[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, [email protected]. 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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