ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, RENUMBERING AND AMENDING, AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 438.04 (1) (Note), (2) (c), (e), (g), (h) and (6); to renumber NR 438.02 (1); to renumber and amend NR 438.03 (1) (b) Table 1; to amend NR 438 (title), 438.01 (2), NR 438.03 (1) (a) and (am) 1., NR 438.03 (1) (b), (c), (d), (2), (3), (4), (5) (a), (b), (c), and (6), 438.04 (1) and (2) (intro.), (b) and (f), 484.06 (4) Table 4D Row (a); to repeal and recreate NR 438.02 (2), 438.04 (2) (d), (3), (4), and (5); and to create 400.03 (4) (jp), NR 438.02 (1a), (1c), (1g), (1i), (1k), (1m), (1o), (1q), (1s), (1u), (3), and (4), NR 438.03 (1) (af), (am) 3. and (5) (a) (Note), relating to the incorporation of a PM2.5 emissions reporting requirement, alignment of state and federal emissions reporting terminology, updates to reflect current emissions reporting procedure, and affecting small business. |
AM-31-19
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Sections 285.11(11), 285.17, 299.15, Stats. The State Implementation Plan developed under s. 285.11(6), Stats., is revised. 2. Statutory Authority: Sections 285.11(11), 285.17, 299.15, Stats. 3. Explanation of Agency Authority: The Department of Natural Resources (the department) is required to promulgate by rule the classification of air contaminant sources which may cause or contribute to air pollution and require by rule those discharging air contaminants to report the manner used, amount used and amount discharged for each such contaminant. The department is also required to coordinate the reporting requirements to prevent duplication of reporting requirements.
4. Related Statutes or Rules: Section 299.15, Stats., requires the department to promulgate rules implementing reporting requirements for sources of air contaminants in the state. The proposed rule revisions correspond to the incorporation of an acronym definition in s. NR 400.03, Wis. Adm. Code, and emissions reporting requirements contained in ch. NR 438, Wis. Adm. Code. Additional proposed revisions in s. NR 484.06 Other government organizations align ch. NR 484, Wis. Adm. Code, with proposed revisions in ch. NR 438, Wis. Adm. Code. 5. Plain Language Analysis: In 2015 the U.S. Environmental Protection Agency (EPA) finalized amendments to the Air Emissions Reporting Requirements (AERR) rule (40 CFR 51, subpart A, and 40 CFR 51.122). This rule updated requirements for state and local agencies to collect and submit emissions data to the EPA. Currently, some inconsistencies exist between Wisconsin’s air emissions reporting requirements codified in ch. NR 438, Wis. Adm. Code, and the AERR rule. The department is proposing to revise ch. NR 438, Wis. Adm. Code, to meet federal requirements in the AERR rule. Updating ch. NR 438, Wis. Adm. Code, will ensure the state has a legally sufficient state implementation plan (SIP), required under Section 110(a)(2) of the federal Clean Air Act (CAA), and maintain Wisconsin’s approval under Title I of the CAA. The department is proposing to add an emissions reporting requirement for sources that directly emit particulate matter with an aerodynamic diameter of equal to or less than 2.5 µm (PM2.5), which ensures compliance with the AERR rule and maintains an approvable SIP. Related changes include specifying that state reporting requirements for particulate matter apply to primary emissions, where primary emissions are directly emitted to the atmosphere, rather than particulate matter formed through atmospheric chemical reactions (‘secondary’ emissions). Further, primary particulate emissions are being distinguished from filterable and condensable particulate emissions, which sum to equal the primary particulate emissions. Emissions reporting requirements are included for these filterable and condensable components of primary PM2.5 and primary particulate matter with an aerodynamic diameter of equal to or less than 10 µm (PM10). The proposed rule also addresses a deficiency in ch. NR 438, Wis. Adm. Code, identified by EPA which requires Type A sources under subpart A of 40 CFR 51 to report annual emissions of all criteria air pollutants and ammonia if the sources emit in excess of any of the thresholds listed in Table 1 of Appendix A of subpart A under 40 CFR 51.30. These proposed changes will ensure ch. NR 438, Wis. Adm. Code, meets federal requirements in the AERR rule (40 CFR 51, subpart A). Additionally, the department is proposing to make other revisions to ch. NR 438, Wis. Adm. Code, to (1) align state code language with federal emissions reporting terminology, (2) revise outdated ch. NR 438, Wis. Adm. Code, language and make corresponding updates to ch. NR 484, Wis. Adm. Code, to reflect the department’s current emissions inventory process, and (3) create a list of emission units, operations or activities that a facility may exclude from the annual emission inventory. These proposed changes will clarify and modernize the emissions reporting rule language in ch. NR 438, Wis. Adm. Code. The specific proposed rule changes are described below. Alignment of state and federal emissions reporting requirements
SECTIONS 8 and 13 require the owner or operator of a facility to report annual primary PM, primary PM2.5, primary PM10, filterable PM2.5, filterable PM10, and condensable PM emissions if the facility’s emissions exceed the reporting threshold in ch. NR 438, Table 1. Because there are only a few proposed changes to Table 1 in SECTION 13, proposed Table 1 rule language is identified with blue font to facilitate review. These proposed changes may be found on pages 26 and 28 of this document. SECTION 9 addresses a deficiency identified by EPA which requires Type A sources under subpart A of 40 CFR 51 to report annual emissions of all criteria air pollutants and ammonia. Alignment of state and federal emissions reporting terminology
SECTIONS 4-7 renumber or incorporate definitions for terms related to particulate matter and emissions reporting that only apply in ch. NR 438. Although several terms defined in SECTION 5 are currently defined in ch. NR 400, the proposed SECTION 5 definitions are being incorporated to ensure consistency with the definitions in the AERR rule. Revision to outdated state code language
SECTIONS 1-3, 10, 12, and 14-27 align emissions reporting rule language to reflect the department’s current emissions inventory process, and reference the specific information requested by the department’s web-based air emissions inventory reporting program.
Addition of emissions reporting exemption list
SECTION 11 creates a list of emission units, operations or activities that a facility may exclude from the annual emission inventory reported to the department. Sources are not required to quantify emissions from the proposed emissions reporting exclusion list, which are units, operations, or activities that the department has determined are difficult to quantify and emit de minimis amounts of air contaminants.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The revisions to ch. NR 438, Wis. Adm. Code, are being proposed to meet federal requirements in the AERR rule (40 CFR 51, subpart A, and 40 CFR 51.122). This federal rule requires state and local agencies to collect and submit emissions data to the EPA. This rulemaking will satisfy federal emissions reporting requirements and resolve inconsistencies between state and federal emissions inventory reporting. 7. Summary of Comments Received on the Statement of Scope and How the Agency Took Those Comments into Account in Drafting the Proposed Rule: A preliminary public hearing was requested by the Joint Committee for the Review of Administrative Rules on August 27, 2020 and was held on October 1, 2020. No public comments were received during the preliminary public hearing and comment period on the statement of scope of the proposed rule.
8. Comparison with Similar Rules in Adjacent States: The States of Illinois, Iowa, Michigan, and Minnesota have incorporated PM2.5 emissions reporting requirements into their administrative codes.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: In 2008, EPA promulgated the AERR rule (40 CFR part 51, subpart A) to coordinate and streamline emissions inventory reporting requirements with existing requirements of the CAA and 1990 Amendments. Under the AERR rule, states and local air pollution control agencies are required to submit emissions inventories for criteria pollutants to EPA. The EPA uses these submittals to build the national inventory of air pollutant emissions (National Emissions Inventory; NEI). A comprehensive inventory updated at regular intervals is essential to allow EPA to fulfill its mandate to monitor and plan for the attainment and maintenance of the national ambient air quality standards established for criteria pollutants. In 2015, EPA finalized amendments to the AERR rule (40 CFR 51, subpart A, and 40 CFR 51.122). The rule’s updated requirements improved consistency and clarity with other federal rules and better reflects current inventory technologies and practices. The department must ensure that state reporting requirements align with those established in federal code in order to keep Wisconsin’s SIP current and maintain Wisconsin approval under Title I of the CAA. Section 285.14 (1), Stats., requires SIP submittals resulting in regulatory requirements to be promulgated by rule. There are no policy alternatives available for the proposed rules because the proposed actions are required under state and federal law. 10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The department estimates that the economic impact of implementing the revised reporting requirements in Wisconsin will be minimal ($0-$50,000). The proposed changes will not involve an emission fee increase for sources and will not require sources to install new emissions monitoring equipment or reporting systems. The proposed rule will result in a small administrative impact to sources in the form of time required to report and certify annual PM2.5 emissions if a source’s emissions exceed the reporting threshold or to report and certify all criteria air pollutant and ammonia emissions for a Type A source under subpart A of 40 CFR 51.
To minimize administrative time associated with annual emissions reporting, the department’s web-based air emissions inventory reporting program provides information (i.e., emission factors) and an emissions calculator, which the owner or operator of a facility can use to estimate emissions. The program currently includes emission factors for sources to calculate their filterable and condensable PM2.5 emissions. Furthermore, the department expects that sources required to report PM2.5 emissions under the proposed rule are already familiar with the emissions calculations, since many of these sources likely already report other pollutant emissions under current ch. NR 438, Wis. Adm. Code, requirements. In addition, the department is providing a proposed list of excluded units, operations and activities to reduce the emissions reporting burden on sources. The department expects the proposed changes will improve the clarity of Wisconsin’s emissions reporting requirements by synchronizing the emissions reporting language between ch. NR 438, the department’s web-based air emissions inventory reporting program, and the federal AERR rule. The department does not anticipate that local governments, utility rate payers, public entities, or the state’s economy will be economically impacted by the implementation of the proposed rules. The proposed rules will not require additional state staff to implement or affect state revenues.
11. Effect on Small Business (initial regulatory flexibility analysis): The AERR rule amendments state that the updated reporting requirements “will not have a significant economic impact on a substantial number of small entities under the RFA [Regulatory Flexibility Act]. This action will not impose any new requirements on small entities. This action corrects and clarifies emissions reporting requirements and provides states with additional flexibility in how they collect and report their emissions data, thereby reducing overall collection and reporting burdens and their associated costs.” (80 FR 8794).
The department expects that few, if any, small businesses will be required to report PM2.5 emissions under the proposed rule since source applicability is determined by a five ton per year emission threshold. If applicable, the proposed rule changes would have a small administrative impact on the small businesses; there would be no economic impact. Furthermore, the department expects that if there are any small businesses required to report PM2.5 emissions under the proposed rule that they are already familiar with the emissions calculations, since these sources likely already report other pollutant emissions under current ch. NR 438, Wis. Adm. Code, requirements. As mentioned in #10 above, the department has taken steps to minimize administrative time associated with annual emissions reporting, including providing an emissions calculator directly on the department’s web-based air emissions inventory reporting program and providing a list of emission units, operations and activities that a facility may exclude from the annual emission inventory. 12. Agency Contact Person: Olivia Salmon, Bureau of Air Management, Wisconsin Department of Natural Resources PO Box 7921, Madison, WI 53703; (608) 630-5264; OliviaE.Salmon@Wisconsin.gov. 13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearing, by regular mail, or email to:
Olivia Salmon – AM/7
Bureau of Air Management
Wisconsin Department of Natural Resources
PO Box 7921
Madison, WI 53703
Comments may be submitted to the department contact person listed above or to DNRAdministrativeRulesComments@wisconsin.gov until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and on the department’s website, at https://dnr.wi.gov/calendar/hearings/. Comments may also be submitted through the Wisconsin Administrative Rules Website at https://docs.legis.wisconsin.gov/code/chr/active. RULE TEXT
Section 1 NR 400.03 (4) (jp) is created to read:
NR 400.03 (4) (jp) “NAICS” — North American Industry Classification System
Section 2 NR 438 (title) is amended to read:
NR 438 (title) Air contaminant emission emissions inventory reporting requirements.
Section 3 NR 438.01 (2) is amended to read:
