ORDER OF THE STATE OF
WISCONSIN
NATURAL RESOURCES BOARD
REPEALING, RENUMBERING AND
AMENDING
,
AMENDING,
REPEALING AND RECREATING
,
AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to
repeal
NR 404.04 (2) (a) 1. and 2.; to
renumber and amend
NR 404.04 (2) (a) (intro.); to
amend
NR 404.04.(2) (a) (title), 404.06 (2), and 484.04; to
repeal and recreate
NR 404.04 (6); and to
create
NR 484.04 (7) and (7m); relating to adopting the National Ambient Air Quality Standards, (NAAQS) for
s
ulfur
d
ioxide, (SO
2
) and
n
itrogen
d
ioxide, (NO
2
).
AM-
08
-
11
Analysis
Prepared by the Department of Natural Resources
1. Statute interpreted:
Section
285.11
(6)
, Stats.
The State Implementation Plan developed under
s.
285.11(
6
)
, Stats.,
is
revised.
3. Explanation of agency authority:
Section
227.11
(2)
(a)
, Stats. expressly confers rule making authority to an agency. Section
285.11(1)
and
(
6
)
r
equires that
the Department promulgate rule
s and establish control strategies in order to prepare and implement the
State Implementation Plan for the prevention, abatement and control of air pollution in the state.
Section
285.21
(1)
(a)
requires that the Department promulgate by rule ambient air quality standards that are similar to, but
not more restrictive than the National Ambient Air Quality S
tandards
(
NAAQS).
4. Related statute or rule:
There are no other statutes or rules directly related to the adoption of
the
NAAQS for sulfur dioxide (SO
2
), and nitrogen dioxide (NO
2
)
.
5. Plain language analysis:
The U.S. Environmental Protection Agency (EPA) is required by the federal Clean Air Act (CAA) to promulgate NAAQS to protect public health (i.e., primary standards) and public welfare (i.e., secondary standards). The Department is required by state law (s.
285.21
, Wis. Stats.) to promulgate by rule a similar, but no more restrictive, air quality standard when the U.S. EPA promulgates a new or revised NAAQS.
The
U.S.
EPA has recently promulgated
NAAQS for SO
2
and NO
2
. In order to both reflect current air quality health science
and to maintain consistency with
U.S.
EPA-promulgated NAAQS, the Department is proposing to adopt
the
SO
2
and NO
2
NAAQS
into ch.
NR 404
, Wis. Adm. Code
. In addition, the Department is proposing to revise ch.
NR 484
, Wis. Adm. Code, to include references to applicable U.S. EPA data handling conventions for NO
2
and SO
2
.
6. Summary of, and comparison with, existing or proposed federal regulation:
On February 9, 2010, the U.S. EPA promulgated a 1-hour primary NAAQS for NO
2
at a level of 100 parts per billion (
75 FR 6474
). In addition, the U.S. EPA promulgated a 1-hour primary NAAQS for SO
2
at a level of 75 parts per billion on June 22, 2011 (
75 FR 35520
).
The Department is proposing to adopt these same standards.
7. Comparison with
similar
rules in adjacent states
(Illinois, Iowa, Michigan and Minnesota)
:
All adjacent states will adopt
SO
2
and
NO
2
s
tandards that are the same as Wisconsin’s proposed rule.
Illinois has not yet proposed a rule to revise the state standards to match the federal NAAQS. Illinois intends to
consolidate
revisions to
SO
2
and
NO
2
standard
s
this year
with updates
to the
ozone and
fine
p
articulate
m
atter
(PM
2.5
)
standards
.
Iowa adopted the
NO
2
standard in November, 2010 and intends to begin the rule process to adopt the
SO
2
standard in late 2011.
The NAAQS become part of
Michigan
‘s
administrative code through an
incorporation
by reference provision in its existing rules without further rule changes
.
Minnesota
and
Iowa ha
ve
not yet determined when
to adopt
SO
2
and
NO
2
standard
s
into
their
administrative
rules
.
8. Summary of factual data and analytical methodologies
used and how any related findings support the regulatory approach chosen
:
As required by s.
285.21 (1) (a)
, Stats., Wisconsin must promulgate ambient air quality standards similar to the NAAQS for the protection of public health and welfare.
Because the Department is required by statute to adopt the NAAQS, it did not develop or use data or analytical methodologies to support the proposed adoption of these standards
.
9. Analysis and supporting documents used to determine
the
effect on small business or in preparation of
an
economic impact
analysis
:
Incorporating
1-h
ou
r standards for NO
2
and SO
2
into ch.
NR 404
will trigger the need to do additional dispersion modeling and engineering analysis in reviews for minor construction and operation permits in order to satisfy s.
285.63
(1)
(b)
, Wis. Stats. This will increase the amount of time and cost of applying for and receiving these air pollution control permits for both the private sector and the agency.
Reviewing three years of permit applications reveals that some small businesses that apply for
minor source permits (both construction and operation)
will be affected by the new NO
2
and SO
2
NAAQS.
A
n
e
conomic
i
mpact
analysis
and final fiscal estimate
will be
completed
prior to the submittal of this rule to the Legislative Council as required under s.
227.137
(2)
, Stats.
In addition, public comments will be sought to better define the economic impact of this proposed rule.
1
0
. Effect on small business:
Private consultant time for technical analysis is expected to raise permit application cost for small business. The compliance costs associated with control measures has not been evaluated at the state leve
l at this point. The potential cost increases will be quantified before proposed rule adoption.
12
. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings
,
by regular mail, fax or email to:
Jeff Myers
Department of Natural Resources
Bureau of Air Management
PO Box 7921
Madison WI 53707
(608)
266-2879
Fax: (608) 267-0560
A public hearing will be held on May 21, 2015
at 1:00PM
in Room 713 at the Natural Resources Building, 101 South Webster Street, Madison, Wisconsin. Comment must be received no later than May 28, 2015.
The consent of the Attorney General will be requested for the incorporation by reference of new
data handling conventions
in ch.
NR 484
.
SECTION 1.
NR
404.04 (2
) (
a) (title) is amended to read:
NR 404.04 (2
) (
a
) (
title)
Primary
standards
standard
.
SECTION 2
.
NR 404.04
(2) (a) (intro.) is renumbered NR 404.04 (2
) (
a) and amended to read:
NR 404.04 (2)
(a) The primary
standards
standard
for sulfur oxides, measured as sulfur dioxide,
are
:
is
0.075 ppm
--
maximum
1-hour concentration
.
The 1-hour primary standard is met at an ambient air quality monitoring site when the
3
-year average of the annual (99
th
percentile) of the daily maximum 1-hour average concentrations is less than or eq
ual to
0.075
pp
m
, as determined by the methodology of
40 CFR part 50
, Appendix T, incorporated by reference in s.
NR 484.04 (
7
m
)
.
SECTION
3
. NR 404.04 (2) (a) 1
.
and 2
.
are repealed.
SECTION
4
.
N
R 404.04 (6)
is repealed and recreated to read:
NR 404.04
(6)
NITROGEN DIOXIDE
.
(a)
Primary standards.
The primary
standards
for nitrogen dioxide are:
1
.
0.053 ppm
-- p
rimary annual average concentration
.
The
primary
annual
standard is met when the annual average concentration in a calendar year is less than or equal to
0.053
pp
m
, as determined
by the methodology of
40 CFR part 50
, Appendix
S
, incorporated by reference in s.
NR 484.04 (
7
)
.
2
.
0.100 ppm
--
primary
1-hour average concentration
.
The primary 1-hour standard is met when the
3-
year average of the annual 98
th
percentile of the daily maximum 1-hour average concentration is less than or equal to
0.
100 pp
m,
as determined by the methodology of
40 CFR part 50
, Appendix
S
, incorporated by reference in s.
NR 484.04 (
7
)
.
(b)
Secondary Standard.
The secondary standard for nitrogen dioxide
is 0.053
ppm
.
The secondary standard is attained when the annual arithmetic mean concentration in a calendar year is less than or equal to 0.053 ppm, rounded to three decimal places
. F
ractional parts equal to or greater than 0.0005 ppm
shall
be rounded up. To demonstrate attainment, an annual mean
shall
be based upon hourly data that are at least 75
%
complete or upon data derived from manual methods that are at least 75
%
complete for the scheduled sampling days in each calendar quarter.
S
ECTION
5
. NR 404.06
(2)
is amended to read:
NR 404.06 (2)
REFERENCE METHODS. Ambient air quality monitoring which utilizes a reference monitoring method shall use monitoring methods which conform to the federal reference methods which are specified in
40 CFR part 50
, Appendices A to
N
T
, incorporated by reference in s.
NR 484.04
(2)
, or which have been so designated by the department.
SECTION
6
. NR 484.04 is amended to read:
NR 484.04
Code of federal regulations appendices
.
The appendices to federal regulations in effect on
March 1, 2006
the effective date of this section …
[LRB
insert
date]
listed in the first column of Table 2 are incorporated by reference for the corresponding sections of
chs
.
NR 400
to
439
and
445
to
499
or code of federal regulations appendix method listed in the third column of Table 2. Since some of these materials are incorporated by reference for another appendix of the code of federal regulations and the other appendix is also incorporated by reference in this section, the materials listed in this section which are incorporated by reference for the other appendix are hereby also incorporated by reference and made a part of this
chapter.
SECTION
7.
NR 484.04 (
7
) and (
7m
) are created to read:
NR 484.04
(7)
40 CFR part 50 Appendix S
|
Interpretation of the National Ambient Air Quality Standards for Nitrogen Dioxide
|
NR 404.04 (6) (a)
|
(7m)
40 CFR part 50
Appendix T
|
Interpretation of the National Ambient
Air Quality Standards for Sulfur Dioxide
|
NR 404.04 (2) (a)
|
SECTION
8
. EFFECTIVE DATE. This rule shall take effect
on
the first day of the month following publication in the Wisconsin administrative register as
as
provided in s.
227.22 (2) (intro.)
, Stats.
