[Federal Register Volume 80, Number 162 (Friday, August 21, 2015)]
[Rules and Regulations]
[Pages 50785-50789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20527]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2015-0537; FRL-9932-55-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia; Interstate Pollution Transport Requirements for
the 2006 24-Hour Fine Particulate Matter Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to approve a revision to the District of Columbia State
Implementation Plan (SIP). The revision addresses the infrastructure
requirements for interstate transport pollution with respect to the
2006 24-hour fine particulate matter (PM2.5) National
Ambient Air Quality Standards (NAAQS). EPA is approving this revision
in accordance with the requirements of the Clean Air Act (CAA).
DATES: This rule is effective on October 20, 2015 without further
notice, unless EPA receives adverse written comment by September 21,
2015. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
[[Page 50786]]
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2015-0537 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2015-0537, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Mailcode 3AP30, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2015-0537. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI, or otherwise protected, through www.regulations.gov or email.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the District of Columbia Department of the
Environment, Air Quality Division, 1200 1st Street NE., 5th Floor,
Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT: Emlyn V[eacute]lez-Rosa, (215) 814-
2038, or by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On July 16, 2015, the District of Columbia (the District), through
the District Department of the Environment (DDOE), submitted a formal
revision to its SIP. The SIP revision addresses the infrastructure
requirements for interstate transport of pollution under section
110(a)(2)(D)(i)(I) of the CAA with respect to the 2006 24-hour
PM2.5 NAAQS.
A. General
Whenever new or revised NAAQS are promulgated, the CAA requires
states to submit a plan for the implementation, maintenance, and
enforcement of such NAAQS. The plan is required to address basic
program elements, including, but not limited to, regulatory structure,
monitoring, modeling, legal authority, and adequate resources necessary
to assure attainment and maintenance of the standards. These elements
are referred to as infrastructure requirements.
On September 21, 2006, EPA promulgated a new 24-hour
PM2.5 standard of 35 micrograms per cubic meter ([mu]g/
m\3\), based on a 3-year average of the 98th percentile of 24-hour
concentrations. See 71 FR 61144 (October 17, 2006). The 2006 24-hour
PM2.5 NAAQS became effective on December 18, 2006. See 40
CFR 50.13.
This rulemaking action pertains to the District's July 16, 2015
infrastructure SIP revision addressing the interstate transport
pollution requirements under section 110(a)(2)(D)(i)(I) of the CAA with
respect to the 2006 24-hour PM2.5 NAAQS. EPA has taken
previous rulemaking actions on the District's SIP revision addressing
infrastructure elements in section 110(a)(2)(A), (B), (C), (D)(i)(II),
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) with respect to the
2006 24-hour PM2.5 NAAQS. See 76 FR 20237 (April 12, 2011)
(final approval of the District's September 21, 2009 SIP revision
addressing several section 110(a)(2) requirements for the 2006 24-hour
PM2.5 NAAQS) and 77 FR 5191 (February 2, 2012) (final
approval of the District's SIP revision addressing section
110(a)(2)(i)(II) for visibility protection).
B. EPA's Infrastructure Requirements
Pursuant to section 110(a)(1), states must make infrastructure SIP
submissions ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof).''
Infrastructure SIP submissions should provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``[e]ach
such plan'' submission must address.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements. EPA most
recently issued guidance for infrastructure SIPs on September 13, 2013
(2013 Infrastructure Guidance).\1\ EPA developed this document to
provide states with up-to-date guidance for infrastructure SIPs for any
new or revised NAAQS. Within this guidance, EPA describes the duty of
states to make infrastructure SIP submissions to meet basic structural
SIP requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions. The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2).\2\ EPA
[[Page 50787]]
interprets section 110(a)(1) and (2) such that infrastructure SIP
submissions need to address certain issues and need not address others.
Accordingly, EPA reviews each infrastructure SIP submission for
compliance with the applicable statutory provisions of section
110(a)(2), as appropriate.
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\1\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013. This guidance
is available online at http://www.epa.gov/oar/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.
\2\ On September 25, 2009, EPA issued ``Guidance on SIP Elements
Required Under Sections 110(a)(l) and (2) for the 2006 24-Hour Fine
Particle (PM2.5) National Ambient Air Quality Standards
(NAAQS),'' Memorandum from William T. Hartnet, Director, Air Quality
Policy Division. This guidance provided that each state's SIP
submission for the 2006 24-hour PM2.5 NAAQS must discuss
whether emissions from the state significantly contribute to
nonattainment of the NAAQS or interference with maintenance of the
NAAQS in any other state and must address any such impact. This
guidance is available online at http://www.epa.gov/ttn/caaa/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf.
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Additionally, EPA has provided in previous rulemaking actions a
detailed discussion of the Agency's approach in reviewing
infrastructure SIPs, including the Agency's longstanding interpretation
of requirements for section 110(a)(1) and (2), the interpretation that
the CAA allows states to make multiple SIP submissions separately
addressing infrastructure SIP elements in section 110(a)(2) for a
specific NAAQS, and the interpretation that EPA has the ability to act
on separate elements of 110(a)(2) for a NAAQS in separate rulemaking
actions. For example, see EPA's proposed rulemaking action approving
portions of the District's infrastructure SIP submissions for the 2008
ozone NAAQS and the 2010 nitrogen dioxide (NO2) and sulfur
dioxide (SO2) NAAQS. See 80 FR 2865 (January 21, 2015).
In particular, section 110(a)(2)(D)(i)(I) requires state SIPs to
address any emissions activity in one state that contributes
significantly to nonattainment, or interferes with maintenance, of the
NAAQS in any downwind state. EPA sometimes refers to these requirements
as prong 1 (significant contribution to nonattainment) and prong 2
(interference with maintenance), or conjointly, the interstate
pollution transport requirements. EPA also commonly refers to these
provisions conjointly as the ``good neighbor'' provision of the CAA.
Specifically, section 110(a)(2)(D)(i)(I) of the CAA requires the
elimination of upwind state emissions that significantly contribute to
nonattainment or interference with maintenance of the NAAQS in another
state.
A combination of local emissions and emissions from upwind sources
impacts air quality in any given location. Emissions of SO2
and nitrogen oxides (NOX) can react in the atmosphere to
form PM2.5 pollution. Similarly, NOX emissions
can react in the atmosphere to create ground-level ozone pollution.
These pollutants can travel great distances affecting air quality and
public health locally and regionally. The transport of these pollutants
across state borders makes it difficult for downwind states to meet
health-based air quality standards for PM2.5 and ozone. EPA
has taken actions to facilitate implementing the ``good neighbor''
provision, including the promulgation and administration of various
rules, such as the NOX Budget Trading Program, the Clean Air
Interstate Rule (CAIR), and most recently, the Cross-State Air
Pollution Rule (CSAPR).
C. Background on CSAPR Rule
On August 8, 2011, EPA promulgated CSAPR to address SO2
and NOX emissions from electric generating units (EGUs) in
several states in the Eastern United States that significantly
contribute to nonattainment or interfere with maintenance in one or
more downwind states with respect to one or more of the 1997 annual
PM2.5 and ozone NAAQS and 2006 24-hour PM2.5
NAAQS. See 76 FR 48208 (August 8, 2011).\3\
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\3\ The U.S. Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) initially issued a decision in 2012 vacating
CSAPR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir.
2012); however, on April 29, 2014, the United States Supreme Court
reversed the D.C. Circuit's decision and remanded the matter,
including CSAPR, to the D.C. Circuit for further proceedings in
accordance with its ruling. EPA v. EME Homer City Generation, L.P.,
134 S. Ct. 1584 (2014). On October 23, 2014, the D.C. Circuit lifted
the stay on CSAPR, and EPA began implementation of CSAPR on January
1, 2015. EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C.
Cir. Oct. 23, 2014), Order at 3. See also 79 FR 71663 (December 3,
2014) (interim final rulemaking clarifying how EPA will implement
CSAPR to address the requirements of section 110(a)(2)(D)(i)(I) with
respect the 1997 annual PM2.5 and ozone NAAQS and 2006
24-hour PM2.5 NAAQS). On July 28, 2015, in a subsequent
decision on certain ``as applied'' challenges to CSAPR, the D.C.
Circuit remanded to EPA for reconsideration specific emission
allowances for ozone season NOX and SO2 for
specific states, not including the District. EME Homer City
Generation, L.P. v. EPA, 2015 U.S. App. LEXIS 13039 (D.C. Cir. July
28, 2015). Because the District has no emission sources subject to
CSAPR and is not one of the states whose ozone season NOX
or SO2 allowances were remanded by the D.C. Circuit's
July 28, 2015 decision, EPA asserts this recent July 28, 2015
decision in EME Homer City by the D.C. Circuit has no impact on our
conclusion in this rulemaking that the District has satisfied its
obligation for section 110(a)(2)(D)(i)(I) for the 2006
PM2.5 NAAQS as explained in detail in the CSAPR
rulemaking. See 76 FR 48208 (August 8, 2011).
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In CSAPR, EPA defined what portion of an upwind state's emissions
``significantly contributed'' to ozone or PM2.5
nonattainment or interference with maintenance areas in downwind states
with respect to the 1997 annual PM2.5 and ozone NAAQS and
2006 24-hour PM2.5 NAAQS. CSAPR requires states to eliminate
their ``significant contribution'' emissions by setting a pollution
limit (or budget). EPA used a state-specific methodology to identify
necessary emission reductions required by CAA section
110(a)(2)(D)(i)(I) and used a detailed air quality analysis to
determine whether a state's contribution to downwind air quality
problems was at or above specific thresholds. EPA defined ``significant
contribution'' using a multi-factor analysis that took into account
both air quality and cost considerations.
In promulgating CSAPR, EPA concluded that the District's SIP
satisfied the requirements of section 110(a)(2)(D)(i)(I) with respect
to the 1997 ozone and the 1997 and 2006 PM2.5 NAAQS and
concluded no emission sources in the District were subject to CSAPR. As
discussed in the preamble of the CSAPR rulemaking, EPA had combined
emission contributions projected in the air quality modeling from the
State of Maryland and the District to determine whether those
jurisdictions collectively contribute to any downwind nonattainment or
maintenance receptor in amounts equal to or greater than the one
percent thresholds which EPA used to identify ``significant
contribution'' for CAA section 110(a)(2)(D)(i) for the ozone and
PM2.5 NAAQS. EPA's modeling confirmed that the combined
contributions exceeded the air quality threshold at downwind receptors
for the 1997 ozone and 1997 and 2006 PM2.5 NAAQS. However,
the District was not included in CSAPR because in the second step of
EPA's significant contribution analysis, EPA concluded that there are
no emission reductions available from EGUs in the District of Columbia
at the cost thresholds deemed sufficient to eliminate significant
contribution to nonattainment and interference with maintenance of the
NAAQS considered at the linked receptors. See 76 FR 48208.
In 2011, EPA found only one facility, Benning Road Generating
Station, with units meeting CSAPR applicability requirements in the
District, and EPA's projections did not show any generation from this
facility to be economic under any scenario analyzed and the facility
had also announced plans to retire its units in early 2012.
Subsequently, Benning Road permanently retired as an air pollution
source in 2012. Because EPA projected Benning Road to have zero
emissions in 2012, EPA also projected zero emissions of SO2
and NOX in the District for EGUs that would
[[Page 50788]]
meet the CSAPR applicability requirements. Therefore, EPA did not
identify any emission reductions available at any of the cost
thresholds considered in CSAPR's multi-factor analysis to identify
significant contribution to nonattainment and interference with
maintenance. For that reason, EPA concluded that no additional limits
or reductions were necessary, at that time, in the District to satisfy
the requirements of section 110(a)(2)(D)(i)(I) with respect to the 1997
ozone and the 1997 and 2006 PM2.5 NAAQS. Id.\4\
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\4\ EPA's determination that the District's SIP satisfied
requirements of section 110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS
and 1997 and 2006 PM2.5 NAAQS and its determination that
no emission sources in the District were subject to CSAPR are not
affected by the recent decision of the D.C. Circuit to remand
specific portions of CSAPR to EPA for further consideration. EME
Homer City Generation, L.P. v. EPA, 2015 U.S. App. LEXIS 13039 (D.C.
Cir. July 28, 2015) (remanding portions of CSAPR to EPA to
reconsider specific state emission allowances for ozone season
NOX and SO2 for specific states, not including
the District).
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II. Summary of SIP Revision and EPA's Evaluation
The July 16, 2015 SIP revision consists of a letter from the DDOE
affirming that the District has already satisfied the transport
requirements under section 110(a)(2)(D)(i)(I) with respect to the 2006
24-hour PM2.5 NAAQS. As explained in this letter, the
District's determination is based on two aspects: (1) EPA's conclusion
in the preamble for CSAPR that the District had no emission reductions
at cost thresholds determined by EPA as necessary to address the
District's transport requirements for the 1997 and 2006
PM2.5 and 1997 ozone NAAQS; and (2) the District's
declaration provided in the SIP submittal that it currently has no EGUs
within the District and the District's prior EGU, the Benning Road
Generating Station, permanently shut down in 2012.
As discussed in the preamble of the final CSAPR rulemaking and
explained in the District's July 16, 2015 SIP submittal, EPA had
concluded that there are no emission reductions available from EGUs in
the District at the cost thresholds deemed sufficient to eliminate
significant contribution to nonattainment and interference with
maintenance of the NAAQS considered at the linked receptors. Therefore,
EPA had concluded that the District satisfied the requirements of
section 110(a)(2)(D)(i)(I) with respect to the 2006 24-hour
PM2.5 NAAQS. See 78 FR at 48262.
The District's July 16, 2015 SIP submission also certifies that the
District currently has no EGUs that could significantly contribute to
nonattainment or interfere with maintenance of the 2006 24-hour
PM2.5 NAAQS. The District confirms that Benning Road
Generating Station, an EGU which was operational at the time of the
promulgation of CSAPR in 2011, permanently retired as expected in 2012.
The District's negative declaration further supports EPA's
determination in the CSAPR preamble that the District's SIP needs no
further measures or revisions to satisfy section 110(a)(2)(D)(i)(I) for
the 2006 24-hour PM2.5 NAAQS.
III. Final Action
EPA is approving the District's SIP revision submitted on July 16,
2015 addressing the requirements for the District under section
110(a)(2)(D)(i)(I) regarding interstate transport pollution for the
2006 24-hour PM2.5 NAAQS. EPA concurs with the District's
determination that it has no EGUs and no emissions reductions are
needed for the SIP to address significant contribution to nonattainment
or interference with maintenance for section 110(a)(2)(D)(i)(I) of the
CAA for the 2006 24-hour PM2.5 NAAQS. EPA is publishing this
rule without prior proposal because EPA views this as a
noncontroversial amendment and anticipates no adverse comment. However,
in the ``Proposed Rules'' section of today's Federal Register, EPA is
publishing a separate document that will serve as the proposal to
approve the SIP revision if adverse comments are filed. This rule will
be effective on October 20, 2015 without further notice unless EPA
receives adverse comment by September 21, 2015. If EPA receives adverse
comment, EPA will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. EPA will
address all public comments in a subsequent final rule based on the
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting must do so at this time.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
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
[[Page 50789]]
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 October 20, 2015. 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking action. This rulemaking action, addressing the interstate
pollution transport requirements for the District of Columbia with
respect to the 2006 24-hour PM2.5 NAAQS, may not be
challenged later in proceedings to enforce its requirements. (See
section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter.
Dated: August 7, 2015.
William C. Early,
Acting 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 J--District of Columbia
0
2. In Sec. 52.470, the table in paragraph (e) is amended by adding an
entry for ``Section 110(a)(2) Infrastructure Requirements for the 2006
PM2.5 NAAQS'' to the end of the table to read as follows:
Sec. 52.470 Identification of plan.
* * * * *
(e) * * *
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Name of non-regulatory SIP Applicable State Additional
revision geographic area submittal date EPA approval date explanation
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* * * * * * *
Section 110(a)(2) Infrastructure District of 07/16/15 8/21/2015 [Insert This action
Requirements for the 2006 PM2.5 Columbia. Federal Register addresses the
NAAQS. citation]. following CAA
elements, or
portions thereof:
110(a)(2)(D)(i)(I)
.
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[FR Doc. 2015-20527 Filed 8-20-15; 8:45 am]
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