CR_10-046 Hearings to consider rules to revise Ch. NR 410, relating to asbestos inspection fees and the addition of fees for review of revised notifications and inspection of fire training burns.

These state rules and statutes do not relieve individuals from the restrictions, requirements and conditions of federal statutes and regulations. Regulating the hunting and trapping of native species has been delegated to state fish and wildlife agencies. Additionally, none of the proposed rules exceed the authorities granted to states in 50 CFR part 10 .

Comparison with rules in adjacent states

These rule change proposals do not represent significant policy changes and do not differ significantly from surrounding states. All surrounding states have regulations and rules in place for the management and recreational use of wild game and furbearer species that are established based on needs that are unique to that state's resources and public desires.

Summary of factual data and analytical methodologies

This rule order is necessary to correct inconsistencies created through the promulgation of other rules and statutes, update code language, correct previous drafting errors, and to clarify existing administrative code language. The rule changes included in this order do not deviate from current department policy on the management of wildlife and the regulation of hunting and trapping.

Small Business Impact

Pursuant to s. 227.114 , Stats., it is not anticipated that the proposed rules will have a significant economic impact on small businesses.

The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

Fiscal Estimate

State fiscal effect

None.

Local government fiscal effect

None.

Anticipated private sector costs

These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector. Additionally, no significant costs are associated with compliance to these rules.

Long-range fiscal implications

None are anticipated.

Agency Contact Person

Scott Loomans

101 South Webster Street

PO Box 7921

Madison, WI 53707-7921

Phone: [phone]

Email: [e-mail]

Notice of Hearings

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-046

(DNR # AM-06-10)

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.16 and 227.17 , Stats, the Department of Natural Resources, hereinafter the Department, will hold public hearings on amending and creating rules affecting Chapter NR 410 , relating to increased and new fees for asbestos notifications and inspections and affecting small business.

Hearing Information

Date and Time :   Location :

June 3, 2010   Natural Resources State Office Bldg.
Thursday   Room G09
at 1:30 PM   101 S. Webster St.
  Madison, WI

June 4, 2010   Northcentral Technical College
Friday   Main Building, Room E101
at 11:00 AM   1000 West Campus Drive
  Wausau, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail] ; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the p roposed r ules and f iscal e stimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm . If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert B. Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before June 8, 2010 . Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

William Baumann

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone: [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statute interpreted

Section 285.69 (3) , Stats.

Statutory authority

Sections 227.11 (2a) , 285.11 (1) , and 285.69 (3) , Stats.

Explanation of agency authority

Sections 227.11 (2) (a) and 227.14 (1) , Stats., expressly convey rulemaking authority. Section 285.69 (3) , Stats., conveys authority to establish fees for specified department activities, and sets maximum levels for those fees.

Related statute or rule

Chapter NR 447 contains regulations related to asbestos abatement activities.

Plain language analysis

The rules amended and created by this proposed order increase fees for certain Department of Natural Resources (Department) asbestos regulatory activities, and create new fees for asbestos regulatory activities related to fire training burns and revised asbestos notifications. These additional fees will offset decreases in federal United States Environmental Protection Agency (EPA) Air Pollution Control grant funds that had previously been used to fund (in part) Department asbestos regulatory activities.

Comparison with federal regulations

Chapter NR 447 contains asbestos regulatory requirements, which parallel corresponding federal regulations. The rule changes and additions proposed in this order change the fees used to fund Department asbestos regulatory activities, but do not affect the underlying regulatory requirements themselves. There is no federal counterpart to the ch. NR 410 fee rule.

Comparison with rules in adjacent states

Illinois, Iowa, Michigan, and Minnesota each operate federally delegated asbestos programs. Iowa, Michigan, and Minnesota each fund their respective asbestos programs with federal grant funds. Illinois, similar to Wisconsin, funds their asbestos program activities through fees charged for asbestos notifications. Illinois fees are $150 per notification, regardless of other factors (size of project, etc.). If a notification is received late, an additional $300 is charged to the contractor. Lab analysis costs may be charged to the owner or operator in large enforcement cases, along with employee overtime costs that result from enforcement cases.

Summary of factual data and analytical methodologies

The Asbestos Program is funded by asbestos inspection and permit exemption review fees paid by persons who perform asbestos abatement as part of nonresidential demolition and certain renovation projects. In addition, asbestos program funding has been supplemented by the equivalent of 2.0 full time employees (FTE) from the EPA federal Air Pollution Control grant (105 grant). Asbestos program fees currently fund 2.0 permanent FTE, two half-time limited term employee (LTE) field inspection positions, and four contracts with the following government agencies to perform inspections on behalf of the Department's Air Management Asbestos Program: City of Menasha; City of Milwaukee, Sauk County, and Waushara County. Due to declining levels of 105 grant funds, that funding source can no longer be used to fund asbestos program activities. Consequently, additional asbestos fee revenue is needed to replace 2.0 FTE of funding from the 105 grant, and thus maintain present levels of asbestos program staffing and public health protection activities.

Analysis and supporting documents used to determine the effect on small business

Asbestos related regulatory requirements are not changed by the proposed rules. The proposed rules do increase notification fees for asbestos related projects. See "Effect on small business" section below.

Small Business Impact

Asbestos related regulatory and reporting requirements will not be changed by the proposed rules. The proposed rules will increase notification fees for asbestos related renovation and demolition activities. The fees increases vary according to the quantity of asbestos involved in a renovation or demolition project, and the increases range from $60 per project for small projects (less than 160 square feet or less than 260 linear feet of asbestos containing material) to $575 per project for very large projects (more than 5000 combined linear and square footage of asbestos containing materials). On the order of 1600 project notifications are received annually. It is not possible to predict the number of these projects that will be undertaken by small businesses.

The Small Business Regulatory Coordinator may be contacted at [e-mail] , or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate

The 2009-11 Budget Bill increased asbestos inspection fees to: $135 for small asbestos abatement projects, defined as 160 square feet to 260 linear feet; $350 for medium, defined as involving greater than 160 square feet or 260 linear feet but less than 1,000 combined feet; $575 for large, defined as greater than or equal to 1,000 combined feet but less than 5,000 combined feet, and $1,200 for extra large, defined as greater than 5,000 combined feet. These new fees are approximately a 60% increase from the current fees. The bill also created a new $100 fee for notification revisions and a new $100 fee for community fire training burns. Finally, the bill provided supporting statutory language for the above-mentioned fees and for the Department to charge double inspection fees to a project for which a notice of an asbestos renovation or demolition activity was not provided, as required by the Department.

It is projected that the increased fees will generate $246,400 annually.

Agency Contact Person

Bill Baumann

P.O. Box 7921

Madison, WI 53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]

Notice of Hearings

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-047

(DNR # AM-09-10)

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.16 and 227.17 , Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on revising Chapter NR 410 , relating to fees for reviewing applications for construction of air pollution sources and affecting small business.

Hearing Information

Date and Time :   Location :

June 7, 2010   Natural Resources State Office Bldg.
Monday   Room G09
at 3:00 PM   101 S. Webster Street
  Madison, WI

June 8, 2010   Havenwoods — Auditorium
Tuesday   6141 N. Hopkins
at 2:00 PM   Milwaukee, WI

June 9, 2010   Northcentral Technical College
Wednesday   Main Building, Room E101
at 2:30 PM   1000 West Campus Drive
  Wausau, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail] ; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the p roposed r ules and f iscal e stimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm . If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before June 14, 2010 . Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Andrew Stewart

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statutes interpreted

Sections 227.11 (2) , 285.11 (1) and (6) , 285.14 (1) , Stats. The State Implementation Plan developed under s. 285.11(6) , Stats., is revised.

Statutory authority

Sections 285.11 , 285.69 (1) and (1d) , Wis. Stats.

Explanation of agency authority

Section 227.11 (2) (a) , Stats., gives state agencies general rulemaking authority. Section 285.11 , Stats., gives the Department authority to promulgate rules consistent with ch. 285 , Stats. Section 285.69 gives the department the authority to promulgate rules for the payment and collection of reasonable fees for construction permit related activities.

Related statute or rule

None.

Plain language analysis

The proposal is to increase fees for construction permit related actions to ensure that the new source review program has adequate funding to perform it's duties in accordance with requirements and deadlines mandated under s. 285.61 , Wis. Stats.

Comparison with federal regulations

Existing federal regulations require, but do not set, fees for review of construction permit applications. Section 110(a)(2)(E)(i) of the Clean Air Act requires that any government who wishes to carry out a State Implementation Plan have ``adequate personnel, funding, and authority under State law to do so." Wisconsin's new source review program is an approved part of the State Implementation Plan and therefore requires adequate funding. US EPA last approved a revision to Wisconsin's State Implementation Plan for a fee related provision on March 11, 2008. [73 FR 12893].

Comparison with similar rules in adjacent states

Other state agencies were contacted to obtain information regarding their air permit programs. While an attempt was made to do a direct comparison, it proves to be difficult since the funding sources and fee structures differ from state to state. No state was able to provide accurate, average costs of different types of construction permit reviews. Based on the review conducted, it appears that fees proposed in this order are similar to those being charged for similar activities in adjacent states having a fee based construction permit program.

Illinois and Indiana:

Illinois and Indiana have similar programs to Wisconsin where their new source review program is funded mainly by construction permit fees. Illinois last raised their fees in 2004, Indiana in 2007.

Michigan:

Michigan relies on general funding for their new source review program. Communications with Michigan indicate there have been internal proposals in Michigan to establish permit fees to help fund the new source review program, but none have moved forward at this time.

Minnesota:

Minnesota currently has a proposal to raise construction permit fees and to structure the fees much like Wisconsin, Illinois, and Indiana. Their proposal would have core activities paid through permit fees. Major reasons given for their proposal to raise fees are that the cost and complexity associated with new source review has increased significantly over the years. Minnesota's current fee structure attempts to base the amount on the level of effort needed to review and issue the air permit. Iowa funds its new source review program through grants and general funds. There are two local Iowa air pollution control agencies that do charge construction permit fees to fund new source review.

Comparisons for fees common to adjacent states

	Illinois	Indiana	Minnesota	Wisconsin (current)	Wisconsin (proposed)
Initial Application Fee	$5,000	No fee	No fee	$1,350	$7,500
BACT/LAER Determination	$5,000	$4,375	$4,275	$2,700	$4,500
Case by case MACT Determination	$5,000	No fee	No fee	$2,700	$4,500
Detailed Modeling Analysis	No fee	$4,375	$4,275	$3,200	$4,500
Public Hearing	$10,000	$625	No fee	$150	$950
Application for Major Modification	$8,000/$12,000	$10,000	No fee	$8,000	$12,000

Summary of factual data and analytical methodologies

Data related to revenues generated by new source fees for FY05-FY09, along with projected work load and costs to administer the new source review program, were used to develop and support this order.

Annual new source review program cost

Estimates were made as to the type and number of construction permit reviews to be conducted in the upcoming fiscal year. For each of these, the level of program effort required to complete each type of review was determined. These levels of efforts then were used to estimate the annual cost to administer the construction permit program, taking into account estimated costs for program staff.

Individual fee increases

A 30% increase was applied to fees last revised in 1999 to account for inflation over the last 11 years. An additional increase was also applied to each fee category to better reflect the level of effort associated with the fee related action. Estimates were made as to the number of fee related actions associated with each type of permit review. These estimate were used in conjunction with the proposed fee to determine that the projected future revenue is sufficient to cover the annual program cost.

Analysis and supporting documents used to determine the effect on small business

The same information described under number 8. was used to determine the effect on small business. No economic impact report has been requested.

Small Business Impact

The cost to small business to obtain a minor construction permit is proposed to increase in the range of 30 to 75 percent depending on the air regulations applicable to the project. The current cost of a minor construction permit sometimes associated with small business, ranges from $6,000 to $8,000.

Many small businesses are able to qualify for coverage under general or registration permits in lieu of needing to obtain a minor construction permit. Currently there is no charge for review and issuance for this type of coverage. New fees are being proposed in this order for reviewing and issuing coverage under a general or registration construction permit, establishing the fee for a general construction permit at $1,500 and a registration construction permit at $1,000.

The Small Business Regulatory Coordinator may be contacted at [e-mail] , or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate

A revenue increase to the state of $1,334,307 is projected based on a four year actual average for revenue generated through new source review fees for FY2006-2009 of $1,647,293.

This proposal does not seek to authorize an increase to Chapter 20 spending authority.

Agency Contact Person

Andrew Stewart

P.O. Box 7921

Madison, WI   53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]

Notice of Hearings

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-048

(DNR # AM-12-10)

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.16 and 227.17 , Stats, the Department of Natural Resources, hereinafter the Department, will hold public hearings on creating rules affecting Chapters NR 400 , 405 , and 406 , relating to permit requirements for Class I areas, and affecting small business.

Hearing Information

Date and Time :   Location :

June 7, 2010   Natural Resources State Office Bldg.
Monday   Room G09
at 2:00 PM   101 S. Webster Street
  Madison, WI

June 9, 2010   Northcentral Technical College
Wednesday   Main Building, Room E101
at 1:30 PM   1000 West Campus Drive
  Wausau, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail] ; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the p roposed r ules and f iscal e stimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm . If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI, 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before June 14, 2010 . Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Steve Dunn

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statute interpreted

The State Implementation Plan developed under s. 285.11 (6) , Stats., is revised.

Statutory authority

Sections 227.11 (2) (a) and 285.11 (1) and (6) , Stats.

Explanation of agency authority

Section 227.11 (2) (a) , Stats., gives state agencies general rulemaking authority. Section 285.11 (1) , Stats., gives the Department authority to promulgate rules consistent with ch. 285 , Stats. Section 285.11 (6) , Stats., requires the Department to develop a plan for abatement of air pollution in the State. The permitting program, in general, and these regulations specifically, is part of that plan.

These rules are based on federal rules as well as a 1999 Final Agreement reached between the State and the Forest County Potawatomi Community (FCPC).

Related statute or rule

The FCPC Class I area was established as part of a Federal Implementation Plan approved by USEPA in an April 29, 2008 Federal Register Notice.

Plain language analysis

This rule is being proposed to amend portions of Department rules to incorporate the federal re-designation of certain parcels of the Forest County Potawatomi Community Reservation as a non-Federal Class I area for the prevention of significant deterioration (PSD) of air quality, and to include portions of a 1999 Final Agreement reached between the State and the Forest County Potawatomi Community concerning the Class I area.

A Class I area is defined in ch. NR 405 , Wis. Adm. Code. In general, the PSD program is designed to preserve air quality in Class I areas such as national parks and other areas meeting National Ambient Air Quality Standards. Class I areas are subject to lower allowable increases in ambient concentrations of particulate matter, sulfur dioxide, and nitrogen dioxide.

Comparison with federal regulations

In an April 29, 2008, Federal Register Notice, the USEPA established the FCPC Class I area. The Department and the FCPC have agreed to provisions impacting the FCPC Class I area that USEPA stated, in the April 29, 2008, notice, need to be promulgated as part of the State's Implementation Plan for controlling air pollution in order to be effective for federal purposes.

Comparison with similar rules in adjacent states

There are no non-federal Class I areas or non-federal Class I rules in any of these states.

Summary of factual data and analytical methodologies

The proposed rule is based on the federal re-designation of the FCPC Reservation lands to non-federal Class I, and the Final Agreement.

Analysis and supporting documents used to determine the effect on small business

An analysis of the effect of the proposed rules on small business was not performed since the proposed rule only impacts major sources of air pollution in the State and conforms to federal requirements . Major sources of air pollution are not typically small businesses.

Small Business Impact

These rules should not have a significant economic impact on small business because major air pollution sources do not generally meet the definition of a small business.

The Small Business Regulatory Coordinator may be contacted at [e-mail] , or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate

The proposed rules amend the existing air permitting rules to include a non-federal Class air quality area. The Department already processes air permits which may impact existing Class I areas and expects no significant change in permit workload as a result of this rule.

Agency Contact Person

Steven Dunn

P.O. Box 7921

Madison, WI   53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]

Notice of Hearing

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-049

(DNR # AM-13-10)

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.16 and 227.17 , Stats., the Department of Natural Resources, hereinafter the Department, will hold a public hearing on proposed rules revising Chapters NR 484 and 485 , relating to the motor vehicle inspection and maintenance program and affecting small business. The proposed revisions relate to issues for State Implementation Plan approvability; and the State Implementation Plan developed under s. 285.11 (6) , Stats., will be revised.

Hearing Information

Date and Time :   Location :

June 10, 2010   Mead Public Library
Thursday   Rocca Meeting Room
at 1:30 PM   710 North 8th Street
  Sheboygan, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail] ; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the p roposed r ules and f iscal e stimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm . If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert B. Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI, 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before Monday, June 21, 2010 . Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Chris Bovee

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statute interpreted

Sections 110.20 (13) (b) , 285.11 (6) and 285.30 (2) , Wis. Stats. The State Implementation Plan developed under s. 285.11 (6) , Stats., is revised.

Statutory authority

Sections 110.20 (13) (b) , 227.11 (2) (a) , 285.11 (1) and 285.30 (2) , Wis. Stats.

Explanation of agency authority

Section 110.20 (13)(b) , Stats., gives the Department authority to establish the amount of the repair cost limit for the vehicle inspection and maintenance program. Section 227.11 (2) (a) , Stats., gives agencies general rulemaking authority. Section 285.11(1) , Stats., gives the Department authority to promulgate rules consistent with ch. 285 , Stats. Section 285.30 (2) , Stats., provides authority for the Department to adopt and revise emission limitations for motor vehicles.

Related statute or rule

The related statutes are ss. 110.20 , 110.21 , and 285.30 , Stats. These sections specify requirements for motor vehicle emission inspections in Wisconsin. The first two sections apply to the Department of Transportation and the third section applies to the Department of Natural Resources. A related rule is ch. Trans 131 , Wis. Adm. Code. This chapter establishes the Department of Transportation's administrative interpretation of s. 110.20 , Stats., relating to a motor vehicle emissions inspection program.

Plain language analysis

A motor vehicle inspection and maintenance (I/M) program has been in effect in southeastern Wisconsin since 1984. The program is presently operating in the seven counties of Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha. Initially, all vehicles were inspected by measuring tailpipe emission levels. Since July of 2001, however, all model year 1996 and newer cars and light trucks were inspected by scanning the vehicles' computerized second generation on-board diagnostic (OBD-II) systems. As of July, 2008, the program dropped tailpipe testing entirely and thereby inspected all vehicles by scanning the OBD-II systems. This change was the result of statutory changes in the 2007-2009 biennial budget which exempted from the I/M program the model years of vehicles not federally-required to be equipped with the OBD-II technology (model year 1995 and older cars and light trucks and model year 2006 and older heavy trucks).

Throughout the history of the I/M program, a vehicle failing the tailpipe test was eligible for a waiver of compliance if the cost of repairs to the vehicle exceeded the applicable repair cost limit and if other conditions specified in Trans 131, Wis. Adm. Code, were met. Prior to July, 2009, the program did not allow such waivers, referred to as "cost waivers", for vehicles failing the OBD-II inspection. The repair cost limits are currently provided in s. NR 485.045 , Wis. Adm. Code.

This rule is being proposed in response to two issues relating to the issuing of cost waivers: (1) the lower repair cost limits currently in effect for vehicles registered in Sheboygan County and (2) the I/M program's policy change to allow cost waivers for vehicles failing the OBD-II inspection, starting July, 2009. Descriptions of these two issues follow:

Sheboygan County:

For all I/M program counties except Sheboygan, the repair cost limit is $787 ($450 in 1989, adjusted annually for inflation, using the federal consumer price index). In Sheboygan County the repair cost limit is fixed at $200 for vehicles of a 1981 or newer model year and at $75 for older vehicles. Sheboygan County has had lower repair cost limits since its nonattainment classification established in 1992 was at a lower level than that for the other six counties. However, ozone levels in Sheboygan County have not improved as much as in the other six counties, in part due to the aid of federally-mandated reformulated gasoline in the other six counties. Presently, Sheboygan County has the highest ozone levels in the seven-county I/M program area.

OBD:

Prior to July, 2009, the I/M program did not issue any cost waivers for vehicles failing the OBD-II inspection. Cost waivers were not issued for OBD-II failures because the Wisconsin Department of Transportation had interpreted s. Trans 131.05 (1) (j) , Wis. Adm. Code, to mean that to pass a waiver equipment inspection, which is a prerequisite for receiving a waiver, the OBD-II system's malfunction indicator light (MIL) must be operational and non-active (that is, not lit). Such a condition could not exist when a vehicle fails the OBD-II inspection. Therefore, no cost waivers were issued for vehicles failing the OBD-II inspection and once the I/M program became OBD-II-only in July of 2008, the program did not issue any cost waivers at all.

Prior to the I/M program becoming OBD-II-only in July, 2008, the program also provided an alternative test, allowing a vehicle to be inspected regardless of the MIL status. However, now that the program administers only the OBD-II test, the DOT's Office of General Counsel has determined that DOT's prior interpretation of s. Trans 131.05(1)(j) , Wis. Adm. Code, was contrary to s. 110.20(13) , Wis. Stats., since it prevented issuing a cost waiver to every inspected vehicle, regardless of the amount spent on repairs. Consequently, since July, 2009, the DOT has been implementing its new interpretation, thereby allowing cost waivers for vehicles failing by means of a lit MIL. The DOT is also in the process of amending Trans 131.05(1)(j), Wis. Adm. Code, to allow a cost waiver in certain circumstances even if a vehicle's MIL is unable to be turned off; thereby conforming their rule to statutory language.

For the six I/M program counties other than Sheboygan, the DNR is projecting that the resumption of cost waivers would not increase emission levels in those six counties above those projected in the Wisconsin's state implementation plan (SIP) for attaining and maintaining ozone air quality standards. However, the DNR is projecting that the current lower cost limits for Sheboygan County would increase the motor vehicle emissions in Sheboygan County by four percent, enough to exceed the emissions projected in the SIP. Raising the repair cost limit for Sheboygan County to the level used for the other six I/M program counties would enable Sheboygan County to achieve the emission levels projected in the SIP.

Rule summary

The DNR is proposing to expand the coverage of the inflation-adjusted, currently $787, repair cost limit in s. NR 485.045 , Wis. Adm. Code, to all counties subject to the I/M program, thereby raising the lower limits for Sheboygan County.

The DNR is also proposing to repeal the emission limitations in s. NR 485.04 , Wis. Adm. Code, for the following tests:

•   Evaporative system integrity (pressure) test

•   Evaporative system purge test

•   Steady-state tests

These tests provide no significant additional information regarding vehicle emission performance beyond that already provided by the OBD-II scans. Furthermore, the two evaporative system tests have never been conducted by the I/M program and are intrusive, involving the cutting or crimping of fuel vapor lines. The steady-state tests were effective early in the I/M program, but are no longer conducted. These tests are poor at identifying and diagnosing emission problems in today's vehicles.

Comparison with federal regulations

The proposed rule is consistent with the federal clean air act and the federal regulations for motor vehicle inspection and maintenance programs under that act. These regulations are found in 40 CFR 51.350 to 51.373 .

Comparison with similar rules in adjacent states

Illinois is the only adjacent state that has a vehicle inspection and maintenance program. In Illinois the repair cost limit for a waiver is $450. Thus, the state of Illinois has not adjusted its repair cost limit for the increase in the federal consumer price index since 1989.

Summary of factual data and analytical methodologies

The U. S. Environmental Protection Agency (EPA) has issued guidance for adjusting the repair cost limit for inflation: Calculation of the I/M Waiver Adjusted for CPI, Office of Mobile Sources, U.S. EPA, EPA 420-B-99-011, December, 1999, http://www.epa.gov/otaq/epg/b99011.pdf . The DNR has followed this guidance for calculating the repair cost limit. The consumer price index (CPI) adjustment for 1989 to 2008 was 1.7487, resulting in a repair cost limit for July, 2009, through June, 2010, of $450 * 1.7487 = $787.

Analysis and supporting documents used to determine the effect on small business

The only economic effect of the proposed rule is that the I/M-related repairs may be more expensive for some vehicles in Sheboygan County that what they would be under the current rule. The proposed rule would not affect repair costs for vehicles in the other six I/M program counties. The DNR estimates that under the proposed rule, the average cost to repair a failed vehicle during 2011 would be $416 throughout the seven-county program area. The DNR further estimates that under the current rule the average cost to repair a failed vehicle during 2011 would be only $200 for vehicles in Sheboygan County and the same $416 value for vehicles in the other six I/M program counties. Thus, the proposed rule is estimated to increase the average repair cost per failed vehicle in Sheboygan County by $216.

Small Business Impact

Small businesses that own vehicles subject to the I/M program have been and will continue to be affected by the I/M program in the same way that individual vehicle owners are affected. The proposed rule may have a small, but not significant, economic impact on those small businesses that own non-exempt vehicles registered in Sheboygan County. Improved fuel efficiency resulting from the more thorough repairs may offset some of these increased costs. The proposed rule will not impose any new requirements on small businesses.

The Small Business Regulatory Coordinator may be contacted at [e-mail] , or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate

The only fiscal effect of the proposed rule is that the I/M-related repairs may be more expensive for some vehicles in Sheboygan County than what they would be under the current rule. The proposed rule would not affect repair costs for vehicles in the other six I/M program counties. The DNR estimates that under the proposed rule, the average cost to repair a failed vehicle during 2011 would be $416 throughout the seven-county program area. The DNR further estimates that under the current rule the average cost to repair a failed vehicle during 2011 would be only $200 for vehicles in Sheboygan County and the same $416 value for vehicles in the other six I/M program counties. Thus, the proposed rule is estimated to increase the average repair cost per failed vehicle in Sheboygan County by $216. Since about seven percent of the vehicles fail the initial inspection and since vehicles are inspected every other year, the estimated annual average additional repair cost per inspected vehicle in Sheboygan County is: $216 * 0.07 * 0.5 = $7.56.

The DNR estimates that the number of state and local government vehicles registered in Sheboygan County which are subject to inspection is 565 (115 for state government and 450 for local governments). Thus the total increased costs are $7.56 * 115 = $870 for state government and $7.56 * 450 = $3400 for local governments.

The proposed rule would have some fiscal effect on the private sector. The affected entities would be those having vehicles registered in Sheboygan County which are subject to inspection. The estimated fiscal effect is an average increase in annual repair costs of $7.56 per inspected vehicle. Thus, the estimated fiscal effect for an entity having 100 vehicles registered in Sheboygan County and subject to inspection is $756 per year.

Improved fuel efficiency resulting from the more thorough repairs may offset some of these increased costs.

Agency Contact Person

Chris Bovee

P.O. Box 7921

Madison, WI   53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]

Notice of Hearings

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-050

(DNR # AM-16-10)

NOTICE IS HEREBY GIVEN THAT pursuant to ss. 227.16 and 227.17 , Stats, the Department of Natural Resources, hereinafter the Department, will hold public hearings on proposed rules to revise Chapters NR 400 , 404 to 408 , and 484 , relating to air pollution permit requirements for fine particulate matter (PM 2.5) emissions. The proposed revisions relate to issues for State Implementation Plan approvability, and the State Implementation Plan developed under s. 285.11(6) , Stats., will be revised.

Hearing Information

Date and Time :   Location :

June 7, 2010   Natural Resources State Office Bldg.
Monday   Room G09
at 2:30 PM   101 S. Webster Street
  Madison, WI

June 8, 2010   Havenwoods — Auditorium
Tuesday   6141 N. Hopkins
at 1:30 PM   Milwaukee, WI

June 9, 2010   Northcentral Technical College
Wednesday   Main Building, Room E101
at 2:00 PM   1000 West Campus Drive
  Wausau, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail] ; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the p roposed r ules and f iscal e stimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm . If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert B. Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before Monday, June 14, 2010 . Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Steve Dunn

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statute interpreted

The State Implementation Plan developed under s. 285.11 (1) and (6) , Stats., is revised.

Statutory authority

Sections 227.11 (2) (a) and 285.11 (1) , (16) and (17) , Stats.

Explanation of agency authority

Section 227.11(2)(a) , Stats., gives state agencies general rulemaking authority. Section 227.14(1m)(b) , Stats., allows the Department to use the format of federal regulations in preparing a proposed rule if it determines that all or part of a state environmental regulatory program is to be administered according to standards, requirements or methods which are similar to standards, requirements or methods specified for all or part of a federal environmental program. Section 285.11(1) , Stats., gives the Department authority to promulgate rules consistent with ch. 285 , Stats. Section 285.11(16) , Stats., requires the Department to promulgate rules, consistent with but no more restrictive than the federal clean air act, that specify the amounts of emissions that result in a stationary source being classified as a major source. Section 285.11(17) requires the Department to develop and implement rules that define the term modification in a manner consistent with the clean air act.

Related statute or rule

None.

Plain language analysis

The proposed rules contained in this order reflect changes made by the United States Environmental Protection Agency (EPA) in their regulations regarding the regulation matter less than 2.5 microns in size (PM2.5). The Department needs to make this change in order to retain EPA approval of Wisconsin's air permit programs.

PM2.5 is proposed to be included as a pollutant used to determine whether a facility is a major source of air pollution. Additionally, increases in PM2.5 emissions will potentially trigger the need to obtain an air pollution control construction permit, including requirements to control emissions to levels which represent best available control technology or lowest achievable emission rate.

Additionally, the rule package includes some cleanup changes to otherwise unaffected existing rules. These changes are proposed to include up-to-date test methods and definitions in these existing rules. These changes do not change the effect or intent of these rules.

Comparison with federal regulations

The proposed PM2.5 rules will make the regulations consistent with the equivalent Federal rules.

Comparison with similar rules in adjacent states

The proposed rule is based on the federal rule changes. The adjacent states will all be implementing the federal rule changes.

Summary of factual data and analytical methodologies

The proposed rule is based on the federal rule changes and the data and methodologies used by USEPA in developing these rules. Some portions of the proposed rule have yet to be finalized by the USEPA. Finalization of these rule sections is expected in Spring 2010. Placeholders for these final rule additions are included in the proposed rule.

Analysis and supporting documents used to determine the effect on small business

An analysis of the effect of the proposed rules on small business was not performed since the proposed rule only impacts major sources of air pollution in the State and conforms to federal requirements. Major sources of air pollution are not typically small businesses. Additionally, USEPA has concluded that this rule will not impact a significant number of small entities.

Small Business Impact

These rules should not have a significant economic impact on small businesses because major air pollution sources do not generally meet the definition of a small business.

The Small Business Regulatory Coordinator may be contacted at [e-mail] , or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate

The Department anticipates that there will be no state fiscal effect and no local government costs as a result of the proposed rules. In addition, the Department does expect the proposed rules will have a significant fiscal impact on those private sector facilities requiring permits.

Agency Contact Person

Steven Dunn

P.O. Box 7921

Madison, WI 53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]