Chapter 285

285.21(1)(b) (b) Standard to protect health or welfare. If an ambient air quality standard for any air contaminant is not promulgated under section 109 of the federal clean air act, the department may promulgate an ambient air quality standard if the department finds that the standard is needed to provide adequate protection for public health or welfare. The department may not make this finding for an air contaminant unless the finding is supported with written documentation that includes all of the following:

285.21(1)(b)1. 1. A public health risk assessment that characterizes the types of stationary sources in this state that are known to emit the air contaminant and the population groups that are potentially at risk from the emissions.

285.21(1)(b)2. 2. An analysis showing that members of population groups are subjected to levels of the air contaminant that are above recognized environmental health standards or will be subjected to those levels if the department fails to promulgate the proposed ambient air quality standard.

285.21(1)(b)3. 3. An evaluation of options for managing the risks caused by the air contaminant considering risks, costs, economic impacts, feasibility, energy, safety, and other relevant factors, and a finding that the proposed ambient air quality standard reduces risks in the most cost-effective manner practicable.

285.21(1)(b)4. 4. A comparison of the proposed ambient air quality standard with ambient air quality standards in Illinois, Indiana, Michigan, Minnesota, and Ohio.

285.21(2) (2) Ambient air increment. The department shall promulgate by rule ambient air increments for various air contaminants in attainment areas. The ambient air increments shall be consistent with and not more restrictive, either in terms of the concentration or the contaminants to which they apply, than ambient air increments under the federal clean air act except as provided under sub. (4).

285.21(3) (3) Cause or exacerbation of ambient air quality standard or increment. The department shall promulgate rules to define what constitutes the cause or exacerbation of a violation of an ambient air quality standard or ambient air increment.

285.21(4) (4) Impact of change in federal standards. If the ambient air increment or the ambient air quality standards in effect on April 30, 1980, under the federal clean air act are modified, the department shall alter the corresponding state standards unless it finds that the modified standards would not provide adequate protection for public health and welfare. The department may not make this finding for an ambient air quality standard unless the finding is supported with the written documentation required under sub. (1) (b) 1. to 4.

285.21 History History: 1995 a. 227 ss. 473, 475, 476, 989; 1997 a. 35; 2003 a. 118.

285.21 Cross-reference Cross-reference: See also ch. NR 404, Wis. adm. code.

285.21 Annotation The promulgation of emission standards is discussed. Wisconsin Hospital Association v. Natural Resources Board, 156 Wis. 2d 688, 457 N.W.2d 879 (Ct. App. 1990).

285.23 285.23 Identification of nonattainment areas.

285.23(1) (1) Procedures and criteria. The department shall promulgate by rule procedures and criteria to identify a nonattainment area and to reclassify a nonattainment area as an attainment area. After February 6, 2004, the department may not identify a county as part of a nonattainment area under the federal clean air act if the concentration of an air contaminant in the atmosphere in that county does not exceed an ambient air quality standard, unless under the federal clean air act the county is required to be designated as part of a nonattainment area.

285.23(2) (2) Documents. The department shall issue documents from time to time which define or list specific nonattainment areas or recommend that areas be designated as nonattainment areas under the federal clean air act based upon the procedures and criteria promulgated under sub. (1). Notwithstanding ss. 227.01 (13) and 227.10 (1), documents issued under this subsection are not rules.

285.23(3) (3) Review. The documents issued under sub. (2) may be reviewed under ss. 227.42 and 227.52.

285.23(4) (4) Procedures.

285.23(4)(a) (a) For any document issued under sub. (2), the department shall hold a public hearing and follow the procedures in this subsection.

285.23(4)(b) (b) The department shall give notice of the public hearing, and shall take any steps it deems necessary to convey effective notice to persons who are likely to have an interest in the proposed document. The notice shall be given at least 30 days prior to the date set for the hearing. The notice shall include a statement of the time and place at which the hearing is to be held and either a text of the proposed document or a description of how a copy of the document may be obtained from the department at no charge.

285.23(4)(c) (c) The department shall hold a public hearing at the time and place designated in the notice of hearing, and shall afford all interested persons or their representatives an opportunity to present facts, views or arguments relative to the proposal under consideration. The presiding officer may limit oral presentations if it appears that the length of the hearing otherwise would be unduly increased by reason of repetition. The department shall afford each interested person opportunity to present facts, views or arguments in writing whether or not he or she has had an opportunity to present them orally.

285.23(4)(d) (d) At the beginning of each hearing the department shall present a summary of the factual information on which the document is based. The department or its duly authorized representative may administer oaths or affirmations and may continue or postpone the hearing to such time and place as it determines. The department shall keep minutes or a record of the hearing in such manner as it determines to be desirable and feasible.

285.23(4)(e) (e) The department shall receive written comments on the document for at least 10 days after the close of the hearing. The department may not issue documents under this section earlier than 30 days after the close of the hearing.

285.23(6) (6) Report to standing committees. Before the department issues documents under sub. (2) and at least 60 days before the governor is required to make a submission on a nonattainment designation under 42 USC 7407 (d) (1) (A), the department shall prepare, and provide to the standing committees of the legislature with jurisdiction over environmental matters under s. 13.172 (3), a report that contains a description of any area proposed to be identified as a nonattainment area and supporting documentation. The department shall also submit to the legislative reference bureau for publication in the administrative register a notice of availability of the report. If, within 30 days after the department submits the report, the chairperson of a standing committee to which the report was provided submits written comments on the report to the department, the secretary shall respond to the chairperson in writing within 15 days of receipt of the comments.

285.23 History History: 1979 c. 221; 1981 c. 314 s. 146; 1985 a. 182 s. 57; 1989 a. 56; 1995 a. 227 s. 463; Stats. 1995 s. 285.23; 2003 a. 118; 2007 a. 20.

285.23 Cross-reference Cross-reference: See also ch. NR 401, Wis. adm. code.

285.25 285.25 Air resource allocation.

285.25(1) (1) Determination. The department, after considering the recommendations submitted under s. 144.355, 1979 stats., shall promulgate by rule procedures and criteria to determine the allocation of the available air resource in an attainment area.

285.25(2) (2) Allocation. The department, after considering the recommendations submitted under s. 144.355, 1979 stats., shall promulgate by rule air resource allocation standards to allocate the available air resource in attainment areas among sources receiving a construction permit or operation permit or an elective operation permit for an existing source after the effective date of this rule, other air contaminant sources and possible future air contaminant sources. The air resource allocation standards may allow for emission reduction options. The application of air resource allocation standards may not result in a violation of an ambient air quality standard or an ambient air increment.

285.25(3) (3) Documents. The department shall maintain records indicating how much of the available air resource has been allocated in attainment areas. The department shall make these records available for public inspection.

285.25 History History: 1979 c. 221; 1991 a. 302; 1995 a. 227 s. 470; Stats. 1995 s. 285.25.

285.27 285.27 Performance and emission standards.

285.27(1) (1) Standards of performance for new stationary sources.

285.27(1)(a) (a) Similar to federal standard. If a standard of performance for new stationary sources is promulgated under section 111 of the federal clean air act, the department shall promulgate by rule a similar emission standard, including administrative requirements that are consistent with the federal administrative requirements, but this standard may not be more restrictive in terms of emission limitations than the federal standard except as provided under sub. (4).

285.27(1)(b) (b) Standard to protect public health or welfare. If a standard of performance for any air contaminant for new stationary sources is not promulgated under section 111 of the federal clean air act, the department may promulgate an emission standard of performance for new stationary sources if the department finds the standard is needed to provide adequate protection for public health or welfare.

285.27(1)(c) (c) Restrictive standard. The department may impose a more restrictive emission standard of performance for a new stationary source than the standard promulgated under par. (a) or (b) on a case-by-case basis if a more restrictive emission standard is needed to meet the applicable lowest achievable emission rate under s. 285.63 (2) (b) or to install the best available control technology under s. 285.63 (3) (a).

285.27(2) (2) Emission standards for hazardous air contaminants.

285.27(2)(a) (a) Similar to federal standard. If an emission standard for a hazardous air contaminant is promulgated under section 112 of the federal clean air act, the department shall promulgate by rule a similar standard, including administrative requirements that are consistent with the federal administrative requirements, but this standard may not be more restrictive in terms of emission limitations than the federal standard except as provided under sub. (4).

285.27 Cross-reference Cross-reference: See also ch. NR 463, Wis. adm. code.

285.27(2)(b) (b) Standard to protect public health or welfare. If an emission standard for a hazardous air contaminant is not promulgated under section 112 of the federal clean air act, the department may promulgate an emission standard for the hazardous air contaminant if the department finds the standard is needed to provide adequate protection for public health or welfare. The department may not make this finding for a hazardous air contaminant unless the finding is supported with written documentation that includes all of the following:

285.27(2)(b)1. 1. A public health risk assessment that characterizes the types of stationary sources in this state that are known to emit the hazardous air contaminant and the population groups that are potentially at risk from the emissions.

285.27(2)(b)2. 2. An analysis showing that members of population groups are subjected to levels of the hazardous air contaminant that are above recognized environmental health standards or will be subjected to those levels if the department fails to promulgate the proposed emission standard for the hazardous air contaminant.

285.27(2)(b)3. 3. An evaluation of options for managing the risks caused by the hazardous air contaminant considering risks, costs, economic impacts, feasibility, energy, safety, and other relevant factors, and a finding that the chosen compliance alternative reduces risks in the most cost-effective manner practicable.

285.27(2)(b)4. 4. A comparison of the emission standards for hazardous air contaminants in this state to hazardous air contaminant standards in Illinois, Indiana, Michigan, Minnesota, and Ohio.

285.27(2)(c) (c) Restrictive standard. The department may impose a more restrictive emission standard for a hazardous air contaminant than the standard promulgated under par. (a) or (b) on a case-by-case basis if a more restrictive standard is needed to meet the applicable lowest achievable emission rate under s. 285.63 (2) (b) or to install the best available control technology under s. 285.63 (3) (a).

285.27(2)(d) (d) Emissions regulated under federal law. Emissions limitations promulgated under par. (b) and related control requirements do not apply to hazardous air contaminants emitted by emissions units, operations, or activities that are regulated by an emission standard promulgated under section 112 of the federal clean air act, including a hazardous air contaminant that is regulated under section 112 of the federal clean air act by virtue of regulation of another substance as a surrogate for the hazardous air contaminant or by virtue of regulation of a species or category of hazardous air contaminants that includes the hazardous air contaminant.

285.27(3) (3) Limitation on imposition of emission standards. The department may not impose emission standards on a coal-powered car ferry that was manufactured before 1954 and has operated only on Lake Michigan if the coal-powered car ferry does not burn coal with a higher sulfur content than the coal burned before May 2, 1990.

285.27(3m) (3m) Exemption from standards for certain combustion turbines.

285.27(3m)(a) (a) In this subsection, “combustion turbine” means a simple cycle combustion turbine.

285.27(3m)(b) (b) The performance standards promulgated by the department under s. NR 428.04 (2) (g) 1. a. and 2. a., Wis. Adm. Code, do not apply to a combustion turbine that undergoes a modification on or after February 1, 2001 if all of the following apply:

285.27(3m)(b)1. 1. The department and the federal environmental protection agency find that the owner or operator of the combustion turbine has satisfactorily demonstrated that equipping the turbine with a dry low nitrogen oxide combustion system is not technologically or economically feasible or a dry low nitrogen oxide combustion system is not commercially available from the manufacturer of the combustion turbine.

285.27(3m)(b)2. 2. The federal environmental protection agency concurs, in writing, with the department’s finding under subd. 1.

285.27(3m)(b)3. 3. The owner or operator of the combustion turbine controls nitrogen oxide emissions during operation of the combustion turbine by injecting water into the combustion turbine according to the manufacturer’s specifications.

285.27(3m)(b)4. 4. The concentration of nitrogen oxide emitted from the combustion turbine does not exceed 25 parts per million dry volume, corrected to 15 percent oxygen, on a 30 day rolling average basis during combustion of gaseous fuels and does not exceed 65 parts per million dry volume, corrected to 15 percent oxygen, on a 30 day rolling average basis during combustion of distillate fuels.

285.27(3m)(c) (c) The department shall determine whether a combustion turbine undergoes a modification under par. (b) in accordance with s. NR 428.04 (1), Wis. Adm. Code.

285.27(4) (4) Impact of change in federal standards. If the standards of performance for new stationary sources or the emission standards for hazardous air contaminants under the federal clean air act are relaxed, the department shall alter the corresponding state standards unless it finds that the relaxed standards would not provide adequate protection for public health and welfare. The department may not make this finding for an emission standard for a hazardous air contaminant unless the finding is supported with the written documentation required under sub. (2) (b) 1. to 4. This subsection applies to state standards of performance for new stationary sources and emission standards for hazardous air contaminants in effect on April 30, 1980, if the relaxation in the corresponding federal standards occurs after April 30, 1980.

285.27(5) (5) Residential and commercial wood heaters.

285.27(5)(a) (a) In this subsection, “residential or commercial wood heater” means an enclosed wood-burning appliance intended for residential or commercial use to heat the space in which it is located or to heat water for domestic or commercial use, including an appliance that is designed to burn pellets made of wood.

285.27(5)(b) (b) Notwithstanding sub. (1), the department may not promulgate a rule, or enforce a federal regulation, that specifies a new source performance standard or other emission standard for residential or commercial wood heaters that is more stringent than any new source performance standard for residential or commercial wood heaters in effect on December 31, 2014.

285.27 Cross-reference Cross-reference: See also s. NR 462.015, Wis. adm. code.

285.27 History History: 1995 a. 227 s. 474, 989; 2003 a. 118; 2013 a. 91; 2013 a. 151 s. 28; 2015 a. 303.

285.27 Cross-reference Cross-reference: See also NR 400-, Wis. adm. code.

285.27 Annotation The promulgation of emission standards under s. 144.375 (5) (b) [now s. 285.27 (2) (b)] is discussed. Wisconsin Hospital Association v. Natural Resources Board, 156 Wis. 2d 688, 457 N.W.2d 879 (Ct. App. 1990).

285.28 285.28 Agricultural waste; hazardous air contaminants. The department may not regulate the emission of hazardous air contaminants associated with agricultural waste except to the extent required by federal law.

285.28 History History: 2011 a. 122.

285.29 285.29 Best available retrofit technology.

285.29(1) (1) Case-by-case specification. If visibility in an area is identified as an important value of the area under section 169A of the federal clean air act, the department shall specify on a case-by-case basis the best available retrofit technology for any existing major source located in the area and identified under section 169A of the federal clean air act.

285.29(2) (2) Considerations. In specifying the best available retrofit technology, the department shall consider:

285.29(2)(a) (a) The cost of compliance.

285.29(2)(b) (b) The existing pollution control technology in use at the source.

285.29(2)(c) (c) The remaining useful life of the source.

285.29(2)(d) (d) The degree of improvement in visibility which may be anticipated to result from the use of various retrofit technologies.

285.29(2)(e) (e) The energy and nonair quality environmental impacts of compliance.

285.29 History History: 1979 c. 221; 1995 a. 227 s. 469; Stats. 1995 s. 285.29.

subch. IV of ch. 285 SUBCHAPTER IV

VOLATILE ORGANIC COMPOUNDS AND MOBILE SOURCES; EMISSION LIMITS AND STANDARDS

285.30 285.30 Motor vehicle emissions limitations; inspections.

285.30(1) (1) Definitions. As used in this section, unless the context requires otherwise:

285.30(1)(a) (a) “Federal act” means the federal clean air act, 42 USC 7401 et seq., and regulations issued by the federal environmental protection agency under that act.

285.30(1)(b) (b) “Motor vehicle” has the meaning designated under s. 340.01 (35).

285.30(2) (2) Limitations. The department shall adopt rules specifying emissions limitations for all motor vehicles not exempted under sub. (5). The limitations may be different for each size, type and year of vehicle engine affected and may not be more stringent than those required by federal law at the time of the vehicle’s manufacture. The limitations shall be adopted and periodically revised upon consideration of the following factors:

285.30(2)(a) (a) The emissions reductions necessary to achieve federally mandated ambient air quality standards by any deadline established by the federal act and to maintain those standards after any deadline established by the federal act.

285.30(2)(b) (b) The emissions levels attainable by reasonable preventive maintenance practices relating to installed emission control equipment and devices for each model year, size and type of motor vehicle affected.

285.30(2)(c) (c) The requirements for eligibility for a manufacturer’s warranty under section 7541 (b) of the federal act.

285.30(2)(d) (d) The requirements of the federal act.

285.30(3) (3) Counties where inspections required. If the department finds that air quality within a county will not meet one or more applicable primary or secondary ambient air quality standards by any deadline established by the federal act, or that these standards will not be maintained in the county after any deadline established by the federal act and that inspection of emissions from motor vehicles in any part of the county is required by federal law to attain or maintain these standards, the department shall certify this finding to the department of transportation.

285.30(4) (4) Termination. If the department finds that air quality within a county specified in a certification under sub. (3) has attained all applicable ambient air quality standards and that these standards will be maintained in the county or that control of motor vehicle emissions is no longer required by federal law for attainment and maintenance of these standards, the department shall notify the department of transportation that the county is withdrawn from the certification under sub. (3).

285.30(5) (5) Exemptions. Emissions limitations promulgated under sub. (2) do not apply to the following motor vehicles:

285.30(5)(a) (a) A motor vehicle of a model year of 1995 or earlier.

285.30(5)(b) (b) A motor vehicle of a model year of 2006 or earlier that has a gross vehicle weight rating exceeding 8,500 pounds, as determined by the manufacturer of the vehicle, and a motor vehicle of a model year of 2007 or later that has a gross vehicle weight rating exceeding 14,000 pounds, as determined by the manufacturer of the vehicle.

285.30(5)(c) (c) A motor vehicle exempt from registration under s. 341.05, except that a motor vehicle owned by the United States is not exempt unless it comes under par. (a), (b), (d), (e), (f), (g), (h), (j), (k), or (m).