Scope Statements
Natural Resources
Environmental Protection — Air Pollution Control,
Chs.
NR 400—
(DNR # AM-15-14)
This statement of scope was approved by the governor on December 1, 2014.
Rule No.
Relating to
Maintaining consistency with U.S. Environmental Protection Agency air pollution control regulations and repealing obsolete rules.
Rule Type
Permanent.
1. Detailed Description of the Objective of the Proposed Rule
The Department of Natural Resources (Department) is proposing rulemaking related to state air pollution control rules affecting chs.
NR 400,
404,
405, and
420, Wis. Adm. Code. The objective of this rulemaking is twofold; to address changes needed to maintain consistency with U.S. Environmental Protection Agency (EPA) regulations and to repeal obsolete rule provisions. During the rulemaking process the Department may identify a need for changes not specifically described but related and necessary to properly implement proposed changes included in this statement of scope.
The Department may also propose non-substantive corrections of a clean-up nature, such as punctuation, grammar and spelling, and changes necessary to ensure consistency with administrative rule drafting guidance issued by the Legislative Reference Bureau and the Legislative Council. Any such proposed changes would not affect Department policy.
1.1 The Department proposes to make changes to the following rules to maintain consistency with existing U. S. EPA regulations:
(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 implementing authority in the state for this permit program and Department rules must be consistent with U.S. EPA regulations to maintain that authority. The Department proposes changes to the following rule provisions related to the PSD permit program to ensure that consistency:
(A) Section
NR 405.02 (3),
(21m), and
(22m), Wis. Adm. Code, to include particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers, commonly referred to as 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).
(C) Table B in s.
NR 405.07 (9), Wis. Adm. Code, to update greenhouse gas global warming potentials (GWPs) consistent with those currently in affect at the federal level under Table A-1 of
40 CFR Part 98, Subpart A. Of the 70 greenhouse gases currently listed, the Department proposes to increase the GWPs for 19 greenhouse gases and decrease the GWPs for 4 greenhouse gases. Global warming potentials are used to quantify emissions of greenhouse gases on an equivalent basis for regulatory and reporting purposes.
(D) Section
NR 404.05, Wis. Adm. Code, to establish ambient air increments for PM2.5. Ambient air increments for pollutants with national ambient air quality standards, including PM2.5, are establish by the U.S. EPA in
40 CFR 51.166 (c).
(2) 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). The Department proposes to add eight such compounds to the list of excluded compounds in the state definition. These compounds are:
(A) trans-1,3,3,3-tetrafluoropropene (HFO-1234ze).
(B) HCF2OCF2H (HFE-134).
(C) HCF2OCF2OCF2H (HFE-236cal2).
(D) HCF2OCF2CF2OCF2H (HFE-238pcc13).
(E) HCF2OCF2OCF2CF2OCF2H (H-Galden 1040X or H-Galden ZT 130 or 150 or 180).
(F) trans-chloro-3,3,3-trifluoroprop-1-ene (SolsticeTM 1233zd(E).
(G) 2,3,3,3-tetrafluoropropene (HFO-1234yf).
(H) 2-amino-2-methyl-1-propanol (AMP; CAS number 124-68-5).
1.2 The Department proposes to repeal s.
NR 420.045, Wis. Adm. Code. This rule establishes stage 2 vapor recovery requirements at gasoline dispensing facilities in the counties of Kenosha, Kewaunee, Manitowoc, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha. Stage 2 vapor recovery equipment captures volatile organic compounds that evaporate into the air when vehicle gasoline tanks are filled and returns the vapors to the underground gasoline storage tank where they condense. Beginning with 1998 model year vehicles, the U.S. EPA began requiring manufactures to equip new vehicles with on-board gasoline vapor recovery systems. These systems serve the same purpose as the stage 2 vapor recovery equipment at gasoline dispensing facilities. The U.S. EPA therefore authorized states to remove stage 2 vapor recovery equipment requirements from their ozone state implementation plan (SIP). On November 4, 2013, the U.S. EPA approved, effective December 4, 2013, a request by the Department to remove stage 2 vapor recovery equipment requirements from Wisconsin's SIP .
In addition, 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.
The Department therefore proposes to repeal s.
NR 420.045, Wis. Adm. Code.
2. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
The proposed rule changes are compatible with existing policy to maintain consistency between state rules and U.S. EPA regulations and between state rules and statutes, and are necessary to do so. The proposed rules do not include any new policies. Since the proposed rule changes are appropriate and necessary the Department did not consider alternatives to the proposed rulemaking.
3. Detailed Explanation Of Statutory Authority for the Rule (Including the Statutory Citation and Language)
3.1 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, as described in section 1.1 (1) related to the PSD construction 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
285.25 (1), Wis. Stats., supports the Department's proposed changes described in section 1.1 (1) (A) 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.
(2) 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. The proposed changes to ch.
NR 405, Wis.Adm. Code, described in section 1.1 (1) (B) and (C) make Department rules 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.
(3) Section
285.21 (2) and
(4), Wis. Stats., supports the Department's proposed change to s.
NR 404.05 to establish ambient air increments for PM2.5 included in section 1.1 (1) (D). 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.
3.2. Section
285.11 (6), Wis. Stats., establishes authority for the proposed change to s.
NR 400.02 (162), Wis. Adm. Code, as described in section 1.1 (2), in that it 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 with the federal clean air act. Since VOC are a precursor to ozone, the addition of the proposed compounds to the list of excluded compounds to ensure the state definition of VOC conforms to the federal definition is consistent with s.
285.11 (6), Wis. Stats.
3.3 The repeal of s.
NR 420.045, Wis. Adm. Code, included in section 1.2 is 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 under s.
NR 420.045, Wis. Adm. Code.
4. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
The Department estimates that up to 300 hours of state employee time will be needed to complete the promulgation of the proposed rules.
5. Description of all Entities that may be Affected by the Proposed Rule
5.1 Under Section 1.1 (1) the Department is proposing changes related to the PSD permit program to ensure consistency with existing U.S. EPA regulations. Entities primarily affected by these proposed changes are as follows:
(1) The proposed changes described in Section 1.1 (1) (A) would have no effect since under current rules and implementation practices, the Department is consistent with U.S. EPA regulations and policy with regard to PM2.5
(2) The proposed change described in Section 1.1 (1) (B) would have no effect since under current rules and implementation practices, the Department already recognizes that nitrogen oxides are a precursor to ozone formation. The change is proposed to satisfy U.S. EPA state implementation plan requirements.
(3) The proposed changes to global warming potentials for certain greenhouse gases as described in Section 1.1 (1) (C) could affect the calculation of total facility greenhouse gas emissions, which would then be used for reporting and other regulatory purposes. Any effect on total facility calculated emissions from the proposed changes would depend on what greenhouse gases the source emitted or would emit, the amount of emissions of each greenhouse gas, how much the global warming potential changed, and whether the change was an increase or decrease.
(4) The proposed change described in Section 1.1 (1) (D) would have no effect since under current implementation practices for the prevention of significant deterioration permit program under ch.
NR 405, Wis. Adm. Code, the Department already recognizes the federal PM2.5 ambient air increments consistent with U.S. EPA requirements.
5.2 Under Section 1.1 (2) the Department is proposing to add certain compounds to the list of compounds excluded from the definition of volatile organic compounds. Entities primarily affected by this proposal are as follows:
(1) For the compound listed in Section 1.1 (2) (A), those entities involved in the manufacture or use of refrigerants, aerosol propellants, and blowing agents for insulating foams.
(2) For the compounds listed in Section 1.1 (2) (B) to (E), those entities involved in the manufacture or use of fire suppressants and specialized refrigerants.
(3) For the compound listed in Section 1.1 (2) (F), those entities involved in the manufacture or use of refrigerants, aerosol and non-aerosol solvents and blowing agents for insulating foams, and manufacturers of refrigeration equipment, hot water heaters and waste heat recovery equipment.
(4) For the compound listed in Section 1.1 (2) (G), those entities involved in the manufacture or servicing of automobiles or automotive air conditioning systems.
(5) For the compound listed in Section 1.1 (2) (H), those entities involved in the manufacture or use of pigments in water-based coatings, additives in metalworking fluids and in food contact paper, neutralizers in personal care products, and intermediates in chemical synthesis.
By taking this action those entities described above would no longer have to consider emissions of these compounds when determining applicability of emission control requirements relating to attaining the ozone national ambient air quality standards and the emissions would no longer be counted in determining whether a proposed new or modified source would exceed the volatile organic compound thresholds that trigger permit requirements. In addition, entities would no longer be required to report or pay fees based on the emissions of these compounds as volatile organic compounds.
5.3 Under Section 1.2, the Department is proposing to repeal s.
NR 420.045, Wis. Adm. Code. No entities would be affected by this action since the state legislature has terminated further implementation of stage 2 vapor recover equipment requirements under s.
NR 420.045, Wis. Adm. Code, under s.
285.31 (5), Wis. Stats., effective April 17, 2012.
6. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
One of the main objectives of this proposed rulemaking is to address changes needed to maintain consistency with U.S. EPA regulations. Section 1 contains descriptions of the specific changes the Department is proposing.
The second objective is to repeal Department rules that apply to gasoline dispensing facilities to control fumes that evaporate into the air when vehicle gasoline tanks are filled. The U.S. EPA has authorized states to remove these requirements from state ozone implementation plans. The proposed Department action is therefore consistent with federal regulatory policy.
7. Anticipated Economic Impact of Implementing the Rule
The Department anticipates that the statewide economic impact of the proposed rules will be minimal.
8. Anticipated Number, Month, and Locations of Public Hearings
If approved to develop the proposed rules, the Department anticipates holding one public hearing in Madison during the fall of 2015.
9. Contact Person:
Robert Eckdale
Bureau of Air Management
Wisconsin Department of Natural Resources
PO Box 7921 AM/7
Madison, WI 53703
(608) 266-2856
Safety and Professional Services —
Optometry Examining Board
This statement of scope was approved by the governor on November 18, 2014.
Rule No.
Relating to
Continuing education
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A
2. Detailed Description of the Objective of the Proposed Rule
The objective of the rule is to update the continuing education chapter to reflect the current practice of optometry, current continuing education programs, including technological methods of delivery.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Updating the continuing education requirements will create clarity, utilize current technological methods of delivery of the continuing education and ensure required topics reflect the current practice of optometry.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
15.08 (5) (b) Each examining board shall promulgate rules for its own guidance and for the guidance of the profession to which it pertains and define and enforce professional conduct and unethical practices not inconsistent with the law relating to the profession.
449.06 (2m) The examining board shall promulgate rules requiring a person who is issued a license to practice optometry to complete, during the 2-year period immediately preceding the renewal date specified in s.
440.08 (2) (a), not less than 30 hours of continuing education. The rules shall include requirements that apply only to optometrists who are allowed to use topical ocular diagnostic pharmaceutical agents under s.
449.17 or who are allowed to use therapeutic pharmaceutical agents or remove foreign bodies from an eye or from an appendage to the eye under s.
449.18.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
80 hours
6. List with Description of all Entities that may be Affected by the Proposed Rule
Optometrists
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
None
8. Anticipated Economic Impact of Implementing the Rule (Note if The Rule is Likely to Have a Significant Economic Impact on Small Businesses)
None to minimal. It is not likely to have a significant economic impact on small businesses.
Contact Person
Sharon Henes, Administrative Rules Coordinator, (608) 261-2377
Safety and Professional Services —
Optometry Examining Board
This statement of scope was approved by the governor on November 18, 2014, 2014.
Rule No.
Relating to
Examination, unprofessional conduct, and renewal
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A
2. Detailed Description of the Objective of the Proposed Rule
The objective of the rule is to update and reorganize the examination and unprofessional conduct chapters; remove obsolete provisions; reflect current practices and technologies; clarify the procedures for renewal and reinstatement of licenses; and to implement
2013 Act 114 and
2013 Act 345.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Both examination and unprofessional conduct chapters have not had a comprehensive review in at least 15 years. There are provisions which will be removed because they are obsolete or consolidated for clarity. The renewal chapter will be updated to clarify the board procedures for renewal and reinstatement.
The rule will implement changes as a result of Act 114 to allow an applicant to take an exam prior to finishing their education. Act 345 will also be implemented to create a standard for informed consent.
In addition, there will be a review to ensure the rules are consistent with today's practices and technologies.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
15.08 (5) (b) Each examining board shall promulgate rules for its own guidance and for the guidance of the profession to which it pertains and define and enforce professional conduct and unethical practices not inconsistent with the law relating to the profession.
440.071 The department or a credentialing board or other board in the department may not require a person to complete any postsecondary education or other program before the person is eligible to take an examination for a credential the department or credentialing board or other board in the department grants or issues.
449.25 (2) The examining board shall promulgate rules implementing the reasonable optometrist standard of for the standard for informing a patient about the availability of reasonable alternate modes of treatment and about the benefits and risks of those treatments.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
80 hours
6. List with Description of all Entities that may be Affected by the Proposed Rule
Optometrists and applicants for optometrist licensure.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
None
8. Anticipated Economic Impact of Implementing the Rule (Note if The Rule is Likely to Have a Significant Economic Impact on Small Businesses)
None to minimal. It is not likely to have a significant economic impact on small businesses.
Contact Person
Sharon Henes, Administrative Rules Coordinator, (608) 261-2377
Safety and Professional Services —
Podiatry Affiliated Credentialing Board
This statement of scope was approved by the governor on November 20, 2014.
Rule No.
Relating to
Duty to obtain informed consent
Rule Type
Permanent
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A
2. Detailed Description of the Objective of the Proposed Rule
The proposed rule will bring current Wisconsin Administrative Code into compliance with new legislation,
2013 Wisconsin Act 345.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
The duty of certain health care professionals, other than physicians, to obtain informed consent from their patients before conducting treatment had not been codified as a statutory duty prior to the passage of
2013 Wisconsin Act 345. Act 345 sets forth the podiatrist's duty to obtain informed consent from their patients and institutes the reasonable podiatrist standard as the standard for informing patients regarding their treatment options. The reasonable podiatrist standard requires disclosure only of the information that a reasonable podiatrist would know and disclose under the circumstances. The proposed rule will incorporate the new standard into the current rules governing podiatric practice and make any additional changes necessary to create consistency with the newly enacted legislation. The proposed rule will also provide clarity to the process of renewing a license after 5 years by updating provisions regarding licensure reinstatement.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section
15.085 (5) (b), Stats., provides that affiliated credentialing boards, such as the Podiatry Affiliated Credentialing Board, “[s]hall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains. . ." The proposed rule will provide guidance within the profession as to how podiatrists are to inform patients about treatment options.
Section
227.11 (2) (a), Stats., provides that “[e]ach 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."
Section
448.675 (4), Stats., states that “[t]he affiliated credentialing board may restore a license which has been voluntarily surrendered or revoked under this subchapter on such terms and conditions as it considers appropriate."
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
State employees will spend approximately 60 hours developing the proposed rule.
6. List with Description of all Entities that may be Affected by the Proposed Rule
The proposed rule will impact licensed podiatrists and their patients.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Although several federal agencies require investigators to obtain informed consent of human subjects participating in investigative trials, there are no specific federal regulations regarding podiatrists obtaining informed consent from their patients or the reasonable podiatrist standard.
8. Anticipated Economic Impact of Implementing the Rule (Note if The Rule is Likely to Have a Significant Economic Impact on Small Businesses)
The proposed rule is likely to have minimal or no economic impact on small businesses.
Contact Person
Shawn Leatherwood, Shancethea.Leatherwood@ wisconsin.gov, 608-261-4438.
