The statement of scope for this rule, SS 015-19, was approved by the Governor on January 30, 2019, published in Register No. 758A1 on February 4, 2019, and approved by the Natural Resources Board on April 10, 2019. This rule was approved by the Governor on June 3, 2021.
ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD REPEALING, RENUMBERING, RENUMBERING AND AMENDING, AMENDING, AND CREATING RULES
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Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Sections 285.11(6) and 285.14(1), Stats. The State Implementation Plan developed under s. 285.11(6), Stats. is revised.
3. Explanation of Agency Authority: The department has the authority to develop, revise and implement comprehensive plans for the prevention, abatement and control of air pollution. These plans, which may include rules and control strategies, must conform with the federal Clean Air Act (CAA).
4. Related Statutes or Rules: The proposed rule revisions correspond to the source categories covered under the existing VOC rule provisions:
NR 422.083: Plastics parts coating NR 422.127: Use of adhesives
NR 422.15: Miscellaneous metal parts and products
Additional administrative code sections revised related to the VOC RACT rule revisions above: NR 400.02: Definitions
NR 419.02: Definitions
NR 421.02: Definitions
NR 422.01: Applicability
NR 422.02: Definitions
NR 422.03: Exemptions
NR 422.04: Methods of compliance
NR 423.035: Industrial cleaning operations – part 1. NR 423.037: Industrial cleaning operations – part 2.
NR 425.04: Exceptions and non-ozone season allowances NR 439.04: Recordkeeping
NR 484.10: American Society for Testing and Materials
5. Plain Language Analysis: Volatile organic compounds (VOCs) react with nitrogen oxides in the presence of sunlight to form ground-level ozone. Concentrations of ozone above the National Ambient Air Quality Standards (NAAQS) are known to adversely impact human health and the environment. The
U.S. Environmental Protection Agency (EPA) has designated several areas in eastern Wisconsin as “nonattainment areas” due to ozone concentrations exceeding the NAAQS. Emissions sources located in nonattainment areas are subject to more stringent controls under the Clean Air Act (CAA).
Section 182(b)(2) of the CAA requires states to implement VOC reasonably available control technology (RACT) regulations in any ozone nonattainment area classified as “moderate” or above. The State’s VOC RACT program must include regulations that reflect the latest Control Techniques Guidelines (CTGs) issued by EPA for specific source categories.
In 2008, EPA released two updated CTGs that provided recommendations for three source categories: miscellaneous plastic parts coating, miscellaneous metal parts coating, and miscellaneous industrial adhesives. The department started rulemaking around 2009 to incorporate these CTGs into rule. At the time, however, it was unclear whether the 2008 CTGs would be challenged in court and possibly modified. After several years, it became clear that the CTGs would not be litigated. They ultimately did not change, and have been in effect since 2008. This rulemaking effort began in 2018, and the scope statement was published in the Administrative Register on February 4, 2019.
Because Wisconsin has had several ozone nonattainment areas subject to this requirement since the CTGs were issued (Sheboygan County and eastern Kenosha County), the department is proposing to update its existing VOC RACT regulations to reflect the latest EPA CTGs. This will ensure the state remains in compliance with CAA Section 182(b)(2) requirements as they apply to moderate and higher ozone nonattainment areas. Wisconsin’s compliance with all CAA requirements, including ensuring compliance with up-to-date RACT rules, will ensure the state has a legally sufficient state implementation plan (SIP) and allow the state to redesignate eligible ozone nonattainment areas to attainment more quickly.
The department is proposing to revise its existing VOC RACT regulations to reflect these EPA CTGs. The current VOC RACT rules (referred to as “Part I” rules) for metal and plastic parts coatings and adhesive use will continue to apply in the state. The updated VOC RACT requirements (“Part II” rules) will apply in the state’s ozone nonattainment areas that have been classified as moderate (or above) for any national ozone standard promulgated in or after 2008. An affected source will either be subject to the Part I rule or the Part II rule for that source category. This will ensure requirements are neither redundant nor conflicting, while still ensuring the state remains in compliance with the CAA’s VOC RACT requirements.
The proposed rule changes are primarily associated with the addition of the Part II rules, which incorporate the CTGs’ VOC content limits for specific types of coatings and adhesives. Additionally, the department is proposing to make several additions, corrections, and clarifications within ch. NR 422 Control of Organic Compound Emissions from Surface Coating, Printing, and Asphalt Surfacing
Operations that affect current rule language for these source categories. The specific proposed rule changes are described below.
Clarification of existing rule language
SECTION 4 clarifies that once a source becomes subject to a VOC RACT rule in ch. NR 422, it remains subject to the rule regardless of future reductions in emissions (“once in, always in”), unless an approved federally enforceable permit or SIP revision permanently restricts the source’s production, capacity utilization, or the hours of operation so that the source’s maximum theoretical emissions, as defined in s. NR 419.02 (11), are below the applicability threshold(s) in ch. NR 422. This clarification meets the applicable federal VOC RACT exemption requirements identified in EPA’s August 23, 1990 memorandum from G. T. Helms titled, “’Once-in/Always-in’ Requirement for Applicability.” While existing text throughout ch. NR 422 had been interpreted by the department to have this effect, the proposed SECTION 4 language in s. NR 422.01 (3) establishes clear “once in, always in” applicability for all of ch. NR 422. Clarification of the “once in, always in” language is necessary to ensure EPA approval of the proposed rule. SECTIONS 10, 12 through 14, 26, and 27 delete the existing, fragmented occurrences of “once in, always in” language in ss. NR 422.03, 422.05 (1m), 422.06 (1m), 422.08 (1m), 422.14 (1m), and 422.145 (1m).