The statement of scope for this rule, SS 064-21 was approved by the Governor on July 16, 2021, published in Register No. 787B on July 26, 2021, and approved by the Natural Resources Board on December 8, 2021. This rule was approved by the Governor on October 5, 2023. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board adopts an order to amend NR 428.04 (2) (g) 1. d., 428.05 (2) (b), 428.07 (1) (a) 2., 428.22 (1) (intro.), and 484.04 Table 2 Row (15m); to repeal and recreate NR 428.08 (2) (e) (title),; and to create NR 400.03 (4) (mf), 428.02 (7i), (7p), (7u), and (7w), 428.04 (2) (i) and (4) (c), 428.05 (2) (f), (3) (f), and (5) (c), 428.055, 428.08 (2) (f) (title), (g), and (3), 428.21 (3) (d), 428.22 (3) and 428.24 (1) (c), relating to nitrogen compound emissions regulations. |
AM-05-21
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: The State Implementation Plan developed under s. 285.11 (6), Wis. Stats., is revised. 2. Statutory Authority: Sections 227.11(2)(a), 285.11(1) and (6), Wis. Stats. 3. Explanation of Agency Authority: Section 227.11(2)(a), Wis. Stats., expressly confers rulemaking authority to an agency where such rules are necessary to effectuate the purpose of existing statutory authority. The department is required under s. 285.11(1), Wis. Stats., to promulgate and implement air pollution control rules consistent with ch. 285, Wis. Stats. In addition, s. 285.11(6), Wis. Stats., requires the department to prepare and develop comprehensive state implementation plans (SIPs) for prevention, control and abatement of air pollution and revise and implement those plans to conform with the Clean Air Act (CAA). Several provisions of the CAA provide the federal statutory basis for this rule. Sections 172(c)(2) and 182(b)(1) of the CAA require the state to provide Reasonable Further Progress (RFP) plans for ozone nonattainment areas. Section 182(f) of the CAA requires Reasonably Available Control Technology (RACT) requirements for nitrogen oxides (NOx) to be included in the SIP for Moderate (and more stringent nonattainment classifications) ozone nonattainment areas.
4. Related Statutes or Rules: The proposed rule changes revise and clarify NOx control requirements contained in ch. NR 428, Wis. Adm. Code. A definition for a common abbreviation is added to ch. NR 400, Wis. Adm. Code. Proposed cross-reference updates in ch. NR 484, Wis. Adm. Code, align the chapter with the proposed revisions in ch. NR 428, Wis. Adm. Code. 5. Plain Language Analysis: NOx reacts with volatile organic compounds in the presence of sunlight to form ground-level ozone. Concentrations of ozone above the National Ambient Air Quality Standards (NAAQS) adversely impact human health and the environment. The U.S. Environmental Protection Agency (EPA) has designated several areas along the Lake Michigan shoreline in eastern Wisconsin as “nonattainment areas” due to ozone concentrations violating the NAAQS. Certain emissions sources located in nonattainment areas are subject to more stringent controls under the CAA.
Chapter NR 428, Wis. Adm. Code, regulates the emissions of NOx from certain stationary sources located in current ozone nonattainment areas and areas with a history of ozone nonattainment, including the counties of Kenosha, Manitowoc, Milwaukee, Ozaukee, Racine, Sheboygan, Washington and Waukesha. Subchapters I through III were added in January 2001 to fulfill the Rate of Progress/Reasonable Further Progress plans as required by Sections 172(c)(2) and 182(b)(1) of the CAA. Subchapter IV of this rule was added in July 2007 to include CAA Section 182(f) Reasonably Available Control Technology (RACT) requirements for major sources of NOx located in ozone nonattainment areas classified as Moderate (or more stringent nonattainment classifications). Since the promulgation of the 2001 and 2007 revisions to ch. NR 428, Wis. Adm. Code, the department has identified several implementation issues associated with certain parts of the chapter. The department is proposing revisions to the chapter to ensure clear and consistent implementation of this rule. The proposed changes include clarifying exemption applicability, emission limits for units using more than one type of fuel, and emissions averaging requirements. The proposed rule also revises and clarifies existing compliance and monitoring requirements, corrects an emission limit for a specific type of unit, incorporates procedures for approving a source-specific emission limit alternative to ensure that limits are achievable in practice, and updates cross references. The specific proposed rule changes are described below: Revised NOx emission limit
The department is proposing to correct the emission limit under s. NR 428.04(2)(g)1.d., Wis. Adm. Code, for combined cycle combustion turbines with maximum design power output of 25 MWe or greater because, as written, the existing limit is not achievable in practice at all times of operation (e.g., during periods of startup or shutdown). The proposed change revises the NOX emission limit from 3 parts per million, dry volume (ppmdv), corrected to 15% oxygen on a 30-day rolling average basis to 9 ppmdv, corrected to 15% oxygen on a 30-day rolling average basis. Because the proposed emission limit is reflective of current operations, including periods of startup and shutdown, the proposed rule change is not expected to result in an increase in actual emissions. Additionally, the proposed revision aligns the NOx emission limit adopted under s. NR 428.04(2)(g)1.d., Wis. Adm. Code, to fulfill the Rate of Progress/Reasonable Further Progress plan requirement under CAA Sections 172(c)(2) and 182(b)(1) with the NOx emission limit for the same type of unit that was adopted under s. NR 428.22(1)(h)1., Wis. Adm. Code, to meet CAA Section 182(f) NOx RACT requirements. This proposed revision will reduce confusion in scenarios when an emissions unit is subject to both emissions limits simultaneously. Proposed language under s. NR 428.055, Wis. Adm. Code, provides procedures allowing facilities to demonstrate that an emission limit listed in s. NR 428.04, Wis. Adm. Code, is technologically or economically infeasible and the opportunity to request a site-specific emission limit alternative. Emission limits set under this proposed provision must be approved by the department and approved into the Wisconsin SIP by EPA. Clarify NOx emission limits during secondary fuel useage
The department is proposing to clarify emission limits and monitoring requirements under ss. NR 428.04, 428.05, 428.22, and 428.24, Wis. Adm. Code, that apply when a facility uses more than one type of fuel. The proposed revisions clarify the department’s practice that a unit firing secondary fuel is not subject to emission limits and monitoring requirements when utilizing only the secondary fuel under certain circumstances. Applicable instances of secondary fuel use include: - When the emissions unit heat input capacity or maximum design power output while utilizing the secondary fuel is less than the corresponding applicability thresholds.
- When the emissions unit burns the secondary fuel only: during periods of curtailment or supply interruption of other fuel(s) not to exceed 500 hours in a 12 consecutive month time period; or periodic testing, maintenance, or operator training.
- When the emissions unit utilizes the secondary fuel only for startup or the fuel constitutes less than 1% of the unit’s fuel consumption within a 12 consecutive month time period.
Clarify monitoring requirements for specific categories of emissions units
Proposed language under s. NR 428.08(2), Wis. Adm. Code, incorporates an alternative to operating a continuous emissions monitoring system (CEMS) by meeting operational and performance testing requirements for: kilns, furnaces, asphalt plants, process heating units, engines, and other units. Currently there are no monitoring requirements specified for these types of units under s. NR 428.08(2), Wis. Adm. Code. Revise compliance monitoring plan submittal deadline
The department is proposing to revise the deadline for compliance monitoring plan submittals under s. NR 428.07(1)(a)2., Wis. Adm. Code, from “at least 180 days prior to initial operation” to “at least 180 days prior to initial operation, or an alternative date less than 180 days approved by the department.” The previous rule language required plans to be submitted 180 days before initial operation. This means a source would have been required to wait for the 180-day period to end prior to operating, even if the source was permitted and physically capable of operation prior to that date. The revised rule language allows the source to request an alternative date to avoid the waiting period if necessary. Clarify exception
The department is proposing to clarify that the unit exception under s. NR 428.21(3), Wis. Adm. Code, applies only to units constructed before August 1, 2007, as originally intended. Definitions
The department is proposing to incorporate definitions related to secondary fuel usage scenarios and specific types of emissions units under s. NR 428.02, Wis. Adm. Code. Cross references
The department is proposing to update cross references through ch. NR 428, Wis. Adm. Code, to be consistent with the proposed rule language.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: Sections 172(c)(2) and 182(b)(1) of the federal CAA require states with a Moderate (or a more stringent nonattainment classification) ozone nonattainment area to develop and implement “Reasonable Further Progress” plans to help the area reach attainment. Subchapters I through III of ch. NR 428, Wis. Adm. Code, were promulgated as part of Wisconsin’s Reasonable Further Progress demonstration to reduce NOx emissions in the state’s ozone nonattainment areas. Section 182(f) of the CAA requires states to implement Reasonably Available Control Technology (RACT) requirements for large sources of NOx emissions as defined by the CAA in Moderate (and more stringent nonattainment classifications) ozone nonattainment areas. Subchapter IV of ch. NR 428, Wis. Adm. Code, was promulgated to meet NOx RACT requirements for areas classified as Moderate nonattainment under the 1997 ozone NAAQS. The proposed rule changes are intended to clarify ambiguities in ch. NR 428, Wis. Adm. Code, and ensure implementation of this rule is consistent with CAA requirements. 7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope: The department held an online preliminary public hearing on the statement of scope on November 5, 2021. Nine members of the public attended the hearing. Two attendees registered in support of the proposed scope statement; one of these members provided a verbal comment reiterating their support. No other verbal comments were provided.
The public comment period ended on November 5, 2021. The department received no written comments on the proposed statement of scope.
8. Comparison with Similar Rules in Adjacent States: Wisconsin’s NOx emission limits in ch. NR 428, Wis. Adm. Code, were compared to similar rules in the adjacent states of Michigan, Illinois, Iowa and Minnesota, as well as Indiana. Portions of Wisconsin, Illinois, and Indiana comprise a tri-state area currently designated by EPA as nonattainment for the 2015 ozone NAAQS. This same tri-state area was previously designated as nonattainment for the 2008 ozone NAAQS until being redesignated to attainment in 2022. As such, the three states are federally required to limit emissions of ozone precursors, including NOx (e.g., CAA Section 182(f) NOx RACT requirements).
