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). Unlike Wisconsin, Illinois’s and Indiana’s administrative rules limiting NOx emissions have not been approved by EPA as meeting CAA Section 182(f) NOx RACT requirements. Illinois has promulgated administrative rules limiting NOx emissions under Title 35 Part 217 of the Illinois Administrative Code. Overall, ch. NR 428, Wis. Adm. Code, establishes NOx emission limits based on emissions unit size and fuel type while the Illinois rules generally set NOx emission limits for broad categories of units (e.g., one emission limit for all solid fuel boilers above a certain maximum heat input). As a result, ch. NR 428, Wis. Adm. Code, sets many more emission limits relative to Illinois. For categories of emissions units that are directly comparable, the limits in ch. NR 428, Wis. Adm. Code, are similar to or slightly more stringent than the NOx emission limits in Illinois. Indiana has promulgated NOx emission limits under Title 326 Article 10 of the Indiana Administrative Code only for certain types of cement kilns and for a specific energy utility company. Michigan’s NOx emissions limits are incorporated under Michigan Administrative Rules 336.1801-336.1834 and are similar to the NOx rules promulgated by Illinois in that emission limits are set for broad emissions unit categories and are similar to or slightly less stringent than Wisconsin’s rules (when direct comparison is possible). Michigan, however, only became subject to CAA Section 182(f) NOx RACT requirements in November 2022, whereas Illinois, Indiana, and Wisconsin became subject to NOx RACT requirements in 2004.
Minnesota and Iowa do not have ozone nonattainment areas classified Moderate, and as such, are not required to implement Reasonable Further Progress and NOx RACT requirements under the Clean Air Act like those in ch. NR 428, Wis. Adm. Code. 9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The proposed rule changes address known implementation issues with ch. NR 428, Wis. Adm. Code, rule language promulgated in 2001 and 2007. With the exception of one revised emission limit which is being proposed because the existing limit is not achievable in practice, this rulemaking primarily clarifies and streamlines the rule chapter. The department is proposing to revise the NOX emission limit for gaseous fuel-fired, combined cycle combustion turbines with maximum design power output of 25 MWe or greater under s. NR 428.04(2)(g)1.d., Wis. Adm. Code, because the current limit is not achievable in practice at all times of operation by combined cycle turbines in this category (e.g., during startup and shutdown). The proposed modification would change the NOX emission limit from 3 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. This change would align the NOx emission limit under s. NR 428.04(2)(g)1.d., Wis. Adm. Code, which was promulgated in 2001, with the NOx emission limit incorporated in 2007 under s. NR 428.22(1)(h)1., Wis. Adm. Code, and approved by EPA as RACT, for the same type of unit. The technical basis for the NOx RACT limits set in subchapter IV of ch. NR 428, Wis. Adm. Code, were described in detail in Attachment A of the green sheet adoption package for Board Order AM-17-05 (https://p.widencdn.net/zplhxb/04-07-3A1). The NOx RACT limits promulgated under Board Order AM-17-05/Clearinghouse Rule 07-016 were based on the department’s review of available control technologies and their cost-effectiveness in dollars per ton of controlled NOx. The department’s evaluation followed the methods established in EPA’s Alternative Control Technology documents for NOx source categories (https://www3.epa.gov/airquality/ctg_act/). The NOx emissions limits under s. NR 428.04, Wis. Adm. Code, were promulgated in 2001. At that time, state and federal regulations set emissions limits under the assumption that emissions during periods of startup and shutdown would be excluded. After a court decision found this practice to be inconsistent with the CAA (Sierra Club v. Johnson, 551 F.3d 1019 (D.C. Cir. 2008)), regulators began specifying that emission limits apply at all times of operation. The department is proposing to change the emission limit under s. NR 428.04(2)(g)1.d., Wis. Adm. Code, from 3 ppmdv to 9 ppmdv at 15% oxygen for combined cycle combustion turbines with maximum design power output of 25 MWe or greater because it has found that the 3 ppmdv limit is not achievable in practice at all times of operation (e.g., during periods of startup and shutdown). Because the proposed emission limit is reflective of current operations, the proposed rule change is not expected to result in an increase in actual emissions. 10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The only proposed change which may economically impact businesses is the incorporation of s. NR 428.08(2)(g), Wis. Adm. Code. The proposed language clarifies monitoring requirements for kilns, furnaces, asphalt plants, process heating units, engines, and other units. Currently there are no monitoring requirements explicitly defined for these types of units under s. NR 428.08(2), Wis. Adm. Code, leading some to potentially conclude that either no compliance methods are required for these units or that continuous emissions monitoring systems (CEMS) are the only approvable compliance method for these units. This is an oversight from previous rulemakings. The proposed changes will improve clarity for businesses by ensuring that applicable monitoring requirements are clearly defined. Additionally, the proposed changes may reduce emissions of NOx to the environment by ensuring the department is able to enforce NOx emission limits by way of requiring emissions monitoring at all applicable units. The proposed remedy under s. NR 428.08(2)(g), Wis. Adm. Code, offers facilities the flexibility to either operate a CEMS or meet specific operational and performance testing requirements. The department estimates that the potential annual cost of the rulemaking is $109,200 based on assumptions made as part of its analysis. The department’s analysis is described below. The department estimates that 21 units may be subject to s. NR 428.08(2)(g), Wis. Adm. Code. The number of potentially affected units was determined by conducting a search of facilities with kilns, furnaces, asphalt plants, process heating units, or engine units and whose permits reference the sections of ch. NR 428, Wis. Adm. Code, that could make them subject to s. NR 428.08(2)(g), Wis. Adm. Code (i.e., ss. NR 428.04, 428.05, and 428.20, Wis. Adm. Code). Based on cost estimates gathered from CEMS manufacturers, initial costs for the purchase of a NOx CEMS, installation, and training are $53,500 to $150,000, depending on the system and facility, or $101,750 on average. Annualized costs to maintain a NOx CEMS are approximately $7,500 to $15,000 ($11,250 on average). The total annualized cost for the 21 potentially affected emissions units to comply with s. NR 428.08(2)(g), Wis. Adm. Code, over a 10-year period by operating a CEMS is $449,925. Because CEMS are relatively expensive to operate and maintain, the department’s proposed rule language also provides a more economical alternative to operating a CEMS in order to meet the requirements of s. NR 428.08(2)(g), Wis. Adm. Code. Instead of operating a CEMS to comply with s. NR 428.08(2)(g), Wis. Adm. Code, facilities are given the flexibility to alternatively meet specific operational and performance testing requirements. The latter would require sources to meet a testing requirement every two years. The department estimates that the annualized cost of the biennial performance tests is $3,500 to $5,700, or $4,600 on average, for each affected emissions unit based on cost information gathered from companies that offer stack testing services. A small percentage of the identified 21 emissions units may have an initial one-time cost if the unit needs to be modified to allow for tests to be conducted. The cost of modification is expected to vary widely depending on unit material type (e.g., if the unit is designed to withstand extreme temperatures), unit location (e.g., if scaffolding or a lift is required), and mechanical modification (e.g., installation of sampling ports). The department estimates this potential one-time modification expense could be $2,000 to $10,000 ($6,000 average), and notes that outliers could exist. To be conservative, the department assumed all 21 units would have a $6,000 one-time modification cost to accommodate stack testing. The department expects that in reality, only a few emissions units may incur an initial modification cost. The total annualized cost, including the potential initial modification costs and biennial performance test costs, over a 10-year period to comply with the operational and performance testing option in s. NR 428.08(2)(g), Wis. Adm. Code, is $109,200. In estimating the cost associated with this revision, the department assumes a facility would opt for the less expensive performance testing approach to meet the proposed s. NR 428.08(2)(g), Wis. Adm. Code, requirements because the testing approach is approximately a quarter of the cost of operating a CEMS. The department also notes that the $109,200 is likely overestimated due to four factors. First, the number of affected emissions units is likely overestimated because some of the 21 identified emissions units may not be subject to the compliance requirements, based on the rule’s emissions unit capacity thresholds. Second, the department expects that some sources would only be required to conduct tests every four years, instead of the standard two-year testing schedule, because some emissions units will meet the exception under s. NR 428.08(3)(a)1.b., Wis. Adm. Code. The department is not able to estimate how many units may be eligible for this exception as it is dependent on future emissions tests. Third, the department’s analysis assumes none of the 21 emissions units are currently operating a CEMS, which could also be used to comply with s. NR 428.08(2)(g), Wis. Adm. Code. Fourth, some facilities may request and receive approval to use an alternative monitoring approach. The department does not expect any other changes proposed as part of this rulemaking to have an economic impact on businesses. While the creation of additional exemption criteria in s. NR 428.21(3)(d), Wis. Adm. Code, is necessary to ensure NOx RACT requirements are appropriately applied, the department is not aware of any facility currently exempt, that would no longer be exempt after finalization of this proposed change. Additionally, the proposed NOx emission limit revision under s. NR 428.04(2)(g)1.d., Wis. Adm. Code, will not result in an economic impact because the revised limit is equivalent to the NOx RACT emission limit under s. NR 428.22(1)(h)1., Wis. Adm. Code, for the same type of unit. 11. Effect on Small Business (initial regulatory flexibility analysis): Chapter NR 428, Wis. Adm. Code, primarily applies to facilities with high NOx emissions, and those facilities in Wisconsin have tended to not meet the definition of small business. The proposed revisions are intended to clarify existing requirements and to ensure clear and consistent implementation of ch. NR 428, Wis. Adm. Code. The proposed changes to ch. NR 428, Wis. Adm. Code, will not result in any existing facility, small business or otherwise, becoming newly subject to NOx emissions regulations upon promulgation of this rule. 12. Agency Contact Person: Olivia Salmon, Department of Natural Resources, P.O. Box 7921, Madison, WI 53707-7921; Olivia.Salmon@wisconsin.gov; (608) 630-5264
