ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD REPEALING, RENUMBERING AND AMENDING, AMENDING, REPEALING AND RECREATING, AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal NR 404.04 (2) (a) 1. and 2.; to renumber and amend NR 404.04 (2) (a) (intro.); to amend NR 404.04.(2) (a) (title), 404.06 (2), and 484.04; to repeal and recreate NR 404.04 (6); and to create NR 484.04 (7) and (7m); relating to adopting the National Ambient Air Quality Standards, (NAAQS) for sulfur dioxide, (SO2) and nitrogen dioxide, (NO2).
AM-08-11
Analysis Prepared by the Department of Natural Resources
1. Statute interpreted: Section 285.11 (6), Stats. The State Implementation Plan developed under s. 285.11(6), Stats., is revised. 3. Explanation of agency authority: Section 227.11 (2) (a), Stats. expressly confers rule making authority to an agency. Section 285.11(1) and (6) requires that the Department promulgate rules and establish control strategies in order to prepare and implement the State Implementation Plan for the prevention, abatement and control of air pollution in the state. Section 285.21 (1) (a) requires that the Department promulgate by rule ambient air quality standards that are similar to, but not more restrictive than the National Ambient Air Quality Standards (NAAQS). 4. Related statute or rule: There are no other statutes or rules directly related to the adoption of the NAAQS for sulfur dioxide (SO2), and nitrogen dioxide (NO2).
5. Plain language analysis: The U.S. Environmental Protection Agency (EPA) is required by the federal Clean Air Act (CAA) to promulgate NAAQS to protect public health (i.e., primary standards) and public welfare (i.e., secondary standards). The Department is required by state law (s. 285.21, Wis. Stats.) to promulgate by rule a similar, but no more restrictive, air quality standard when the U.S. EPA promulgates a new or revised NAAQS. The U.S. EPA has recently promulgated NAAQS for SO2 and NO2. In order to both reflect current air quality health science and to maintain consistency with U.S. EPA-promulgated NAAQS, the Department is proposing to adopt the SO2 and NO2 NAAQS into ch. NR 404, Wis. Adm. Code. In addition, the Department is proposing to revise ch. NR 484, Wis. Adm. Code, to include references to applicable U.S. EPA data handling conventions for NO2 and SO2. 6. Summary of, and comparison with, existing or proposed federal regulation: On February 9, 2010, the U.S. EPA promulgated a 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (75 FR 6474). In addition, the U.S. EPA promulgated a 1-hour primary NAAQS for SO2 at a level of 75 parts per billion on June 22, 2011 (75 FR 35520). The Department is proposing to adopt these same standards.
7. Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan and Minnesota): All adjacent states will adopt SO2 and NO2 standards that are the same as Wisconsin’s proposed rule. Illinois has not yet proposed a rule to revise the state standards to match the federal NAAQS. Illinois intends to consolidate revisions to SO2 and NO2 standards this year with updates to the ozone and fine particulate matter (PM2.5) standards. Iowa adopted the NO2 standard in November, 2010 and intends to begin the rule process to adopt the SO2 standard in late 2011. The NAAQS become part of Michigan‘s administrative code through an incorporation by reference provision in its existing rules without further rule changes. Minnesota and Iowa have not yet determined when to adopt SO2 and NO2 standards into their administrative rules.
8. Summary of factual data and analytical methodologies used and how any related findings support the regulatory approach chosen: As required by s. 285.21 (1) (a), Stats., Wisconsin must promulgate ambient air quality standards similar to the NAAQS for the protection of public health and welfare. Because the Department is required by statute to adopt the NAAQS, it did not develop or use data or analytical methodologies to support the proposed adoption of these standards. 9. Analysis and supporting documents used to determine the effect on small business or in preparation of an economic impact analysis: Incorporating 1-hour standards for NO2 and SO2 into ch. NR 404 will trigger the need to do additional dispersion modeling and engineering analysis in reviews for minor construction and operation permits in order to satisfy s. 285.63 (1) (b), Wis. Stats. This will increase the amount of time and cost of applying for and receiving these air pollution control permits for both the private sector and the agency. Reviewing three years of permit applications reveals that some small businesses that apply for minor source permits (both construction and operation) will be affected by the new NO2 and SO2 NAAQS.
An economic impact analysis and final fiscal estimate will be completed prior to the submittal of this rule to the Legislative Council as required under s. 227.137 (2), Stats. In addition, public comments will be sought to better define the economic impact of this proposed rule. 10. Effect on small business: Private consultant time for technical analysis is expected to raise permit application cost for small business. The compliance costs associated with control measures has not been evaluated at the state level at this point. The potential cost increases will be quantified before proposed rule adoption.
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, fax or email to:
Jeff Myers
Department of Natural Resources
Bureau of Air Management
PO Box 7921
Madison WI 53707
(608) 266-2879
Fax: (608) 267-0560
A public hearing will be held on May 21, 2015 at 1:00PM in Room 713 at the Natural Resources Building, 101 South Webster Street, Madison, Wisconsin. Comment must be received no later than May 28, 2015.
The consent of the Attorney General will be requested for the incorporation by reference of new data handling conventions in ch. NR 484. SECTION 1. NR 404.04 (2) (a) (title) is amended to read:
NR 404.04 (2) (a) (title) Primary standards standard.
