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
adopt
s 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.
2. Statutory authority:
Sections
227.11(2)
(a)
,
285.11(1)
,
and
285.21(1)(a)
, Stats.
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.
On February 9, 2010, the U.S. EPA promulgated a 1-hour primary NAAQS for NO
2
at a level of
0.100 parts per million
(
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
0.075 parts per million
(
75 pa
rts per billion
)
on June 22, 2010
(75 FR 35520). As a result of these federal actions, the Department is proposing to adopt the NO
2
and SO
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:
The Department is
proposing to adopt
standards that are identical to the
EPA promulgated
(2010) federal National Ambient Air Quality Standards
for
NO
2
and SO
2
.
Th
us the
proposed standard
s
are
no
t
more stringent than the federal standard
s
.
7. Comparison with
similar
rules in adjacent states
(Illinois, Iowa, Michigan and Minnesota)
:
Since these are federal standards,
they apply in
all states. The states of
Illinois
, Michigan
,
and
Iowa have already adopted these revisions to the NAAQS standards for
NO
2
and SO
2
.
Minnesota
is
in the process of rule promulgation
and expect
s
their rules will be in effect in
early 2016
.
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
and because the Department is proposing to adopt standards identical to the EPA promulgated 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
may
trigger the need to
conduct
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.
As discussed below, most of these minor construction and operation permits will be for larger businesses. N
ot very many
minor permits are expected to be for small businesses
that c
ould potentially
be
affected by the adoption of the NO
2
and SO
2
NAAQS.
The Department r
eview
ed
three years of permit applications
and found that small
businesses
do not often apply for
minor source permits (both construction and operation)
, the department has flexibility in permit rules and procedures that will minimize economic effects on small businesses
, and
therefore there
are only a
few
small business
sources potentially affected
by the new NO
2
and SO
2
NAAQS.
Furthermore,
a solicitation of over 600 businesses and business groups
, as well as discussions with the Small Business Advisory Council
did not identify any significant number of small businesses as potentially being affected by the proposed rule
. Finally,
no small businesses commented on the proposed rule or responded to the Department’s solicitation for potential impacts of the proposed rule
.
In summary, the majority of the rule’s impacts will be on larger sources and not small businesses.
With regard to the impact of the proposed rules on Wisconsin businesses as a whole, a
n economic impact analysis
and fiscal estimate has been completed. A public hearing on the rule
(which included the Department’s
economic impact assessment
)
was
held
on May 21, 2015
.
The Department
received written comments via email on Board Order AM-08-11 from two entities, the Wisconsin Paper Council and Wisconsin Manufacturers & Commerce. Both commenters acknowledge the
Department
must incorporate these
N
ational
A
mbient
A
ir
Q
uality
S
tandards (NAAQS) into the state administrative code, while raising concerns about how these standards will be implemented through the air permit process. Specifically, both commenters are concerned that adopting these NAAQS would require additional air dispersion modeling and engineering analyses as a condition for receiving air permits. They
specifically note numerous technical and practical concerns with conducting such modeling in support of these standards.
The Department
appreciates these comments and agrees that if these NAAQS were implemented as was done historically several practical and technical concerns would arise. Specifically,
the Department
agrees that modeling is not the only method available to demonstrate that a particular source will not “cause or exacerbate” a violation of these NAAQS when a source is applying for an air permit.
The Department
believes it has flexibility under
law
to implement the NAAQS through its permitting process in ways other than modeling, and commits to exploring with affected parties how to use this flexibility to identify
technically-sound
alternatives to modeling when implementing these NAAQS.
1
0
. Effect on small business:
As stated above, it is anticipated
that very few, if any,
small businesses will be affected by this rule. If a small business were to be affected, the p
rivate consultant time for technical analysis is expected to raise permit application cost
s
for
these
small business
sources
. The compliance costs associated with
mitigation and
control measures
will vary from case-to-case, but the Department’s
Economic Impact A
nalysis
(EIA)
did not find
any evidence that a
significant
number
of small
businesses would be subject to large compliance costs
as a result of adopting this rule
.
This rule does not change or impose new recordkeeping or reporting requirements on small businesses or change any schedules or deadlines for compliance reporting.
11
. Agency contact person:
Jeff Myers
,
WDNR, P.O. Box 7921, Madison, WI 53707-7921;
(608)
266-2879
;
(608) 267-0560 (fax)
;
jeff.myers
@wisconsin.gov
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
provided in s.
227.22 (2) (intro.)
, Stats.
SECTION
9
. BOARD ADOPTION. This rule was approved and adopted by the State of Wisconsin Natural Resources Board on
August 12, 2015
.
