ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, AMENDING, AND CREATING RULES
The Wisconsin Natural Resources Board adopts 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) (a), (22) (b), (22m) (a) 1. and (b) 1., and (27) (a) 6., 405.07 (8) (a) 3m. and 5. (Note), 420.02 (39), 420.03 (4) (b) 3., and 420.04 (1) (b) 4. and (3) (c) 1.; 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 Clean Air Act for attainment areas. The Department must keep these rules consistent with any modifications to these increments made under the Clean Air Act. (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 Clean Air Act. Since VOC are a precursor to ozone, the addition of the proposed compounds to the list of those excluded from the definition ensures 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 established 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 PM2.5 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). To maintain consistency with federal rule, the Department proposes to add these eight compounds to the list of excluded compounds in the state definition. These compounds are:
