The extensive data developed by EPA in its review and setting of the 2015 ozone NAAQS can be found on EPA’s website at https://www.epa.gov/naaqs/ozone-o3-air-quality-standards-documents-review-completed-2015 and in the regulatory docket (EPA-HQ-OAR-2013-0169) associated with the 2015 ozone NAAQS final rule (80 FR 65292; October 26, 2015). These data and methods are applicable also to the adoption of that standard 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: In light of the statutory requirement to promulgate by rule new ambient air quality standards similar to, but not more restrictive than, the federal standards, the department relies on the federal data and the analytical methodologies EPA used to develop and promulgate the NAAQS. The department’s assessment of how businesses will be impacted by the incorporation of the 2015 ozone NAAQS is congruent with the EPA’s analysis, which establishes that the NAAQS does not have a significant impact upon small entities, including small businesses, because the NAAQS itself imposes no regulations upon such entities. Information on the analysis and supporting documents used to determine effects on small entities are contained in the EPA’s Regulatory Impact Analysis (RIA) found in the regulatory docket for the 2015 ozone NAAQS (EPA-HQ-OAR-2013-0169).
The proposed changes to ch. NR 428, Wis. Adm. Code, would only have the potential to impact relatively large sources (“major sources”) whose emissions exceed the NOx RACT major source applicability threshold and who are also planning to construct a new major source or make a major modification. In addition, as noted above, the department specifically analyzed sources in the partial Kenosha County 2008 ozone NAAQS nonattainment area (“serious” classification; 50 tpy major source threshold) and determined that the proposed changes in ch. NR 428, Wis. Adm. Code, would not result in any existing source becoming subject to NOx RACT requirements upon promulgation of this rule. This would include any small businesses. Depending on its location, a source could be affected in the future if its NOx emissions increase above the updated major source threshold and/or the nonattainment area in which it is located is reclassified to a more stringent nonattainment status. For example, under the CAA, it is possible that EPA will reclassify the partial Kenosha County area, which EPA designated as part of the Chicago-Naperville 2008 ozone NAAQS nonattainment area, to a “severe” classification in the future if the area’s air quality monitoring data do not meet the 2008 ozone NAAQS. If this were to occur, the major source threshold in the area would be lowered to 25 tpy. Reclassifications, and their resulting lower major source/modification thresholds, are a function of the CAA, not this rule. The department has determined that such a reclassification, should it occur, could impact three sources in the partial Kenosha County nonattainment area. In its RIA for the 2015 ozone NAAQS (docket EPA-HQ-OAR-2013-0169), EPA estimates that the median VOC control cost is $9,800/ton and the median NOx control cost is $960 – $1,200/ton, depending on the emission sector. Alternatively, a source could also opt to lower VOC and/or NOx emission limits in its permits, potentially at little or no cost to the source. The department will reach out to any affected source and revise its permits as needed, should this reclassification occur. Because reclassification of the partial Kenosha County nonattainment area at this point is a hypothetical scenario, and reclassification is a function of the CAA, not this rule, the department did not consider the associated NOx and VOC emission control costs in its determination of the proposed rule’s implementation and compliance cost estimate.
11. Effect on Small Business (initial regulatory flexibility analysis): Since the 2015 ozone NAAQS is already implemented federally, the adoption of the standard into state code will not have any direct effect on businesses, including those defined as small businesses. However, as noted above in the Plain Language Analysis, future impacts on businesses are possible, should the major source/modification threshold for an area be lowered as a result of a future designation or reclassification of a nonattainment area. Should future state implementation of this NAAQS require development of additional rules in order to meet CAA requirements, those would include analyses of the rule’s potential effects on the private sector, including small businesses.
12. Agency Contact Person: Olivia Salmon, Bureau of Air Management, Wisconsin Department of Natural Resources PO Box 7921, Madison, WI 53703; (608) 630-5264; OliviaE.Salmon@Wisconsin.gov. 13. Place where comments are to be submitted and deadline for submission: A public hearing was held on April 8, 2021. Written comments were accepted through April 15, 2021.
The consent of the Attorney General will be requested for the incorporation by reference of the “Interpretation of the Primary and Secondary National Ambient Air Quality Standards for Ozone” (40 CFR 50 App. U) into ch. NR 484, Wis. Adm. Code. RULE TEXT
Section 1 NR 404.04 (5) (c) (Note) is repealed.
Section 2 NR 404.04 (5) (d) and (Note) are created to read:
NR 404.04 (5) (d) 0.070 ppm – maximum 8-hour concentration. The 8-hour primary and secondary ozone ambient air quality standards are attained at an ambient air quality monitoring site when the 3-year average of the annual 4th-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.070 ppm, as determined under 40 CFR part 50, Appendix U, incorporated by reference under s. NR 484.04 (7s). Note: The department promulgates ozone standards in response to federally promulgated ozone standards, and pursuant to its statutory obligation under s. 285.21 (1) (a), Stats., pars. (a) and (b) reflect standards from 1979 and 1997. They are included here to conform to the federal standards in 40 CFR part 50, where they are also included. Section 3 NR 407.02 (4) (c) 1. is renumbered 1. (intro.) and amended to read:
NR 407.02 (4) (c) 1. For ozone nonattainment areas, sources:
a. Sources with the potential to emit 100 tpy or more of volatile organic compounds or oxides of nitrogen in areas classified as “rural transport,”, “marginal,” or “moderate,”, 50 tpy or more in areas classified as “serious,”, 25 tpy or more in areas classified as “severe,”, and 10 tpy or more in areas classified as “extreme”; except that the references in this paragraph to 100, 50, 25, and 10 tpy of nitrogen oxides do not apply with respect to any source for which the administrator has made a finding, under section 182 (f) (1) or (2) of the Act (42 USC 7511a (f) (1) or (2)), that requirements under section 182 (f) of the Act (42 USC 7511a (f)) do not apply. Section 4 NR 407.02 (4) (c) 1. b. is created to read:
NR 407.02 (4) (c) 1. b. The classification with the lowest emission threshold under this subd. 1. a. determines the major source threshold in an area classified as nonattainment for more than one ozone national ambient air quality standard, until the area is redesignated to attainment for a current standard or a redesignation substitute for a revoked standard has been approved by the EPA for the standard with the lowest emission threshold.
Note: The department maintains materials accessible to the public that show current Wisconsin nonattainment areas and summarizes the applicable permitting requirements for major sources of emissions within these areas.
Section 5 NR 408.02 (24) (c) is created to read:
NR 408.02 (24) (c) The classification with the lowest emission threshold under s. NR 407.02 (4) (c) 1. a. determines the major source or major modification threshold in an area classified as nonattainment for more than one ozone national ambient air quality standard, until the area is redesignated to attainment for a current standard or a redesignation substitute for a revoked standard has been approved by the EPA for the standard with the lowest emission threshold. Note: The department maintains materials accessible to the public that show current Wisconsin nonattainment areas and summarizes the applicable permitting requirements for major sources of emissions within these areas.
Section 6 NR 408.02 (32) (a) 6. is amended to read:
NR 408.02 (32) (a) 6. Ozone: 40 tpy of VOC or 40 tpy of nitrogen oxides.
Section 7 NR 428.20 (1) is renumbered (1) (a) (intro.) and amended to read:
NR 428.20 (1) Applicability. (a) The requirements of this subchapter apply to the owner or operator of ana NOX emissions unit whichthat is in a source category identified inunder s. NR 428.22 and whichthat is located at a facility with combined total maximum theoretical emissions for all NOX emissions units of 100 tons per year or more of NOX and which is in the county of Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Washington or Waukesha. that meets any of the following conditions: Section 8 NR 428.20 (1) (a) 1., 2., 3., (b) and (c) are created to read:
NR 428.20 (1) (a) 1. The facility is located in the county of Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, or Waukesha and the maximum theoretical emissions of NOx from all emission units in all source categories identified under s. NR 428.22 combined is equal to or greater than 100 tpy. 2. The facility is located in an area that is classified as a moderate, serious, severe, or extreme ozone nonattainment area and the maximum theoretical emissions of NOx from all emission units in all source categories identified under s. NR 428.22 combined is equal to or greater than the following: a. 100 tpy for moderate ozone nonattainment area.
b. 50 tpy for serious ozone nonattainment area.
c. 25 tpy for severe ozone nonattainment area.
d. 10 tpy for extreme ozone nonattainment area.
3. The facility is located in an area that, at any time on or after July 20, 2012, had been classified as a moderate, serious, severe, or extreme ozone nonattainment area and the maximum theoretical emissions of NOx from all emission units in all source categories identified under s. NR 428.22 combined is equal to or greater than the following: a. 100 tpy for former moderate ozone nonattainment area.
b. 50 tpy for former serious ozone nonattainment area.
c. 25 tpy for former severe ozone nonattainment area.
d. 10 tpy for former extreme ozone nonattainment area.
(b) If more than one emission threshold under par. (a) is applicable to the same area due to different ozone standards or a change in nonattainment classification, the lowest applicable emission threshold under par. (a) 2. or 3. applies.
Note: The department maintains materials accessible to the public that show current Wisconsin nonattainment areas and summarizes the applicable permitting requirements for major sources of emissions within these areas.
(c) The requirements of this subchapter remain applicable to each affected unit regardless of any subsequent decrease in maximum theoretical emissions of NOx at the source to a level below the applicable emission thresholds.
Section 9 NR 428.20 (2) is amended to read:
NR 428.20 (2) Purpose. The purpose of this subchapter is to establish meet the requirements of sections 172 (c) and 182 (f) of the Act (42 USC 7502 (c) and 7511a (f)) by establishing reasonably available control technology requirementsstandards for NOx emissions units in the ozone nonattainment area consisting of the counties of Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Washington and Waukesha to comply with sections 172(c) and 182(f) of the Act (42 USC 7502(c) and 7511a(f))areas that are or have ever been classified moderate, serious, severe, or extreme nonattainment for ozone under sub. (1). Section 10 NR 428.21 (3) (intro.), (a) and (b) are amended to read:
NR 428.21 (3) Other regulated unit. An emissions unit which is subject to and meeting an emission limitation in s. NR 428.04 or 428.05 (3) is exempt from the emission limitations inunder s. NR 428.22, if one of the following appliesit meets all of the following conditions: (a) The emissions unit is subject to a federally enforceable condition in an air permit which limits its emissions to nodoes not emit more than 75 tons of NOx per year due to a physical operating constraint or a federally enforceable condition in an air permit.
(b) The emissions unit, because of a physical operating constraint, cannot emit more than 75 tons of NOx per year is located in a facility subject to the applicability thresholds specified under s. NR 428.20 (1) (a) 1., 2. a, or 3. a. Section 11 NR 428.21 (3) (c) is created to read:
NR 428.21 (3) (c) The emissions unit is subject to and meeting an emission limitation under s. NR 428.04 (2) or 428.05 (3). Section 12 NR 428.255 is created to read:
NR 428.255 Compliance schedule. The owner or operator of a facility that has a NOx emission unit that is subject to this subchapter and that is located in any area described under s. NR 428.20 (1) (a) 2. or 3. shall comply with the applicable requirements of this subchapter upon the facility becoming subject to this subchapter, except for any of the following: (1) The owner or operator of a NOx emission unit that commenced construction before [the effective date of this rule - LRB inserts date] and became subject to this subchapter on [the effective date of this rule - LRB inserts date] shall comply with the applicable requirements of this subchapter for that unit as expeditiously as practicable, but no later than 21 months after [the effective date of this rule - LRB inserts date].
(2) The owner or operator of a NOx emission unit that becomes subject to this subchapter due to the reclassification of a nonattainment area that occurs after [the effective date of this rule - LRB inserts date] shall comply with applicable requirements of this subchapter as expeditiously as practicable, but no later than the start of the attainment year ozone season associated with the area’s new attainment deadline, as indicated by the relevant Federal Register publication, or January 1 of the 3rd year after the associated SIP revision submittal deadline, whichever is earlier.
Note: RACT SIP revisions must be submitted by the department no later than 24 months after the effective date of the reclassification, as indicated by the relevant Federal Register publication.
