Rule-Making Notices (Hearing Notices)

Chapter NR 447 contains regulations related to asbestos abatement activities.

Plain language analysis

The rules amended and created by this proposed order increase fees for certain Department of Natural Resources (Department) asbestos regulatory activities, and create new fees for asbestos regulatory activities related to fire training burns and revised asbestos notifications. These additional fees will offset decreases in federal United States Environmental Protection Agency (EPA) Air Pollution Control grant funds that had previously been used to fund (in part) Department asbestos regulatory activities.

Comparison with federal regulations

Chapter NR 447 contains asbestos regulatory requirements, which parallel corresponding federal regulations. The rule changes and additions proposed in this order change the fees used to fund Department asbestos regulatory activities, but do not affect the underlying regulatory requirements themselves. There is no federal counterpart to the ch. NR 410 fee rule.

Comparison with rules in adjacent states

Illinois, Iowa, Michigan, and Minnesota each operate federally delegated asbestos programs. Iowa, Michigan, and Minnesota each fund their respective asbestos programs with federal grant funds. Illinois, similar to Wisconsin, funds their asbestos program activities through fees charged for asbestos notifications. Illinois fees are $150 per notification, regardless of other factors (size of project, etc.). If a notification is received late, an additional $300 is charged to the contractor. Lab analysis costs may be charged to the owner or operator in large enforcement cases, along with employee overtime costs that result from enforcement cases.

Summary of factual data and analytical methodologies

The Asbestos Program is funded by asbestos inspection and permit exemption review fees paid by persons who perform asbestos abatement as part of nonresidential demolition and certain renovation projects. In addition, asbestos program funding has been supplemented by the equivalent of 2.0 full time employees (FTE) from the EPA federal Air Pollution Control grant (105 grant). Asbestos program fees currently fund 2.0 permanent FTE, two half-time limited term employee (LTE) field inspection positions, and four contracts with the following government agencies to perform inspections on behalf of the Department's Air Management Asbestos Program: City of Menasha; City of Milwaukee, Sauk County, and Waushara County. Due to declining levels of 105 grant funds, that funding source can no longer be used to fund asbestos program activities. Consequently, additional asbestos fee revenue is needed to replace 2.0 FTE of funding from the 105 grant, and thus maintain present levels of asbestos program staffing and public health protection activities.

Analysis and supporting documents used to determine the effect on small business

Asbestos related regulatory requirements are not changed by the proposed rules. The proposed rules do increase notification fees for asbestos related projects. See “Effect on small business" section below.

Small Business Impact

Asbestos related regulatory and reporting requirements will not be changed by the proposed rules. The proposed rules will increase notification fees for asbestos related renovation and demolition activities. The fees increases vary according to the quantity of asbestos involved in a renovation or demolition project, and the increases range from $60 per project for small projects (less than 160 square feet or less than 260 linear feet of asbestos containing material) to $575 per project for very large projects (more than 5000 combined linear and square footage of asbestos containing materials). On the order of 1600 project notifications are received annually. It is not possible to predict the number of these projects that will be undertaken by small businesses.

The Small Business Regulatory Coordinator may be contacted at [e-mail], or by calling [phone].

Environmental Impact

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

The 2009-11 Budget Bill increased asbestos inspection fees to: $135 for small asbestos abatement projects, defined as 160 square feet to 260 linear feet; $350 for medium, defined as involving greater than 160 square feet or 260 linear feet but less than 1,000 combined feet; $575 for large, defined as greater than or equal to 1,000 combined feet but less than 5,000 combined feet, and $1,200 for extra large, defined as greater than 5,000 combined feet. These new fees are approximately a 60% increase from the current fees. The bill also created a new $100 fee for notification revisions and a new $100 fee for community fire training burns. Finally, the bill provided supporting statutory language for the above-mentioned fees and for the Department to charge double inspection fees to a project for which a notice of an asbestos renovation or demolition activity was not provided, as required by the Department.

It is projected that the increased fees will generate $246,400 annually.

Agency Contact Person

Bill Baumann

P.O. Box 7921

Madison, WI 53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]

Notice of Hearings

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

rulemaking_notices CR 10-047 CR 10-047

(DNR # AM-09-10)

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.16 and 227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on revising Chapter NR 410, relating to fees for reviewing applications for construction of air pollution sources and affecting small business.

Hearing Information

Date and Time:   Location:

June 7, 2010   Natural Resources State Office Bldg.
Monday   Room G09
at 3:00 PM   101 S. Webster Street
  Madison, WI

June 8, 2010   Havenwoods — Auditorium
Tuesday   6141 N. Hopkins
at 2:00 PM   Milwaukee, WI

June 9, 2010   Northcentral Technical College
Wednesday   Main Building, Room E101
at 2:30 PM   1000 West Campus Drive
  Wausau, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail]; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the proposed rules and fiscal estimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before June 14, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Andrew Stewart

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statutes interpreted

Sections 227.11 (2), 285.11 (1) and (6), 285.14 (1), Stats. The State Implementation Plan developed under s. 285.11(6), Stats., is revised.

Statutory authority

Sections 285.11, 285.69 (1) and (1d), Wis. Stats.

Explanation of agency authority

Section 227.11 (2) (a), Stats., gives state agencies general rulemaking authority. Section 285.11, Stats., gives the Department authority to promulgate rules consistent with ch. 285, Stats. Section 285.69 gives the department the authority to promulgate rules for the payment and collection of reasonable fees for construction permit related activities.

Related statute or rule

None.

Plain language analysis

The proposal is to increase fees for construction permit related actions to ensure that the new source review program has adequate funding to perform it's duties in accordance with requirements and deadlines mandated under s. 285.61, Wis. Stats.

Comparison with federal regulations

Existing federal regulations require, but do not set, fees for review of construction permit applications. Section 110(a)(2)(E)(i) of the Clean Air Act requires that any government who wishes to carry out a State Implementation Plan have ``adequate personnel, funding, and authority under State law to do so." Wisconsin's new source review program is an approved part of the State Implementation Plan and therefore requires adequate funding. US EPA last approved a revision to Wisconsin's State Implementation Plan for a fee related provision on March 11, 2008. [73 FR 12893].

Comparison with similar rules in adjacent states

Other state agencies were contacted to obtain information regarding their air permit programs. While an attempt was made to do a direct comparison, it proves to be difficult since the funding sources and fee structures differ from state to state. No state was able to provide accurate, average costs of different types of construction permit reviews. Based on the review conducted, it appears that fees proposed in this order are similar to those being charged for similar activities in adjacent states having a fee based construction permit program.

Illinois and Indiana:

Illinois and Indiana have similar programs to Wisconsin where their new source review program is funded mainly by construction permit fees. Illinois last raised their fees in 2004, Indiana in 2007.

Michigan:

Michigan relies on general funding for their new source review program. Communications with Michigan indicate there have been internal proposals in Michigan to establish permit fees to help fund the new source review program, but none have moved forward at this time.

Minnesota:

Minnesota currently has a proposal to raise construction permit fees and to structure the fees much like Wisconsin, Illinois, and Indiana. Their proposal would have core activities paid through permit fees. Major reasons given for their proposal to raise fees are that the cost and complexity associated with new source review has increased significantly over the years. Minnesota's current fee structure attempts to base the amount on the level of effort needed to review and issue the air permit. Iowa funds its new source review program through grants and general funds. There are two local Iowa air pollution control agencies that do charge construction permit fees to fund new source review.

Comparisons for fees common to adjacent states

	Illinois	Indiana	Minnesota	Wisconsin (current)	Wisconsin (proposed)
Initial Application Fee	$5,000	No fee	No fee	$1,350	$7,500
BACT/LAER Determination	$5,000	$4,375	$4,275	$2,700	$4,500
Case by case MACT Determination	$5,000	No fee	No fee	$2,700	$4,500
Detailed Modeling Analysis	No fee	$4,375	$4,275	$3,200	$4,500
Public Hearing	$10,000	$625	No fee	$150	$950
Application for Major Modification	$8,000/$12,000	$10,000	No fee	$8,000	$12,000

Summary of factual data and analytical methodologies

Data related to revenues generated by new source fees for FY05-FY09, along with projected work load and costs to administer the new source review program, were used to develop and support this order.

Annual new source review program cost

Estimates were made as to the type and number of construction permit reviews to be conducted in the upcoming fiscal year. For each of these, the level of program effort required to complete each type of review was determined. These levels of efforts then were used to estimate the annual cost to administer the construction permit program, taking into account estimated costs for program staff.

Individual fee increases

A 30% increase was applied to fees last revised in 1999 to account for inflation over the last 11 years. An additional increase was also applied to each fee category to better reflect the level of effort associated with the fee related action. Estimates were made as to the number of fee related actions associated with each type of permit review. These estimate were used in conjunction with the proposed fee to determine that the projected future revenue is sufficient to cover the annual program cost.

Analysis and supporting documents used to determine the effect on small business

The same information described under number 8. was used to determine the effect on small business. No economic impact report has been requested.

Small Business Impact

The cost to small business to obtain a minor construction permit is proposed to increase in the range of 30 to 75 percent depending on the air regulations applicable to the project. The current cost of a minor construction permit sometimes associated with small business, ranges from $6,000 to $8,000.

Many small businesses are able to qualify for coverage under general or registration permits in lieu of needing to obtain a minor construction permit. Currently there is no charge for review and issuance for this type of coverage. New fees are being proposed in this order for reviewing and issuing coverage under a general or registration construction permit, establishing the fee for a general construction permit at $1,500 and a registration construction permit at $1,000.

The Small Business Regulatory Coordinator may be contacted at [e-mail] , or by calling [phone].

Environmental Impact

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

A revenue increase to the state of $1,334,307 is projected based on a four year actual average for revenue generated through new source review fees for FY2006-2009 of $1,647,293.

This proposal does not seek to authorize an increase to Chapter 20 spending authority.