[Federal Register Volume 85, Number 180 (Wednesday, September 16, 2020)]
[Rules and Regulations]
[Pages 57729-57731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18627]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2020-0030; EPA-R05-OAR-2020-0101; FRL-10011-74-Region 5]
Air Plan Approval; Wisconsin; VOC RACT for the Wisconsin Portion
of the Chicago-Naperville, Illinois-Indiana-Wisconsin Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving the
volatile organic compounds (VOC) reasonably available control
technology (RACT) State Implementation Plan (SIP) revision, submitted
by the Wisconsin Department of Natural Resources (WDNR or Wisconsin) on
January 21, 2020 and February 12, 2020. The Clean Air Act (CAA)
requires states to implement RACT in ozone nonattainment areas
classified as moderate (and higher). EPA finds Wisconsin's two VOC RACT
SIP submissions to be approvable as meeting the moderate VOC RACT
requirements of the CAA.
DATES: This final rule is effective October 16, 2020.
[[Page 57730]]
ADDRESSES: EPA has established a docket for this action under Docket ID
Nos. EPA-R05-OAR-2020-0030 and EPA-R05-OAR-2020-0101. All documents in
the docket are listed in 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 through http://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information.
FOR FURTHER INFORMATION CONTACT: Michael Leslie, Environmental
Engineer, Control Strategies Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353-6680, leslie.michael@epa.gov. The
EPA Region 5 office is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and facility closures due to COVID
19.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. What is being addressed in this document?
This rule approves the January 21, 2020 and February 12, 2020
submissions from Wisconsin for the VOC RACT SIP revision. The
background for this action is discussed in detail in EPA's proposal,
dated April 17, 2020 (85 FR 21351). EPA is not taking final action on
any other elements included in our April 17, 2020 proposal (85 FR
21351).
II. What comments did we receive on the proposed rule?
EPA provided a 30-day review and comment period for the April 17,
2020, proposed rule. The comment period ended on May 18, 2020. We
received adverse comments, which are summarized and addressed below.
Comment 1a: The commenter argues that RACT for Insinkerator cannot
be implemented by way of administrative order and meet the VOC RACT
requirements of the CAA. The commenter contends that EPA should not
allow a state to use an administrative order to implement RACT
requirements in place of duly enacted regulatory provisions under the
state's rulemaking process. The commenter also alleges that the
administrative order is problematic because it has a section that
allows the state to unilaterally terminate the order at a point in the
future.
Response 1a: Section 182(b)(2) of the CAA requires states to submit
to EPA a SIP revision including ``provisions to require the
implementation of reasonably available control technology. . . .'' This
can be accomplished in a variety of ways. Often, as noted by the
commenter, states have adopted regulations through a state rulemaking
process and submitted those regulations to EPA to be approved into the
SIP. However, the state can choose to submit any permanent and
enforceable limits for approval into the SIP to satisfy the CAA's RACT
requirement. Wisconsin has legal authority under ss. 285.11(6) and
285.13(2), Wis. Stats., to issue administrative orders that establish
stationary source emission limitations for the purpose of demonstrating
and maintaining attainment for the 2008 8-hour ozone National Ambient
Air Quality Standards (NAAQS or standard). Wisconsin submitted
Administrative Order AM-20-01, which establishes source-specific limits
at the Insinkerator facility that are equivalent to emission reductions
achieved through the 2008 Miscellaneous Metal and Plastic Parts
Coatings Control Techniques Guidelines (CTG). The effective date for
Administrative Order AM-20-01 was January 9, 2020. As part of the SIP,
the requirements of this Administrative Order may not be terminated
until Wisconsin submits a SIP revision that demonstrates the
requirements could be removed from the SIP in accordance with section
110(l) of the CAA.
Comment 1b: The commenter argues that the order has legal
vulnerabilities which make it improper to approve into the SIP. Namely,
the order prevents third party litigants from enforcing the
requirements of the order. See the Waiver and Stipulation section of
the order: ``This stipulation and waiver does not affect the right of
Insinkerator to assert any equitable or legal defense or to challenge
the interpretation or application of this Administrative Order in any
challenge or alleging of violation brought by a party other than the
department or EPA.''
Response 1b: The language in the ``Waiver and Stipulation'' does
not prevent third parties from taking legal action against
Insinkerator. However, the source can defend itself against third party
challenges to the administrative order. Administrative Order AM-20-01
establishes, through permanent and enforceable emission limits and
other requirements, a RACT equivalency demonstration for the
Insinkerator facility. This language says that Insinkerator will comply
with the order and not challenge issues brought about by EPA or WNDR.
Nothing in the order precludes EPA or WNDR from enforcing the terms of
the order. For these reasons, the order can be approved as RACT in the
SIP.
Comment 1c: The commenter asserts that EPA is attempting to
redesignate the area before all applicable RACT rules for the area are
in place. EPA must follow the rules and wait to approve the
Redesignation Request until Wisconsin promulgates a rule meeting the
CTG and submits it to EPA for approval into the SIP.
Response 1c: The September 4, 1992, Calcagni memorandum (see
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992) notes that approval action on
SIP elements and the redesignation request may occur simultaneously.
EPA acknowledged in its proposed redesignation at 85 FR 21351 that
approval of Wisconsin's VOC RACT submittal is a prerequisite for
approval of the redesignation of the Kenosha portion of the Chicago
area to attainment of the 2008 8-hour ozone standard. This simply
requires that EPA approve Wisconsin's VOC RACT SIP at the same time or
before finalizing approval of the redesignation. EPA is only approving
Wisconsin's VOC RACT SIP in this action. EPA is not taking final action
on any other elements included in our April 17, 2020 proposal (85 FR
21351). Therefore, this requirement for redesignation has been met.
III. What action is EPA taking?
EPA is approving the VOC RACT SIP revisions included in Wisconsin's
January 21, 2020 and February 12, 2020 submittals. EPA finds
Wisconsin's VOC RACT SIP submittals to be approvable as meeting the
moderate VOC RACT requirements of section 182(b)(2) of the CAA.
IV. Incorporation by Reference
In this rule, 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 the Wisconsin
Administrative Order described in the amendments to 40 CFR part 52 set
forth below. EPA has made, and will continue
[[Page 57731]]
to make, these documents generally available through
www.regulations.gov, and at the EPA Region 5 Office (please contact the
person identified in the For Further Information Contact section of
this preamble for more information).
V. 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, 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 it is not a significant regulatory
action under Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, 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, this 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 16, 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 oxides, Ozone,
Volatile organic compounds.
Dated: August 19, 2020.
Cheryl Newton,
Deputy Regional Administrator, Region 5.
For the reasons stated in the preamble, the EPA amends title 40 CFR
part 52 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.
0
2. Section 52.2570 is amended by adding paragraph (c)(140) to read as
follows:
Sec. 52.2570 Identification of plan.
* * * * *
(c) * * *
(140) On February 12, 2020, The Wisconsin Department of Natural
Resources submitted a request to incorporate Administrative Order AM-
20-01 into the Wisconsin State Implementation Plan (SIP). This order
establishes, through permanent and enforceable emission limits and
other requirements, a Reasonably Available Control Technology (RACT)
equivalency demonstration for the Insinkerator facility located in
Kenosha, Wisconsin. The effective date for the Administrative Order is
January 9, 2020.
(i) Incorporation by reference. Wisconsin Administrative Order AM-
20-01, issued by the Wisconsin Department of Natural Resources on
January 9, 2020, to Insinkerator for its facility located in Kenosha,
Wisconsin.
(ii) [Reserved]
* * * * *
[FR Doc. 2020-18627 Filed 9-15-20; 8:45 am]
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