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 Revision to outdated state code language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:
NR 438.01 (2) Purpose. The purpose of this chapter is to establish, pursuant to ss. 285.11, 285.13, 285.17, and 299.15 (1) and (2), Stats., requirements for submission of reports emissions inventories for owners or operators of air contaminant sources. Section 4 NR 438.02 (1) is renumbered (1e).
Section 5 NR 438.02 (1a), (1c), (1g), (1i), (1k), (1m), (1o), (1q), (1s), and (1u) are created to read:
NR 438.02 (1a) “Condensable PM” means a material that is vapor phase at stack conditions but that condenses or reacts upon cooling and dilution in the ambient air to form solid or liquid PM immediately after discharge from the stack.
Note: Condensable PM, if present from a source, is typically in the PM2.5 size fraction and, therefore, all of it is a component of both primary PM2.5 and primary PM10.
(1c) “Device” means the physical equipment or equipment line where a process occurs.
(1g) “Filterable PM” means a particle that has an aerodynamic diameter equal to or less than 100 micrometers that is directly emitted by a source as a solid or liquid at stack or release conditions and captured on the filter of a stack test train.
(1i) “Filterable PM2.5” means a particle that has an aerodynamic diameter equal to or less than 2.5 micrometers that is directly emitted by a source as a solid or liquid at stack or release conditions and captured on the filter of a stack test train.
(1k) “Filterable PM10” means a particle that has an aerodynamic diameter equal to or less than 10 micrometers that is directly emitted by a source as a solid or liquid at stack or release conditions and captured on the filter of a stack test train.
(1m) “Primary PM” means the sum of filterable PM and condensable PM.
(1o) “Primary PM2.5” means the sum of filterable PM2.5 and condensable PM2.5.
(1q) “Primary PM10” means the sum of filterable PM10 and condensable PM10.
(1s) “Process” means an activity occurring at a device that generates emissions, controls emissions, or discharges emissions.
Note: Examples of processes include combustion, coating, controlling, crushing, or discharging.
(1u) “Process type code” means a brief descriptor of the process type.
Section 6 NR 438.02 (2) is repealed and recreated to read:
NR 438.02 (2) “Source classification code” means a process-level code that describes the equipment or operation that is emitting a pollutant.
Note: Source classification codes are available as set forth by EPA’s Emissions Inventory System, which is an information system for storing all current and historical emissions inventory data.
Section 7 NR 438.02 (3), and (4) are created to read:
NR 438.02 (3) “Unit device” means the physical equipment or equipment line where a process occurs.
Note: Examples of unit devices include boilers, coating lines, baghouses, and stacks.
(4) “Unit device type code” means a brief descriptor of the unit device type.
Section 8 NR 438.03 (1) (a) is amended to read:
NR 438.03 Required emission inventory reports emissions inventories. (1) Reportable air contaminants and levels. (a) Except as provided inunder par. (am), any person owning or operating a facility that emits an air contaminant in quantities above applicable reporting levels, except indirect sources of air pollution, shall annually submit to the department an emission emissions inventory report of annual, actual emissions or, for primary particulate matter, primary PM10, primary PM2.5, sulfur dioxide, nitrogen oxides, carbon monoxide and volatile organic compounds, throughput information sufficient for the department to calculate its annual, actual emissions. The reportable air contaminants and applicable reporting levels are listed in ch. NR 438, Table 1. Section 9 NR 438.03 (1) (af) is created to read:
NR 438.03 (1) (af) The owner or operator of a facility with potential to emit equal to or greater than any emission rate listed in ch. NR 438, Table 2, shall annually submit to the department an emissions inventory for all of the following pollutants regardless of emissions amount: 1. Sulfur dioxide.
2. Nitrogen oxides.
