CR 21-072 Rule Text

The statement of scope for this rule, SS 116-20, was approved by the Governor on August 13, 2020, published in Register No. 776A4 on August 24, 2020, and approved by the Natural Resources Board on October 28, 2020. This rule was approved by the Governor on February 10, 2022.

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 adopts an order to repeal NR 438.04 (1) (Note), (2) (c), (e), (g), (h) and (6); to renumber NR 438.02 (1); to amend NR 438 (title), 438.01 (2), 438.03 (title), (1) (a), (am) 1., (b), Table 1, (c), (d), (2), (3), (4), (5) (title), (a), (b), (c), and (6), 438.04 (1), (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 NR 400.03 (4) (jp), 438.02 (1a), (1g), (1i), (1k), (1m), (1o), (1q), (1s), (1u), (3), and (4), 438.03 (1) (af), (am) 3. and 4., 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 285.17, 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).

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 (1) major sources in nonattainment areas, (2) sources with the potential to emit equal to or greater than 100 tons per year of criteria air pollutants or ammonia, and (3) sources with actual emissions of equal to or greater than 0.5 ton per year of lead to report annual emissions of all criteria air pollutants and ammonia regardless of emissions amount. 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 12 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 Table 1.

SECTION 9 addresses a deficiency identified by EPA which requires applicable 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, 12-25 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.

SECTIONS 6, 12, and 25 remove cross references between ss. NR 438.02 (2) and 438.03 (5) (a) and EPA’s outdated FIRE emissions factor database (s. NR 484.06 (4) (a)).

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 if they 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. 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.

Information and materials developed by EPA in support of the AERR rule amendments can be found on EPA’s website at https://www.epa.gov/air-emissions-inventories/air-emissions-reporting-requirements-aerr#additional-resources and in the regulatory docket (EPA-HQ-OAR-2004-0489) associated with the 2015 amended rule (80 FR 8787). This information is applicable also to the adoption of the amended AERR requirements into the Wisconsin Administrative Code.

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 an applicable 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 has streamlined reporting requirements by creating 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, Wis. Adm. Code, the department’s web-based air emissions inventory reporting program, and the federal AERR rule.