O
RDER OF THE STATE OF
WISCONSIN
NATURAL RESOURCES BOARD
REPEALING,
AMENDING
,
AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to
repeal
NR 172,
420.02 (8m), (26), (32), and (38m), 420.045, 425.035, 439.06 (3) (
i
), 484.05 (4) and (5), and 494.04; to
amend
NR 404.05 (2) (intro.), (3) (intro.), (4) (intro.), 405.02 (3), (21) (a), (21m) (intro.) and (a), (22) (b), (22m) (a) (intro.) and 1. and (b) 1., and (27) (a) 6., 405.07 (8) (a) 3m. and 5. (Note), and 420.02 (39); and to
create
NR 400.02 (162) (a) 53. to 60., 404.05 (2) (am), (3) (am), (4) (am), 405.02 (21m) (c), (22m) (a) 3., 405.07 (8) (a) 3m. (Note) relating to consistency with U.S. Environmental Protection Agency air pollution control regulations and the repeal of obsolete rules, and affecting small business.
AM-
15-14
Analysis
Prepared by the Department of Natural Resources
1. Statute interpreted:
Sections
285.11 (1)
and
(6)
, Stats.
The State Implementation Plan developed under s.
285.11(6)
, Stats.,
will be
revised.
2. Statutory authority:
3. Explanation of agency authority:
(
A
)
Section
285.11 (1)
, Wis. Stats., requires that the Department promulgate rules implementing and consistent with
ch.
285
, Wis. Stats., and thereby establishes authority for the proposed changes to
ch.
NR 405
, Wis. Adm. Code, related to the prevention of significant deterioration permit program as affected by ss.
285.60
,
285.61
, and
285.63
, Wis. Stats. More specific authority for these proposed changes is established as follows:
(1)
Section
285.11 (16)
, Wis. Stats., requires that the Department 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 and limit the classification of a major source to specific air contaminants. Section
285.11 (17)
, Wis. Stats requires the Department to promulgate rules, consistent with the federal
Clean Air Act, that modify the meaning of the term “modification” as it relates to specific air contaminants. These statutory provisions support the Department’s proposed changes to
ch.
NR 405
, Wis. Adm. Code, to identify nitrogen oxides (NOx) as a precursor to ozone formation is consistent with federal Clean Air Act requirements regarding what contaminants to consider when determining whether a source is a major source and describe when an increase in a given air contaminant is considered a modification.
(2)
Section
285.17 (1) (a)
, Wis. Stats., requires the Department to classify by rule the level of an air contaminant source that may cause or contribute to air pollution. This statute supports the proposed change to the significant monitoring concentration for PM2.5 which is established as a threshold below which major source construction permit applicants are not required to provide pre-construction air quality monitoring data.
(3)
Section
285.21 (2)
and
(4)
, Wis. Stats., supports the Department’s proposed change to establish ambient air increments for PM2.5
.
These statutory provisions require that the Department promulgate by rule ambient air increments for air contaminants consistent with
,
and not more restrictive than
,
those under the federal
C
lean
A
ir
A
ct for attainment areas. The Department must keep these rules consistent with any modifications to these increments made under the
C
lean
A
ir
A
ct.
(4)
Section
285.25 (1)
, Wis. Stats., supports the Department’s proposed changes to add PM2.5 to select definitions in
ch.
NR 405
, Wis. Adm. Code, related to a pollutant’s baseline concentration. This statute requires that the Department promulgate rules designating procedures and criteria to determine the allocation of available air resources in an attainment area. The terms affected are used in these procedures and the proposed inclusion of PM 2.5 in the relevant definitions is necessary and appropriate when the Department determines the allocation of air resources for PM2.5.
(
B
)
Section
285.11 (6)
, Wis. Stats., establishes authority for the proposed change to
the definition of volatile organic compounds (VOC)
,
by adding compounds to the list of those excluded from the definition
. This statute
requires that the Department develop a plan for the prevention, abatement, and control of air pollution. For control of atmospheric ozone, the plan, with limited exceptions, must conform
to
the federal
C
lean
A
ir
A
ct. Since VOC are a precursor to ozone, the addition of the proposed compounds to the list of
those
excluded
from the definition
ensure
s that
the state definition of VOC conforms to the federal definition.
(
C
)
The
proposed
repeal of s.
NR 420.045
, Wis. Adm. Code,
along with other rules related to its implementation
are
consistent with the legislature’s mandate under s.
285.31 (5)
, Wis. Stats., to terminate the further implementation of stage 2 vapor recover equipment requirements.
4. Related statute or rule:
Related to the proposed repeal of s.
NR 420.045
, the state legislature promulgated s.
285.31 (5)
, Wis. Stats., effective April 17, 2012, terminating the further implementation of stage 2 vapor recover equipment requirements under s.
NR 420.045
, Wis. Adm.
Code.
5. Plain language analysis:
The Department has two main objectives in proposing these rules; to address changes needed to maintain consistency with U.S. Environmental Protection Agency (EPA) regulations and to repeal obsolete rule provisions.
(A) Consistency.
(1)
Chapter
NR 405
, Wis. Adm. Code, establishes requirements and procedures for reviewing and issuing air pollution control construction permits for any new major stationary source and any major modification to an existing stationary source located in areas designated as in attainment with national ambient air quality standards or as unclassifiable. This permit program is referred to as prevention of significant deterioration or PSD and is based on U.S. EPA regulations in
40 CFR 51.166
.
The Department is the approved authority in the state to implement and enforce many of the federal regulations under the Clean Air Act. This authority is based on a State Implementation Plan submitted to and approved by U.S. EPA. In order to maintain a sufficient State Implementation Plan, the proposed changes to
chs
.
NR 404
and
405
addressed by this rule package are required
.
The Department is proposing changes to maintain consistency with existing U. S. EPA regulations in three areas:
a.,
identifying nitrogen oxides as a precursor to ozone;
b.,
updating requirements concerning particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers (PM2.5); and
c.,
amending the definition of volatile organic compound by
adding 8 compounds to the list of compounds with negligible photochemical reactivity.
These are each described further below:
b.
1.
Section
NR 404.05
, Wis. Adm. Code, to
adopt
ambient air increments for PM2.5. Ambient air increments for pollutants with national ambient air quality standards, including PM2.5, are establish
ed
by the U.S. EPA in
40 CFR 51.166
(c), and
2.
Section
NR 405.02 (3)
,
(21m)
, and
(22m)
, Wis. Adm. Code, to include
PM2.5
in the definitions of “baseline area”, “major source baseline date”, and “minor source baseline date”, respectively. These terms are defined by the U.S. EPA in
40 CFR 51.166
(b) (14) (i) and (ii) and (15) (i).
3.
Section
NR 405.07 (8) (a) 3m.
to change the significant monitoring concentration for PM
2.5
to zero in accordance with
Sierra Club
v.
EPA,
706 F.3d 428
(D.C. Cir. 2013).
c.
Chapter
NR 400
, Wis. Adm. Code, establishes definitions for terms commonly used throughout
chs
.
NR 401
to
499
, Wis. Adm. Code. A definition for the term ‘volatile organic compounds’ or ‘VOC’ is included in s.
NR 400.02 (162)
, Wis. Adm. Code. In the ambient air these compounds can participate in photochemical reactions to produce
ozone, more commonly referred to as smog, and are therefore subject to emission control requirements and may trigger the need to obtain a construction or operation permit. The U.S. EPA has determined that certain organic compounds have negligible photochemical reactivity in the atmosphere and therefore excludes them from the federal definition of VOC in
40 CFR 51.100
(s). T
o maintain consistency with federal rule, t
he Department proposes to add
these eight
compounds to the list of excluded compounds in the state definition. These compounds are:
1.
trans-1,3,3,3-tetrafluoropropene (HFO-1234ze).
2.
HCF
2
OCF
2
H (HFE-134).
3.
HCF
2
OCF
2
OCF
2
H (HFE-236cal2).
4.
HCF
2
OCF
2
CF
2
OCF
2
H (HFE-
3
38pcc13).
5.
HCF
2
OCF
2
OCF
2
CF
2
OCF
2
H (H-
Galden
1040X or H-
Galden
ZT 130 or 150 or 180).
6.
trans-chloro-3,3,3-trifluoroprop-1-ene (Solstice
TM
1233zd(E).
7.
2,3,3,3-tetrafluoropropene (HFO-1234yf).
8.
2-amino-2-methyl-1-propanol (AMP; CAS number 124-68-5).
(B) Obsolete Rules.
In addition to the changes described above to maintain consistency with U.S. EPA regulations, t
he Department
is also proposing
to
repeal the stage 2 vapor recovery regulations in s.
NR 420.045
and make clean-up changes to associated rules provisions,
including the repeal of
grant rules in
ch.
NR 172
for gas stations in Southeastern Wisconsin
. Stage 2 vapor recovery equipment captures volatile organic compounds that evaporate into the air when vehicle gasoline tanks are filled and returns the vapors to the underground gasoline storage tank where they condense. Beginning with 1998 model year vehicles, the U.S. EPA began requiring manufactures to equip new vehicles with on-board gasoline vapor recovery systems. These systems serve the same purpose as the stage 2 vapor recovery equipment at gasoline dispensing facilities. The U.S. EPA authorized states to remove stage 2 vapor recovery equipment requirements from their ozone
state implementation plan (SIP) which Wisconsin did, effective December 4, 2013
.
6. Summary of, and comparison with, existing or proposed federal
statutes and
regulation
s
:
The Department is proposing changes in
ch
.
NR 405
, Wis. Adm. Code, t
o address changes needed to maintain consistency with U. S. EPA regarding
rules for issuing
construction permits for any new major stationary source and any major modification to an existing stationary source located in areas designated as in attainment with national ambient air quality standards or as unclassifiable.
These changes are needed to conform with federal requirements
in
three areas: identifying nitrogen oxides as a precursor to ozone consistent with
40 CFR 51.166
; updating the ambient air increment and the significant monitoring concentration for
PM2.5 consistent with
40 CFR 51.166
; and adding 8
compounds to the list of compounds with negligible photochemical reactivity
consistent with the federal definition of VOC in
40 CFR 51.100
(s)
To address consistency with U. S. EPA regarding nitrogen oxides (NO
x
) as a precursor to ozone, the Department is proposing changes to
Sections
NR 405.02 (21) (a)
,
(22) (b)
,
(27) (a)
(6)
and
405.07 (8)
(a)
5.
, Wis. Adm. Code, to specifically identify that, in addition to volatile organic compounds, NO
x
emissions are a precursor to ozone formation consistent with U.S. EPA requirements in
40 CFR 51.166
(b) and (i).
To address consistency with U.S. EPA regarding particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers (PM2.5), the Department is proposing rule
change
s in
three
areas
:
(A)
Section
404.05
to add the Class I, Class II, and Class III increment values to
ch.
NR 404
as established in
40 CFR 51.166
(c);
(B)
Section
405.02
(3)
,
(21m)
, and
(22m)
,
to include PM2.5
in the definitions of “baseline area”, “major source baseline date”, and “minor source baseline date”, consistent with federal regulations in
40 CFR 51.166
(b);
and
To address consistency with U. S. EPA regarding the definition of VOC
,
the Department proposes to add eight compounds to the list of excluded compounds in the state definition in s.
NR 400.02 (162)
, Wis. Adm. Code. This is consistent with the federal definition of VOC in
40 CFR 51.100
(s).
7. Comparison with
similar
rules in adjacent states
(Illinois, Iowa, Michigan and Minnesota)
:
This proposed rule implements changes needed to
assure consistency between
state and federal
rules
and thus, result in rules similar to those in neighboring states.
Illinois and Minnesota are
direct
delegated states, meaning that they are implementing
directly
the federal program and are not implementing their programs through a State Implementation Plan (SIP), as Wisconsin does. Iowa and Michigan, similar to Wisconsin, are
SIP-
approved states, so they are implementing the same federal programs, but through their own state rules. It is the goal of SIP-approved states to implement federal programs in accordance with the regulations set out in federal code. This results in similar requirements from state to state.
8. Summary of factual data and analytical methodologies
used and how any related findings support the regulatory approach chosen
:
Since the Department is proposing rules consistent with federal regulations, making consistency and clarification changes, and repealing rules as directed by the state legislature, the
Department
did not make use of any factual data or analytical methodologies in the rule development.
9. Analysis and supporting documents used to determine
the
effect on small business or in preparation of
an
economic impact report:
The economic impact of the proposed rule is expected to be minimal.
When U.S. EPA adopts changes to
the federal major air pollution control construction permit program, the Department immediately implement
s
those changes through the state’s construction permitting program.
For this reason, t
he con
sistency changes being proposed, that specifically name NOx as a precursor to ozone,
will not have any additional
economic impact on facilities obtaining major source air pollution construction permits (PSD permits)
.
The adoption of the PM2.5 increment will require additional analysis
during
the air construction permit
review
s
for
minor sources
(which may be small businesses)
wishing to
expand
in areas where increment must be analyzed.
H
owever,
because the Department has developed a weight of evidence approach to evaluate PM2.5 emissions against the increment,
the Department does not anticipate that this additional analysis will cause noticeable delays in
minor source
permit issuance times and therefore,
will not
result in any significant impact to
small
businesses.
The Department has not been implementing the stage 2 vapor recovery program since
2012
when the state legislature terminated further implementation
.
Repeal of
these
outdated rules clarifies applicable requirements for
the affected
businesses and
is not expected to
have an
adverse
economic impact on them
.
As noted above, U.S. EPA already approved the removal of these requirements from Wisconsin’s SIP.
The portion of the rule that prop
o
ses to change the definition of volatile organic compounds
(VOC)
to make the rule consistent with the definition in federal regulations will provide clarity to businesses in how to calculate and report
VOC
emissions and on the applicability of regulations.
This chan
ge is not expected to have a negative economic impact on businesses and, since the proposed change is specifically to exclude some organic compounds from the definition of VOC, the rule change could have a
small,
positive economic impact on certain facilities that use the excluded compounds
.
1
0
. Effect on small business
(initial regulatory flexibility analysis)
:
The changes proposed in this rule are not expected to have an adverse economic impact on businesses
,
including small businesses. Small businesses are usually not major sources for purposes of the major
source air pollution control
construction permit program
(PSD program)
because they tend not to have large amounts of emissions
.
Since the Department is already implementing th
e PSD
program
,
as required by U.S. EPA
,
the consistency changes being proposed
in this rule
will not have any additional economic impacts.
The adoption of the PM2.5 increment will require
some
additional analysis during the air construction permit review for some small businesses expanding in certain parts of the state, however, the Department does not anticipate that this additional analysis will cause noticeable delays in permit issuance times and therefore, will not result in any significant impact to the affected businesses.
The portion of the rule that proposes to change the definition of volatile organic compounds (VOC) to make the rule consistent with the definition in federal regulations will provide clarity to businesses in how to calculate and report VOC emissions and on the applicability of regulations.
Small businesses affected include coating facilities, paint shops,
autobody
shops, and printing operations.
This change is not expected to have a negative economic impact on these businesses however, because the proposed change is specifically to exclude some organic compounds from the definition of VOC. In fact, the rule change could have a positive economic impact on small businesses that use the
compounds proposed to be
excluded.
Many gasoline dispensing facilities are
small
businesses.
The proposed repeal of the stage 2 vapor recovery program
and related implementing rules
will clarify applicable requirements for the affected small businesses and is not expected to have an
adverse
economic impact on them.
11
. Agency contact person:
Kristin Hart, Chief, Permits and Stationary Source Modeling Section
Phone:
608.266.6876
Fax:
608.267.0560
12
. Place where comments are to be submitted and deadline for submission:
A public hearings has been scheduled for:
Date and Time
Thursday, November 5, 2015
at 1:00 PM
Location
Natural Resources State Office Building
101 S. Webster St.
Room 713
Madison, WI
Comments of the proposed rule
s
must be
received
on or before
November 7, 2015
.
Oral statements may be presented at the hearing.
Written comments may be submitted at the
hearings, 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 hearing. Written comments and any questions on the proposed rules should be
directed
to:
Kristin Hart
Department of Natural Resources
Bureau of Air Management
(AM-7)
101 S Webster
St
Madison WI 5370
3
Phone:
6
08.266.6876
Fax:
608.267.0560
RULE TEXT
SECTION 1. NR 172 is repealed.
SECTION
2
.
NR 400.02 (162) (a) 53. to 60. are created to read:
NR 400.02 (162) (a)
53.
trans-1,3,3,3-tetrafluoropropene (HFO-1234ze).
54.
HCF
2
OCF
2
H (HFE-134).
55.
HCF
2
OCF
2
OCF
2
H (HFE-236cal2).
56.
HCF
2
OCF
2
CF
2
OCF
2
H (HFE-
3
38pcc13).
57.
HCF
2
OCF
2
OCF
2
CF
2
OCF
2
H (H-
Galden
1040X or H-
Galden
ZT 130 or 150 or 180).
58.
trans-chloro-3,3,3-trifluoroprop-1-ene (Solstice
TM
1233zd(E).
59.
2,3,3,3-tetrafluoropropene (HFO-1234yf).
60.
2-amino-2-methyl-1-propanol (AMP; CAS number 124-68-5).
SECTION
3
. NR 404.05
(2) (intro.) is amended to read:
NR 404.05 (2) (intro.)
CLASS I INCREMENTS.
In any area of this state classified under the
federal clean air act
Act
as a class I area, the ambient air increments
of particulate matter measured as
for
PM
2.5
,
PM
10
, sulfur dioxide
,
and nitrogen dioxide may not exceed the following amounts:
SECTION
4
. NR 404.05 (2) (am) is created to read:
NR 404.05 (2) (am)
PM
2.5
.
1. Annual
arithmetic
mean
1
microgram per
cubic
meter
2.
T
wenty−four hour maximum
2
micrograms per
cubic
meter
SECTION
5
. NR 404.05 (3) (intro.) is amended to read:
NR 404.05 (3) (intro.)
CLASS II INCREMENTS.
In any area of this state classified under the
act
Act
as a class II area, the ambient air increments
of particulate matter measured as
for
PM
2.5
,
PM
10
, sulfur dioxide
,
and nitrogen dioxide may not exceed the following amounts:
SECTION
6
. NR 404.05 (3) (am) is created to read:
NR 404.05 (3) (am)
PM
2.5
.
1. Annual
arithmetic
mean
4 micrograms per
cubic
meter
2.
T
wenty−four hour maximum
9
micrograms per
cubic
meter
SECTION
7
. NR 404.05 (4) (intro.) is amended to read:
NR 404.05 (4) (intro.)
CLASS III INCREMENTS.
In any area of this state classified under the
act
Act
as a class III area, the ambient air increments
of particulate matter measured as
for
PM
2.5
,
PM
10
, sulfur dioxide
,
and nitrogen dioxide may not exceed the following amounts:
SECTION
8
. NR 404.05 (4) (am) is created to read:
NR 404.05 (4) (am)
PM
2.5
.
1. Annual
arithmetic
mean
8 micrograms per
cubic
meter
2.
T
wenty−four hour maximum
18
micrograms per
cubic
meter
SECTION
9
.
NR 405.02 (3)
,
(21
)
(a)
, and (21m) (intro.) and (a)
are amended to read:
NR 405.02 (3) “Baseline area” means any intrastate area, and every part thereof, designated as attainment or unclassifiable under section 107 (d) (1)
(D) or (E)
(A) (ii) or (iii)
of the Act (
42 USC 7407
(d) (1)
(D) or (E)
(A) (ii) or (iii)
) in which the major source or major modification establishing the minor source baseline date would construct or would have an air quality impact
for the pollutant for which the baseline date is established
equal to or greater than 1 µg/m
3
(annual average)
of the air contaminant for which the minor source baseline date is established
for SO
2
, NO
2
, or PM
10
, or equal or greater than 0.3µg/m
3
(annual average) for PM
2.5
. Area
redesignations
under section 107 (d) (1)
(D) or (E)
(A) (ii) or (iii)
of the Act
(
42 USC 7407
(d) (1) (A) (ii) or (iii))
cannot intersect or be smaller than the area of impact of any major stationary source or major modification which either establishes a minor source baseline date or is subject to this chapter.
(21) (a) Any significant emissions increase from any emissions units or net emissions increase at a major stationary source that is significant for volatile organic compounds
or
nitrogen oxides
shall be considered significant for ozone.
(21m) (intro.)
“Major source baseline date” means
:
all of the following.
(a)
In the case of
particulate matter
PM
10
and sulfur dioxide, January 6, 1975.
SECTION
10
. NR 405.02 (21m) (c) is created to read:
NR 405.02 (21m) (c) In the case of PM
2.5
, October 20
,
2010
.
SECTION
1
1
. NR 405.02 (22) (b)
and (22m) (a) (intro.) and 1. and (b) 1. are
amended to read:
NR 405.02 (22) (b)
A major source that is major for volatile organic compounds
or
nitrogen oxides
shall be considered major for ozone.
(22m)
(a)
(intro.)
“Minor source baseline date” means the earliest
date after the trigger date on which the owner or operator of a
major stationary source or a major modification subject to
40 CFR
52.21
or to regulations approved pursuant to
40 CFR 51.166
submits
a complete application under the relevant regulations. The
trigger date is
any of the following
:
1. In the case of
particulate matter
PM
10
and sulfur dioxide, August
7, 1977.
(b) 1. The area in which the proposed source or modification would construct is designated as attainment or unclassifiable under section 107 (d) (1)
(D) or (E)
(A) (ii) or (iii)
of the Act (
42 USC 7407
(d)(1)
(D) or (E)
(A)(ii) or (iii)
) for the air contaminant on the date of its complete application under
40 CFR 52.21
or under regulations
approved pursuant to
40 CFR 51.166
.
SECTION
1
2
. NR 405.02 (22m) (a) 3. is created to read:
NR 405.02 (22m) (a) 3. In the case of PM
2.5
, October 20, 2011.
SECTION
1
3
. NR 405.02 (27) (a) 6.
is amended to read:
NR 405.02
(27) (a)
6. Ozone: 40
tpy
of volatile organic compounds
or nitrogen oxides
.
SECTION
1
4
. NR 405.07
(8)
(a) 3m. is amended to read:
NR 405.07
(8)
(a) 3m. PM
2.5
–
2.3
0
µg/m
3
, 24 hour average
.
SECTION
1
5
. NR 405.07
(8)
(a) 3m. (Note) is created to read:
NR 405.07
(8)
(a) 3m. (Note) In accordance with
Sierra Club
v.
EPA,
706 F.3d 428
(D.C. Cir. 2013), no exemption is available with regard to PM
2.5
.
SECTION
1
6
. NR 405.07 (8)
(a)
5. (Note) is amended to read:
NR 405.07 (8)
(a)
5. (Note) No de
minimis
air quality level is provided for ozone. However, any source with a net increase of 100 tons per year or more of volatile organic compounds
or nitrogen oxides
subject to regulation under this chapter would be required to perform an ambient impact analysis, including the gathering of ambient air quality data.
SECTION
1
7
. NR 420.02 (8m), (26), (32), and (38m) are repealed.
SECTION
1
8
. NR 420.02 (39) is amended to read:
NR 420.02 (39) “Vapor recovery
system”
or
“vapor
control system”
means
mean
a system that gathers organic compound vapors released during the operation of any transfer, storage, or process equipment and processes the vapors so as to prevent their emission into the ambient air.
SECTION
1
9
. NR 420.045 is repealed.
SECTION
20
. NR 425.035 is repealed.
SECTION 2
1
. NR 439.06 (3) (i) is repealed.
SECTION
2
2
.
NR 484.05 (4) and (5) are repealed.
SECTION 2
3
.
NR 494.04 is repealed.
SECTION 2
4
. Terminology Changes in NR 420:
Wherever the hyphenated term “vapor-tight” is used in the following rule subunits, the unhyphenated term “vapor tight” is substituted: NR 420.03 (4) (b) 3., and NR 420.04 (1) (b) 4. and (3) (c) 1.
SECTION
2
5
. EFFECTIVE DATE. This rule shall take effect on the first day of the month following publication in the Wisconsin administrative register as provided in s.
227.22 (2) (intro.)
, Stats.
SECTION
2
6
. BOARD ADOPTION. This rule was approved and adopted by the State of Wisconsin Natural Resources Board on _______________________.
