentage of gasoline dispensed via vacuum assist versus balanced 
systems.'' See, footnote 2. EPA is not aware of, and the commenter did 
not assert or provide, any information suggesting that the State's 
selection of the counties used in the analysis omits any area types or 
any significant vehicle use patterns occurring in New Jersey. 
Consequently, the EPA finds that the State's analysis is consistent 
with EPA guidance and is acceptable.
    As stated above, the State's widespread use analysis reveals that 
the county-specific ORVR system-equipped vehicle turnover rates (i.e., 
the rate at which ORVR system-equipped vehicles are deployed) have very 
little influence on the estimate of the cross-over period (on the order 
of 2-4 months in this analysis).\3\ On the other hand, the State's 
analysis shows that other factors of Equation 1 in the EPA Guidance, 
which EPA suggests should be used to derive the cross-over period, have 
a much greater effect on the cross-over period estimate. One such 
factor is the difference between the gasoline throughput attributable 
to ORVR vehicles versus that attributable to non-ORVR vehicles. The EPA 
Guidance recommends that states use either of two vacuum-assist Stage 
II in-use control efficiency (i.e., gasoline

[[Page 36750]]

throughput) scenarios \4\ in the widespread use analysis. For New 
Jersey, depending on the scenario used, the cross-over period could 
vary as much as 39-43 months, a level of variability that dwarfs the 
influence of any variability due to the county-specific ORVR turnover 
rate (in this case, 2-4 months). Despite the influence of in-use 
control efficiency on the calculation of the cross-over period, the 
State's ability to derive this information is limited. As long as such 
high uncertainty remains for this factor, and other factors that 
contribute more to the cross-over estimate, adding more counties to the 
vehicle turnover analysis would not be insightful. Indeed, EPA 
recognizes the difficulty in achieving accuracy of the in-use control 
efficiency derivation, and the EPA Guidance's suggested methodology 
provides the flexibility for states to account for this uncertainty.
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    \3\ New Jersey Department of Environmental Protection, Appendix 
A Phase II SIP Equations 7-3-17, Crossover Summary tab.
    \4\ New Jersey's analysis using the two Stage II in-use control 
efficiency scenarios are outlined in the SIP revision Appendix A 
Phase II SIP Equations 7-3-17 Cross-Over Summary, which is included 
in the docket for this action. Although the EPA Guidance suggests a 
60-75 percent Stage II in-use control efficiency when estimating the 
ORVR-equipped fueling at Stage II pumps, the State chose a range of 
30-70 percent, which would give a more conservative estimate of the 
cross-over period. That is, when 29 and 71 percent of the GDFs are 
fueling ORVR-equipped vehicles.
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    Ultimately, under the widespread use determination, the EPA reviews 
SIP revisions on a case-by-case basis for compliance with the criteria 
set forth in the CAA sections 110(l), 193 and 184(b)(2), with due 
consideration of the submitting state's support for the values used in 
its calculations and any related emissions inventory and/or air quality 
analyses it presents. Here, the State has shown that its estimate of 
the cross over period accords with the methods outlined in the EPA 
Guidance and satisfies the referenced statutory requirements.
    Comment: To encourage entities to both participate and follow the 
proposed guidelines, a potential tax credit, or some form or credit for 
the entity may want to be considered. If such an approach were to be 
implemented, it would likely encourage the entities to participate in 
the program as well as assist in their continuing to follow the 
guidelines put forth by the proposed regulation.
    Response: The EPA appreciates the suggestion of additional 
incentives aimed at achieving higher compliance rates; however, the 
actions proposed are outside the scope of the current rulemaking or 
EPA's authority, which is to ensure that the State has the authority to 
implement and enforce the rule proposed. Economic incentives are 
matters for the State to consider if it chooses to do so. New Jersey 
entities subject to the Rule, as approved into the SIP, are required to 
comply with the provisions outlined therein regardless of whether 
financial or other economic incentives exist. EPA believes that GDFs 
are sufficiently motivated to comply with the Rule, because the State 
has an inspection program and violations would result in penalty 
assessments.
    The State inspection program has stringent requirements to ensure 
compliance under which only a licensed contractor is authorized to 
decommission a Stage II system. Moreover, owners and operators of GDFs 
must notify the State of any decommissioning activity 14 days prior to 
a site's initiating any such activity.\5\ Additionally, within 14-days 
after completion of the decommissioning, the GDF must provide the State 
with an email notification of the completion of such work; the 
completion notification is required to document the post-
decommissioning testing and demonstration of compliance with the 
Petroleum Equipment Institute checklist. With the notification system, 
State inspectors would have prior knowledge of when decommissioning 
projects would take place in an area and would, therefore, also have 
the opportunity to inspect the facility during any such decommissioning 
activity to ensure compliance with the Rule. Roughly half of the 
facilities in New Jersey have decommissioned their Stage II systems to 
date. The deadline for decommissioning vacuum-assist Stage II is 
December 23, 2020. GDF owners and operators have additional incentive 
to complete decommissioning by the State's deadline, because it 
overlaps the deadline for EMV chip requirements.\6\ The concurrent 
deadlines allow many GDFs to reap the economic benefit of coordinating 
dispenser replacements with other equipment upgrades necessary to meet 
with the EMV chip requirements.
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    \5\ The owner or operator of the GDF must provide the State with 
an email notification of any decommissioning activity.
    \6\ The Europay, MasterCard, Visa (EMV) is a global standard for 
chip-based debit and credit card transactions. See e.g., https://usa.visa.com/visa-everywhere/security/emv-at-the-pump.html (last 
accessed 02/20/2019). The financial services corporations Visa and 
Mastercard set a deadline by which automated fuel dispenser/pump 
merchants processing payments through debit and credit cards with 
the Mastercard and Visa brands would need to implement systems 
necessary to read debit and credit cards equipped with EMV chips.
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IV. Summary of the EPA Final Action

    The EPA is approving the State of New Jersey's SIP revision dated 
November 29, 2017, which includes the State's revised New Jersey 
Administrative Code (N.J.A.C.) 7:27-16.3, ``Gasoline Transfer 
Operations'', effective November 20, 2017. The EPA is approving this 
SIP revision because it meets all applicable requirements of the CAA 
and the EPA Guidance, and it will not interfere with any applicable 
requirement concerning attainment of the NAAQS and reasonable further 
progress or with any other applicable requirement of the CAA. As stated 
in the proposed rulemaking (84 FR 65063, November 26, 2019), the EPA 
finds that the State has demonstrated, through application of the 
Incremental Equation 1, that removing Stage II will meet rate of 
progress and reasonable further progress requirements and assist in 
attainment demonstration and transportation conformity impacts related 
to removing Stage II. The State's November 29, 2017, SIP revision is 
approvable under CAA section 110(l) because VOC emissions increase that 
may have occurred between the years 2017 to 2021 are too small to 
interfere with attainment and rate of progress and reasonable further 
progress towards attainment of ozone NAAQS. The State's SIP submission 
also demonstrates that continuing a Stage II vapor recovery program 
would have resulted in an increase in refueling emissions due to excess 
emissions resulting from incompatibility between the ORVR and Stage II 
systems. Preventing an increase in refueling emissions is consistent 
with non-interference requirements of the CAA section 110(l).
    The revision to the SIP also satisfies the ``comparable measures'' 
requirement of CAA section 184(b)(2), which requires OTR states 
proposing to remove Stage II control programs to implement measures 
that would achieve ``comparable,'' and not ``equivalent,'' reductions 
to existing Stage II programs. As stated in the EPA Guidance, ``the 
comparable measures requirement is satisfied if phasing out a Stage II 
control program in a particular area is estimated to have no, or a de 
minimis, incremental loss of area-wide emission control.'' \7\ In this 
case, the State has demonstrated that any temporary emissions increase 
resulting from phasing out of Stage II controls during the years 2017 
to 2021 would be de minimis.
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    \7\ EPA Guidance, above, p. 6.
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    Finally, the State has satisfied the anti-backsliding requirements 
of the

[[Page 36751]]

CAA section 193. The compliance date of on or about December 23, 2020, 
for decommissioning Stage II systems and removal of the Stage II 
program from the New Jersey SIP is well within the crossover period of 
mid-2017 and mid-2021 timeframe.

V. Incorporation by Reference

    In this document, the EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with requirements of 
1 CFR 51.5, we are incorporating by reference N.J.A.C. 7:27-16, 
``Control and Prohibition of Air Pollution by Volatile Organic 
Compounds'', regulations described in the amendments to 40 CFR part 52 
set forth below. EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 2 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 State Implementation Plan, 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.\8\
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    \8\ 62 FR 27968 (May 22, 1997).
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VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act. 
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 final action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Order 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 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 SIP is not approved to apply on any Indian 
reservation land or in any other area where 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 August 17, 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 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

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

    Dated: May 22, 2020.
Peter 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.  52.1570, the table in paragraph (c) is amended by revising 
the entry ``Title 7, Chapter 27, Subchapter 16'' to read as follows:


Sec.  52.1570  Identification of plan.

* * * * *
    (c) * * *

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                               EPA-Approved New Jersey State Regulations and Laws
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                                                     State effective
         State citation            Title/subject           date        EPA approval date         Comments
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                                                  * * * * * * *
Title 7, Chapter 27, Subchapter  Control and        November 20, 2017  June 18, 2020,
 16.                              Prohibition of                        EPA approval
                                  Air Pollution by                      finalized at
                                  Volatile Organic                      [insert Federal
                                  Compounds.                            Register
                                                                        citation].
 
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[FR Doc. 2020-11712 Filed 6-17-20; 8:45 am]
BILLING CODE 6560-50-P