[Federal Register Volume 85, Number 146 (Wednesday, July 29, 2020)]
[Rules and Regulations]
[Pages 45541-45544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15534]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2019-0612; FRL-10012-02-Region 4]


Air Plan Approval; SC; NOX SIP Call and Removal of CAIR

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving State 
Implementation Plan (SIP) revisions submitted by the State of South 
Carolina through letters dated April 12, 2019, and July 11, 2019, to 
establish a SIP-approved state control program to comply with the 
Nitrogen Oxides (NOX) SIP call obligations for electric 
generating units (EGUs) and large non-EGUs. EPA is also approving the 
removal of the SIP-approved portions of the State's Clean Air 
Interstate Rule (CAIR) Program rules from the South Carolina SIP. In 
addition, EPA is approving into the SIP state regulations that 
establish an alternative monitoring option for certain sources.

DATES: This rule is effective August 28, 2020.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2019-0612. All documents in the docket 
are listed on the www.regulations.gov website. Although listed in the 
index, some information is not publicly available, i.e., 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 can either 
be retrieved electronically via www.regulations.gov or in hard copy at 
the Air Regulatory Management Section, Air Planning and Implementation 
Branch, Air and Radiation Division, U.S. Environmental Protection 
Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. 
EPA requests that if at all possible, you contact the person listed in 
the FOR FURTHER INFORMATION CONTACT section to schedule your 
inspection. The Regional Office's official hours of business are Monday 
through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Gobeail McKinley, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is 
(404) 562-9230. Ms. McKinley can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Under Clean Air Act (CAA or Act) section 110(a)(2)(D)(i)(I), which 
EPA has traditionally termed the good neighbor provision, states are 
required to address the interstate transport of air pollution. 
Specifically, the good neighbor provision requires that each state's 
implementation plan contain adequate provisions to prohibit air 
pollutant emissions from within the state that will significantly 
contribute to nonattainment of the national ambient air quality 
standards (NAAQS), or that will interfere with maintenance of the 
NAAQS, in any other state.
    In October 1998 (63 FR 57356), EPA finalized the ``Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone'' (``NOX SIP Call''). The NOX 
SIP Call required eastern states, including South Carolina, to submit 
SIPs that prohibit excessive emissions of ozone season NOX 
by implementing statewide emissions budgets.\1\ The NOX SIP 
Call addressed the good neighbor provision for the 1979 ozone NAAQS and 
was designed to mitigate the impact of transported NOX 
emissions, one of the precursors of ozone. EPA developed the 
NOX Budget Trading Program, an allowance trading program 
that states could adopt to meet their obligations under the 
NOX SIP Call. This trading program allowed the following 
sources to participate in a regional cap and trade program: Generally 
EGUs with capacity greater than 25 megawatts (MW); and large industrial 
non-EGUs, such as boilers and combustion turbines, with a rated heat 
input greater than 250 million British thermal units per hour (MMBtu/
hr). The NOX SIP Call also identified potential reductions 
from cement kilns and stationary internal combustion engines.
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    \1\ See 63 FR 57356 (October 27, 1998). As originally 
promulgated, the NOX SIP Call also addressed good 
neighbor obligations under the 1997 8-hour ozone NAAQS, but EPA 
subsequently stayed and later rescinded the rule's provisions with 
respect to that standard. See 65 FR 56245 (September 18, 2000); 84 
FR 8422 (March 8, 2019).
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    To comply with the NOX SIP Call requirements, South 
Carolina Department of Health and Environmental Control (SC DHEC) 
promulgated provisions at Regulation 61-62.96, Subparts A through I. 
EPA approved the provisions into South Carolina's SIP in 2002.\2\ The 
provisions required EGUs and large non-EGUs in the State to participate 
in the NOX Budget Trading Program.
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    \2\ See 67 FR 43546 (June 28, 2002).
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    In 2005, EPA published CAIR, which required eastern states, 
including South Carolina, to submit SIPs that prohibited

[[Page 45542]]

emissions consistent with ozone season (and annual) NOX 
budgets. See 70 FR 25162 (May 12, 2005). CAIR addressed the good 
neighbor provision for the 1997 ozone NAAQS and 1997 fine particulate 
matter (PM2.5) NAAQS and was designed to mitigate the impact 
of transported NOX emissions with respect to not only ozone 
but also PM2.5. CAIR established several trading programs 
that EPA implemented through Federal implementation plans (FIPs) for 
EGUs greater than 25 MW in each affected state, but not large non-EGUs; 
states could submit SIPs to replace the FIPs that achieved the required 
emission reductions from EGUs and/or other types of sources.\3\ When 
the CAIR trading program for ozone season NOX was 
implemented beginning in 2009, EPA discontinued administration of the 
NOX Budget Trading Program; however, the requirements of the 
NOX SIP Call continued to apply.
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    \3\ CAIR had separate trading programs for annual sulfur dioxide 
emissions, seasonal NOX emissions and annual 
NOX emissions.
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    On October 9, 2007, EPA approved an ``abbreviated SIP'' for South 
Carolina, consisting of regulations governing allocation of 
NOX allowances to EGUs for use in the trading programs 
established pursuant to CAIR, and related rules allowing additional 
sources to opt into the CAIR programs. See 72 FR 57209. The abbreviated 
SIP was implemented in conjunction with a FIP for South Carolina that 
specified requirements for emissions monitoring, permit provisions, and 
other elements of CAIR programs.
    On October 16, 2009, EPA approved a ``full SIP'' for South 
Carolina, through which various CAIR implementation provisions became 
governed by State rules rather than Federal rules.\4\ Consistent with 
CAIR's requirements, EPA approved a SIP revision in which South 
Carolina regulations: (1) Sunsetted its NOX Budget Trading 
Program requirements, (2) removed NOX SIP Call 
implementation requirements (i.e., South Carolina Regulation 61-62.96, 
Subparts A through I, ``Nitrogen Oxides (NOX) Budget 
Program''), and (3) incorporated CAIR (i.e., South Carolina Regulation 
61-62.96, Subparts AA through II, AAA through III, and AAAA through 
IIII, ``Nitrogen Oxides (NOX) and Sulfur Dioxide 
(SO2) Budget Trading Program''). See 74 FR 53167 (October 
16, 2009). Participation of EGUs in the CAIR ozone season 
NOX trading program addressed the State's obligation under 
the NOX SIP Call for those units, and South Carolina also 
chose to require non-EGUs subject to the NOX SIP Call to 
participate in the same CAIR trading program. In this manner, South 
Carolina's CAIR rules incorporated into the SIP addressed the State's 
obligations under the NOX SIP Call with respect to both EGUs 
and non-EGUs.
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    \4\ See 74 FR 53167.
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    The United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately 
remanded the rule to EPA without vacatur to preserve the environmental 
benefits provided by CAIR. See North Carolina v. EPA, 531 F.3d 896, 
modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The ruling 
allowed CAIR to remain in effect temporarily until a replacement rule 
consistent with the court's opinion was developed. While EPA worked on 
developing a replacement rule, the CAIR program continued to be 
implemented with the NOX annual and ozone season trading 
programs beginning in 2009 and the SO2 annual trading 
program beginning in 2010.
    Following on the D.C. Circuit's remand of CAIR, EPA promulgated the 
Cross-State Air Pollution Rule (CSAPR) to replace CAIR and address the 
good neighbor provisions for the 1997 ozone NAAQS, the 1997 
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS. See 76 FR 
48208 (August 8, 2011). Through FIPs, CSAPR required EGUs in eastern 
states, including South Carolina, to meet annual and ozone season 
NOX emission budgets and annual SO2 emission 
budgets implemented through new trading programs. Implementation of 
CSAPR began in January 1, 2015.\5\ CSAPR also contained provisions that 
would sunset CAIR-related obligations on a schedule coordinated with 
the implementation of the CSAPR compliance requirements. Participation 
by a state's EGUs in the CSAPR trading program for ozone season 
NOX generally addressed the state's obligation under the 
NOX SIP Call for EGUs. CSAPR did not initially contain 
provisions allowing states to incorporate large non-EGUs into that 
trading program to meet the requirements of the NOX SIP Call 
for non-EGUs. EPA also stopped administering CAIR trading programs with 
respect to emissions occurring after December 31, 2014.\6\
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    \5\ See 79 FR 71663 (December 3, 2014) and 81 FR 13275 (March 
14, 2016).
    \6\ See 79 FR 71663 (December 3, 2014) and 81 FR 13275 (March 
14, 2016).
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    After litigation that reached the Supreme Court, the D.C. Circuit 
generally upheld CSAPR but remanded several state budgets to EPA for 
reconsideration, including the Phase 2 ozone season NOX 
budget for South Carolina. EME Homer City Generation, L.P. v. EPA, 795 
F.3d 118, 129-30 (D.C. Cir. 2015). EPA addressed the remanded ozone 
season NOX budgets in the CSAPR Update, which also partially 
addressed eastern states' good neighbor obligations for the 2008 ozone 
NAAQS. See 81 FR 74504 (October 26, 2016). The air quality modeling for 
the CSAPR Update projected that South Carolina would not contribute 
significantly to nonattainment or interfere with maintenance in 
downwind areas for either the 1997 ozone NAAQS or the 2008 ozone NAAQS 
as of 2017, and the EGUs in the state therefore are no longer subject 
to a NOX ozone season trading program under either CSAPR or 
the CSAPR Update.\7\ The CSAPR Update also reestablished an option for 
most states to meet their ongoing obligations for non-EGUs under the 
NOX SIP Call by including the units in the CSAPR Update 
trading program, but since South Carolina's EGUs do not participate in 
that trading program, the option is not available to South Carolina. 
Because South Carolina's EGUs and non-EGUs no longer participate in any 
CSAPR or CSAPR Update trading program for ozone season NOX 
emissions, the NOX SIP Call regulations at 40 CFR 
51.121(r)(2) as well as anti-backsliding provisions at 40 CFR 51.905(f) 
and 40 CFR 51.1105(e) require these sources to maintain compliance with 
NOX SIP Call requirements in some other way.
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    \7\ In the CSAPR Update, EPA relieved EGUs in South Carolina 
from the obligation to participate in the original CSAPR 
NOX ozone season trading program for purposes of 
addressing the good neighbor requirements for the 1997 ozone NAAQS 
and did not require the EGUs to participate in the new CSAPR Update 
trading program for purposes of addressing the 2008 ozone NAAQS. See 
40 CFR 52.38(b)(2)(ii)-(iii). EGUs in South Carolina remain subject 
to CSAPR state trading programs for annual NOX and 
SO2 emissions for purposes of addressing the 
PM2.5 NAAQS under the state trading program rules 
codified in South Carolina regulation 61-62.97 that were adopted 
into the State's SIP. See 82 FR 47936. EPA acknowledges the D.C. 
Circuit's decision in Wisconsin v. EPA, 938 F.3d 303 (Sept. 13, 
2019), remanding the CSAPR Update with respect to the adequacy of 
the rulemaking to address the good neighbor obligations with respect 
to the 2008 ozone NAAQS; however, the court's decision does not 
address the determinations made in the CSAPR Update regarding 
state's obligations with respect to the 1997 ozone NAAQS as those 
determinations were not challenged in the course of the litigation.
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    Under 40 CFR 51.121(i)(4) of the NOX SIP Call 
regulations as originally promulgated, where a state's SIP contains 
control measures for EGUs and large non-EGUs, the SIP must also require 
these sources to monitor emissions according to the provisions of 40 
CFR part 75, which generally entail the use of continuous emission 
monitoring systems (CEMS). South

[[Page 45543]]

Carolina triggered this requirement by including control measures in 
their SIP for these types of sources, and the requirement has remained 
in effect despite the discontinuation of the NOX Budget 
Trading Program after the 2008 ozone season. On March 8, 2019, EPA 
revised some of the regulations that were originally promulgated in 
1998 to implement the NOX SIP Call.\8\ The revision gave 
states covered by the NOX SIP Call greater flexibility 
concerning the form of the NOX emissions monitoring 
requirements that the states must include in their SIPs for certain 
emissions sources. The revision amends 40 CFR 51.121(i)(4) to make part 
75 monitoring, recordkeeping, and reporting optional, such that SIPs 
may establish alternative monitoring requirements for NOX 
SIP Call budget units that meet the general requirements of 40 CFR 
51.121(f)(1) and (i)(1). Under the updated provision, a state's 
implementation plan would still need to include some form of emissions 
monitoring requirements for these types of sources, consistent with the 
NOX SIP Call's general enforceability and monitoring 
requirements at Sec.  51.121(f)(1) and (i)(1), respectively, but states 
would no longer be required to satisfy these general NOX SIP 
Call requirements specifically through the adoption of 40 CFR part 75 
monitoring requirements.
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    \8\ See ``Emissions Monitoring Provisions in State 
Implementation Plans Required Under the NOX SIP Call,'' 
84 FR 8422.
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    On April 12, 2019, and July 11, 2019,\9\ SC DHEC's letters 
requested that EPA update South Carolina's SIP to reflect the 
reinstated NOX SIP Call requirements at Regulation 61-62, 
``Air Pollution Control Regulations and Standards,'' provide additional 
monitoring flexibilities for certain units subject to the State's 
NOX SIP Call regulations, and remove CAIR requirements. 
Additionally, the July 11, 2019, submission includes a demonstration 
under CAA section 110(l) intended to show that the April 12, 2019 SIP 
revision does not interfere with any applicable CAA requirements. On 
May 5, 2020 (85 FR 26635), EPA published a notice of proposed 
rulemaking (NPRM) proposing to establish a SIP-approved state control 
program to comply with NOX SIP call obligations for EGUs and 
large non-EGUs. EPA also proposed approving the removal of the SIP-
approved portions of the CAIR Program rules from the South Carolina SIP 
and approve into the SIP state regulations that establish an 
alternative monitoring option for certain sources.
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    \9\ This submission also includes amended regulations which are 
not part of the federally-approved SIP and are not addressed in this 
notice such as: Amended Regulation 61-62.61, ``South Carolina 
Designated Facility Plan and New Source Performance Standards;'' 
amended Regulation 61-62.63, ``National Emission Standards for 
Hazardous Air Pollutants (``NESHAP'') for Source Categories;'' 
amended Regulation 61-62.68, ``Chemical Accident Prevention 
Provisions;'' and amended Regulation 61-62.70, ``Title V Operating 
Permit Program.''
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    See EPA's May 5, 2020 (85 FR 26635), NPRM for further detail on 
these changes and EPA's rationale for approving them. EPA did not 
receive public comments on the May 5, 2020, NPRM.

II. Incorporation by Reference

    In this rule, the 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 South 
Carolina Regulation 61-62.96 titled, ``Nitrogen Oxides (NOX) 
Budget Program,'' effective January 25, 2019, which reinstates 
applicable portions of EPA's 40 CFR part 96 NOX SIP Call 
regulations and establishes alternative emission monitoring 
requirements for certain units. Also, in this rule, EPA is finalizing 
the removal of South Carolina Regulation 61-62.96 Subparts AA through 
II, AAA through III, and AAAA through IIII entitled, ``Nitrogen Oxides 
(NOX) and Sulfur Dioxide (SO2) Budget Trading 
Program,'' from the South Carolina State Implementation Plan, which is 
incorporated by reference in accordance with the requirements of 1 CFR 
part 51. EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov and at the EPA Region 4 
Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information). 
Therefore, the 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 by the Director of the Federal 
Register in the next update to the SIP compilation.\10\
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    \10\ See 62 FR 27968 (May 22, 1997).
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III. Final Actions

    EPA is approving South Carolina's SIP April 12, 2019, and July 11, 
2019, SIP revisions and incorporating Regulation 61-62.96 entitled, 
``Nitrogen Oxides (NOX) Budget Program,'' and Regulation 61-
62.96, Subpart H, Section 96.70 into the SIP. In addition, EPA is 
approving removal of the State's CAIR regulations at Regulation 61-
62.96 Subparts AA through II, AAA through III, and AAAA through IIII 
entitled, ``Nitrogen Oxides (NOX) and Sulfur Dioxide 
(SO2) Budget Trading Program,'' from the SIP. EPA has 
concluded that these revisions will not interfere with attainment and 
maintenance of the NAAQS, reasonable further progress, or any other 
applicable requirement 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 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, these 
actions merely approve state law as meeting Federal requirements and do 
not impose additional requirements beyond those imposed by state law. 
For that reason, these actions:
     Are not significant regulatory actions 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);
     Are not Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory actions because SIP approvals are exempted under 
Executive Order 12866;
     Do not impose information collection burdens under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are certified as not having significant economic impacts 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Do not contain any unfunded mandates or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Do not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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

[[Page 45544]]

     Do 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).
    Because these actions merely approve state law as meeting Federal 
requirements and do not impose additional requirements beyond those 
imposed by state law, this action for the State of South Carolina does 
not have Tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). Therefore, this action will not impose 
substantial direct costs on Tribal governments or preempt Tribal law. 
The Catawba Indian Nation (CIN) Reservation is located within the 
boundary of York County, South Carolina. Pursuant to the Catawba Indian 
Claims Settlement Act, S.C. Code Ann. 27-16-120 (Settlement Act), ``all 
state and local environmental laws and regulations apply to the 
[Catawba Indian Nation] and Reservation and are fully enforceable by 
all relevant state and local agencies and authorities.'' The CIN also 
retains authority to impose regulations applying higher environmental 
standards to the Reservation than those imposed by state law or local 
governing bodies, in accordance with the Settlement Act.
    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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 28, 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

    Dated: July 13, 2020.
Mary Walker,
Regional Administrator, Region 4.

    Accordingly, 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 PP--South Carolina

0
2. Section 52.2120(c) is amended by revising the entry for ``Regulation 
No. 62.96'' to read as follows:


Sec.  52.2120   Identification of plan.

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    (c) * * *

                                     EPA-Approved South Carolina Regulations
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                                                            State
          State citation               Title/subject      effective     EPA approval date        Explanation
                                                             date
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                                                  * * * * * * *
Regulation No. 62.96.............  Nitrogen Oxides         1/25/2019  7/29/2020, [Insert
                                    (NOX) Budget                       citation of
                                    Program.                           publication].
 
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[FR Doc. 2020-15534 Filed 7-28-20; 8:45 am]
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