CR_11-005 Hearing to consider rules to revise Chapters NR 400, 419, 421, 422, 423, 439, and 484, relating to revisions to reasonably available control technology rules for volatile organic compound to address deficiencies identified by the U.S. ...

Sections 23.11 (1) , 29.014 (1) , 29.041 , 29.519 (1m) (b) , 227.11 (2) (a) , and 30.74 (2) (a) , Wis. Stats.

Statutory authority

Sections 29.014 (1) , 29.041 , 29.519 (1m) (b) , and 227.11 Wis. Stats.

Summary of proposed rule

The proposed rule will:

1. Establish net-marking requirements for Lake Superior that are identical to the net-marking requirements for Lake Michigan.

2. Add the month of June to the summer period when no more than 3 entrapment nets may be used south of 44 º 52'30" by each licensed commercial fisher in Lake Michigan.

3. Change the times and locations when and where commercial trap nets may be used during the summer. Commercial trap nets would be allowed in areas within 5 nautical miles north and south of harbors at Two Rivers, Manitowoc, or Sheboygan only from Labor Day to May 31.

4. Revise net-marking requirements for Lake Michigan by requiring that staffs be marked with reflective tape and that the staff marking the inside or shallow lead end of the net be marked with a flashing amber light and a 48" diameter float.

The department is not aware of any existing or proposed federal regulation that would govern commercial fishing in Wisconsin's waters of Lake Michigan and Green Bay or Lake Superior. Trap nets are not used in Illinois or Minnesota waters of the Great Lakes, and Iowa has no Great Lakes waters. The State of Michigan has uniform trap net marking requirements for all of its Great Lakes Waters (parts of Lakes Superior, Michigan, Huron, and Erie). Those net-marking requirements are similar but not identical to those proposed here for Wisconsin waters of Lakes Michigan and Superior. The Michigan Department of Natural Resources and Environment has the authority to limit trap netting by individual license holders if and when conflicts arise. Pursuant to that authority the MDNRE prohibits trap nets during June, July, and August in one area near Tawas on Lake Huron.

This rule is of interest to commercial fishers and was initiated in response to the expressed concerns of recreational fishers. The rule will be enforced by department Conservation Wardens under the authority of chapters 23 and 29, Stats., through routine patrols, record audits of wholesale fish dealers and commercial fishers and follow up investigations of citizen complaints.

Effect on Small Business

Pursuant to s. 227.114 , Stats., it is not anticipated that the proposed rules will have a significant economic impact on small businesses. Small businesses engaged in commercial fishing and wholesale fish dealing may be affected by the rule. However, the Department currently has no basis for quantifying the economic impacts of the rule.

Small business regulatory coordinator

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

The proposed rule changes the times and places where commercial trap nets may be used in Lake Michigan and changes net marking requirements for trap nets in both Lake Superior and Lake Michigan. The rule will have no fiscal impact at either the state or local level.

Agency Contact Person

William Horns

Department of Natural Resources

P.O. Box 7921

Madison, WI 53707-7921

Telephone: [phone]

E-mail: [e-mail]

Notice of Hearing

Natural Resources

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

CR 11-005

DNR # AM-44-10

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 revisions to Chapters NR 400 , 419 , 421 , 422 , 423 , 439 and 484 , relating to the correction of deficiencies identified by the U.S. Environment Protection Agency in reasonably available control technology rules for volatile organic compound emissions on the date and at the time and location listed below.

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

March 14, 2011   WI DNR Southeast Region Hdqrs.
Monday     Room 140-141
at 10:30 AM   2300 N. Dr. Martin Luther King Jr. Dr.
    Milwaukee, 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 Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St, 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 Proposed Rules

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 March 24, 2011 . 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:

Joseph Hoch, DNR

Bureau of Air Management (AM/7)

101 S. Webster St, 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 Department of Natural Resources

Statute interpreted

Section 285.11 (1) and (6) , Stats. The State Implementation Plan (SIP) 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 rule-making authority. Section 285.11 (1) , Stats., gives the Department the authority to promulgate rules implementing and consistent with ch. 285 , Stats. Section 285.11 (6) , Stats., requires the Department to develop a plan for the prevention, abatement and control of air pollution. The plan must conform to the Clean Air Act and federal regulations for ozone control. These proposed rule revisions are necessary for federal approval of Wisconsin's SIP and consistent with s. 285.11 (6) , Stats.

Related statute or rule

There are no related statutes that are not identified above.

Plain language analysis

The Department is required to implement volatile organic compound (VOC) reasonably available control technology (RACT) regulations in moderate or worse ozone nonattainment areas to comply with the federal Clean Air Act. Wisconsin's moderate ozone nonattainment counties include Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Washington and Waukesha. VOC RACT rules were previously adopted by the Board on March 25, 2009 based on U.S. Environmental Protection Agency (EPA) Control Techniques Guideline (CTG) documents. The Bureau of Air Management understood that these rules would satisfy the federal requirements. However, on April 22, 2010, the U.S. EPA notified the Department of outstanding deficiencies . The U.S. EPA identified these deficiencies based on a comparison of the rules with their CTGs for various RACT categories.

Federally approved VOC RACT rules are required for Wisconsin's ozone SIP and are a prerequisite for redesignation of the state's remaining nonattainment areas for the 1997 8-hour ozone national ambient air quality standards (NAAQS) to attainment. The counties of Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Washington and Waukesha constitute the current ozone nonattainment areas. In addition to a delay in the redesignation of these counties, an incomplete SIP could result in federal sanctions, including withholding of federal highway funds and the potential implementation of a federal air management plan.

In order to avoid federal sanctions and ensure timely redesignation of the state's remaining ozone nonattainment areas, the Department is proposing rule revisions for a portion of the current synthetic organic chemical manufacturing (SOCMI), industrial wastewater collection and treatment (IWCT) and industrial solvent cleaning VOC RACT rules. The Bureau of Air Management has convened stakeholder groups, including representatives from the potentially affected industrial sectors and the U.S. EPA, to discuss the need to revise the rules and the feasibility of complying with the proposed revisions.

Comparison with existing or proposed federal regulations

The Clean Air Act requires the Department to implement RACT for major VOC emission source categories in areas classified as moderate or worse for nonattainment of the ozone NAAQS. The U.S. EPA has published CTGs for several VOC RACT source categories. The Department is required to ensure the state's VOC RACT rules are consistent with these CTGs.

Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota)

VOC RACT rules are only required in states that have areas classified as moderate or worse for the ozone NAAQS. Iowa and Minnesota have no nonattainment areas and Michigan does not have any areas that are classified as moderate or worse. Illinois is in a similar situation as Wisconsin. The U.S. EPA has identified deficiencies with Illinois' current VOC RACT rules and they must be corrected to meet the requirements of the Clean Air Act.

Summary of factual data and analytical methodologies

The proposed rule revisions are based on the following U.S. EPA CTGs: (1) Automobile and Light-Duty Truck Assembly Coatings; (2) Flat Wood Paneling Coatings; (3) Flexible Package Printing; (4) Industrial Cleaning Solvents; (5) Industrial Wastewater Collection and Treatment Operations; (6) Large Appliance Coatings; (7) Metal Furniture Coatings; (8) Miscellaneous Industrial Adhesives; (9) Miscellaneous Metal and Plastic Parts Coatings; (10) Offset Lithographic Printing and Letterpress Printing; (11) Paper, Film, and Foil Coatings; and (12) Reactor Processes and Distillation Operations in SOCMI.

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

Based on the control requirements, the applicability threshold for the rules and the relatively small number of facilities that will be subject to revised VOC RACT rules, there should be minimal, if any, impact on small businesses.

An economic impact report was not requested.

Effect on Small Business

The Department does not believe that the proposed rule revisions will have a significant economic impact for individual small businesses. For industrial solvent cleaning operations, the applicability threshold is 3 tons of actual VOC emissions from a facility on a 12 consecutive month rolling basis, with all control equipment inoperative. The Department believes that this threshold will not affect the majority of small businesses. Due to the nature and complexity of IWCT and SOCMI facilities it is highly unlikely that a small business, as defined in 227.114 (1), Stats., would have an operation that triggers the emission reduction requirements for those source categories in the proposed rule.

Small business regulatory coordinator

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

State fiscal impact

The proposed rule revisions should not create a significant effect on state government because the majority of sources affected are already inspected, permitted and otherwise regulated by the Department. However, the Department estimates that these modifications to the industrial solvent cleaning rules will result in 75 tons per year (tpy) future reduction in reported VOC emissions. Therefore, the Department may lose up to $2,700 (75 tpy * $35.71/ton VOC) in emission fee revenue annually. The U.S. EPA control technology guidance (CTG) for industrial cleaning solvents estimates that there are 97 affected sources in Wisconsin with baseline VOC emissions from solvent use of 1,791 tpy. The Department concluded in Natural Resources Board Order AM-19-08 that implementation of recommendations in the industrial solvent cleaning CTG would result in an estimated 400 tpy future reduction in reported VOC emissions in Wisconsin. These proposed rule revisions to address the deficiencies identified by the U.S. EPA should only affect approximately 18 of the 97 facilities identified in the CTG. This is based on the number of participants at stakeholder meetings held by the Department in Milwaukee and Waukesha. Therefore, the Department estimates that proposed rule revisions will result in an estimated 75 tpy future reduction in reported VOC emissions rather than the U.S. EPA estimate of 1,791 tpy.

Private sector fiscal impact

The Department does not expect any large fiscal impacts to the private sector from the proposed revisions to the industrial solvent cleaning regulations. In fact, the U.S. EPA has stated in their industrial solvent cleaning CTG that affected sources may either incur minimal additional costs or realize a savings, depending primarily on facts such as how much they currently spend to operate with high-VOC content solvent. Based on Natural Resources Board Order AM-24-08, for the industrial wastewater facilities, if controls were necessary, they would largely be designed to reduce VOC emissions by restricting the waste stream's exposure to ambient air. This is accomplished by installing water seals at those process points (drains, junction boxes, man holes, etc.) where the waste stream is exposed to the ambient air. According to a report on industrial wastewater, there would be a cost (amortized over 10 years) between $1900 and $4300 per ton VOC reduction to install these control devices. However, the Department is not aware of any facilities that would be subject to these control requirements. The Department does not expect any large fiscal impacts to the private sector from the proposed SOCMI rule revisions because the rule changes are relatively minor.

Agency Contact Person

Joseph Hoch, DNR

Bureau of Air Management (AM/7)

P.O. Box 7921, Madison, WI 53707-7921

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]