Rule-Making Notices (Hearing Notices)

Statutory authority

Sections 227.11 (2) (a) and 285.11 (9), Wis. Stats.

Explanation of agency authority

Wisconsin statute s. 227.11 (2) (a) authorizes the Department to promulgate rules interpreting the provisions of any statutes enforced or administered by it. Wisconsin statute s. 285.11 (9) authorizes the Department to prepare and adopt minimum standards for the control of mercury emissions.

Related statutes or rules

This proposed rulemaking affects control of mercury emissions as required under subchs. II and III of ch. NR 446, Wis. Adm. Code. These rules were established in 2008 under authority of s. 285.11 (9), Wis. Stats., which in turn refers to requirements under s. 285.27 (2) (b), Wis. Stats. The latter statute allows promulgation of state emissions limitations for hazardous pollutants only if there is a finding that control of emissions is needed to protect human health and welfare. A health and welfare finding was made for the 2008 mercury rulemaking process.

Wisconsin statute s. 285.27 (2) (d) specifies that sources of hazardous air pollutants are exempt from state rule requirements when emissions are regulated by federal rules promulgated under section 112 of the Clean Air Act (CAA). This means that electric generating utilities (EGUs) will be exempt from requirements under subchs. II and III of ch. NR 446, Wis. Adm. Code, when their mercury emissions are regulated under the federal Mercury and Air Toxics Standards (MATS) and Industrial, Commercial and Institutional (ICI) Boiler rules.

Plain language analysis

Mercury emitted by coal-fired EGUs is regulated by the state under subchs. II and III of ch. NR 446, Wis. Adm. Code. This administrative code is commonly referred to as the “state mercury rule" with subchapter II referred to as phase 1 and subchapter III as phase 2. The action proposed in this Board Order will delay the initial compliance date for emission reductions required under phase 2 of the state mercury rule until April 16, 2016.

Under phase 2 of the original state mercury rule, 31 EGUs are required to achieve 90 percent control of mercury by January 1, 2015. Currently, these EGUs are subject to a 40 percent control requirement under phase 1 of the state mercury rule. Phase 2 of the state mercury rule will also require four smaller EGUs not affected under phase 1 to begin operating best available control technology (BACT) by January 1, 2015.

The same coal-fired EGUs subject to the state mercury rule will also be subject to mercury emission limits under one of two recently promulgated federal rules: the MATS rule or the ICI Boiler rule. EGUs subject to the MATS rule must demonstrate compliance by April 16, 2015. The EGUs subject to the ICI Boiler rule must demonstrate compliance by January 31, 2016. However, individual EGUs may request a one-year extension to any federal rule regulating hazardous air pollutant emissions as allowed under section 112 of the Clean Air Act.

Under the current schedule of compliance dates, EGUs will be subject to phase 2 of the state rule three and a half months before compliance is required under the MATS rule and thirteen months before compliance is required under the ICI Boiler rule. However, according to s. 285.27 (2) (d), Wis. Stats., EGUs will be exempt from state mercury rule requirements when mercury emissions are regulated under the federal rules. Therefore, under the current compliance schedules, EGUs would comply with phase 2 of the state mercury rule for only a short period of time.

The Department has concluded that requiring compliance with phase 2 of the state mercury rule for a short period of time is not warranted for a number of reasons. First, state law directs that mercury emissions will be regulated in the long-term by any promulgated federal requirement. Second, the Department believes that meeting requirements of both the state and federal rules adds complexity, cost, and compliance burden for the affected EGUs. Lastly, with the federal rules becoming effective on April 16, 2015 and January 31, 2016, and the state rule no longer applicable after those dates, delaying the state mercury rule requirements will not result in higher levels of mercury emissions compared to implementing only the state rule.

Therefore, the Department is proposing to delay the compliance date for phase 2 of the state mercury rule from January 1, 2015 to April 16, 2016. The Department is proposing this date to accommodate individual EGUs subject to the MATS rule that may require a one-year extension. It is the Department's opinion that EGUs affected by the ICI Boiler rule will not request a one-year extension and therefore will not require the compliance date for phase 2 of the state mercury rule to be one year after the ICI Boiler rule's compliance date.

In summary, this rule change will achieve the following objectives:

•   Allows EGUs to comply with only the federal rules and not phase 2 of the state mercury rule at this time, thus simplifying administrative requirements, compliance planning, and installation of equipment which will avoid undue cost.

•   Maintains the existing state mercury rule requirement for 40 percent mercury control, as provided under subch. II of ch. NR 446, Wis. Adm. Code, until the affected EGUs regulate mercury emissions in accordance with the federal standards.

•   Maintains state mercury rule phase 2 emission standards, under subch. III of ch. NR 446, Wis. Adm. Code, in the event that the federal rules are delayed or rescinded. Maintaining the state mercury rule in a backup position will ensure that the state health and welfare finding requiring mercury control is fulfilled within a practical time-frame.

•   Accommodates EGUs that may require a one-year extension to the MATS rule compliance date of April 16, 2015, as allowed under section 112 of the CAA. As stated above, it is the Department's opinion that EGUs will not require an extension in meeting requirements of the ICI Boiler rule, therefore the compliance date in this rulemaking is only extended to April 16, 2016, in order to address a possible extension that may be requested by EGUs affected by the MATS rule.

Information and analysis supporting this rule change are provided in the report “Wisconsin's State Mercury Air Emission Rule." This report was presented to the Natural Resources Board on May 22, 2013. At that time, the Board approved the report's recommendation to extend the compliance date for meeting requirements under subch. III of ch. NR 446, Wis. Adm. Code to April 16, 2016.

Summary and comparison with existing and proposed federal regulations

As discussed in Item 5 of this Board Order, mercury emitted by 35 coal-fired boilers will be regulated under phase 2 of the state mercury rule beginning January 1, 2015. Mercury emission standards will apply to these same EGUs under either the federal MATS beginning on April 16, 2015, or the ICI Boiler rule beginning on January 31, 2016. The resulting control and mercury emission levels anticipated under either the state or federal rules are summarized in the following table. Emissions are presented through 2021 in order to show the effects of delayed implementation of mercury reductions under the state mercury rule multi-pollutant compliance option. A detailed comparison of the state and federal rules is presented in the report provided to the Natural Resources Board on May 22, 2013. The information in the table shows that the state and federal rules are expected to achieve comparable mercury emission reductions.

Year	State Rule Compliance		Federal Rule Compliance
	Percent Control	Remaining Hg Emissions (lbs.)	Percent Control	Remaining Hg Emissions (lbs.)
2015	83 – 87%	550 – 743	84 – 86%	584 – 663
2016	83 – 87%	550 – 743	87 – 89%	446 – 558
2021	89 – 92%	345 – 449	87 – 89%	446 – 558

Note: Percent control is measured from the baseline uncontrolled emissions of 4,275 pounds per year as determined under s. NR 446.06, Wis. Adm. Code. The baseline uncontrolled emissions are the average of uncontrolled emissions for 2002, 2003, and 2004.

Comparison of similar rules in adjacent states

The federal MATS and ICI Boiler rules will affect EGUs in adjacent states in the same manner as EGUs in Wisconsin. Like Wisconsin, some of these states also have existing state mercury emission standards in place. These states are responding in a variety of ways, as summarized in the following table:

State	Existing State Hg Rule (Y/N)	Response to Federal MATS
Illinois	Yes	Have not considered state response to federal MATS in detail. Expect that sources will need to meet both state and federal regulations.
Michigan	Yes	Revising the state rule to be consistent with MATS.
Minnesota	Yes	Adopting federal MATS rule. Will also require compliance with more stringent state rule.
Iowa	No	No action at this time. Waiting for EPA's response to reconsideration of the MATS rule.

Summary of factual data and analytical methodologies

The Department reviewed all applicable state statutes and administrative code. The Department determined that affected EGUs will be exempt from state mercury rule requirements when mercury emissions are regulated under federal rules. This exemption from state requirements is provided under s. 285.27 (2) (d), Wis. Stats.

The Department evaluated mercury emission control levels and remaining emissions that are expected under full implementation of either the state mercury rule or the two federal rules. The Department determined that the current compliance date of the state mercury rule may result in undue compliance burden and cost even though mercury emissions, in the long-term, will be regulated under the current federal MATS and ICI Boiler rules. Therefore, the Department evaluated options to transition regulation of mercury emissions from under the state mercury rule to the federal rules in a manner consistent with the applicable statutes. The factual data and methodologies used to evaluate the state and federal mercury rule requirements are documented in the report presented to the Natural Resources Board on May 22, 2013, which can be accessed from the May 22, 2013, agenda on the Natural Resource Board's website.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

One goal of the proposed rule change is to avoid undue regulatory cost. In accordance with s. 227.137, Wis. Stats., the Department solicited information and advice from affected sources and stakeholders concerning the economic impacts of the proposed rule. The Department received comments from two affected utilities which supports the conclusion that the rule change will reduce compliance burden and cost. This information was considered in preparing the fiscal estimate and economic impact analysis.

Effect on Small Business

The proposed rule will only affect electric utilities generating electricity and will not affect small businesses.

Environmental Analysis

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate and Economic Impact Analysis Summary

Fiscal estimate

1. Fiscal effect on state and local government

The proposed rule will not result in additional cost to state and local government. The proposed rule is intended to avoid additional compliance costs for coal-fired electric generating units. Manitowoc Public Utility, the one local government entity that is affected by the rule change, has commented that the proposed rule will reduce compliance burden and avoid additional costs.

2. Fiscal effect on the private sectors

The proposed rule is intended to avoid additional compliance costs to coal-fired electric generating units, and therefore, the private sector will incur no additional cost that is related to this rule change. The non-government electric utility companies affected by the rule change include Dairyland Power Cooperative, Wisconsin Power and Light, Wisconsin Public Service Corporation, We Energies and Xcel Energy. Xcel Energy and Dairyland Power Cooperative provided comments supporting the conclusion that the rule change will reduce compliance burden and avoid additional costs.

Economic impact analysis (EIA)

1. Summary of analysis under s. 227.137 (4), Wis. Stats.

The objective of the proposed rule change is to aid transition of mercury emission regulation from under state rule to federal rule and therein reduce potential compliance costs and burden. As a result, there is no increase in the costs incurred by affected EGUs and electric rate payers. Likewise, there is no negative impact on the state's economy.

2. Summary of revised analysis

The Department received comments from three affected EGUs which supports the original conclusion provided in the EIA that the rule change will reduce compliance burden and cost. No other comments were received.

3. Summary of report prepared by the Department of Administration (DOA) for purposes of s. 227.137(6), Wis. Stats.

A report from the DOA is not required by s. 227.137 (6), Wis. Stats., for this proposed rule change.

Agency Contact Person

Tom Karman

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster St, Madison, WI 53703

Phone: [phone]

Fax: [phone]

E-mail: [e-mail]

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA-2049 (R03/2012)	Division of Executive Budget and Finance 101 East Wilson Street, 10th Floor P.O. Box 7864 Madison, WI 53707-7864 FAX: [phone]
ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis

1. Type of Estimate and Analysis
⍽ Original   X Updated   ⍽ Corrected
2. Administrative Rule Chapter, Title and Number
Chapter NR 446 Subchapter III - Control of Mercury Emissions from Coal-fired Electric Generating Units
3. Subject
Revision of the initial compliance date under subch. III of ch. NR 446, Wis. Adm. Code, from January 1, 2015 to April 16, 2016.
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
⍽ GPR   ⍽ FED   ⍽ PRO   ⍽ PRS   ⍽SEG   ⍽ SEG-S			NA
6. Fiscal Effect of Implementing the Rule
X No Fiscal Effect ⍽ Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Cost
7. The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy X Local Government Units		X Specific Businesses/Sectors X Public Utility Rate Payers ⍽ Small Businesses (if checked, complete Attachment A)
8. Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes   X No
9. Policy Problem Addressed by the Rule
Mercury emitted by coal-fired electric generating units (EGUs) in the state will be regulated under recently promulgated federal rules beginning on April 16, 2016. According to s. 285.27(2)(d), Wis. Stats, these same EGUs will be exempt from the state mercury rule requirements under subch. II and III of ch. NR 446, Wis. Adm. Code, when mercury emissions are regulated under the federal rules. The Department is proposing to change the initial compliance date under subch. III of ch. NR 446, Wis. Adm. Code, from January 1, 2015 to April 16, 2016 to aid the transition of regulating mercury emissions from under the state rule to the federal rules.
10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
The state mercury rule affects EGUs operated by six electric utilities: Alliant Energy, Dairyland Power Cooperative, Manitowoc Public Utilities (MPU), Wisconsin Public Service Corporation, We Energies, and Xcel Energy. The Department solicited information from the affected utilities, local units of government, and individuals in finalizing the economic impact assessment. The Department received comments from three of the affected utilities, Dairyland Power Cooperative, MPU and Xcel Energy.
11. Identify the local governmental units that participated in the development of this EIA.
Manitowoc Public Utility (MPU) is owned and operated by the City of Manitowoc. MPU provided comments supporting the conclusion that the rule change will reduce compliance burden and cost.
12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The objective of the proposed rule change is to aid transition of mercury emission regulation from under state rule to federal rule and therein reduce potential compliance costs and burden. As a result, there is no increase in costs to the affected EGUs and electric rate payers. Likewise, there is no negative impact on the state's economy. The Department received comments supporting this conclusion from three of the affected EGUs. The Department received no other comments.
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The proposed rule change is intended to reduce potential compliance cost and burden. The alternative is to take no action which will result in electric utilities complying with state rule requirements in subch. III of ch. NR 446, Wis. Adm. Code, on January 1, 2015 and then federal rule requirements beginning on April 16, 2015. These dual, staggered compliance requirements with both the state and federal rules will result in additional undue cost and use of resources. The proposed rule change modifies the initial compliance date for requirements in subch. III of ch. NR 446, Wis. Adm. Code, from January 1, 2015 to April 16, 2016. This approach accomplishes two goals; 1) it allows EGUs to comply first with federal requirements and thereby be exempt from the state rule requirements and 2) it ensures that mercury emission reductions are achieved in a timely fashion in the event that federal rules are delayed past April 16, 2016.
14. Long Range Implications of Implementing the Rule
According to s. 285.27(2)(d), Wis. Stats., mercury emitted by electric utilities will no longer be regulated under state rules once emissions are regulated under federal rules. This means that in the long-term, mercury emitted by electric utilities will be regulated under federal rules. This proposed rule change is intended to facilitate this transition to regulation under the federal rules. Therefore, the proposed rule does not change the long-term outcome for regulating mercury emitted by coal-fired electric utilities.
15. Compare With Approaches Being Used by Federal Government
This rule action is consistent with federal rules regulating electric utility mercury emissions.
16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Mercury emitted by electric utilities in neighboring states will also be regulated by the same federal rules affecting Wisconsin electric utilities.
17. Contact Name				18. Contact Phone Number
Tom Karman				[phone]

This document can be made available in alternate formats to individuals with disabilities upon request.

ATTACHMENT A

1. Summary of Rule's Economic and Fiscal Impact on Small Businesses (Separately for each Small Business Sector, Include Implementation and Compliance Costs Expected to be Incurred)

The proposed rule change does not have a fiscal impact on small business for purposes of this EIA.

2. Summary of the data sources used to measure the Rule's impact on Small Businesses

3. Did the agency consider the following methods to reduce the impact of the Rule on Small Businesses?

⍽ Less Stringent Compliance or Reporting Requirements ⍽ Less Stringent Schedules or Deadlines for Compliance or Reporting ⍽ Consolidation or Simplification of Reporting Requirements ⍽ Establishment of performance standards in lieu of Design or Operational Standards ⍽ Exemption of Small Businesses from some or all requirements ⍽ Other, describe:

4. Describe the methods incorporated into the Rule that will reduce its impact on Small Businesses

5. Describe the Rule's Enforcement Provisions

6. Did the Agency prepare a Cost Benefit Analysis (if Yes, attach to form)

⍽ Yes ⍽ No

Notice of Rule Making Without Public Hearing

Public Instruction

rulemaking_notices CR 13-083 CR 13-083

The State Superintendent of Public Instruction proposes to repeal ss. PI 21.01 (Note), 21.04 (4) (Note), and 21.05 (1) (Note), (2), and (2) (Note); amend s. PI 21.04 (intro); and to repeal and recreate s. PI 21.04 (4), relating to driver education programs.

The rules are being adopted under s. 227.16 (2) (e), Stats., which provides that rulemaking does not need to be preceded by notice and public hearing if the proposed rule and fiscal estimate are published in the notice section of the Administrative Register and the required petition is not received by the agency within 30 days after publication of the notice.

Place Where Comments are to be Submitted and Deadline for Submission

As provided in s. 227.16 (2) (e), Stats., a public hearing will not be held for this rule change unless the required petition is received by the Department.

Analysis by the Department

Statute interpreted

Section 115.28 (11), Stats.

Statutory authority

Section 227.11 (2) (a) (intro), Stats.

Explanation of agency authority

Under s. 227.11 (2) (a) (intro), Stats., “Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation." Under s. 115.28 (11), Stats., the DPI is required to approve driver education course plans that meet certain guidelines.

Related statute or rule

N/A.

Plain language analysis

Section PI 21.05 requires the Department of Public Instruction (DPI) to issue certificates. This will soon be unnecessary since the Department of Transportation (DOT) is going to issue on-line certificates which will apply to students in school driver education programs. This rule change will not take effect until DOT begins issuing these on-line certificates.

Additionally, s. PI 21.04 requires DPI to approve driver education course plans. However, to be more efficient, DPI is modifying the way it reviews driver education course plans. The DPI proposes modifying s. PI 21.04 to state that a public or private high school, county children with disabilities education board, or a CESA submitting on behalf of a district that it has contracted with to provide driver education instructional services, must submit an assurance stating it is complying with the program requirements in s. PI 21.04 in order to receive DPI approval. This assurance will substitute for DPI actively approving the specific program components. The DPI will continue to review each program's instructors to verify that their departmental driver education certification is current and valid.

Summary of, and comparison with, existing or proposed federal regulations

N/A.

Comparison with rules in adjacent states

No information.

Summary of factual data and analytical methodologies

These changes are designed to update the rule to reflect future practice. If these changes are not made, the rule may not align with agency practice.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

First, this rule change will avoid duplication of effort on the DPI's part because the DOT will be issuing on-line certificates for students in school driver education programs. Second, this rule change will make the approval process for driver education course plans faster because public or private high schools, county children with disabilities education boards, and CESAs will provide an assurance that their driver education course plans meet the necessary requirements and then the plans are approved. It will also save the DPI resources because employees will not need to spend time reviewing driver education course plans.

Anticipated Costs Incurred by Private Sector

There is not expected to be a cost to the private sector.

Effect on Small Business

The proposed rules will have no economic impact on small businesses, as defined in s. 227.114 (1), Stats.

Agency Contact Person

Katie Schumacher